Northey, Travis v Bradken Resources Pty Limited - [2013] FWC 6423

1

Fair Work Act 2009 
s 394—Unfair dismissal

Travis Northey
v
Bradken Resources Pty Limited
(U2012/17051)

DEPUTY PRESIDENT SAMS SYDNEY, 13 SEPTEMBER 2013

Termination of employment - summary dismissal for serious misconduct - serious breaches of 
safety policies - explanations of employee not accepted - other admissions of employee -
period of service and employment record considered - no procedural fairness issues - serious 
misconduct established as valid reason for dismissal - no sufficient mitigating circumstances -
dismissal not harsh, unreasonable or unjust - application dismissed.

INTRODUCTION

[1] On 12 December 2012, Mr Travis Northey, a Leading Hand/Boilermaker was 

summarily dismissed from his employment at Bradken Resources Pty Ltd, Ipswich, 

Queensland (the ‘respondent’).  The respondent claimed the applicant had engaged in serious 

misconduct on 6 December 2012, in that he had deliberately and wilfully breached a safety 

requirement and then, when taken to task in respect of the breach, lost his temper, lashed out, 

further endangering other employees and damaged company property (a ‘Do Not Enter’ sign).

[2] Mr Northey (hereinafter referred to as the ‘applicant’) lodged an application, pursuant 

to s 394 of the Fair Work Act 2009 (the ‘Act’) for a remedy for unfair dismissal on 20 

December 2012 claiming his dismissal was unfair, particularly given his 8 years of 

unblemished loyal service and that this was a single one off incident for which the penalty of 

dismissal was ‘harsh, unreasonable and unjust’. The matter was unable to be resolved at 

conciliation and consequently referred to me for arbitration in Brisbane.

[3] At the outset it can be safely assumed that the application is competently before the 

Fair Work Commission (the ‘Commission’) in that:

[2013] FWC 6423

DECISION


E AUSTRALIA FairWork Commission




 



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 the application was filed with the Commission within the statutory time frame (s

394(2));

 the applicant is a person protected from unfair dismissal (s 382);

 there is no dispute that the applicant’s employment was terminated at the initiative of 

the employer (s 386); 

 the employer is not a small business as it employs 270 employees; and 

 the dismissal was not a case of genuine redundancy.

[4] As a result, the only matters for the Commission’s determination is whether the 

applicant’s dismissal was ‘harsh, unjust or unreasonable’ according to the criteria set out at s 

387 of the Act and if so found, what if any remedy should be awarded to the applicant.  I shall 

come back to the relevant legislative provisions later. At this point, I propose to summarise 

the evidence adduced in this case from two witnesses for the applicant (himself and Mr 

Franklin) and eight witnesses for the respondent.

THE EVIDENCE

[5] The following persons provided written and/or oral evidence in the proceeding: 

For the applicant

 Travis Northey, applicant; 

 Steven Ernest Franklin, State Organiser for the Australian Manufacturing Workers’ 

Union (AMWU) (the ‘Union’).

For the respondent

 John Campbell, Supervisor, Machine Shop

 Robert Brand, Maintenance Planner

 David Taylor, Maintenance Worker

 Gary Frost, Manufacturing Manager

 Steven William Andrews, Team Leader and Boilermaker

 Steven John Gourgaud, Boilermaker

 Mark William Fraser, Boilermaker

 Shane Winterford, Human Resources Coordinator

[6] A number of extracts from the Bradken Employee Handbook are relevant to this 

matter. These include:








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(1) One of the possible reasons for disciplinary action is:

 failure to obey Occupational Health and Safety requirements in any 

way, which places yourself or other workers at risk of injury or 

illness;

 use of abusive language to other persons on site;

 wilful misuse of tools, equipment or the defacing of company 

property.

(2) Summary dismissal may occur as a result of:

 wilfully violating safety, environmental or general company policy 

and procedures.

[7] The applicant was employed under the terms and conditions of the Bradken Ipswich 

Engineering Operations Enterprise Agreement 2010 [AE882343] (the ‘Agreement’). Under 

the Agreement’s heading ‘Summary Dismissal’, the following is expressed:

‘The Employer has the right to dismiss any employee without notice for serious 
misconduct and in such cases any entitlements are to be paid up to the time of 
dismissal only.’

[8] Frequent reference will be made to a Job Safety Analysis (JSA) when there is the 

establishment of an exclusion zone for placing the oven lid on the floor and if there is not 

enough room, to leave it suspended safely. The JSA requires: 

‘Operators must ensure that all personnel not involved with lifting the oven lid are kept 
out of the exclusion zone. 

Operators are to erect barricades or tape area off to preven personnel entering the 
exclusion zone needed to lift and place the oven lid.

Exclusion area where oven lid placed must be clear of obstacles and obstructions (e.g. 
Cables, leads, machinery etc).’ 

[9] The Commission was also provided with a number of photographs of the incident 

scene, a damaged ‘Do Not Enter’ sign and hand drawn maps said to recreate the incident.

There was some confusion as to whether the date of the incident was on 5 or 6 December 

2012. Nothing turns on the date, although, as the contemporaneous documents consistently 

identify 6 December, I shall adopt that date where mentioned throughout the decision.

For the applicant








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[10] Although the applicant’s letter of termination and separation certificate do not identify 

the reasons for his dismissal he understood it was for the reasons described at paragraph 1 

above. In addition, and although not relied on at the time, the applicant later informed the 

respondent that he had been taking prescribed medication. However, he had failed to advise 

his supervisor to that effect. The respondent also regarded this as a serious breach of company 

policy justifying summary dismissal. The applicant denied all the allegations and set out his 

reasons as follows.

[11] In early November 2012, the applicant said he advised the respondent he was seeking 

access to its employee assistance program as he was having personal problems and needed 

someone to talk to. He had been prescribed medication (Benzodiazepine) and given a doctor’s 

certificate. He had told Mr Andrews about his medication at the time.

[12] About 2 weeks prior to his dismissal the applicant raised safety concerns with Senior 

Supervisor, John Campbell over the maintenance plans for a crane he was required to drive.  

Mr Campbell told him not to worry about it and ‘keep your head down’. On 3 December 2012 

he repeated his serious safety concerns, firstly with Maintenance Supervisor David Taylor,

and then Maintenance Co-ordinator, Robert Brand. Mr Brand asked if he was ‘overreacting’. 

As the applicant was concerned with these responses, he then spoke to Senior Maintenance 

Co-ordinator David Haamer who told him, ‘Let it go’.

[13] On 6 December 2012 around 7:00 am the applicant was instructed by Mr Andrews to 

collect liquid nitrogen from one end of the warehouse and take it to the other end. His Team 

Leader had not mentioned a truck would obstruct the pathway, nor did he mention an 

exclusion zone would be erected on the pathway around the oven. There had been no toolbox 

meeting that morning to discuss these issues.

[14] The applicant said he collected the forklift and travelled west. He did not see a truck or 

exclusion zone. After collecting the liquid nitrogen, he travelled back at walking speed (1.4 

km an hour) because it was important to drive safely when carrying a hazardous substance. 

The applicant said he now noticed a truck obstructing the path and, as a result, he could not 

see above or below the truck. He navigated around the truck and noticed the lid was removed 

from the oven. He said that although the lid is removed when work is being done inside the 

oven, the lid can remain off for days. It does not necessarily mean that workers are working in 








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the oven. He claimed that there had been no previous occasion where exclusion zones were 

placed while work was performed in the oven. He estimated this had been the case on 30 

occasions in 2012. The applicant described how he would erect an exclusion zone for areas of 

high risk work. It was also typical to be advised by his supervisor of exclusion zones in his

work area. This had not occurred on this occasion.

[15] Continuing the narrative, the applicant said he then noticed a small ‘Do Not Enter’

sign (60 cm tall 30 cm wide). He stopped and when he looked in the rear view mirror he 

noticed another warning sign in front of the truck, which he had not observed earlier. He now 

realised he was in an exclusion zone. He then checked the surroundings and left the zone. The 

applicant said after he passed the second sign he recalled seeing Mr Steven Gourgaud on a 4.0 

tonne forklift coming towards him at about 12 km an hour. The forklift was rattling. Mr 

Gourgaud and the applicant had the following exchange:

Gourgaud: ‘Didn’t you see the fucking sign?’

Applicant: ‘No need to go off, sorry I didn’t see the sign.’

Gourgaud: ‘What’s the fucking point of having fucking signs if people fucking 

ignore them?’

[16] After parking the forklift, the applicant then walked towards the second sign. He

kicked it over and said: ‘Well fuck it, safety only suits Bradken when it suits Bradken.’ He 

claimed that he kicked the sign because he was frustrated that his concerns the day before had 

been ignored and then he was abused for accidentally entering an exclusion zone.

[17] The applicant said he was called to a meeting around 8:00am with Mr Campbell and 

Mr Winterford. He was not offered a support person. Mr Winterford opened the meeting and 

said, ‘I think you know why you’re here’ and Mr Campbell added ‘I told you to keep your 

head down’. The applicant gave his version of the events. He was accused of intentionally 

driving into the exclusion zone. He was then stood down with pay. 

[18] The applicant was dismissed in the meeting on 12 December 2012, during which he 

was again accused of intentionally driving into the exclusion zone. After the meeting, he 

informed Mr Winterford and Mr Frost that he had been prescribed anti anxiety medication 

soon after he had been stood down. When he was leaving the building the applicant was 








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handed a framed certificate stating - ‘Congratulations - Bradken Recognition Awards’ with 

his name on it. The applicant stated that he had not been subject to any disciplinary action in 

eight years of service. He took great pride in his work and his safety record, as demonstrated 

by the certificate he had received.

[19] The applicant referred to an earlier incident where he had been working in the paint 

shed without having been inducted. No disciplinary action was taken arising from this 

conduct. 

[20] The applicant secured full time work on 5 March 2013 in the metal recovery industry. 

He felt he could not return to his former workplace after the way he had been treated.

[21] In a supplementary statement, the applicant responded to the statement of the 

respondent’s witness statements as follows:

(a) He was not aware of a new policy requiring an exclusion zone to be set up 

around the oven when employees were working inside.

(b) Previously, when employees were working inside the oven no exclusion zone

was set up. This had been the case, at least since 2004.

(c) Erecting a barricade to prevent access would mean barrier tapes, bollards or 

barrier bars.

(d) The applicant said he was surprised that it was alleged he had crossed safety 

lines to get around the truck. This was not raised with him at the time.

(e) The applicant had never been told, or witnessed any employee being told, that 

they are not to cross walkway yellow lines. 

(f) The applicant accepted he could have taken another route to do the job. 

However, this would have been longer and on unlevelled ground. Carrying liquid 

nitrogen required the shortest and safest path possible.

(g) The applicant made it very clear to Mr Frost that when he saw the second sign 

and looked in his rear view mirror, he realised he was in an exclusion zone. It 

was not appropriate to reverse or stop the forklift and leave it unattended.

(h) The applicant admitted that he had kicked the sign, but only after Mr Gourgaud

had sworn at him.

(i) He did not kick the sign towards the oven or towards any person. It was not 








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kicked intentionally.

(j) Mr Andrews had asked him ‘what the fuck has happened’, the applicant tried to 

explain, but Mr Andrews said ‘I’m not going to argue with you’.

(k) The applicant claimed signs were used in front of machines, not for erecting 

exclusion zones.

(l) Mr Andrews had not contacted him to advise of the exclusion zone, which was 

the usual process.

(m) The applicant disagreed that he had not apologised. He had responded to 

Mr Gourgaud by saying ‘Sorry, I didn’t see the sign.’

(n) The applicant claimed that there was enough space to enter the exclusion zone 

without seeing or knocking over the first sign.

[22] The applicant said he was presently working as a casual and the work was very up and 

down. In the last week and a half he had only worked 3 days.

[23] In cross-examination, the applicant agreed that he was familiar with, and knew the 

meaning of the yellow ‘Do Not Enter’ signs. They are frequently used in the factory. He also 

agreed there were other paths he could have chosen, including one about 57 metres to the 

right of the path he actually travelled on. However, while it was accessible, it would have 

required him exiting the warehouse and travelling over uneven ground before re-entering the 

warehouse.

[24] The applicant insisted the path was obstructed by a truck. However, when he was 

asked why he did not mention the truck when confronted by Mr Gourgaud, he claimed he was

not given an opportunity to explain. He also did not tell this to Mr Winterford and Mr Frost

later that day when he was suspended. He claimed that he was just stood down and told an 

investigation was to be conducted. He believed it was futile to try and explain.

[25] The applicant deposed that the truck was about 2.5 metres wide and 1.7 metres high. 

He could not see the pathway beyond the truck. He believed the lid to the oven was on the 

ground. He had not seen any ‘Do Not Enter’ signs. It had taken between 23 to 27 minutes to 

collect 80 litres of liquid nitrogen. When he returned, the truck and trailer were there and he 

had no idea why they were. The applicant said he did not see the first sign, but when he 

looked in the rear view mirror, he saw a second sign behind him. In order to get around the 








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truck, he veered round it at an angle. He necessarily had to go over the yellow lines. He said 

he could not do a wider turn because there was a cage and a pallet adjacent to the pathway. He 

maintained a directional path towards the bollard at the end of the oven. He believed he could 

manoeuvre himself quite clearly with adequate room past each side of the forklift. 

[26] The applicant conceded he had obviously driven past the sign, but he had not seen it.

He disagreed with Mr Gourgaud that given the tight squeeze with the obstruction, he would 

have had to have hit the sign or run over it. He claimed he was travelling very slowly and 

carefully, but disagreed that he could not have failed to see the sign. There was some 

disagreement about the height of the sign. The applicant believed it was 500 to 600 mm high, 

rather than a metre high.

[27] Once having seen the second sign the applicant noticed no crane or vehicle activity. 

He saw two persons in the oven and decided to proceed safely out of the area and continue 

forward. He had perceived no clear and present danger and believed it was safe to continue. 

Had the two people in the oven come out, they would have seen him coming. Nevertheless, he 

agreed that the two employees could have come out, at any time, and that there was a risk.

The applicant maintained that had he seen the first sign, he would not have proceeded and

would have sought an alternate route. He accepted that with the lid off the oven it was likely 

person/s were inside.

[28] The applicant denied he was angry when he kicked the sign. Rather, he was frustrated 

when he attempted to explain what happened and was verbally abused by Mr Gourgaud. The 

applicant denied the sign became airborne and travelled 10 metres towards the oven, nearly 

hitting Mr Schooth who was coming out of the oven. He believed the sign had flown 3 metres 

and landed next to the fence of the Zayer machine. He accepted that the sign was cracked in a 

number of places, but it was a ‘flimsy’ thing compared to a barricade or bollard. He regretted 

kicking the sign, but he had just been frustrated.

[29] The applicant accepted he had said ‘Safety only suits Bradken when it suits Bradken’. 

He believed this was a reference to a number of things, not just the incident with the crane 

being unsafe, although he had taken it up with a number of people to no avail. He agreed he 

was not a health and safety representative. However, safety is every person’s responsibility. 

The applicant had been told by both Mr Brand and Mr Gourgaud that the crane had been 








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inspected by the manufacturer and declared safe. However, he did not believe they possessed 

the necessary mechanical or engineering skills to make that assessment.

[30] The applicant acknowledged that he had a disagreement with Mr Frost about 3 months 

earlier when he was found working in the paint shop, without being inducted and without 

authority. Even so, the applicant said Mr Frost was pleased with the outcome of the job and 

nothing further was said about the incident. 

[31] The applicant rejected Mr Frost’s view that he could not have failed to have seen the 

sign. He believed he had done the right thing and made the correct decision. He denied that he 

was still simmering from the incident the day before, and as an act of defiance, went through

the exclusion zone and kicked the sign. He was focussed on the job at hand to safely get the 

liquid nitrogen back to the job.

[32] The applicant was asked about Mr Campbell’s statement, his supervisor in the 

machine shop. The applicant agreed he had not been asked to operate an unsafe crane. He had 

told him, ‘it doesn’t matter who I speak to, no one listens.’ He denied being irritated by the 

situation. He claimed he was an employee who went above and beyond what other workers 

do. When asked, he would work on weekends for 12 hours a day.

[33] In re-examination, the applicant claimed he had drawn a map for Mr Frost on 12 

December 2012, on which he indicated the truck blocking the path. He believed he discussed 

the truck with Mr Frost at the time. The applicant insisted that it had been the usual practice to 

drive past the oven in a forklift. 

[34] He also said that he had not been shown a crane repair certificate which Mr Frost said 

he had shown to Mr Franklin. As far as he was concerned, the crane safety issue was 

unresolved at the time of his dismissal.

Mr Steven Franklin

[35] Mr Franklin is an organiser for the Australian Manufacturing Workers’ Union 

(AMWU) for the site and has been responsible for his members there since 2008. The 

applicant was an AMWU delegate.








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[36] Mr Franklin said he attended the site on 4 December 2012 to hold a meeting of 

AMWU members. The applicant raised with him a safety concern about a crane. Mr Franklin 

raised the matter with Human Resources Officer, Mr Winterford who told him all the relevant 

documentation was available and trial lifts had been conducted demonstrating the crane to be 

safe.

[37] On 12 December 2012, Mr Franklin attended a phone meeting with the applicant, 

AMWU delegate, Steve Jones and company representatives, Mr Gary Frost and 

Mr Winterford to discuss an incident on 6 December 2012. He recalled the following:

 the company representatives accusing the applicant of seeing the ‘Do No Enter’ sign 

and deliberately driving around it and entering the exclusion zone;

 the applicant denied the allegation, but admitted kicking the sign over;

 the applicant had said that this had been the first occasion an exclusion zone had 

been erected around the oven; and

 the Company representatives saying the signs were big enough to be seen.

[38] Mr Franklin recalled that he had said that the tank of liquid nitrogen may have 

obstructed the applicant’s view and it was possible he did not see the signs, especially with a 

truck which was obstructing the path. At the conclusion of the meeting that the applicant was 

dismissed for a wilful breach of safety by entering the exclusion zone and that he had kicked 

the sign over.

[39] Mr Franklin has known the applicant for a number of years. He believed he took his 

job extremely seriously and often worked 7 days a week. He also knew him to be outspoken. 

He would not shy away from raising legitimate workplace concerns with management. The 

applicant told him he was extremely upset and disappointed by his dismissal because he had 

been a committed employee for a long time.

[40] In oral evidence Mr Franklin said he could not recall all of the matters Mr Frost said 

had been raised with the applicant during the meeting. Mr Franklin believed the truck had 

obscured the applicant’s view of the first sign and a second sign was visible only when the 

applicant had entered the exclusion zone. At that point he stopped, assessed the situation and 

proceeded on with a tank of liquid nitrogen. Mr Franklin also deposed that the applicant had 








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openly admitted kicking the sign over, but only after he was shouted at and abused by Mr 

Gourgaud.

[41] In cross-examination, Mr Franklin was asked to identify photographs of the area 

where the incident had occurred. Mr Franklin acknowledged that there were other options the 

applicant could have taken to carry the liquid nitrogen to the other end of the warehouse. He 

agreed the yellow line markings (gangways) were placed to ensure as far as possible 

pedestrians do not intersect with forklifts. Mr Franklin claimed he learnt of the obstructing 

truck when he spoke to the applicant before the 12 December 2013 meeting. He agreed he did 

not mention this in his statement.

[42] In re-examination, Mr Franklin said that pedestrians can and are required to walk 

outside the yellow line makings. They serve as a guide to ensure a clear thoroughfare. 

Nevertheless, he agreed that there would be some intersection between forklifts and 

pedestrians.

For the respondent

Three of the respondent’s witnesses were not required for cross examination - Mr John 

Campbell, Mr Robert Brand and Mr David Taylor.

Mr John Campbell

[43] Mr Campbell is the supervisor of the machine shop. He was advised of the incident on 

6 December 2012 and escalated it to Mr Frost. When he, Mr Frost and Mr McLeish discussed 

the incident, Mr Frost suggested that the applicant be stood down, and an investigation be 

commenced. This would allow that the applicant to ‘cool down’ before providing the 

company with his side of the story.

[44] Mr Campbell took the applicant to Mr Winterford’s office, who had said, ‘I think you 

know why you are here.’ At no time did the applicant request a support person. Not much was 

said in this meeting, although Mr Campbell denied saying to the applicant, ‘I told you to keep 

your head down.’ Rather, he had said that he needed to stop bringing unwanted attention to 

himself and he should think about things before he acts.








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[45] Mr Campbell said he had a reasonable working relationship with the applicant. 

However, he believed he would bend the rules and do things his own way in order to get his 

point across. He would never acknowledge any wrongdoing, but had, on a few occasions, 

quoted the wrongdoings of others. 

[46] Mr Campbell said that no one had ever requested the applicant operate an unsafe 

crane. This was a completely separate issue to his safety breach on 6 December 2012. A green 

form had been created because other employees felt unsafe working with the applicant. The 

Company was then obliged to investigate the matter and determine what action to take. Mr 

Campbell had nothing to do with the applicant’s termination of employment.

Mr Robert Brand

[47] Mr Brand confirmed that the applicant had approached him around September 2012 

about his concerns over the safety of one of Bradken’s cranes - the cable from a 

decommissioned 50 tonne crane was swapped to a 35 tonne crane which was having issues 

with its cables. Kone inspected and approved the cable and it was fitted by another crane 

company, because Kone was unavailable.

[48] The applicant raised his concerns with Mr Taylor and then Mr Brand. He had tried to 

explain that the 50 tonne cable was safe and more than suitable. He told him to let it go. Mr 

Brand thought the applicant would become obsessed and unhappy at not getting his own way. 

He tried to unsuccessfully reason with him. Mr Brand said that given Kone were the experts 

and the crane had been certified safe, he believed it to be so.

[49] Mr Brand also understood that since the applicant was promoted to Leading Hand, he 

tended to interfere in areas which were not in his control. For example, he would go to the 

fabrication site when his responsibilities were on the main site.

[50] Mr Brand said that exclusion zones on the site could include barricades, tape or the 

plastic ‘Do Not Enter’ signs. If these signs are not observed, individuals can be reprimanded. 

Mr David Taylor








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[51] Mr Taylor’s evidence was that he had seen exclusion zones around the ovens and it is 

common knowledge not to enter. He said that breaches of safety, depending on the 

seriousness, can result in instant dismissal.

Mr Gary Frost

[52] Mr Frost was advised by Mr Campbell on 6 December 2012, that a ‘green form’ had 

been filed against the applicant. It was decided to stand him down with pay in order for an 

investigation to be conducted. As the applicant was an AMWU delegate, Mr Frost wanted to 

ensure he was adequately supported through the process. He spoke to another Union delegate, 

Mr Jones, and the Union Organiser, Mr Franklin. Mr Frost arranged for a meeting involving 

Mr Franklin on 12 December at 1:00pm. 

[53] After an investigation by Mr Winterford, Mr Frost reviewed statements from three 

persons and some photos. He understood that an exclusion zone had been set up around the 

oven area because the lid of the oven needed to be moved and two workers, Mr Chris Schooth 

and Mr Mark Fraser, were performing work inside. Mr Gourgard was outside the oven and 

saw the applicant on a forklift inside the exclusion zone. When Gourgard spoke abruptly to 

the applicant about him entering the exclusion zone, the applicant got off the forklift and 

kicked the ‘Do Not Enter’ sign. 

[54] At the meeting on 12 December 2012, Mr Franklin attended by phone and Mr Jones 

was the applicant’s support person. Mr Frost said he was confused when the applicant began 

by saying, ‘I must do what I must do’. He did not appear to show any remorse or any concern 

for the seriousness of the situation. 

[55] Mr Frost said the applicant explained he was transporting the liquid nitrogen by the 

quickest, clearest path. He said a truck was parked at the beginning of the pathway and there 

was a pallet next to the fence. He manouvered the forklift between the truck and the pallet and 

explained this through a drawing he had made. He had not seen the ‘Do Not Enter’ sign. He 

explained that when he saw the second sign, he stopped and Mr Gougard approached and 

swore at him: ‘Didn’t you see the fucking sign?’ When he kicked the sign, he had said 

‘Bradken is only concerned about safety when it suits Bradken’. The applicant described the 

sign as 30cm high with ‘Do Not Enter’ on both sides. He admitted that there was another 

route, but it was not the quickest. Mr Frost believed the route he took was not the clearest.








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[56] Mr Frost said he was concerned about the applicant’s responses, in that not only had 

he entered the exclusion zone, he also:

a. had driven behind a truck without knowing if it had a driver or if it was likely 

to reverse;

b. crossed safety lines in order to get around the truck;

c. knew that there was another way to get to where he needed to go, but chose an 

obstructed path;

d. had seen the second ‘Do Not Enter’ sign and driven past it and only then 

stopped, when he should have stopped immediately; and

e. had kicked the ‘Do Not Enter’ sign when he had been reproached about his 

conduct.

[57] Mr Frost believed the applicant’s actions were very serious, given the vicinity of the 

oven. The respondent’s protocol requires no traffic is permitted near an open oven as the lid 

can move if it is bumped and the door of the oven poses a ‘blind spot’ for the workers inside.  

They can step outside the oven and not be seen by any passing traffic.

[58] Mr Frost noted that the applicant was a Leading Hand and had been employed since 

2004 and was well aware of the safety procedures surrounding the oven. This was not the first 

time an exclusion zone had been set up around the oven. Mr Schooth and Mr Fraser were 

lucky that they had not been hit by the forklift or the sign when it was kicked.

[59] Mr Frost said that he had not made any decision about the applicant’s future until he 

heard his explanation. Had there been conflicting statements, the witnesses would have to be 

re-interviewed. But what the applicant had explained was consistent with the statements of 

Messrs Schooth, Fraser and Gourgard. However, the applicant’s version of events gave him 

more reasons to be concerned. 

[60] Mr Frost chose to dismiss the applicant summarily for his wilful breaches of the safety 

procedure. He was saddened by the decision because the applicant was a longstanding 

employee. The applicant then told him he failed to take his medication that day. Mr Frost was 

unaware that he was taking medication and he later learned he had not told his supervisor, 

which was itself a breach of the respondent’s workplace health and safety policy.








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[61] Mr Frost referred to an incident about three months earlier in which the applicant had 

been performing work in the paint shed unqualified. When Mr Frost queried him, he admitted 

he had known he was unqualified, but just wanted to get the work out. Mr Frost gave him a 

verbal warning and told him he understood what he was trying to do, but it was inappropriate 

and unsafe. Mr Frost acknowledged he did not escalate the matter as he thought the applicant 

accepted his criticism and was unlikely to do it again. 

[62] Mr Frost was aware of the applicant’s complaints about the safety of the crane. Mr 

Franklin was shown the crane’s repair certification and explained the cable was safe. Mr Frost 

said that at no time was the applicant ever asked to work on an unsafe crane.

[63] In cross examination, Mr Frost said he believed that the respondent conducted a 

thorough investigation before he had made the decision to dismiss the applicant. Mr 

Winterford had conducted the investigation and Mr Fraser had reviewed all the evidence with 

reference to the respondent’s various safety policies and processes. Mr Frost denied that the 

process around the oven and its lid, was a new process that was being reassessed. He believed 

the existing Job Safety Analysis (JSA) had been in place for quite a while. He was not aware 

Mr Schooth had been directed to reassess the process. Mr Frost accepted that it was possible 

that the previous process permitted forklifts to drive past the oven even, while employees 

were working in the oven. However, this was not the policy at the relevant time, following a 

review of the JSA, which identified a risk. 

[64] Mr Frost conceded again that, prior to this change, the applicant could have driven 

past the oven with employees working in it. Mr Frost believed the change in policy would 

have been communicated to employees through toolbox meetings. Mr Frost agreed it was 

possible the applicant might not have been aware of the change in the JSA.

[65] Mr Frost deposed that no other witness referred to a truck blocking the pathway and 

because the camera footage only lasted for seven days, there was no CCTV footage to 

confirm the applicant’s claim about the truck. Mr Frost conceded that he had only asked other 

witnesses about the truck after the applicant was dismissed. Nevertheless, Mr Frost could not 

accept the applicant had not seen the first ‘Do Not Enter’ sign. He had said he had stopped 

after seeing the second sign. However, he would have had to go round the sign or over it. It 








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was impossible not to have seen it. As a result, two guys could have been seriously hurt. Mr 

Frost also speculated that the applicant may have actually moved the first sign. He added that 

he could have navigated around the sign without any truck being there. 

[66] Mr Frost explained the JSA process. It involves establishing any risks and talking to 

employees associated with the job. This is reviewed by the Safety Committee and eventually 

signed off by Mr Frost. The JSA is not reviewed every day, but only if the process is changed. 

Mr Frost identified Item 7 of the relevant JSA as follows: 

Step 
No.

Job Step 
Description

Hazard 
Descrip

-tion

Desired Behaviour Risk control measures 
and systems that must 

be implemented to 
eliminate or reduce 

the risk of injury

Person 
Respons-

ible

(1) (2) (3) (5) (6) (7)
7. Establish an 

exclusion zone 
for placing the 
oven lid on the 
floor if not 
enough room 
leave it 
suspended 
safely

C N S Operators must ensure 
that all personnel not 
involved with lifting the 
oven lid are kept out of 
the exclusion zone.

Operators are to erect 
barricades or tape area 
off to prevent personnel 
entering the exclusion 
zone needed to lift and 
place the oven lid.

Exclusion area where 
oven lid placed must be 
clear of obstacles and 
obstructions (e.g. Cables, 
leads, machinery, etc)

Training and 
assessment

Trained and certified 
LGB operators

Barricade tape or 
equivalent

2 BK OHS Step 18

Operators

[67] Mr Frost did not believe it was necessary for a supervisor to advise of any exclusion 

zone, as it would be self evident from the barriers and the signs. A sign was sufficient in this 

instance. He regarded a sign as a barricade. Mr Frost agreed that in transporting liquid 

nitrogen, the forklift driver should avoid leaving the building and take the shortest and safest 

route. 








[2013] FWC 6423

17

[68] Mr Frost said that the issue of the truck only came into play in the meeting of 12 

December. No one else had mentioned it. It was just another dimension to the risk. He said 

that the presence of a truck also created a risk, because it could have moved if the brakes 

failed. But the key issue for Mr Frost was that he believed the applicant had seen the first sign 

and decided to pass it. 

[69] Mr Frost referred to the yellow walkway markings and said that generally forklift 

drivers do not cross the lines unless delivering or collecting from a work station. People and 

forklifts can be in the same zone but people have priority. Mr Frost had put to the applicant 

that he would have had to cross the lines and there was no way he could do so without 

knowing the sign was there. 

[70] In respect to the paint shed incident, Mr Frost said the applicant was actually 

congratulating himself for wanting to get the work out. Mr Frost also asked Mr Campbell to 

have a chat with the applicant. Mr Campbell had reported back that the applicant was not 

talking to anyone. However, he agreed that no disciplinary action was pursued. 

[71] Mr Frost was asked about the reference to summary dismissal and disciplinary action 

in the employee handbook. Each case is looked at on its own merits. Mr Frost believed that 

the paint shed incident involved conduct which gave rise to disciplinary action under the 

policy. He agreed that the wilfulness of the conduct is important in determining serious 

misconduct. 

[72] In re-examination, Mr Frost said he believed the JSA had changed at least a couple of 

weeks ago. Since that time, the new process had been followed. Mr Frost said the critical 

issue for him was that it was not possible for the applicant not to have seen the sign, even if a 

truck was there. In answer to a question from me, Mr Frost said that certain other safety 

processes would have been necessary if a truck had entered the warehouse and been close to 

the oven.

Mr Steven Andrews

[73] Mr Andrews was in his office on the day of the incident. He was unaware if there was 

a truck parked at the beginning of the walkway and could not see the area from his office. It 

was not his duty to inform the applicant of any trucks in his work area and he was not 








[2013] FWC 6423

18

required to notify every employee where an exclusion zone is set up as the safety warnings 

speak for themselves.

[74] On that, Mr Mark Fraser came into his office and said: ‘Who the fuck does Travis think 

he is? He went into a no go zone with a forklift and when Gourgard had a go at him, he got 

off the forklift and kicked the sign.’ Mr Andrews said that Mr Fraser did not need his 

permission to complete a green form. Mr Andrews went to the applicant and told him what 

Mr Fraser had said and whether it was correct and he replied, ‘Yeah.’ When he asked why, the 

applicant replied: ‘Who are they to talk about safety?’ Mr Andrews said this was irrelevant 

and his actions showed a complete disrespect for safety. He explained a green form was being 

prepared and he needed to speak to Mr Frost. The applicant replied, ‘I will deal with it when it 

comes.’

[75] Mr Andrews deposed that it is common to have exclusion zones around ovens using 

tape, signs or barriers. The applicant was familiar with this process and this was not the first 

time such exclusion signs had been set up around the area. 

[76] Mr Andrews had also been involved with the applicant’s issue with the crane, but he 

had assured him the crane was safe and certified. The applicant did not think this was enough 

or agree with it. 

[77] Mr Andrews agreed the applicant told him the applicant was on medication around 8 

November 2012. This was an off the record conversation and the applicant did not disclose 

and nor did he ask because did not want to pry, what medication he was on. At no time did the 

applicant tell him what medication had been prescribed or what the side effects were. Had he 

done so, Mr Andrew would have referred him to Mr Winterford of the workplace health and 

safety representative to discuss the matter and the applicant would have been required to fill 

out a Medical Declaration Form. Supervisors are then advised of any arising restrictions.

[78] In oral evidence, Mr Andrews said he was the applicant’s supervisor that day and he 

had instructed the applicant to collect the liquid nitrogen. He did not need to tell him what to 

do as he was experienced at doing it. Mr Andrews did not go and inspect the scene of the 

incident.








[2013] FWC 6423

19

[79] In cross examination, Mr Andrews agreed that a new JSA had been recently 

developed for the ovens, but was not aware Mr Schooth had developed it while on light 

duties.

[80] Mr Andrews agreed that on some occasions, he would be advised of exclusion zones, 

but always. He would not inform the applicant in any event as the signs speak for themselves. 

He disagreed with the applicant that he would be advised of any exclusion zones.

[81] As to the conversation with the applicant immediately after the incident, the applicant 

had not said he had not seen the sign. Mr Andrews agreed the applicant may not have been 

told about the change in policy, but it had been applied previously and, in any event, you 

cannot miss seeing the signs or understanding what they mean.

[82] Mr Andrews could not recall seeing any medical certificate from the applicant in 

November 2012. Had he done so, it would have been sent over to the main administration and 

an application for leave would have been processed. It was not possible that he had missed 

seeing the certificate. 

[83] In re-examination, Mr Andrews reiterated the policy changed about a month or two 

earlier, but had been put in place three or four times prior to 6 December 2012 as the oven is 

frequently entered by employees.

Mr Steven Gourgaud

[84] Mr Gourgaud was working in the ovens with Mr Schooth and Mr Fraser on the day of 

the incident. He had set up an exclusion zone around the oven because they were working in it 

and the lid was off. This was to prevent injury if the employees stepped outside the oven in 

the path of a forklift and to prevent others being injured if parts of the oven fell on them. ‘Do 

Not Enter’ signs were placed on the pathway round the oven. This was not the first time an 

exclusion zone had been set up round the oven, in line with workplace health and safety 

requirements.

[85] Mr Gourgaud said when exclusion zones are set up, department supervisors or leading 

hands working in the area are notified. Tape and barricades are also used, but mean the same 

thing as the signs. 








[2013] FWC 6423

20

[86] Mr Gourgaud could not recall a truck parked near the entry of the path. However, he 

was ‘99% sure’ that in order to get past the first sign, you would need to move it or run over 

it. Mr Gourgaud said he heard a forklift coming, approached the applicant and said: ‘Didn’t 

you see the fucking sign? We shouldn’t have bothered putting them up.’ Mr Gourgaud said he 

was angry because two guys were in the oven and if they had exited, they could not see any 

approaching forklift and could be hit.

[87] Mr Gourgaud claimed the applicant started swearing and yelling about safety. He got 

off the forklift and kicked the sign towards the open door of the oven, nearly hitting Mr 

Schooth, who had come out because of the yelling. Mr Gourgaud said he was shocked by the 

applicant’s reaction. Normally, in such circumstances, the employee would move away and 

apologise. The applicant’s reaction was unacceptable as was his kicking of the sign.

[88] Mr Gourgaud could not understand how the applicant could have not seen the signs. 

There was not enough space to get around the signs without moving them or knocking them 

over. They were still in place when Mr Gourgaud came over. No individual should move a 

safety sign in any event. Mr Gourgaud believed that the signs would still be visible from the 

forklift. Given the serious breach of safety, Mr Fraser and Mr Gourgaud decided to put in a 

‘green form’. He would not have done so if it was not serious.

[89] In oral evidence, Mr Gourgaud clarified that it was one of his team who contacted Mr 

Andrews about the exclusion zone. Mr Gourgaud was not the applicant’s supervisor. He 

agreed the JSA for the ovens had changed about a month earlier. He also agreed that 

previously, forklift drivers could drive past the oven when other employees were inside. 

[90] Mr Gourgaud confirmed that his responsibilities extended to informing the supervisor 

that an exclusion zone was in place. Mr Gourgaud agreed that the JSA required barricades or 

tape to prevent personnel entering the exclusion zone. However, the ‘Do Not Enter’ signs had 

the same effect, although they do not physically prevent anyone from entering the site. 

[91] Mr Gougaud believed that there was not enough room to maneuver the forklift around 

the signs without seeing them. He first observed the applicant near the second sign. He did not 

think he was on a forklift at the time, but was bringing items to get ready to load in the oven. 








[2013] FWC 6423

21

He was on the other side of the yellow line markers and the applicant was moving when he 

first saw him. Mr Gourgaud agreed that the applicant did not ‘line up’ Mr Schooth and Mr 

Fraser when he kicked the sign. They had seen the sign go past the doorway to the oven.

Mr Mark Fraser

[92] Mr Fraser was working with Mr Schooth and Mr Gourgaud in the oven on the day of 

the incident. He recalled helping put out the ‘Do Not Enter’ signs to create an exclusion zone. 

The exclusion sign was to ensure no one entered the area in order to protect the people 

working inside the oven. Mr Fraser said that this was not the first time an exclusion zone was 

set up around the ovens in the last two or three months. While they could have used tape or 

barriers, the ‘Do Not Enter’ signs mean the same thing and speak for themselves. Supervisors 

were also notified.

[93] Mr Fraser deposed that while he and Mr Schooth were working in the oven, they heard 

a forklift go past and heard Mr Gourgard yelling. Just as they were about to walk outside to 

investigate, a yellow safety sign flew past the door and almost hit Mr Schooth. 

[94] Mr Fraser said that when they came out they saw and heard the applicant carrying on 

and yelling at Mr Gourgard. He had said words to the effect of ‘You do things the wrong way 

every day,’ and ‘Bradken is only interested in safety when it decides to.’ Although employees 

swear at each other all the time, Mr Fraser believed the applicant had overreacted while Mr 

Gourgaud let him continue the rant. Mr Fraser said he and Mr Gourgaud were pretty angry 

about what had occurred and decided to fill out a green form. 

[95] Mr Fraser described the applicant as an ‘OK bloke.’ He was only difficult if he wanted

to do things his particular way. Mr Fraser believed he was upset from the day before, because 

he spoke to him about the allegedly unsafe crane.

[96] In cross examination, Mr Fraser agreed that the JSA establishing the practice of 

erecting exclusion zones around the ovens was developed about one month earlier. 

Previously, forklifts could drive past the ovens when the lid was off. As they had removed the 

lid that day, they were required to observe the JSA and establish an exclusion zone. Mr Fraser 

was unsure who had told Mr Andrews of the exclusion zone.








[2013] FWC 6423

22

[97] Mr Fraser conceded that the applicant had not tried to kick the sign towards them and 

he may not have even known anyone was in the oven. Mr Fraser could not recall seeing any 

truck blocking the pathway. He agreed that a truck could have parked there while he and Mr 

Schooth were in the oven. 

Mr Shane Winterford

[98] Mr Winterford was contacted by Mr Frost on the day of the incident about a safety 

breach involving the applicant. He then phoned Mr Campbell and asked him to bring the 

applicant to his office. At no time did he request a support person.

[99] Mr Winterford said that while he had told the applicant he was to be stood down, he

had very little information at that point. Mr Campbell told the applicant, ‘Things have been 

building up. I’ve told you that you should be concentrating on doing your job and getting on 

with the work you need to do.’ The applicant left the site.

[100] Mr Winterford arranged a meeting with the other Union delegate and Mr Franklin as 

he wanted to give the applicant a chance to have Mr Franklin assist him. Mr Winterford was 

also aware that the applicant was having some issues outside of work and he was concerned 

for the wellbeing of all involved. At this meeting, Mr Frost explained what had happened that 

day and that the Company was conducting an investigation and would be obtaining 

statements. The Company wanted to organise a time to hear the applicant’s side of the story. 

Arrangements were made for the 12 December meeting. Statements were obtained from Mr 

Fraser, Mr Schooth and Mr Gourgard. Photos were taken of the area.

[101] Mr Winterford determined that an exclusion zone had been set up around the oven 

while two employees were working in the oven. Statements from the witnesses indicated that 

the applicant entered the exclusion zone and stopped when approached by Mr Gourgard, got 

off the forklift and kicked the ‘Do Not Enter’ sign back towards the employees who were in 

the oven.  Mr Winterford took this matter very serious as a threat to workplace health and 

safety. He was also concerned at the applicant’s volatile behaviour.

[102] Mr Winterford deposed that he was called by Mr Franklin at approximately 12:50pm 

on 12 December to ask if the meeting could be postponed. The position of Bradken was to 

decline this request as the meeting had already been organised with Mr Franklin’s schedule in 








[2013] FWC 6423

23

mind and the Company wanted to speak to the applicant as soon as possible. Mr Winterford 

asked the applicant if he would consent to proceed with the meeting with the Union delegate 

there in person and Mr Franklin participating by telephone. The applicant briefly discussed 

this privately with Mr Jones and Mr Franklin (who was on the phone) and then indicated that 

he would like to proceed as proposed.

[103] Mr Winterford said that Mr Frost told the applicant at the start of the meeting that the 

intention was to gather the facts and to allow him to give his own account. He denied that he 

or Mr Frost accused the applicant of driving into the exclusion zone during the meeting. The 

applicant had told them that he was driving a forklift carrying liquid nitrogen. He had not seen 

the first sign, but had seen the second. Mr Gourgaud had then come out and abused him. He 

was unhappy with this and got off the forklift and kicked the ‘Do Not Enter’ sign. The 

applicant was told by Mr Frost that the erection of an exclusion zone was standard procedure 

when taking the lid off the oven using lifting equipment. The applicant responded by 

indicating that he understood this process.

[104] Mr Winterford deposed that Mr Frost told the applicant that he had committed a 

serious safety breach in entering the exclusion zone set up for the work in that area. The 

applicant responded by saying that he was a competent operator and that he had a good safety 

record. He had used this path because it was the most direct. He had not seen the first ‘Do Not 

Enter’ sign. Mr Frost had responded that the applicant could have used other paths, but the 

applicant said that while he understood that there were alternatives, this was the most direct 

and he had not seen the sign. The applicant agreed that he had seen the second sign. 

[105] Mr Winterford stated that Mr Frost then asked the applicant to explain what had 

happened by drawing a diagram. The applicant set out that there had been a truck parked 

across the path. He had crossed yellow lines to get around it and had therefore not seen the 

sign. He then said that he saw the second sign, went past it, stopped and was then abused by 

Mr Gourgaud. He admitted he had responded by getting off the forklift and kicking the sign 

towards the people in the oven. 

[106] Mr Winterford said that Mr Frost had made the following comments. The Company 

had systems in place. The applicant had been aware of these and had breached safety 

procedures when he saw a safety sign and drove past it. As a result of this, the applicant was 








[2013] FWC 6423

24

to be terminated. The applicant asserted that Mr Winterford and Mr Frost had had 

preconceived ideas prior to the meeting. This was denied by Mr Frost, who emphasised that 

the facts had not been contradicted by the applicant. He added that he was ‘saddened’ by the 

outcome as the applicant had been a great employee.

[107] Mr Winterford deposed that the applicant then told them that he was on new 

medication. Mr Winterford had not been aware of this prior to the meeting. This was contrary 

to the respondent’s policy that the taking of medication must be disclosed in case there was a 

chance that it could affect an employee’s ability to do their job. Mr Winterfod said he could 

not recall the applicant telling him that he had accessed the Employee Assistance Program or 

that he had been prescribed anti-anxiety medication. There was nothing in the respondent’s 

system indicating that these matters had been disclosed by him.

[108] Mr Winterford explained that he had had a number of merit certificates for employees 

who had been nominated for them. He had given the applicant’s framed certificate to him 

when he collected his belongings on 12 December 2012. He noted that the applicant had a 

clean employment record, but recalled that he, Mr Frost and Mr Danny Waddell had been 

emailed a complaint by Mr Darren Jones that the applicant had been working in the spray 

booth, without appropriate training. The applicant was spoken to by Mr Frost and warned not 

to do it again. 

[109] In cross examination, Mr Winterford said that he had sat next to Mr Frost during the 

meetings and taken notes. He had not investigated the area immediately after the incident, but 

had photos taken about 48 hours later. He recalled the applicant drawing the map showing 

where the truck had been, but had not conducted an investigation to determine whether or not 

this was true. 

[110] Mr Winterford deposed that he was not familiar with the JSA in its entirety. He was 

not aware that the JSA had been changed a month prior to the incident and had not 

investigated whether the applicant had been aware of this change. He agreed it was possible 

that he was not aware of the change.

[111] Mr Winterford was shown the minutes of the meeting he had taken on 12 December. 

He agreed that it set out ‘GF explained that Travis ignored safety procedures and the act was 








[2013] FWC 6423

25

wilful’. He denied that this was an accusation as it was said at the end of the meeting. Mr 

Frost had formed the view that the conduct was wilful, after hearing all the evidence. The 

view was that the applicant had driven through the barricades and ‘he knew what was going 

on’.

[112] Mr Winterford agreed that they had been told about the presence of the truck by the 

applicant when he drew the map, but he had not investigated this. He agreed it could be a 

reasonable explanation for not seeing the sign. He was shown the sign that was tendered into 

evidence. He agreed that it was not a barricade and said it was just a safety sign. 

[113] Mr Winterford said his understanding of the applicant’s account was that he had seen 

the second sign, thinking it was the first sign and moved past it. This would have put him into 

the new exclusion zone after that sign. He agreed that if the applicant had seen a sign ahead, 

then looked into the rear-view mirror and seen the sign behind, it would have been reasonable 

for him to come to the conclusion that he was already in an exclusion zone. He could not 

recall the issue of safety lines being discussed at the meeting on 12 December. Nor were there 

concerns as to the applicant driving behind an unattended truck. Mr Winterford admitted that 

the applicant had disputed the facts as put by Mr Frost. He had not agreed that he had seen the 

first sign. 

[114] Mr Winterford agreed that as HR Coordinator, he was expected to be familiar with 

Bradken’s policies, particularly the Employee Handbook. He agreed that the Employee 

Handbook was used in relation to determining the appropriate disciplinary measures for 

employees. He would have referred to the Employee Handbook as a guideline. The sections 

headed ‘Disciplinary Action’ and ‘Summary Dismissal’ would have been important in 

determining whether conduct engaged in by an employee should be met with disciplinary 

action or summary dismissal. He agreed with the proposition that, at Bradken, the key 

difference between occupational health and safety breaches attracting ordinary disciplinary 

procedures and those attracting summary dismissal, was a wilful component. 

[115] In response to a question from me, Mr Winterford said that the applicant was paid his 

normal entitlements, but no pay in lieu of notice.








[2013] FWC 6423

26

SUBMISSIONS

For the applicant

[116] In written submissions, Ms Butler said that there was no valid reason for the

applicant’s dismissal. The applicant denied deliberately entering the exclusion zone, although 

headmitted swearing and kicking the sign. The admitted conduct did not constitute a valid 

reason for dismissal and the dismissal of the applicant was harsh and disproportionate.

[117] Ms Butler noted that the termination letter did not fully set out the reasons for the 

applicant’s dismissal, although the respondent had referred to the serious misconduct of the 

applicant in its Form F3 Response in deliberately entering the exclusion zone, then losing his 

temper when this was pointed out to him. The Form F3 also drew attention to the applicant’s 

failure to notify his employer that he was taking prescription medication. In relation to this 

second allegation, Ms Butler submitted that the applicant had informed the respondent of this 

on or around 8 November 2012 and 12 December 2012. Accordingly, this reason cannot be 

substantiated and cannot be a valid reason for dismissal. The applicant had not engaged in 

misconduct. Alternatively, Ms Butler submitted that if the Commission found that the 

applicant had engaged in misconduct, the respondent had failed to follow its own Disciplinary 

Policy. 

[118] Ms Butler said that the evidence of the applicant set out that he had been directed to 

drive a forklift west down the path in the shed. He drove unobstructed in that direction. He 

loaded the liquid nitrogen and drove back along the same path at walking speed, but the path 

was now partially obstructed by a truck. He navigated around the truck and had inadvertently 

entered the exclusion zone, which he did not realise until he saw a sign sized about 30cm x 

60cm in front of him. He then noticed that he could not see a further sign behind it and, upon 

looking in his rear view mirror, realised that the first sign had been obscured by the truck. It 

was at this point he realised he was in an exclusion zone and exited. The applicant was then 

approached by Mr Gougard on his own forklift, who was swearing at the applicant. The 

applicant responded in words to the effect of “Well fuck it, safety only suits Bradken when it 

suits Bradken’ and kicked one of the signs over.

[119] Ms Butler noted that there had been no toolbox meeting held earlier that morning and 

it would have been usual practice to advise of changes, like the implementation of an 

exclusion zone, at such a meeting or, alternatively, being told on his phone. Accordingly, the








[2013] FWC 6423

27

applicant was not aware of the exclusion zone. The applicant attended a meeting at which two 

representatives of the respondent had accused him of intentionally driving into the exclusion 

zone. He denied this allegation. He was stood down with pay until attending another meeting 

on 12 December 2012, at which he was dismissed.

[120] Ms Butler said that the termination letter drew attention to cl 4.5.3 of the Agreement, 

which is as follows:

‘4.5.3 Summary Dismissal

The Employer has the right to dismiss any employee without notice for serious 
misconduct and in such cases any entitlements are to be paid up to the time of the 
dismissal only.’

Ms Butler drew attention to the definition of serious misconduct in r 1.07 of the Fair Work 

Regulations 2009 (the ‘Regulations’). She noted that the separation certificate provided by the 

respondent had checked ‘Other’ rather than ‘Misconduct’ as the reason for the separation. The 

applicant was not paid notice. Ms Butler noted that an employee who is dismissed for serious 

misconduct would not be entitled to notice in lieu, pursuant to s 123(1)(b) of the Act. Ms 

Butler referred to the standards of proof necessary for an employer to invoke summary 

dismissal on the basis of misconduct; See: Somveer Narwal v Aldi Foods Pty Ltd [2012] 

FWA 2056 and JKC v BlueScope Steel Limited [2008] AIRC 354. Here, the respondent had 

relied on its own assertion that the applicant’s conduct in entering the exclusion zone had 

been wilful, but there was insufficient evidence to show that this was the case.

[121] Ms Butler drew attention to the criteria that the Commission must take into account 

when considering whether a dismissal has been ‘harsh, unjust or unreasonable’ pursuant to s 

387 of the Act. She submitted that there was no valid reason for the dismissal (s 387(a)). She 

referred to the respondent’s Employee Handbook and submitted that the policy as to 

discipline set out conduct which could give rise to disciplinary action, including, counselling 

and the issuing of written warning letters prior to termination, where there was:

‘ Failure to obey Occupation Health & Safety requirements in any way, which places 
yourself or other workers at risk of injury or illness.

...
 Use of abusive language to other persons on site.
 Wilful misuse of tools, equipment or the defacing of company property.’








[2013] FWC 6423

28

[122] By contrast, summary dismissal could occur if certain other conduct was engaged in, 

including: 

‘ Wilfully violating safety, environmental or general company policy or procedures.’

[123] Ms Butler noted that the respondent relied on this aspect in justifying its summary 

dismissal of the applicant. However, the evidence did not demonstrate that the applicant had 

behaved wilfully in driving into the exclusion zone. Ms Butler noted that the respondent had 

not used an exclusion zone to cordon off the oven. The practice in the past had been for 

forklifts to continue to drive past the oven while employees worked in it. It was reasonable for 

the applicant to expect that the respondent would communicate the existence of the exclusion 

zone to him in his capacity as Leading Hand. This was not done. The usual practice in relation 

to an exclusion zone is to put up caution tape, signs and tags. The exclusion zone in this 

instance was marked only by two small signs. In these circumstances, it was not plausible to 

maintain that the applicant had intentionally driven into the exclusion zone. 

[124] Ms Butler submitted that the applicant had not failed to provide notification to the 

respondent in relation to the use of prescription medication. 

[125] Ms Butler argued that the conduct in which the applicant had admittedly engaged did 

not constitute a valid reason or reasons for termination with notice. He did not admit engaging 

in misconduct, but admitted that he had kicked over the sign. To classify this as a ‘wilful 

destruction of property’ was excessive and disproportionate and this sign was still in use. If 

his conduct could be characterised as a ‘wilful misuse of tools, equipment or the defacing of 

company property’, then the applicant could have been expected to have been counselled or 

warned prior to his dismissal. This was also true of his admitted swearing.

[126] In relation to the applicant being notified of the reason for his dismissal (s 387(b)), Ms 

Butler noted that the termination letter did not set out the reason for dismissal and the 

separation certificate did not indicate the applicant was terminated for reasons of misconduct. 

The first time that the applicant was notified of the reason for his dismissal was when the 

respondent filed its Form F3 Employer’s Response. 

[127] Ms Butler conceded that the applicant had been made ‘broadly aware’ of the 

allegations against him over the course of two meetings, but noted that these had not been 








[2013] FWC 6423

29

reduced to writing. In light of the size of the respondent and its HR capacity, this should have 

occurred. The allegation of failure to notify as to his taking of prescription medication was 

never put to him and he was unable to respond to it (s 387(c)).

[128] Ms Butler drew attention to the fact that the applicant had not been offered a support 

person at the meeting at which he was stood down, but the Union Delegate and a Union 

Organiser attended his final meeting.

[129] Ms Butler said that the respondent would likely claim that the applicant’s previous 

disciplinary history was irrelevant as he was dismissed for serious misconduct. However, in 

light of the applicant’s submissions that the applicant’s actions had not been wilful, this 

history was relevant. Besides being informally ‘spoken to’ about three months prior to the 

incident, there was no prior conduct which could have led the respondent to believe that the 

applicant had breached its policies and procedures. Ms Butler noted that the applicant had 

been given a certificate for his ‘Continuous Improvement’. It could be said that the applicant 

had been acknowledged for his commitment to the respondent and its procedures. 

[130] Ms Butler submitted that the respondent was a very large entity, employing 270 

employees (s 387(f)). In light of this, the process of dismissal was deficient.

[131] Ms Butler put that another matter which was relevant (s 387(g)) was that the applicant 

had made safety complaints and the respondent was unhappy that he was doing so. The 

applicant had raised a complaint in relation to a crane and had been told by Mr Campbell that 

he should ‘keep his head down’. This phrase was repeated at the first disciplinary meeting. It 

was open to the Commission to draw a connection between the two incidents. 

[132] Overall, Ms Butler said that the dismissal was, harsh, unjust and unfair in light of the 

absence of proof that the applicant had deliberately entered the exclusion zone and that he had 

failed to notify the respondent of his taking prescription medication. The respondent’s failure 

to properly erect the exclusion zone and communicate its existence to the applicant, as well as 

the applicant’s length of service and work history, were also relevant in determining this case.

[133] Ms Butler said that the applicant felt that the relationship of trust and confidence 

between him and his former employer had irrevocably damaged. He found a new job in 








[2013] FWC 6423

30

March 2013. Accordingly, reinstatement was not appropriate and he sought 12 weeks’ wages 

as compensation. 

[134] In further written submissions, Ms Butler said that the respondent did not admit that 

he understood the Company’s procedures in relation to the JSA for work in the oven. This had 

been changed approximately four weeks prior to his dismissal, with the new requirement that 

an exclusion zone be erected outside of the oven while employees worked within it. Mr Frost 

had given evidence that it was possible the applicant was not aware of this. 

[135] Ms Butler pointed out that the JSA required barricades or tape in erecting an exclusion 

zone. A small sign did not meet this requirement. There was no reasons why the words 

‘barricade’ and ‘tape’ should not be read in light of their ordinary meaning. The sign was self-

explanatory and the applicant would not have entered the exclusion zone if he had seen it, but 

the zone was not appropriately constructed in accordance with the JSA. At the time, the 

applicant was carrying a hazardous substance which needed to be delivered quickly and 

safely. He used the same route which he had always used for this task and unintentionally 

entered the exclusion zone.

[136] Ms Butler said that the allegation that the applicant had driven behind a truck without 

knowing if it had a driver or was likely to reverse had not been put to the applicant at the time 

of his dismissal. If this had been put to him, he would have responded that he knew the truck 

was stationary as the driver was unloading it. The reverse beepers of the truck were not 

sounding. 

[137] Ms Butler put that the allegation that the applicant had crossed safety lines to get  

around the truck was not put to the applicant at the time of his dismissal. It was common for 

forklifts to cross the walkway guidelines and this was never enforced by the respondent. The 

use of an alternative route would have meant a longer trip on unlevelled ground. In view of 

the fact that the liquid nitrogen becomes unusable quickly, the route he had taken was the 

quickest and safest route, notwithstanding the existence of the exclusion zone. 

[138] Ms Butler submitted that as neither Mr Fraser or Mr Gourgaud witnessed the applicant 

enter the exclusion zone, the evidence of the applicant that he stopped on first seeing the 

warning sign was not contradicted and should be accepted. Upon stopping, the applicant had 








[2013] FWC 6423

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three options, being to proceed forward to leave the exclusion zone, reverse out of the 

exclusion or to stop the forklift and leave it. The applicant took the view that it was 

inappropriate to reverse or to leave the liquid nitrogen unattended. He took the reasonable 

decision to exit the exclusion zone. 

[139] Ms Butler said that the conduct of the applicant in kicking the safety sign was 

admitted, regretted and uncharacteristic. It was a response to being sworn at by Mr Gourgaud. 

[140] Ms Butler emphasised that the respondent had failed to follow its own JSA in failing 

to erect a barricade or tape. Mr Andrews said that he had not been contacted in relation to the 

erection of the exclusion zone in question, although this conflicted with the evidence of Mr 

Fraser and Mr Gourgaud. Mr Gourgaud said that he was expected to contact someone like a 

supervisor. Ms Butler submitted that this was a requirement of the JSA so that the supervisor

could notify relevant employees to expect an exclusion zone. The applicant had a work phone 

for just such a purpose.

[141] Ms Butler submitted that any assumption by the respondent that the applicant had 

deliberately ignored safety procedures was unfounded and there was no evidence to support 

such a claim. The process was new and the respondent had not complied with its own 

procedures. In this case, the respondent had been so preoccupied by the idea that the applicant 

had wilfully and deliberately entered the exclusion zone, that it failed to entertain other 

explanations. It had failed to put to him its ancillary concerns in relation to the yellow safety 

markings. Ms Butler distinguished this case from Porter v Eltin Underground Operations Pty 

Ltd, Eltin Limited [2000] WAIRComm 224 (‘Porter v Eltin’) in that the applicant here had 

not been aware of the safety procedure in relation to work in the oven. While the respondent 

had relied on Nicholls v Woolworths Limited [2011] FWA 4827 (‘Nicholls v Woolworths’), 

that case involved an applicant who had been previously warned in relation to an identical 

safety breach. While the applicant had been verbally warned in relation to induction in the 

paint shed, this had not been seen as sufficiently serious to warrant formal action.

[142] Alternatively, Ms Butler said that if the Commission did find that the applicant had 

engaged in misconduct, it was not sufficient to warrant dismissal. She referred to Bilson v 

Mission Australia [2010] FWA 6297 in relation to the definition of ‘serious misconduct’. If it 

was found that the entering of the exclusion zone amounted to misconduct, his lack of 








[2013] FWC 6423

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awareness of procedures and the lack of appropriate signage constituted significant mitigating 

factors. The kicking of the sign was an uncharacteristic act that had resulted in minimal 

damage. Ms Butler again referred to the disciplinary procedures set out in the Employee 

Handbook. The conduct in which he had engaged should have been met with counselling and 

possible warning letters.

[143] Ms Butler submitted that it was appropriate to award compensation. The applicant had 

commenced new work on 5 March 2013, having been out of work for approximately 12 

weeks. Additionally, his current employment was ‘erratic’ and not permanent. At the time of 

the hearing he had not worked for two weeks. The Commission should have regard to this 

when considering any orders of compensation. 

For the respondent

[144] Mr Miller of the Australian Industry Group submitted on behalf of the respondent that 

the applicant had summarily dismissed the applicant for serious misconduct, being the 

deliberate and wilful breach of a safety requirement and then damaging the respondent’s 

property in a fit of temper when it was brought to his attention. The incident had come to the 

respondent’s attention when a ‘green form’ incident report was completed by his co-workers. 

The respondent had held a meeting with the applicant on 12 December 2012 to allow him to 

provide a response. After receiving that response, the applicant was dismissed. The applicant 

had been given a valid reason for his dismissal during the course of the meeting.

[145] Mr Miller put that the applicant was experienced and was well aware of the policy in 

relation to exclusion zones and the transport of liquid nitrogen. In full knowledge of these 

policies, the applicant had wilfully entered the exclusion zone and then sworn and kicked a 

safety sign when he was spoken to. This constituted a valid reason for dismissal. The 

termination of employment was not harsh or disproportionate.

[146] Mr Miller said that the respondent had begun its investigation on 6 December 2012 

when it received the ‘green form’. The applicant was stood down on pay and an investigation 

was conducted. There were three statements made and photos taken of the exclusion zone. A 

meeting was held on 12 December 2012 to allow the applicant to respond to the allegations. 

In the course of this meeting, the applicant was provided with a valid reason for his dismissal, 

being that he had wilfully ignored safety procedure. He had the opportunity to respond to the 








[2013] FWC 6423

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allegations set out in the ‘green form’ and the AMWU delegate and organiser were present at 

the meeting.

[147] Mr Miller noted that the applicant had not admitted wilfully breaching safety 

procedure, but he had said that he understood the respondent’s procedures. He also admitted 

having crossed safety lines and having driven behind a truck with no knowledge of whether it 

had a driver or was likely to reverse. He had been aware of a different route he could have 

taken, but chose to use the obstructed route. He had seen the second ‘Do Not Enter’ sign, but 

continued to drive when he should have stopped. Finally, he had kicked the sign when 

someone had discussed his conduct with him.

[148] The nature of this response meant that the respondent decided to summarily dismiss 

the applicant. Mr Miller admitted that the particulars of the applicant’s misconduct were not 

set out in the termination letter, although it did set out that he was being dismissed in 

accordance with cl 4.5.3 of the Agreement, setting out the right of the employer to summarily 

dismiss employees for serious misconduct. 

[149] Mr Miller referred to the definition of misconduct set out in the Regulations and 

submitted that the applicant’s conduct had caused serious and imminent risk to the health and 

safety of two employees who were working in the oven at the time. One of the employees was 

almost hit by the sign kicked by the applicant. He referred to Porter v Eltin as authority for 

the proposition that summary dismissal was justified in light of serious safety requirements 

and the number of those requirements not complied with. He also cited Nicholls v Woolworths

as authority for the proposition that an applicant’s age and work history do not prevent a 

finding that an employee’s dismissal for a serious safety breach was fair. He failed to comply 

with the respondent’s safety procedures and therefore disregarded the essential conditions of 

his contract of service, meaning that summary dismissal was justifiable; See: Rankin v Marine 

Power International Pty Ltd [2001] VSC 150 and Laws v London Chronicle Ltd (1959) 1 

WLR 698. 

[150] Mr Miller discussed the criteria that the Commission must take into account when 

considering whether a dismissal has been ‘harsh, unjust or unreasonable’ pursuant to s 387 of 

the Act. He submitted that the applicant was a longstanding and experienced member of staff 








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who was aware of, and understood the respondent’s safety policy. He had chosen to ignore 

these procedures. This was a valid reason for his dismissal (s 387(a)).

[151] Mr Miller said that at the meeting held on 12 December 2012, the applicant had 

admitted to understanding the respondent’s procedures, having driven behind a truck without 

knowing if it had a driver or was likely to reverse, crossing safety lines in order to get around 

the truck, failing to use an alternative path, having failed to stop immediately when seeing the 

‘Do Not Enter’ sign and kicking the ‘Do Not Enter’ sign when reproached as to his conduct.

[152] Mr Miller referred to the policy of the respondent, which set out that employees could 

be dismissed instantly if the engaged in:

‘ ...wilfully violating safety, environmental or general company policy and 
procedures.’

This was the basis on which the applicant was dismissed. He agreed that the policy recognised 

a divide between being ‘possible reasons for disciplinary action’ and giving rise to grounds 

for summary dismissal. He acknowledged that the policy set out that:

‘Failure to obey Occupational Health &  Safety requirements in any way which places 
yourself or other workers at risk of injury or illness ... may result in disciplinary 
action.’

However, after the meeting on 12 December 2012, the respondent had formed the view that 

the actions of the applicant had been serious enough to warrant summary dismissal. The 

evidence of Mr Frost and Mr Winterford was that the conduct of the applicant was wilful in 

that he was aware of the requirements of the policy and chose to ignore it.

[153] Mr Miller stressed that the respondent had never allowed forklifts to move past the 

oven when the lid was off. There had never been a procedure for telephoning employees to 

tell them that an exclusion zone had been erected. 

[154] Mr Miller conceded that the respondent had not particularised the reason for the 

applicant’s dismissal in its termination letter, but the applicant had been informed verbally for 

the reasons for his termination (s 387(b)). The certificate of separation indicated that the 








[2013] FWC 6423

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reasons for the separation was ‘other’ rather than ‘misconduct’. This was due to an 

administrative error in processing it at head office. The applicant was told that he was 

summarily dismissed and was not paid in lieu of notice. Mr Miller added that the applicant 

was made fully aware of the allegations against him, initially by Mr Andrews on 6 December 

2012 and then by Mr Frost and Mr Winterford on 12 December 2012 (s 387(c).

[155] Mr Miller submitted that the applicant had never requested a support person to attend 

the meeting on 6 December 2012. However, the respondent had gone to ‘great lengths’ to 

ensure that the AMWU organiser could be present at the meeting of 12 December 2012 (s 

387(d)). 

[156] Mr Miller said that the respondent relied on the applicant’s serious misconduct as 

grounds for dismissal. Accordingly, the dismissal was not related to unsatisfactory 

performance (s 387(e)). He also said that while the respondent is a large company, the only 

HR person on site was Mr Winterford, who liaised with head office in relation to policy and 

separation certificates. Head office would not assist Mr Winterford with employee relations 

matters, like terminations of employment (s 387(f)). 

[157] Mr Miller denied that the respondent had dismissed the applicant for the ‘real reason’ 

of his safety complaints. The applicant’s complaints had related to the use of a cable from a 

decommissioned 50 tonne crane on a 35 tonne crane. It had been explained to the applicant 

that Kone had certified the crane as safe, although the applicant did not agree. Mr Frost had 

provided Mr Franklin of the Union with a copy of the documentation setting out that the crane 

was safe and the matter was resolved on this basis. 

[158] Mr Miller addressed the presentation of a merit certificate to the applicant. This was 

given to him for an idea that he had come up with in relation to a procedure. It was not for 

exemplary conduct. He called for the application to be dismissed.

[159] In further written submissions, Mr Miller emphasised that the fundamental issue 

between the parties is whether the failure of the applicant to observe the ‘Do Not Enter’ sign 

was deliberate or unintentional. It was not disputed between the parties that the act, whether 

intentional or otherwise, potentially endangered the health and safety of other employees 

working in the oven. The applicant had then lost his temper when confronted by Mr Gourgaud 








[2013] FWC 6423

36

and blamed his lapse on an explanation that the respondent was selective in its enforcement of 

safety. Mr Miller said that the respondent did not rely on the applicant’s taking medication 

without advising his supervisor when it made the decision to dismiss him.

[160] Mr Miller pointed out that the presence of the truck was not raised by the applicant 

until the meeting on 12 December 2012. It had been put to the applicant that this truck was a 

later invention. In the event that a truck was not present, the sign should have been plainly 

visible to the applicant on the route that it was agreed he had taken. Even on the applicant’s 

evidence, there is no suggestion that the sign was not in place and there was an admission that 

he had driven past the sign. The applicant’s evidence in relation to seeing the second sign also 

illustrates that he understood the meaning of the sign.

[161] Mr Miller drew attention to four specific issues:

a) Was there a truck blocking the passageway?

b) If there was, did that excuse the applicant’s conduct?

c) How did the applicant react to Mr Gourgaud?

d) In what spirit did the applicant kick the ‘Do Not Enter’ sign?

[162] Mr Miller said that submissions by the applicant that there was a new system in place, 

or that a barricade should have been used, obscured the true issue. Having seen the sign, the 

applicant would have understood that he was being directed not to proceed. Mr Miller 

accepted that if it were shown that the applicant had genuinely not seen the sign, then he 

should have been dealt with for having made a mistake, albeit a serious one. However, he 

submitted that the evidence supported the respondent’s case was that the applicant, in full 

knowledge of the respondent’s safety procedures, drove past the ‘Do Not Enter’ sign. His 

conduct was therefore wilful.

[163] Mr Miller said the only positive evidence that the truck was there comes from the 

applicant, but he had not said anything about this until the meeting of 12 December. The 

diagram that was drawn at that meeting was essentially hearsay evidence conveyed to Mr 

Frost. It was also odd that the applicant did not raise the presence of the truck with Mr 

Gourgaud during their confrontation. He had been made aware that Mr Gourgaud intended to 

complete a ‘green form’. Mr Fraser had been certain that there had been no truck when he had 

entered the oven, but both he and Mr Gourgard had said that they could not recall whether 








[2013] FWC 6423

37

there was a truck or not. One would think that they would remember the presence of a large 

truck. Their lack of recollection suggests that there was no truck there. The primary position 

of the respondent was that there had not been a truck on the pathway. 

[164] In the alternative, Mr Miller submitted that if the Commission accepted that a truck 

had been present, then the applicant must have seen the ‘Do Not Enter’ sign and passed it 

regardless. Mr Frost had made an assessment of what the applicant might have done, had the 

truck been there. It was said that the truck was substantially across the intersection and 

beyond the yellow line. Both the applicant and Mr Gourgaud gave evidence that there was 

material lying between the cage and the yellow line. This cut down the width of the passage 

available to the applicant. The applicant says he had driven straight up, having turned to the 

right of the truck. Mr Miller submitted that this was impossible due to the location of the cage 

and the adjacent material. The applicant’s evidence in this regard was carefully crafted so as 

to avoid a conclusion that he must have driven in the direction of the ‘Do Not Enter’ sign. Mr 

Miller said that if the applicant had gained access to the passageway, he would have turned on 

a relatively tight angle away from the passage to get around the relevant obstacles. The 

applicant must have seen the ‘Do Not Enter’ sign in this circumstance. Mr Miller conceded 

that nothing was put to the applicant as to whether there was a driver close to the truck at the 

meeting of 12 December. 

[165] Mr Miller submitted that there was some dispute as to the intensity of the 

confrontation between the applicant and Mr Gourgaud and the force with which the applicant 

kicked the sign.  He referred to the evidence of Mr Gourgaud that he had not seen the 

applicant until he was near the second sign. Mr Gourgaud had been annoyed that the applicant 

had ignored the safety sign and driven past an open oven door, creating a significant danger. 

He engaged directly with the applicant due to his concerns. 

[166] The evidence of the applicant was that he had kicked the sign, but only hard enough to 

send it a few feet across the floor. Mr Gourgard’s evidence was that the kick was sufficient to 

send the sign ‘sailing’ past the oven door. Mr Miller submitted that the evidence of Mr 

Gourgaud and Mr Fraser was to be preferred. They had made no attempt to ‘gild the lily’ in 

relation to the presence of the truck and were frank in admitting that they could not recall its 

presence. He also said that the applicant was probably angry at this point about the 

respondent’s response in relation to his safety complaints about the crane. His continued 








[2013] FWC 6423

38

anger could also provide an explanation why the applicant had deliberately ignored the ‘Do 

Not Enter’ sign.

[167] Mr Miller said that there was conflict between the evidence of the applicant and that of 

those whom he was said to have spoken to in relation to the safety issues with the crane. The 

respondent did not deny that the applicant had a right to raise safety issues, but a number of 

Bradken employees had assured the applicant that the matter had been dealt with and there 

was no safety problem. On the evidence of Mr Brand and Mr Campbell, there was no 

suggestion that the respondent was embarrassed or irritated due to the applicant raising the 

supposed safety issues. The failure of the applicant to call Mr Brand and Mr Campbell means 

the Commission must prefer their evidence on this matter to that of the applicant.

[168] Mr Miller disputed the evidence of the applicant that the signs were ‘small’ or ‘very 

small’. Rather, it was of a substantial size, is brightly coloured and its instructions were clear. 

Mr Miller noted that the applicant had made extensive submissions as to the safety processes 

of the respondent and the difference between tape, barricade and sign. However, this was not 

relevant to the primary question before the Commission, which was whether the applicant 

went past the ‘No entry’ sign wilfully. On the applicant’s own evidence, on seeing the sign, 

he stopped immediately. This illustrates that he understood its meaning.

[169] Finally, Mr Miller submitted that the Commission could be satisfied that the applicant 

had not been truthful. His conduct in driving past the sign was deliberate and wilful. The 

application should be dismissed.

CONSIDERATION
Statutory considerations and relevant authorities

[170] While the letter terminating the applicant’s employment makes no reference to the 

specific reasons for his dismissal, the letter expressly identifies clause 4.5.3 of the Bradken 

Ipswich Engineering Operations Enterprise Agreement 2010 as the basis for the decision.

[171] Clause 4.5.3 is in these terms:

‘4.5.3 Summary Dismissal








[2013] FWC 6423

39

The Employer has the right to dismiss any employee without notice for serious 
misconduct and in such cases any entitlements are to be paid up to the time of 
dismissal only.’

[172] Presumably, reliance was also had to the Company policy which relevantly states:

‘Instant dismissal

 Wilfully violating safety policies and procedures’

[173] The respondent further submitted that the incident on 6 December 2012 was captured 

by the definition of serious misconduct in the Fair Work Regulations 2009, specifically 

Regulation 1.07 which provides as follows:

‘1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious 
misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the 
following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the 
continuation of the contract of employment; 

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the 
following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault; 

(b) the employee being intoxicated at work; 

(c) the employee refusing to carry out a lawful and reasonable instruction that 
is consistent with the employee’s contract of employment.








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(4) Subregulation (3) does not apply if the employee is able to show that, in the 
circumstances, the conduct engaged in by the employee was not conduct that made 
employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s
faculties are, by reason of the employee being under the influence of intoxicating 
liquor or a drug (except a drug administered by, or taken in accordance with the 
directions of, a person lawfully authorised to administer the drug), so impaired that the 
employee is unfit to be entrusted with the employee’s duties or with any duty that the 
employee may be called upon to perform.

[174] It was said that the applicant’s decision to ignore the ‘Do Not Enter’ signs establishing 

an exclusion zone around the oven created a serious and imminent risk to the safety of the two 

employees working in the oven at the time. In addition, one of these employees was nearly hit 

by the ‘Do Not Enter’ sign after it was kicked by the applicant, became airborne and landed 

many metres away.

[175] Of course, the first task of the Commission is to establish whether there was a ‘valid’ 

reasons for the applicant’s dismissal. The meeting of ‘valid’ reason in this context and one 

which is invariably cited in decisions related to dismissal for cause, is found in the words of 

Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as follows:

‘Subsection 170DE(1) refers to “a valid reason, or valid reasons”, but the Act does not 
give a meaning to those phrases or the adjective “valid”. A reference to dictionaries 
shows that the word “valid” has a number of different meanings depending on the 
context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning 
given is “2 Of an argument, assertion, objection, etc; well founded and applicable, 
sound, defensible: Effective, having some force, pertinency, or value.” In the 
Macquarie Dictionary the relevant meaning is “sound, just, or well founded; a valid 
reason.”

In its context in subsection 170DE(1), the adjective “valid” should be given the 
meaning of sound, defensible or well founded. A reason which is capricious, fanciful, 
spiteful or prejudiced could never be a valid reason for the purposes of subsection 
170DE(1). At the same time the reason must be valid in the context of the employee’s 
capacity or conduct or based upon the operational requirements of the employer’s 
business. Further, in considering whether a reason is valid, it must be remembered that 
the requirement applies in the practical sphere of the relationship between an employer 
and an employee where each has rights and privileges and duties and obligations 
conferred and imposed on them. The provisions must “be applied in a practical, 
commonsense way to ensure that” the employer and employee are each treated fairly, 
see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, 
unreported, when considering the construction and application of section 170DC.

The requirements of subsection 170DE(1) should not impose a severe barrier to the 
right of an employer to dismiss an employee. Nevertheless, in cases similar to the one 








[2013] FWC 6423

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before the Court, the application of s170DE(1) should always be considered and 
decided before consideration is given to the additional limitations on the right of an 
employer to terminate the employment of an employee imposed by section 170DE(2) 
and subsection 170DC. The purpose of these two provisions is to confer a greater 
protection on employees from termination of employment. In this regard the 
provisions are not very different from the consequences flowing from an award 
provision similar to that considered in Byrne v Australian Airlines Ltd [1994] FCA 
888; (1995) 120 ALR 274 and discussed in Johns. There procedural fairness was held 
to have been imported by implication as well as the substantive protection conferred 
by the award. The statutory provisions now apply, by reason of the Act, with minor 
exceptions, to all employees.

The construction and application of section 170DC and subsection 170DE(2) were 
considered by Wilcox CJ in Gibson. His Honour discussed section 170DC under the 
heading “Procedural fairness”. With respect, I agree with his opinion on this matter. I 
expressed similar views in Johns. But with respect, for reasons already expressed, the 
question of procedural fairness arises only after a finding has been made that the 
employer has established a valid reason or reasons under subsection 170DE(1).

His Honour the Chief Justice discussed subsection 170DE(2) under the heading 
“Substantive fairness”. With respect, for reasons already expressed, the question of 
substantive fairness arises only after a finding has been made that the employee has 
established a valid reason or reasons under subsection 170DE(1). Under this heading, 
his Honour discussed the question of the construction and application of subsection 
170DE(2) and in that discussion expressed the opinion:

“In this situation, it seems to me that Mr Ehsman, and anyone else who was involved 
in the decision to terminate Mr Gibson’s employment, was entitled to reason that, if 
Mr Gibson was not prepared to explain any difficulty he had in working on a Saturday, 
in the circumstances it was better to dispense with his services. That decision was 
based on a valid reason based on the operational requirements of the respondent’s 
business. The limitation imposed by subs(1) of s170DE was satisfied. And, having 
regard to the size and nature of the respondent’s business, it seems to me the decision 
was not harsh, unjust or unreasonable.”

Implicit in this discussion is the view that the adjective “valid” when used in 
subsection 170DE(1) is to be given a meaning similar to the meaning I would give to it 
as set out earlier in these reasons. In coming to his conclusion on this aspect, his 
Honour had regard to the nature of the employer’s business and the need for the 
employer to provide services to its customers. A refusal by the employee to work the 
overtime directed, without saying why, was relevant both to the issue of a valid reason 
and to substantive fairness under both the subsections of section 170DE. I do not 
necessarily disagree with this approach but normally the issue of whether a reason for 
termination is valid or not should be considered primarily from the employer’s 
perspective while the substantive fairness issue should be considered primarily from 
the employee’s perspective even though the perspective of the employer may be of 
importance also. The differing onus of proof provisions support this approach.’

[176] It is trite to observe that this is not a case where the Commission must decide whether 

the misconduct actually occurred. Here the applicant does not deny that he had entered an 








[2013] FWC 6423

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exclusion zone and had kicked the ‘Do Not Enter’ sign. Plainly, the applicant contends that 

his actions did not constitute misconduct, let alone serious misconduct and the evidentiary 

conflict in this case largely centres on the applicant’s reasons for his actions mitigated by

explanations that he had not seen the ‘Do Not Enter’ signs and he was frustrated when he 

kicked the sign. Necessarily, I will have to make findings on these matters later.

[177] However, at this point, it needs to be emphasised that conduct which can cause a 

serious and imminent risk to the health and safety of a person may not be wilful, malicious, 

intentional or deliberate to constitute a valid reason for dismissal. Carelessness , skylarking or 

taking short cuts, readily spring to mind as examples of circumstances where the safety of 

others might be imperilled and such conduct would still constitute serious misconduct. 

Nevertheless, each case must be decided on its own specific set of facts and circumstances 

within the rubric of the legislative provisions and relevant authority. It is to these authorities 

to which I now turn.

[178] Two Full Bench appeal decisions of Fair Work Australia (as it then was) are relevant. 

IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070 concerned the dismissal of a 

forklift driver following a collision involving another forklift. The Full Bench considered the 

distinction between conduct which was reckless and careless and conduct which was wilful 

and deliberate. At paragraphs 13 and 14, the Bench said:

‘[13] Although the focus on the deliberateness of the conduct was understandable 
given the evidence as to the reasons for the dismissal, it is clear that the Commissioner 
considered a range of other factors. These quite properly included consideration of 
matters that the Commissioner found frustrated the Applicant, the assertion that there 
was oil on the warehouse floor, the disputed blood alcohol test and the health and 
safety issues.  The Commissioner’s findings with respect to these matters were open to 
her on the evidence.  However, we think that the Commissioner fell into error in that 
her conclusion that there was no valid reason to terminate the Applicant’s employment 
was fundamentally inconsistent with her acknowledgement of the recognised dangers 
associated with forklifts and this incident in particular. The recognition of those 
dangers, together with the finding that the collision was caused by the recklessness and 
carelessness of the Applicant, necessitated a finding that there was a valid reason for 
dismissal.  The issue of whether the Applicant was improperly accused of deliberately 
colliding with the other forklift is a matter to be considered in the context whether the 
termination of his employment was fair.  In this respect we think the Commissioner 
confused her assessment of whether there was a valid reason with the overall 
assessment as to fairness.

[14] The characterisation of the Applicant’s conduct in causing the collision as 
being reckless and careless, rather than deliberate, does not in our view derogate from 








[2013] FWC 6423

43

the seriousness of the conduct or the possible health and safety implications. The 
assessment of whether there is a valid reason for termination of employment will 
commonly involve consideration of the context in which the behaviour occurred and 
the gravity of the conduct itself.  These considerations may also be relevant to the 
determination of whether the termination of employment was harsh, unjust or 
unreasonable.’

[179] I note that the applicant’s 23 years of unblemished work history was a significant 

factor the Full Bench took into account in determining whether the dismissal was unfair 

(which it did).

[180] In Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166, another Full Bench 

upheld an appeal of a finding at first instance which had ordered the reinstatement of an 

employee who had engaged in an unsafe act, namely placing his arms, head and shoulder 

under an unstable and elevated load in a warehouse. The employee had 2 years’ service and a 

poor disciplinary record.

[181] On the question of permission to appeal, the Full Bench said at paragraphs 18 and 19:

‘[18] In our view this case raises important questions about the respective rights and 
obligations of employees and employers in relation to safety requirements at the 
workplace. Employers have important statutory obligations to maintain a safe place of 
work. Those obligations have a high profile in NSW. Establishing and enforcing safety 
rules are an important obligation, a breach of which can lead to serious consequences.

[19] In this case the employer considered, and established to the satisfaction of the 
Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted 
to serious misconduct. Clearly disciplinary action was necessary and appropriate 
because a failure to do so sends a message to the workforce that safety breaches can 
occur with impunity. The application of the unfair dismissal provisions to this case is a 
matter of general importance and in our view clearly attracts the public interest. We 
therefore grant permission to appeal.’

[182] The Full Bench then dealt with the Commission’s exercise of discretion. At paragraph 

24:

‘[24] ... Having found a valid reason for termination amounting to serious 
misconduct and compliance with the statutory requirements for procedural fairness it 
would only be if significant mitigating factors are present that a conclusion of 
harshness is open. We do not believe that any of the circumstances involved in this 
matter amount to such factors.’

At paragraph 26 it was said:








[2013] FWC 6423

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‘[26] Mr Wililo’s conduct was found to be serious misconduct. It involved deliberate 
acts. We consider that characterising the actions as carelessness does not derogate from 
the seriousness of his action or the possible consequences. Further we do not believe 
that there was a sufficient basis to find that the employer could not apply its safety 
standards because of alleged actions in relation to other safety breaches. If it was 
entitled to take the action in this case the need to enforce its safety rules suggests that 
the resultant termination is not harsh.’

Then at paragraph 29 and 34:

‘[29] Added to this difficulty in discerning the true reasons for her ultimate finding 
we consider it somewhat anomalous that an employee found guilty of serious 
misconduct for breaching safety rules, and hence dismissed for a valid reason, after 
due process, could be considered to be harshly terminated in the absence of discernable 
and significant mitigating factors. These concerns involve matters of principle and the 
overall reasonableness of the decision.

...

[34] In our view there are no mitigating factors that should have led to a lesser 
penalty than dismissal being adopted.  Mr Wililo was employed only for a short time 
and has since found other employment. It is not for the Tribunal to place itself in the 
shoes of the employer and determine what it would have done in the circumstances. 
We must consider whether the employer’s action in terminating Mr Wililo’s 
employment was harsh, unjust or unreasonable in the circumstances. We find that it 
was not.’

[183] To this learned authority, I would add that Richards SDP in Gottwald v Downer EDI 

Rail Pty Ltd [2007] AIRC 969 considered the dismissal of an employee who was involved in 

a shunting incident. His Honour said at paragraphs 94 to 103:

‘[94] While this is the conduct that I have found the Applicant to have manifested, 
does it also warrant the termination of his employment?

[95] The Applicant’s conduct was not wilful. He did not set out to recklessly 
endanger the lives of others, and he did not come to work on 3 August 2007 
intentionally to cause injury to others. That much is clear.

[96] The Applicant’s career with the company does not demonstrate any propensity 
in that regard. But his conduct was wilful in another sense; he intentionally refused to 
exercise his authority as shunt pilot over his work mate for fear of peer rejection. To 
avoid the personal censure of his co-worker, the Applicant ceded his control over the 
shunt as the shunt pilot and put the safety and lives of other employees at risk, not in a 
hypothetical manner, but in a very real and tangible way.

[97] Further, the Applicant has given evidence of an absence of reasonable 
judgment in situations in which safety procedures must be interlaced with practical 








[2013] FWC 6423

45

circumstances. This was so in respect of his lack of appreciation that an unsecured and
unattended rail car linked to an unattended shunt tractor is an inoperative vehicle for 
stabilisation purposes.

[98] Putting aside mitigating factors, which are considered below in the requisite 
statutory context of (s.652(3)(e) of the Act), it cannot be expected that the necessary 
relationship of trust and confidence between the employer and employee can survive 
such a dramatic incident caused by such a significant departure from the relevant work 
and safety procedures for the reasons as given, and where there is a continuing 
misapprehension of the circumstances in which safety procedures apply.

[99] In addition, the Applicant, in the last few weeks prior to the incident discussed 
above, had been involved in, and was the cause of, two unsafe crane operation 
incidents, which he does not deny. Both these incidents occurred on 17 July 2007 and 
caused the Company to stand him down from operating a crane, for which he held a 
ticket.

[100] If nothing else, these incidents ought to have sensitised him to the need to 
observe all protocols when working with heavy and potentially dangerous machinery. 
But those incidents did not have that effect and the Applicant went on only to give 
partial regard to the Company’s safety procedures when shunting.

[101] Further, the Respondent had taken considerable and recent efforts to train and 
increase the awareness of employees as to safety requirements, and particularly so in 
relation to shunting procedures. The Applicant had been ticketed twice since 2004, on 
his own evidence.

[102] Section 652(3)(a) of the Act requires the Commission to have regard to 
“whether there was a valid reason for the termination related to the employee’s 
capacity or conduct (including its effect on the safety and welfare of other 
employees)”. It appears to me that the kind of conduct exhibited by the Applicant is 
the kind of conduct that is intended to be captured by the Act. That is, the kind of 
conduct that is relevant need not only be wilful, malicious or intentional conduct, but 
conduct that can imperil or put other employees in the workplace in jeopardy. Apart 
from its other characteristics, the Applicant’s conduct in this matter was conduct of 
this kind.

[103] It is for these reasons, taken together, that I have concluded that the 
Respondent had a valid reason for the termination of the Applicant’s employment.’

[184] His Honour weighed up the following factors and determined that the applicant’s 

dismissal, although finely balanced, was ‘harsh, unjust and unreasonable’:

‘ The Applicant had been a long serving employee of 22 years experience in the 
company and without any formal disciplinary or performance issues before July 
2007 and he did not, in this matter, act wilfully;

 He is 59 years old (60 years in May 2008) and will find transitioning to new 
employment difficult for reason of his age and period of continuous service with one 
employer in Maryborough in a non-trades position;








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 The Applicant was unaware he was within a disciplinary process and did not have 
the reason for his termination put to him with any useful clarity; and

 Consequently, the Applicant did not have an opportunity, in a meaningful sense, to 
respond to the reasons for his termination and to endeavour to persuade his employer 
to adopt a different course.’

[185] It will be evident from these three cases that a serious breach of safety policies or 

procedures, whether deliberate or careless, will invariably result in a finding that a valid 

reason exists for the employee’s dismissal. Obviously, that is not the end of the matter. So 

much so is patently clear from the recent Full Bench appeal decision in B, C and D v 

Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 where the majority 

(Lawler VP and Cribb C) said at paragraph 41:

‘[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence 
of the Commission that a dismissal may be “harsh, unjust or unreasonable” 
notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat 
Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John 
Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v 
Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd
[2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; 
Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express 
Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 
82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] 
PR919205. That principle reflects the approach of the High Court in Victoria v 
Commonwealth and is consequence of the reality that in any given case there may be 
“relevant matters” that do not bear upon whether there was a “valid reason” for the 
dismissal but do bear upon whether the dismissal was “harsh, unjust or 
unreasonable”.’

[186] I shall shortly come back to whether the dismissal of the applicant was ‘harsh, 

unreasonable or unjust’.

Was there a valid reason for the applicant’s dismissal?

[187] The applicant’s case rests on his claim that his view of the signs was obstructed and he 

did not see them before entering the exclusion zone. He further claims that these signs were 

not the usual way or the way he would erect an exclusion zones. I do not accept that this later

explanation supports the applicant’s case in any convincing way. Had he seen the signs 

(which he says he did not till later) he would have immediately understood that he was not to 

enter upon that pathway. At the very least, the adoption of some cautionary judgement would 

have been obvious, even if the use of such signs was unusual in these circumstances. It 








[2013] FWC 6423

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follows then that his only defence can be that he did not see the signs until it was too late. For 

my own part, I consider this proposition to be highly unlikely. I am satisfied that the applicant 

had to deliberately manoeuvre around the alleged obstructing truck and in doing so, it seems 

most improbable that one or both the signs, or even the back of them, were not visible either,

wholly or partly.

[188] Considerable emphasis was placed by Ms Butler on the fact that the JSA for the oven 

was only a month old. It was said the applicant was unaware of the change in procedure. This 

evidence conflicts with other evidence with other evidence that the procedure requiring 

exclusion zones around the oven had been used on a few occasions in that time. Moreover, the 

claim the applicant was unaware of the change sits rather uncomfortably with his self-

preoccupation with safety issues and his claim of being proud of his safety records. 

[189] In any event, even if the applicant was unaware of the changed procedure (which I do 

not accept), that is not the point. The facts were that the signs were in place. I consider he 

must have seen one or both of them. It follows that by ignoring the signs, he deliberately set 

out to breach the well known and long held understanding that the signs mean what they say -

do not enter as there is a potential danger. Whether the process was a month old or a day old 

or whether the applicant was aware of the changed process is ultimately irrelevant to what he 

chose to do in ignoring the signs.

[190] Even allowing the applicant the benefit of the doubt, there remains the issue of his loss 

of temper, his lashing out and kicking the ‘Do Not Enter’ sign. The applicant conceded that he 

was frustrated over the incident the day before and Mr Gourgaud had abused him which 

caused him to lash out. However, from reading the applicant’s statement, one is left with the 

distinct impression that he had merely kicked the sign over. Nowhere does he acknowledge 

that the force of his kick was such as to smash the sign, render it airborne and landing it 

indiscriminately many metres away. I find this conduct to be inexcusable and unacceptable. It 

could have resulted in injury to other employees or damage to machinery. The fact, on the 

applicant’s own evidence, that it was a knee jerk reaction reinforces the possibility the sign 

could have flown in any direction. He even accepted it had flown 3.6 metres and had been 

cracked in a number of places.

[191] It was put to the applicant that his reactions were a result of him simmering from the 

day before and as an act of defiance he had deliberately ignored the ‘Do Not Enter’ signs and 








[2013] FWC 6423

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when criticised had reacted angrily by kicking the sign with considerable force. He 

maintained that he did not see the sign and when he realised his mistake, he reassessed the 

situation and proceeded forwarded. The kicking of the sign was just frustration and a response 

to Mr Gourgaud’s abuse. I would say, at this point, that Mr Gourgaud’s acknowledged 

abusive comment was also unacceptable. However, it was not so provocative as to justify the 

subsequent response of the applicant, in which he replied in kind and violently kicked the ‘Do 

Not Enter’ sign.

[192] On one view, it is very difficult to speculate on the applicant’s mood at the time. 

While it might not be the case that his actions were a deliberate act of defiance, it is clear that 

his acknowledged comment ‘Safety only suits Bradken when it suits Bradken’ reaffirms and 

reinforces the connection to the incident the day before. On his own admission, he was 

frustrated that no one in management would accept his concerns over the crane safety as 

legitimate. In my view, on the balance of probabilities, the applicant had intended to ignore 

the signs, simply because he believed that the company would only take safety seriously if it 

suited the company. Given the close proximity of the two incidents it is reasonable to assume 

that they were very much connected in the applicant’s behaviour.

[193] Accordingly, I am satisfied that there was a valid reason for the applicant’s dismissal 

in that firstly, at the very least he ignored the ‘Do Not Enter’ signs creating a risk to the 

employees in the oven and secondly, that he deliberately kicked one of the signs with such 

force that it became uncontrollably airborne and risked injuring other employees.

[194] The Commission is then required to consider whether the applicant’s dismissal was 

‘harsh, unreasonable or unjust’ having regard for the matters in s 387 of the Act which are as 

follows:

‘(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








[2013] FWC 6423

49

(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.’

[195] Subsection (a) as to ‘valid reason’ is dealt with above. In considering subsection (b), I 

do not understand there to be any real complaint from the applicant or the Union that he was 

notified of the reason for his dismissal when he was called to a meeting with Mr Campbell 

and Mr Winterford around 8:00am on the same day. The applicant agreed he gave his version 

of events, but as no investigation could possibly have occurred in the hour or so since the 

incident, he was stood down on pay, pending the Company’s further investigation. To suggest 

the applicant did not know what he was accused of misunderstands the evidence. Ms Butler

criticised the fact that the specifics of the allegations were not expressed in writing until the 

F3 Employer’s Response. Nothing turns on this fact, as I am positively satisfied that, at all 

relevant times, the applicant perfectly understood what he was accused of doing on 6 

December 2012.

[196] There appeared to be some implied criticism that not much was said in this first 

meeting and the applicant was not offered a support person. In my view, neither of these 

criticisms are valid. Firstly, as just mentioned, the time since the incident had only been an 

hour. The Company was hardly in any position to have considered the circumstances or taken 

evidence from any witnesses. Its purpose was to advise the applicant that prima facie the 

incident was serious and, that being so, it was appropriate he be stood down. 

[197] Secondly, this was not a meeting which warranted a support person present. On one 

view, it was not even a disciplinary meeting at this early stage. In any event, the statutory 

requirements of s 387(d) as to whether there was an unreasonable refusal to allow a support 

person to be present is not the same as the employee not requesting a support person. No 

adverse finding can arise if the employee does not make the request - as was the case here.








[2013] FWC 6423

50

[198] There was ample opportunity between 6-12 December 2012 for the applicant to 

prepare his defence and respond to the allegations (s 387(c)) and seek the advice and support 

of his Union, which he did. The Union Organiser participated by phone in the disciplinary 

meeting of 12 December 2012 (s 387(d)). There was no suggestion that the applicant was not 

appropriately and competently represented by his Union and the Union Organiser.

[199] During the cross examination of Mr Frost, there was criticism of him for making 

further inquiries of the witnesses after the applicant’s dismissal as to the presence of the truck 

on the pathway. I do not share these criticisms. In my view, it was entirely appropriate for Mr 

Frost to speak to the witnesses again, as:

(a) None of them had mentioned a truck in their statements to him during the 

investigation. 

(b) The first time the issue of a truck was raised by the applicant, was in the 

disciplinary meeting on 12 December.

[200] It is curious that the applicant had not mention the presence of the truck as obstructing 

his view of the ‘Do Not Enter’ sign in his exchange with Mr Gourgard or later in the 

standdown meeting with Mr Frost and Mr Winterford. Given the applicant’s history of raising 

complaints and then escalating them if he was dissatisfied, I do not accept that he felt it was 

futile to raise the issue of the truck. 

[201] Like the respondent, I have some doubts as to whether a truck was there at all during 

the relevant times. Was it a convenient way of reinforcing the explanation for the applicant 

not seeing the signs? I make no specific findings in this regard. In any event, Mr Frost’s 

follow up inquiries do not reveal any new or different information. None of the witnesses 

could recall a truck being present.

[202] In my opinion, for a procedural defect to be of such significance as to be of itself a 

sufficient basis for a finding of unfairness, the defect must be one which could have altered 

the outcome of the respondent’s decision making or it resulted in a miscarriage of justice such 

as to have impacted on the respondent’s decision to dismiss the applicant. This was certainly 

not the case in this instance.








[2013] FWC 6423

51

[203] In my assessment, the respondent’s investigation was fair and thorough. The decision 

to dismiss was reasonably open to it on the basis of what it had established by interviewing 

key witnesses (serious safety breaches) and considering the implausibility of the applicant’s 

explanations. 

[204] Subsection (e) as to warnings related to unsatisfactory performance is not relevant to 

summary dismissal for serious misconduct. To the extent that a failure to observe Company 

safety policies and imperilling the safety of other employees, is a performance issue, there can 

be little doubt that the Company’s safety policies and procedures were well known and 

understood by its employees. Employees are trained and continually reminded of their 

obligations in this regard. In any event, the applicant’s own evidence, particularly concerning 

the safety of the crane, leaves no reason to doubt that he was an employee very much ‘alive’ 

to safety issues and was no ‘shrinking violet’ when it came to raising such issues.

[205] This case was not prosecuted by the Union or defended by the employer on the basis 

that the applicant’s performance was unsatisfactory (s 387(e)). It is a case of summary 

dismissal for serious misconduct. While subsection (e) of s 387 is not applicable to these 

circumstances, it seems unarguable that the applicant’s performance was never an issue for 

the respondent. Indeed, it was rather incredible that, before leaving the premises after being 

dismissed, the applicant collected a Company congratulatory certificate for innovation and 

continuous improvement. In addition, there was no contrary evidence as to the applicant’s 

claims that he was a loyal and committed employee who often worked seven days a week. I 

am satisfied the respondent took these matters into account when making the decision to 

dismiss him.

[206] Subsections (f) and (g) of s 387 are neutral factors in this case. The respondent is a 

medium sized enterprise and the procedures it followed in effecting the applicant’s dismissal 

were appropriate, given its size and access to dedicated human resources management 

specialists and the relationship it has with the Union. 

[207] I consider five other matters are relevant to my determination of whether the 

applicant’s dismissal was ‘harsh, unreasonable or unjust.’

1. There was an earlier safety incident involving the applicant working in the 








[2013] FWC 6423

52

paint shop without the appropriate induction or authority. While the applicant 

sought to ‘brush off’ the incident as insignificant as no disciplinary action 

followed, there is no doubt the respondent took a dim view of his conduct at the 

time. I do not accept the applicant’s evidence that Mr Frost had said he was 

pleased with the outcome of his work. Rather, this was a gloss on Mr Frost’s 

evidence that while he had understood what the applicant was trying to do, he 

had given him a verbal warning that it was inappropriate and unsafe to work in 

the paint sheds without being properly trained.

2. The applicant’s service was in the mid range (eight years).

3. The applicant has been able to secure alternative employment. While I accept it 

may not be comparable employment, there was no submission put that the 

applicant’s age or any other factors have impeded him in securing alternative 

employment.

4. As a leading hand, the applicant had a duty and an obligation to set an example 

to his fellow workers. His conduct on 6 December 2012 was not only a poor 

reflection on his personal judgment, but was exactly the opposite of the type of 

conduct that is expected of a leading hand.

5. At no time has the applicant apologised for his conduct, even for kicking the 

sign. His lack of contrition is not a factor in his favour.

[208] I would comment on four other matters raised in the proceeding. Firstly, I reject any 

suggestion, implied or otherwise, that the applicant’s Union activity or complaint about the 

alleged unsafe crane were factors in the decision to dismiss him. There was simply no 

evidence to support either of these propositions. Moreover, the impression I garnered during 

the case was that the respondent and the Union have a good relationship.

[209] Secondly, while the respondent raised the issue of the applicant taking impairing 

medication without informing management, it did not rely on this matter in its decision to 

dismiss him. I accept this concession. I note the applicant claimed he told Mr Andrews that he

was taking the medication and Mr Andrews acknowledged he had mentioned it to him. In any 

event, I do not consider this to be a matter which tips the decision of the Commission either 

way. 








[2013] FWC 6423

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[210] Thirdly, I do not accept there was a dichotomy or conflict between the sections in the 

Employee Handbook or the Handbook and the Agreement in respect to discipline, serious 

misconduct and summary dismissal. The authorities I have earlier referred to make clear what 

approach should be adopted by the Commission in cases involving summary dismissal for 

breaches of safety policies. 

[211] Fourthly, reliance on the JSA to discredit the use of yellow warning signs, rather than 

tape or barricades is a ‘difference without a distinction’. I agree with the evidence that the ‘Do 

Not Enter’ signs mean the same as tape or barricades. Indeed, the fact the applicant said he 

stopped and reassessed the situation when he saw the second sign, corroborates this view and 

confirms that he knew what the signs meant. It makes no difference that tape or barricades

were not put in place.








[2013] FWC 6423

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[212] For all the aforementioned reasons, I am unable to be satisfied that the applicant’s 

dismissal on 12 January 2013 was ‘harsh, unreasonable or unjust’ within the meaning of s 

387 of the Act. The application for a remedy from alleged unfair dismissal must be dismissed. 

An order to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:
Ms L Butler of the Australian Manufacturing Workers’ Union, for the applicant
Mr D Miller of the Australian Industry Group, for the respondent

Hearing details:
2013.
Brisbane
17 June

Final written submissions:
Applicant - 27 June 2013.
Respondent - 5 July 2013.

Printed by authority of the Commonwealth Government Printer
Price code J, PR541095


COMMISSION FAIR WORK COMM AUSTRALIA THE SEAL OF

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