1
Fair Work Act 2009
s.394—Unfair dismissal
Warwick Gee
v
Tasmanian Ports Corporation Pty Ltd T/A Tasports
(U2015/11920)
DEPUTY PRESIDENT WELLS HOBART, 4 JANUARY 2017
Application for unfair dismissal remedy – whether valid reason for dismissal – labour hire –
host employer – capacity – conduct – inherent requirements – no valid reason for dismissal –
dismissal unfair – further evidence and submissions required as to remedy.
Introduction
[1] Mr Warwick Gee (the Applicant) filed an application for an unfair dismissal remedy
pursuant to s.394 of the Fair Work Act 2009 (the Act) following the termination of his casual
employment by Tasmanian Ports Corporation Pty Ltd trading as TasPorts (ABN 82 114 161
938) (TasPorts). The letter of termination, dated 28 August 2015, cited an inability for Mr
Gee to “perform the inherent requirements”1 of his position as the reason for termination. The
inability to perform those requirements related to Mr Gee’s loss of site access with his host
employer, Grange Resources Limited (Grange), at Grange’s Port Latta site in Tasmania.
TasPorts provide personnel to Grange to perform loading and shipping work at the Port Latta
site under a services agreement.
[2] At the hearing of this matter, both parties sought and were granted leave to have legal
counsel. Mr M Burns appeared for the applicant. Ms S Masters appeared for TasPorts.
[3] Mr Gee sought reinstatement to his former position as a casual Shiploader/Reclaimer
Operator at Port Latta and compensation for lost wages, or in the alternative, appointment to a
position on terms and conditions no less favourable than those upon which he had previously
been employed.
Initial matters to be considered
[4] Section 396 of the Act requires I decide four matters before consideration of the merits
of Mr Gee’s application. There is no dispute between the parties and, on the evidence, I am
satisfied that:
(a) Mr Gee’s application was made within the period required by s.394(2);
(b) Mr Gee was a person protected from unfair dismissal;
[2017] FWC 31 [Note: An appeal pursuant to s.604 (C2017/458) was
lodged against this decision.]
DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 31
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(c) TasPorts is not a small business employer as described in s.23 of the Act,
therefore the Small Business Fair Dismissal Code is not relevant to this application;
and
(d) Mr Gee’s dismissal was not a case of genuine redundancy.
Hearing
[5] The matter was heard on 16 and 17 June 2016 in Launceston and continued on 6 July
2016 in Hobart. Mr Gee2 gave evidence on his own behalf. Ms Belinda Beltz,3 Manager
Human Resources (TasPorts), Mr Ashley Ralston,4 Port Latta Marine Supervisor (TasPorts),
and Mr Tim Duncombe,5 Production Superintendent (Downstream Processing) for Grange,
gave evidence on behalf of TasPorts.
[6] TasPorts sought to tender a witness statement of Mr Paul Sturzaker,6 former Senior
Processing Manager for Grange. Mr Gee objected to the witness statement being tendered, on
the basis that Mr Sturzaker did not make himself available for cross-examination. At the
hearing I determined to accept the witness statement for consideration and to determine what
weight, if any should be given to its contents. Having considered that witness statement I am
satisfied that to place any weight on Mr Sturzaker’s statement without the opportunity for it to
be tested in cross-examination would be prejudicial to Mr Gee. TasPorts were given ample
opportunity to have Mr Sturzaker present at the hearing on 6 July 2016, and chose not to seek
on order for his attendance.7 I have not had regard for the contents of Mr Sturzaker’s
statement in my determination of this matter.
[7] Subsequent to closing arguments, the parties requested to make further written
submissions, following a Full Bench decision of the Commission which dealt with host
employment circumstances similar to those experienced by Mr Gee. This request was granted
and further submissions were made by the parties on 6 and 12 September 2016.
[8] On 9 September 2016 Mr Gee’s lawyer filed supplementary submissions requesting
that, pursuant to s.615A(2) of the Act, the substantive application be referred to a Full Bench.
This application was opposed by TasPorts. The President issued a decision [2016] FWC 6710
on 19 September 2016, denying the Applicant’s application to refer the matter to a Full
Bench.
Was the dismissal unfair?
[9] Section 387 of the Act requires a number of matters to be considered by the
Commission in determining whether Mr Gee’s dismissal was harsh, unjust or unreasonable.
That section provides:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
[2017] FWC 31
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(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person--
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[10] I now deal with each of the considerations required under s.387 of the Act.
Was there a valid reason for the dismissal (s.387(a))?
[11] An employer must have a valid reason for the dismissal of an employee, which is
“sound, defensible and well founded”8 and that reason should not be “capricious, fanciful,
spiteful or prejudiced.”9
[12] In determining the existence or otherwise of a valid reason, it is not for the
Commission to stand in the shoes of the employer and determine what it would do if it was
the employer.10 The matter to be determined by the Commission is whether there was a valid
reason for the dismissal regarding the capacity or conduct of the employee.11
[13] In cases relating to the capacity of the employee, “an inability to perform the inherent
requirements of a position will generally provide a valid reason for dismissal. But this will not
invariably be so.”12
[14] TasPorts contends a ‘valid reason’ existed for Mr Gee’s dismissal; namely that he was
not able to perform the inherent requirements of his position.
[15] Relevantly, the termination letter, dated 28 August 2015 provides:13
“Reasons for revocation of Grange Resources site access
[2017] FWC 31
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Grange Resources has advised TasPorts that your access to all Grange Resources sites
has been revoked for the following reasons:
(a) You failed to follow a reasonable work and deployment directive to
operate a reclaimer during ship loading by Grange Resources Shift Supervisor
on Thursday, 13 August during the loading of the MV Transpacific.
(b) You took, and posted to social media, unauthorised photos of Grange
Resources assets and work sites – this is a breach of Grange Resources’
Information Technology Communications Social Media Policy, as per
information provided to you by Grange in April 2013.
(c) You attempted to circumvent reporting protocols between Grange Shift
Supervisors and TasPorts pilots on Friday 7 August during the loading of the
MV Cemtex Pioneer.
TasPorts Marine Supervisor, Ashley Ralston has made inquiries with Grange
Resources Downstream Processing Manager Paul Sturzaker in relation to the
revocation of your site access. Mr Sturzaker advised that he supported the decision to
revoke your access to all Grange Resources sites and that your total disregard for basic
site policy and procedure did not require any further response from Grange.
Based on the information provided by Grange Resources, TasPorts considers that the
decision by Grange Resources to revoke your site access was a decision reasonably
open to Grange Resources in the circumstances.
Notice of removal from employment roster
As you are aware, the duties of your position as ‘Shiploader/Reclaimer Operator – Port
Latta’ involve carrying out work exclusively on Grange Resources sites. Given your
access to all Grange Resources sites has been revoked, you are not able to perform the
inherent requirements of your position and there are no alternative available
positions/duties you could perform at TasPorts.”
[16] The revocation of Mr Gee’s access to all Grange sites was affected following an
‘investigation’ by Mr Duncombe which commenced on 14 August 201514 (the Grange
investigation). Mr Duncombe reported the outcome of this investigation to Mr Sturzaker.
There is no dispute between the parties that whilst TasPorts were aware of Mr Duncombe’s
investigation, Mr Gee was not advised of the investigation and was therefore not afforded an
opportunity to respond to any of the allegations made against him and TasPorts did not make
representations on behalf of Mr Gee.
[17] Mr Gee was employed pursuant to the Port Latta Loading Crews and Lines Boat Crew
Agreement 2013.15 Mr Gee’s work at Port Latta involved him operating large iron ore pellet
loading machinery, and line crew duties which included tying up vessels for loading and
general maintenance on equipment within the Port Latta site. Mr Gee’s duties largely
involved him working “off-shore”16 loading iron ore pellets onto ships. Mr Gee had also
carried out casual work for Skilled Group undertaking shut down and maintenance work
mostly at Port Latta.17 Mr Gee also holds a carpenter-joiner qualification.18
[2017] FWC 31
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[18] The evidence discloses that on 13 August 2015, an altercation occurred between Mr
Gee and Mr Wayne Dillon, his shift supervisor, as to whether he worked off-shore
(shiploading at the end of the loading jetty) or in-shore (on a reclaimer, which is a loader
machine used to load iron pellets onto the jetty conveyor belt, at the start of the loading jetty).
There are two shiploaders and two reclaimers at Port Latta and they are operated by a mix of
two TasPorts employees and two Grange employees. For the most part, the two TasPorts
employees would operate the loader equipment off-shore.19
[19] On that day Mr Gee attended for work as normal, entered the worksite and spoke with
his work colleague Mr Geoff Jenkins. Mr Jenkins told Mr Gee that he thought it was a ‘one-in
one-out’ work situation that day, which mean that the two of them would be covering both in-
shore and off-shore work. Mr Gee asked Mr Jenkins what his preference was and Mr Jenkins
indicated he wasn’t confident operating off-shore. Mr Gee told Mr Jenkins he would
undertake the off-shore work that day.20 Mr Gee then telephoned Mr Dillon to check that
Grange wanted the one-in, one-out arrangement as this was not usual. Mr Dillon advised Mr
Gee the ‘one-in one-out’ arrangement was correct, but that Mr Gee was to work in-shore that
day. Mr Gee replied “No,… I’m going to go off-shore.” Mr Dillon again told Mr Gee he
would be working in-shore. Mr Gee again replied “No”. Mr Dillon told Mr Gee to go and
speak to Mr Tony Poke, the Day Works Supervisor, about the matter. The conversation took
approximately 20 seconds.
[20] Mr Gee then went to Mr Poke’s office; however Mr Poke was not there. As Mr Gee
approached the reception area, Mr Poke was ending a phone call with Mr Dillon. Mr Poke
pointed the phone at Mr Gee and said “Yes you are.”21 Mr Gee said to Mr Poke “we arrange
between ourselves who’s going off shore”.22 Mr Poke responded with words to the effect of
‘Grange arranges where you go’.23
[21] Mr Gee then asked Mr Poke which reclaimer he was to operate. Mr Poke, said ‘off the
top of his head’24 to go to the west. Mr Gee told Mr Poke he would prefer to operate the east
reclaimer as there is an issue with dust entering the cab of the west reclaimer. Mr Poke
responded with “Just get to work”.25 This evidence is supported by the records of
conversation documents provided by TasPorts.26
[22] When Mr Gee arrived at the west reclaimer Mr Brodie Dillon, son of Mr Dillon, was
already operating that reclaimer. Mr Gee advised Brodie twice that he had been directed to
work on the west reclaimer and questioned Brodie why he was operating it. Brodie stated that
his father had told him to operate the west reclaimer for that shift. Mr Gee said to Brodie
“Okay then, no worries. I’ll go over and work on the east.”27 This evidence was not disputed
by TasPorts. Mr Gee operated the east reclaimer for the shift and was not contacted again by
Mr Poke or Mr Dillon to discuss his duties further.
[23] I am satisfied that the direction for Mr Gee to work in-shore was a reasonable
instruction as it is work that is within Mr Gee’s skills, knowledge and experience. I turn now
to consider whether Mr Gee’s conduct amounted to a refusal of a reasonable instruction.
[24] Ms Beltz’s evidence was that:”[s]ubsequent to the removal of Mr Gee from the
employment roster TasPorts were made aware that whilst Mr Gee did eventually undertake
the work directed to him (after challenging the management direction) his refusal of a
management direction extended to work on the reclaimer that he was specifically told not to
work on.”28 It is difficult to align this evidence with the evidence of Mr Ralston, who stated
[2017] FWC 31
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“[d]uring my further investigation into the Refusal, I found out that Mr Gee had been directed
by Mr Poke to work on the west reclaimer but had instead gone to work on the east
reclaimer.”29 Clearly TasPorts, through Mr Ralston were aware prior to the letter of 28 August
2015 that removed Mr Gee from the roster, that Mr Gee had not operated the west reclaimer.
Mr Ralston was not instructed by Mr Holden to undertake his investigation until 25 August
2015.30 What is clear is that Grange advised TasPorts, via the email from Mr Sturzaker to Mr
Ralston on 17 August 2015, that the alleged ‘refusal’ related to a direction to operate “a
reclaimer”,31 not a refusal to operate the west reclaimer. Accordingly, Grange could not have
based their decision to revoke Mr Gee’s site access, taken on 17 August 2015, on his alleged
refusal to operate specifically the west reclaimer. The obvious tension in this evidence
identifies the shortcomings of two investigations that did not provide any opportunity for the
accused to provide his version of events.
[25] Speaking with Mr Gee would have provided Grange with information which could
then have been considered. Doing so also would have provided Grange with the opportunity
to examine whether the information already to hand, from other sources, might require further
consideration or investigation.
[26] An employer and a host employer are entitled to make significant demands on an
employee in accepting direction in the workplace. The evidence shows that Mr Gee’s
discussions with Mr Dillon and subsequently Mr Poke, took approximately three minutes.32
They did not manifest in a terrible explosion. Rather the discussion with Mr Dillon was no
more than a rub on the day which was magnified later by a misunderstanding as to who was to
operate the west reclaimer. Mr Gee wasn’t being contrary and there was no conclusion that
following the discussions Mr Gee was insolent or disrespectful of the employment
relationship. This was not a case of manic determination for Mr Gee to have his own way. It
is important, in my view, that Mr Gee did not mislead Brodie Dillon who was operating the
west reclaimer at the relevant time. Having heard the detailed evidence, it is quite clear that
Mr Gee’s actions following his conversation with Mr Poke do not reflect his having refused
an instruction. It follows that TasPorts’ submission that Mr Gee’s actions amounted to “a
sustained refusal … (as opposed to an impetuous refusal quickly remedied)”33 cannot be
sustained.
[27] I am satisfied that whilst the conversation between Mr Dillon and Mr Gee was less
than an ideal employee/employer interaction, the conversations did not ultimately constitute a
refusal to carry out a lawful and reasonable instruction or direction. Neither did Mr Gee’s
operation of the east reclaimer constitute a refusal, given the evidence that Mr Dillon had
instructed his son to operate the west reclaimer for that shift. I note that Mr Dillon did not
advise Mr Gee to work on a specific reclaimer.34 It was Mr Gee’s evidence that Grange’s
actions on the morning of 13 August 2015, meant that he felt targeted by Grange35 and that
this feeling escalated when he was both drug and alcohol tested the following day when he
attended for work.36
[28] In the course of the Grange investigation, Mr Duncombe spoke to the Production
Supervisor, Mr Marcus Lockett. Mr Lockett described that on or around 7 August 2015 (Mr
Gee asserts the events occurred on 8 August 2015), Mr Gee had relayed incorrect information
to a Pilot on board a vessel which was in breach of Grange’s reporting protocols and affected
the ability to continue shiploading. Mr Gee said this issue arose due to a number of
breakdowns which had occurred on that shift. He was concerned that due to the breakdowns
the product loaded on the shift had not been weighed properly and he was concerned the
[2017] FWC 31
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vessel would be inadvertently overloaded, which had occurred before. He contacted the shift
supervisor at the time but was fobbed off. He then contacted his work mate and then the
ship’s Pilot to explain an issue with extra tonnage that was displayed on the computer screen
in his loader. Mr Gee said he contacted the ship’s Pilot directly to be pro-active and ensure
that, prior to the end of his shift; the correct tonnage information was in the hands of someone
who could ensure the ship did not end up overloaded.37
[29] Grange’s written reporting protocols were not before the Commission. Mr Duncombe
stated that Mr Gee should not have contacted the ship’s Pilot. If Mr Gee’s actions constituted
a breach of Grange policy, and it is not clear in all the circumstances that they did, it is
evident that Mr Lockett did not consider it sufficiently serious as to require that further action
be taken at the time. I note that the Grange ‘record of conversation’38 signed by Mr Lockett
relating to those matters of 7 or 8 August 2015 is not a contemporaneous note. It was created
on 24 August 2015, some seven days after the revocation of Mr Gee’s site access.
[30] As a result of the investigation, Grange also had concerns about photographs (six
images depicting sunrises and/or sunsets, dolphins swimming and some of Grange’s
infrastructure)39 taken by Mr Gee whilst he was in the cab operating “off-shore” equipment,
and posted on his social media Facebook account between 26 January and 7 May 2014. There
was dispute between the parties as to whether the photographs posted to Mr Gee’s Facebook
account were available only to his Facebook friends or whether his account settings were
‘public’ and available to all Facebook users. Grange did not rely on the alleged breaches of its
Information Technology, Communications and Social Media policy (ITC policy)40 or
reporting protocols in the revocation of Mr Gee’s site access. Mr Duncombe advised that
those matters were not the major issue and that it was because of the alleged failure to follow
a direction from a Grange supervisor that Mr Duncombe had recommended to Mr Sturzaker
that Mr Gee’s site access be revoked.41
[31] A question as to Mr Duncombe’s credibility arose during his oral evidence when Mr
Duncombe stated he had visited Mr Gee’s Facebook account twice,42 when his written
statement advised he viewed the account once. This conflict arose as a result of the very
specific dates in Mr Duncombe’s witness statement as to when he was on site at Port Latta,
when he became aware of the incident, and when he commenced the Grange investigation, all
of which were said to be on 14 August 2015. Mr Gee, at hearing, produced evidence that Mr
Duncombe had sent him a Facebook friend request43 on Monday 13 August 2015 at
approximately 9.30am, the day before Mr Duncombe said he had become aware of the
matters and started the Grange investigation. Mr Duncombe’s evidence under cross
examination was, at times, evasive and unsatisfactory and led me to view this evidence as
constructed.44
[32] Grange’s ITC policy is a comprehensive document of some 22 pages. When
considering the document as a whole, it is focused on providing a set of guidelines and
procedures on the appropriate and reasonable use of Grange provided ITC resources. It does
not specifically deal with the use of personally owned equipment with the exception of clause
9(t) which states that a user must not “have an unauthorised mobile phone in possession on
any site operational work area”. Mr Gee had a personal mobile in his possession which he
used to make calls to on-site management instead of using the radio network.45 The policy
also provides, under clause 9(v), that a ‘user’ must not “use a mobile phone for taking
photographs or video on any site operational work area unless authorised.”
[2017] FWC 31
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[33] Deegan C in Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd, 46 (a
decision upheld on appeal to a Full Bench) at paragraph [54] determined that:
“Not every breach of a policy will provide a valid reason for termination of
employment. However in circumstances where the policy is both lawful and
reasonable and an employer has stressed the importance of the particular policy to the
business and made it clear to employees that any breach is likely to result in
termination of employment, then an employee who knowingly breaches that policy
will have difficulty making out an argument that there is no valid reason for the
termination.”
[34] Whether the photographs taken by Mr Gee whilst at work were made public on
Facebook or whether they were only available to Mr Gee’s Facebook friends is irrelevant for
the purposes of establishing a breach of the relevant policy. Grange’s ITC policy provides that
a user must not take photographs or video on a mobile phone on any “site operational work
area” unless authorised. This required the taking or photos or video to be approval by a
Grange supervisor or Manager. Mr Gee’s evidence was that he was not aware of the contents
of Grange’s ITC policy. Mr Ralston’s evidence was that he could not be certain that Mr Gee
was familiar with the policy.47 Having carefully considered the evidence on this point, as it
was given, I have determined that Mr Gee was not provided with, and was not aware of, the
content of the ITC policy.
[35] As to Grange’s concern that Mr Gee was in possession of an unauthorised mobile
phone contrary to the policy, Mr Gee’s uncontested evidence was that he had used his mobile
phone to conduct operational conversations from time to time. It follows that Grange’s
reliance on a finding that Mr Gee had breached the ITC policy by having an unauthorised
phone on site, not only cannot be sustained, but rather possession and use of this phone was
officially sanctioned.
[36] The evidence establishes that Mr Gee did not seek permission to take the photographs
in question which show parts of the Port Latta operational equipment. The ITC policy at
clause 9(m) precludes a user transmitting or exposing “extremely sensitive information via the
internet without authorisation and without encryption”.48 It is clear from this wording in the
policy that the photographs taken by Mr Gee are not captured by the policy, nor does clause
10 ‘Social Media’ deal with this specific issue and are therefore not a breach. In any event, I
am of the view that the context in which the photos were taken and posted to Facebook does
not evince any malice on the part of Mr Gee and Grange did not establish that it suffered any
damage because of those actions. I formed the view that the photographs of dolphins and
sunrises, (whilst taking them was a breach of the ITC policy) would be considered low scale
misconduct and would not provide a valid reason for dismissal, whether taken individually or
in combination with the incident on 13 August 2016 with Mr Dillon.
[37] Likewise, the alleged breach of reporting protocols of 7 August 2015 was not
considered to be serious or of concern by Mr Lockett as he did not report it or take any other
action at the time. TasPorts did not provide, through Mr Duncombe’s evidence, a copy of any
on site protocol or indicate whether a breach of any such protocol could or would result in
dismissal. It appears to me, when considering Mr Duncombe’s conduct from 13 August 2015,
that he was searching for issues relating to Mr Gee to support a decision he had already made,
which was to recommend Mr Gee’s site access be revoked.
[2017] FWC 31
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[38] It is clear that Mr Gee was not afforded an opportunity to address Grange on the
allegations as to his conduct on the day in question and to explain why he responded to his
supervisors as he did.49
[39] I am of the view that whilst TasPorts relies on an incapacity for Mr Gee to carry out
his duties, the decision to terminate Mr Gee’s employment was inextricably linked to the
decision of the host employer (Grange), to revoke his site access due to his alleged conduct. I
am satisfied that the investigation carried out by Grange was procedurally flawed and the
outcomes of that investigation, in so much as they seek to establish that Mr Gee refused a
lawful and reasonable direction, are unsound.
[40] As to the credit of Mr Gee, it was my general view that he was forthright in his
evidence. He gave his evidence unhesitatingly and in full, acknowledging aspects of the
events which didn’t favour his case or the cause. He was quite free in his concession that he
said “no” more than once in his conversation with Mr Dillon.
[41] I accept the evidence of Mr Gee and am satisfied that whilst he described the actions
he undertook on 13 August 2015, he did not admit to having refused a direction either during
his discussion with Mr Ralston on 13 August 2015 or at a meeting held on 17 August 2015
with TasPorts,50 (which had been previously scheduled to discuss workplace entitlements for
the line crews).
[42] As to the actions of TasPorts during the Grange investigation, TasPorts should have
acted to protect its own interests and those of Mr Gee. Mr Ralston knew of the investigation
being carried out by Mr Duncombe. He advised Ms Beltz of that fact. Neither Mr Ralston nor
Ms Beltz advised Mr Gee that an investigation into the circumstances surrounding the events
of 13 August 2015 was underway and that it might affect his interests. TasPorts failed to
make representations to Grange in relation to their employee or a procedurally fair
investigation. Further, Mr Ralston’s evidence was that even though he carried out his own
investigation into the events of 13 August 2015, he never spoke directly to Mr Dillon about
those matters.51
[43] In the oft quoted principles of “valid reason” contained in Selvachandran v Peteron
Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran) the following passage is relevant in the
context of Mr Gee’s dismissal:
“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 for 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 the privileges and duties and obligations
conferred and imposed on them. The provisions must be applied in a practical and
common sense way to ensure that the employer and employee are each treated fairly.”
[44] This principle from Selvachandran recognises the unfair dismissal objectives, now
contained in Part 3-2 of the Act, (s.381(2)) that both parties must ensure a fair go all round for
the other. Section 381(2) provides:
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(2) The Procedures and remedies referred to in paragraphs (1)(b) and (c), and the
manner of deciding on and working out such remedies, are intended to ensure that a
“fair go all round” is accorded to both the employer and employee concerned.
[45] In the matter of Kool v Adecco Industrial Pty Ltd T/A Adecco,52 (Kool) Asbury DP
held at paragraphs [48] and [49]:
“[48] Where managers of a host employer inform a labour hire employee that he or
she is to be removed from site on the basis of conduct, capacity or work performance,
the actions of the host employer may be tantamount to dismissal. This is particularly so
where managers or supervisors of the host employer have also been involved in
disciplining the labour hire employee. A labour hire employee seeking to contest such
action by making an application for an unfair dismissal remedy, faces considerable
difficulty, principally because the host employer is not the employer of the labour hire
employee. It is also the case that a labour hire company may face considerable
difficulty preventing a host employer from taking disciplinary action against an
employee of the labour hire company.
[49] However, the contractual relationship between a labour hire company and a
host employer cannot be used to defeat the rights of a dismissed employee seeking a
remedy for unfair dismissal. Labour hire companies cannot use such relationships to
abrogate their responsibilities to treat employees fairly. If actions and their
consequences for an employee would be found to be unfair if carried out by the labour
hire company directly, they do not automatically cease to be unfair because they are
carried out by a third party to the employment relationship. If the Commission
considers that a dismissal is unfair in all of the circumstances, it can be no defence that
the employer was complying with the direction of another entity in effecting the
dismissal. To hold otherwise would effectively allow labour hire employers to contract
out of legislative provisions dealing with unfair dismissal.”
[46] TasPorts contended that the recent Full Bench decision in Pettifer v MODEC
Management Services Pty Ltd53 per O’Callaghan SDP, Binet DP and Hampton C, (Pettifer)
supports its submission that there was a valid reason for Mr Gee’s dismissal relating to his
capacity, as Mr Gee was solely employed for the purpose of performing work at Grange’s
Port Latta site; and that TasPorts was not able to redeploy him.54
[47] Pettifer involved an employee who was employed by MODEC and placed with a host
employer, pursuant to a contract for the provision of labour for a floating production vessel.
Following a safety near miss, the host employer exercised its right under its contract with
MODEC and directed MODEC to remove Mr Pettifer from the host employer’s site.
[48] Relevant to the matters to be considered in this application, the Full Bench in Pettifer
held as follows:
“[33] Consequently we have concluded that the Commissioner was in error in her
conclusion that the circumstances of the termination of Mr Pettifer’s employment did
not give rise to valid reason considerations. Mr Pettifer’s incapacity to work on the
BHPB Site arose directly from the BHPB prohibition on his returning to work on that
site, as distinct from any dispute over his conduct. As a consequence, Mr Pettifer was
incapable of work on the BHPB Site in a manner which was akin to a bar or the loss of
[2017] FWC 31
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a form of licence, essential to his capacity to work. Hence Mr Pettifer’s capacity was a
factor which required a conclusion in terms of whether it represented a valid reason for
the termination of his employment.
[37] MODEC was therefore contractually obliged to remove Mr Pettifer from the
BHPB Site if instructed to do so. This was the role which Mr Pettifer was employed to
perform. No longer capable of performing the inherent functions of this role, MODEC
sought to find alternative employment for Mr Pettifer. Only after exhausting these
inquiries did MODEC rely on this reason to termination Mr Pettifer’s employment. In
these circumstances the Full Bench is satisfied that MODEC had a valid reason in
relation to Mr Pettifer’s capacity to terminate his employment and only exercised this
reason because it genuinely was unable to find suitable alternative employment for
him. [my emphasis]
[38] We have considered Mr Pettifer’s position in the context of the conclusions
reached by Deputy President Asbury in Adecco.
[39] In that matter the Deputy President observed that:
“[71] I accept that Adecco, by virtue of its contact with Nestlé for the supply
of labour, may have been required to remove Ms Kool from the Nestlé site
when it was requested to do so. I was not assisted by the failure of Adecco to
call any direct evidence about the terms of its contract with Nestlé for the
supply of labour and the rights of Nestlé to seek to remove labour hire
employees from its site.”
[40] The factual situation before the Deputy President was somewhat different to
Mr Pettifer’s circumstances. In that case, the Deputy President did not have the terms
of the contractual relationship between the labour hire company and the host employer
in evidence before her. Some of her comments in that context might well be
considered to be, at their highest, a general statement of principle. That principle is
that, in the context of labour hire arrangements, the actions of an employer who
dismisses an employee following the exercise of a host employer’s contractual right to
have the employee removed from the host site cannot rely exclusively on the actions
of that third party as their defence to a claim of unfair dismissal. A discretion remains
with the FWC to decide whether a particular dismissal is unfair in all the
circumstances.
[41] In the Adecco case, Deputy President Asbury found that a failure on behalf of
the applicant’s employer to explore redeployment opportunities for the applicant
constituted an element of unfairness in the circumstances of the applicant’s dismissal.
In this case, there is no contest that MODEC did explore redeployment opportunities
for Mr Pettifer both prior to his termination and afterwards, including liaising with his
union to explore the opportunity to substitution. In this respect, we would also observe
that there is absolutely nothing to suggest that MODEC colluded with its client to
remove Mr Pettifer from the work site.”
[49] It is a well-established legal principle that members should follow a Full Bench
decision as it relates to matters to be determined, unless the decision is inconsistent or wrong
in law. In other words, a Full Bench decision should be followed unless there are sound
[2017] FWC 31
12
reasons for not doing so. TasPorts rely on the authority in Nguyen v Nguyen55 where the High
Court held:
“When a court of appeal holds itself free to depart from an earlier decision it should do
so cautiously and only when compelled to the conclusion that the decision is wrong.
The occasions upon which the departure from previous authority is warranted are
infrequent and exceptional and pose no real threat to the doctrine of precedent and the
predictability of the law.”
[50] I am mindful of the principle established in Pettifer and that respect is to be accorded
to that Full Bench decision. However, there are a number of significant differences as to the
circumstances requiring decision in this case and those prevailing in Pettifer. These
differences include:
There was no contractual arrangement between TasPorts and Grange that was
before the Commission that allowed Grange to direct TasPorts to remove an
employee from the Port Latta site. The circumstances in this case are that Grange,
following a procedurally unfair investigation, removed Mr Gee from the Port Latta
site
A lack of notification to Mr Gee that he may be terminated due to incapacity and
that TasPorts were investigating his redeployment
A lack of a proper review by TasPorts as to Mr Gee’s redeployment.
[51] An employer’s review of alternate opportunities for an employee’s employment does
not have to be a forensic review, but it does have to be real, otherwise there is no safeguarding
of the employee’s interests.
[52] Ms Beltz conducted a review of TasPorts’ worksites and concluded that there were no
other positions to which Mr Gee could be deployed. There is no dispute that this review was
undertaken without reference to Mr Gee and without Ms Beltz having an understanding of Mr
Gee’s full work history, qualifications or skills. Had Ms Beltz spoken to Mr Gee, she would
have established a full work history, together with his skills set and formal qualifications.
[53] Mr Gee has established skills from working in a line crew,56 albeit not the Master
Class 5 qualification which Ms Beltz stated was required for deckhand positions within
TasPorts.57 However, Mr Gee has the capacity to be successful in training that is reasonably
within his vocational reach, as is evidenced by his trade qualifications and up-skilling whilst
working for TasPorts.58 TasPorts were required to undertake a vocationally and
geographically robust review of its business. Their failure to do so neglected the proper duty
they owed to Mr Gee.
[54] In the same way, and to the same degree, as Mr Gee had a duty to safeguard the
interests of his employer, so too was TasPorts, in my view, obliged to safeguard Mr Gee’s
interests. Such mutuality is fundamental to modern employment. TasPorts, as a minimum, had
a duty to safeguard the interests of Mr Gee. Ms Beltz was required to have a full
understanding of Mr Gee’s total skillset and then conduct the review with that information in
mind. Not only was the review not comprehensive, it was not sought to be done
comprehensively.
[2017] FWC 31
13
[55] Relevant in this matter are the findings of Asbury DP in Kool at paragraphs [65], [66]
and [69] which provide:
“[65] Where an employee is dismissed because of capacity or conduct, the employer
bears the onus of establishing that the reason for the dismissal was a valid reason. It is
well established that a valid reason for dismissal is one that is sound, defensible and
well founded. The Commission is not concerned with the question of whether, on the
information available to the employer, the decision to dismiss an employee was a
reasonable one. Rather the Commission must decide whether there was a valid reason
for the dismissal on the basis of the evidence of the primary facts placed before it. A
dismissal may be harsh, unjust or unreasonable, notwithstanding the existence of a
valid reason for the dismissal.
[66] … However, the evidence placed before the Commission makes it clear that
the reason for Ms Kool’s removal from the Nestle site was that Nestle managers
formed a view that she had engaged in misconduct associated with clocking off and
that Adecco accepted that this was the case and terminated her assignment at the
Nestle site.
[69] It is clear from the evidence – including the statement of Ms Coyne tendered
by Adecco – that management of Nestle instituted disciplinary discussions with Ms
Kool about allegations relating to clocking off. It is also clear that management of
Nestle formed a view that Ms Kool had engaged in misconduct associated with
clocking off; that Ms Kool had been spoken to previously in relation to that conduct;
and that for this reason it wanted her removed from the Nestle site. Ms Kool was
escorted from the site by Ms Jackson who is a manager of Nestle. Management of
Adecco simply acquiesced in that decision without any independent verification of the
misconduct alleged against Ms Kool. Ms Kool asserts that there was no discussion
with her about the conclusions that Nestle management had reached in relation to the
clocking off allegations and there is no evidence to the contrary.”
[56] The evidence before the Commission in this case reflects that the reason for Mr Gee’s
removal from the site was due to his conduct. It is also clear from the evidence of Mr Ralston,
when he replied to Mr Sturzaker’s email on 17 August 2015, that he supported the removal of
Mr Gee from the site in circumstances where he was not aware of the content of Grange’s
completed investigation report and had not put any allegations to Mr Gee. While Mr Ralston
was aware of the Grange investigation and the likelihood of Mr Gee being removed from site,
neither he nor any other person at TasPorts sought at any time to establish whether there was a
‘valid reason’ for Mr Gee’s removal from site. This finding is supported by TasPorts’ final
written submissions which stated “The Respondent did not make its own findings about any
wrongdoing of the Applicant. In accordance with the Respondent’s submissions, the
Respondent took steps to satisfy itself that Grange had a reasonable basis for revoking [Mr
Gee’s] site access. This does not equate to a finding that [Mr Gee] was dismissed because of
the conduct that led to his site access being revoked.” 59 TasPorts was required to do more
than “satisfy itself that there was a reasonable basis for Grange’s decision to revoke the… site
access…”60 in that this action was to end in Mr Gee’s dismissal.
[57] Further, in establishing the existence or otherwise of an alternate position in which Mr
Gee could be redeployed, I am not satisfied, for the reasons stated above, that TasPorts
undertook an adequate process in the circumstances.
[2017] FWC 31
14
[58] On the basis of my findings above I have determined that the conclusions reached by
both Grange and TasPorts were not sound, defensible or well founded. I am satisfied that
there was no valid reason for Mr Gee’s dismissal related to his capacity or conduct in all the
circumstances.
Was there notification of the reason for the dismissal (s.387(b))?
[59] Notification of ‘the reason’ relates to the ‘valid reason’ for dismissal.61 Notification of
the valid reason to terminate must be given to the employee before the decision to terminate is
made,62 in explicit terms,63 and in plain and clear terms.64 Although considering provisions in
previous legislation, the Full Bench in Crozier v Palazzo Corporation Pty Ltd65 established:
“[73] As a matter of logic procedural fairness would require that an employee be
notified of a valid reason for their termination before any decision is taken to terminate
their employment in order to provide them with an opportunity to respond to the
reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical
effect if it was sufficient to notify employees and give them an opportunity to respond
after a decision had been taken to terminate their employment. Much like shutting the
stable door after the horse has bolted.”
[60] Mr Gee was notified of the reason for his dismissal in his dismissal letter dated 28
August 2015. The reason relied on by TasPorts was that due to the revocation of Mr Gee’s
site access to all Grange sites; he was unable to fulfil the inherent requirements of his role as a
Shiploader/Reclaimer Operator – Port Latta.
[61] The evidence establishes there was no advice, written or otherwise, to Mr Gee from
TasPorts that it was investigating his conduct or his capacity to carry out his duties, between
17 and 28 August 2015. Therefore, Mr Gee was not notified of the reason for his dismissal
before the decision was taken by TasPorts to terminate his employment.
Was there an opportunity to respond to the reason for the dismissal (s.387(c))?
[62] In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, albeit a decision under the Industrial
Relations Act 1988, that considered the construction and application of s.170DC (the
precursor to s.387(c)), Wilcox CJ held that:
“In Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 243 I
discussed the significance of s.170DC. I observed that the section imposed an
important limitation on an employer’s power of dismissal. Ordinarily, before being
dismissed for reasons related to conduct or performance, an employee must be made
aware of the particular matters that are putting his or her job at risk and given an
adequate opportunity of defence. However, I also pointed out that the section does not
require any particular formality. It is intended to be applied in a practical,
commonsense way so as to ensure that the affected employee is treated fairly. Where
the employee is aware of the precise nature of the employer’s concern about his or her
conduct or performance and has a full opportunity to respond to this concern, this is
enough to satisfy the requirements of the section.”
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281994%29%20126%20ALR%20233?stem=0&synonyms=0&query=title(Gibson%20and%20Bosmac%20Pty%20Ltd%20)
[2017] FWC 31
15
[63] Mr Gee’s site access was revoked by Grange on 17 August 2015 and communicated to
TasPorts via an email to Mr Ralston. Mr Gee, as a union delegate, was in attendance at a
meeting with TasPorts management (Mr Barry Holden, Mr Ralston and Ms Beltz) on that
same day. TasPorts advised Mr Gee at that meeting that his site access had been revoked. I am
satisfied the email sent by Mr Sturzaker to Mr Ralston on 10.15am,66 was not provided to Mr
Gee but that its contents, in some form, were identified to Mr Gee and Mr Jason Campbell,
State Secretary of the Maritime Union of Australia.67 Mr Ralston failed to advise Mr Gee at
that time that he had sent a response to Mr Sturzaker at 10.54am advising that TasPorts fully
supported the decision taken by Grange.68 Ms Beltz told Mr Gee that the revocation of site
access was new information to TasPorts and that they “would need to have time to consider
what this would mean for Mr Gee’s employment.”69 Ms Beltz said that TasPorts would
discuss the matter further with Grange, but that Mr Gee was stood down until further notice.70
Ms Beltz’s evidence was that Mr Gee had an opportunity at that meeting to respond to
Grange’s reasons for revoking his site access.71 I am satisfied Mr Gee was available to
provide a response in some form at this meeting relating to Grange’s decision. However, that
it could not be seen, on any fair interpretation of the legislation, to have been an appropriate
and “full opportunity to respond” to any of the matters contained in that email or that this
constituted an adequate opportunity for Mr Gee to respond or to defend himself.
[64] Subsequent to 17 August 2015, Mr Barry Holden, then TasPorts’ General Manager
Marine Services, instructed Mr Ralston to conduct his own investigation into the matters
relied on by Grange to revoke Mr Gee’s site access72 (the TasPorts investigation). Mr Ralston
discussed the Grange investigation with Mr Duncombe and Mr Sturzaker. In the TasPorts
investigation Mr Ralston relied on the Grange records of conversation completed by Mr
Dillon and Mr Poke73 and a conversation he had with Mr Gee on the morning of 13 August
2015 when Mr Gee was operating the east reclaimer. Mr Ralston said Mr Gee told him he had
refused the direction. Mr Ralston said this substantiated the findings in Grange’s
investigation. Mr Gee denies that he ever told Mr Ralston on either 13 or 17 August 2015 that
his conduct was a refusal of a direction. As stated previously, I accept Mr Gee’s evidence on
this point. Similarly to Grange, TasPorts did not advise Mr Gee that Mr Ralston was
conducting an investigation, nor did they invite him to respond to any allegations of
wrongdoing.74
[65] Between 17 August and 28 August 2015, Mr Ralston had at least two conversations
with Mr Gee at Mr Gee’s residence. The evidence discloses that during this time TasPorts did
not advise Mr Gee that they were considering terminating his employment on the basis of
incapacity to undertake his duties. Ms Beltz’s evidence was that Mr Ralston spoke to Mr Gee
in his home about TasPorts considering his capacity; however this is not supported by Mr
Ralston’s evidence. Mr Ralston said that following Mr Gee’s site revocation, he made contact
with Mr Gee, but that “we did not discuss anything in relation to the investigation.”75 During
a conversation at this home, Mr Gee did tell Mr Ralston that he did not expect Grange would
allow him back on site due to the 13 August 2015 incident. I do not consider this comment to
be an admission of guilt on Mr Gee’s part, but rather an expression of his frustration and his
expectation that Grange was unlikely to be seen to reverse a decision.
[66] At this point in time, Mr Gee was awaiting TasPorts conducting further detailed
discussions with Grange and advising him further. He could not respond to any matter
relating to his on-going employment until TasPorts requested him to do so.
[2017] FWC 31
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[67] As Mr Gee was not aware that TasPorts were investigating his capacity to carry out
duties or that they were considering terminating his employment for this reason, he was not
afforded an opportunity to respond to the reasons for his dismissal.
Was there an unreasonable refusal to allow a support person to be present (s.387(d))?
[68] If an employee protected from unfair dismissal requests a support person be present
when discussions are occurring that relate to the dismissal, the employer should not
unreasonably refuse that the support person be present.
[69] It should be noted that there is no obligation on an employer to offer or suggest that
the employee have a support person present. The Explanatory Memorandum, Fair Work Bill
2008 (Cth) at [1542] provides:
“This factor will only be a relevant consideration when an employee asks to have a
support person present in a discussion relating to dismissal and the employer
unreasonably refuses. It does not impose a positive obligation on employers to offer an
employee the opportunity to have a support person present when they are considering
dismissing them.”
[70] This criterion is irrelevant in the circumstances of Mr Gee’s termination in that he was
not advised of the reason for dismissal prior to receipt of the dismissal letter. It follows that no
meeting took place that related to his incapacity and therefore it was not possible for a request
for a support person to be made.
Were there warnings about unsatisfactory performance (s.387(e))?
[71] The stated reason for dismissal was incapacity, and not Mr Gee’s performance. This
consideration is not relevant.
Did the size of the employer impact on procedures followed in effecting the dismissal
(s.387(f))?
[72] I do not consider that the size of TasPorts’ enterprise impacted on the procedures it
followed in effecting Mr Gee’s dismissal, as TasPorts are a large enterprise.
Did an absence of human resource expertise impact on procedures followed in effecting
the dismissal (s.387(g))?
[73] TasPorts has dedicated human resource management expertise, so I do not regard this
consideration as relevant.
Any other relevant matters (s.387(h))
[74] Section 387(h) of the Act establishes a broad scope of matters for the Commission to
consider in determining whether a dismissal is harsh, unjust or unreasonable.
[75] Mr Gee, is aged 49 years, has four sons and lives with his partner in a home that is
mortgaged.76
[2017] FWC 31
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[76] Mr Gee commenced his employment with TasPorts’ predecessor, in September 2006
when he accepted a casual position as a Shiploader at the Port Latta site working for DanBar
Marine Services. This business was later acquired by TasPorts in 2009.77 Mr Gee’s casual
employment was an in-fill position to cover short term vacancies of the more permanent
Shiploading crew. Mr Gee’s evidence was that around 2007, when one of “the more
permanent casual guys”78 resigned, Mr Gee was offered one of the four “more permanent”
casual positions on the Shiploading crew working between 20 to 130 hours per fortnight,
averaging about 25 hours per fortnight. Mr Ralston’s evidence was that “[t]hroughout Mr
Gee’s employment with TasPorts there have been a number of behavioural incidents at the
workplace. Some of which were not correctly recorded as Grange have a tendency with
contractors to choose not to ask them back to work rather than recording or dealing with
behaviour problems.”79 The Commission was not provided with any evidence to support this
statement. If, as Mr Ralston stated, Grange were concerned about Mr Gee’s conduct as a
contracted labour hire employee, they would have removed him at the time of that conduct.
However, Mr Gee enjoyed 9 years of employment at Port Latta. Ms Beltz’s evidence was that
there were some notes on Mr Gee’s personnel file which indicated he had been aggressive in
some industrial dealings.80 However it appears Mr Gee was never counselled over these
matters. I am satisfied that Mr Gee’s employment, other than that which occurred on 13
August 2015, was without incident.
[77] In August 2015, Mr Gee’s partner was diagnosed with a significant illness which
involves on-going doctor and hospital appointments.81
[78] In this case, there are two matters which I consider lead to a determination that Mr
Gee’s dismissal was “harsh”.
[79] The first of these matters are Mr Gee’s nine years of unblemished service at Port Latta.
It appears that no regard was had for that matter in the investigations into Mr Gee’s conduct.
[80] The second of these matters are Mr Gee’s age and the effect that is likely to have on
him obtaining secure employment. Whilst Mr Gee was a casual employee of TasPorts, the
evidence provides that the nature of that employment was that he was a casual employee who
was offered regular and systematic work at the rate of $54.26 per hour,82 together with
overtime. Mr Gee’s age is likely to adversely affect him securing new regular work.
Conclusion as to harsh, unjust or unreasonable dismissal
[81] It could not be said, on any objective reading of the evidence, that Mr Gee was
afforded a “fair go all round” by his employer on three counts. First, that TasPorts failed to
make representations on behalf of Mr Gee and to insist Mr Duncombe carry out a
procedurally fair investigation. Second, that Mr Ralston compounded the procedural
unfairness when he too investigated, on behalf of TasPorts, the alleged conduct and again
failed to advise Mr Gee of that investigation and afford him an opportunity to respond. Third,
that Ms Beltz, after concluding that Mr Gee lacked the capacity to carry out his duties at Port
Latta, conducted a review of possible alternate positions within TasPorts, without consulting
with Mr Gee about his skills, qualifications and experience.
[82] Having regard to each of the considerations prescribed in s.387 of the Act, I am
satisfied that TasPorts’ dismissal of Mr Gee was:
[2017] FWC 31
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harsh, due to the matters I have set out relating to the consideration under s.387(h);
and
unjust and unreasonable, having regard to the matter I have determined in
consideration of s.387(a), (b) and (c), in that there was no valid reason for Mr
Gee’s dismissal and he was not afforded an opportunity to respond to the reason for
his dismissal.
[83] I reject the submissions made by TasPorts that any response provided by Mr Gee
could not have changed the decision to terminate his employment (see decision of Simpson C
in Downs v Eaton Services Group83). A robust review of redeployment opportunities within
TasPorts, and discussions with Mr Gee about such redeployment, was likely to have resulted
in a different outcome, given his proven ability to obtain new skills and his employment
record.
Remedy
[84] Having determined that Mr Gee’s dismissal was unfair, I am required now to consider
the remedy to be applied. Section 390 describes the circumstances of when a remedy order
may be made:
When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.
[85] The jurisdictional preconditions in s.390(1)(a) and (b) are satisfied and I must consider
whether to order the reinstatement of Mr Gee or, if reinstatement is inappropriate, whether in
all the circumstances, it is appropriate to order payment of compensation to him.
[86] The evidence before the Commission provides that Mr Gee, prior to his dismissal,
made a stress related workers compensation claim. He said his “workers’ compensation claim
was originally against TasPorts. It’s been shifted to Grange and it’s going to be brought back
to TasPorts as well.”84 Whilst workers’ compensation matters are a separate jurisdiction to
this Commission, it is likely that Mr Gee’s circumstances since the final hearing date in July,
may have changed, which may impact on remedy considerations. Further, the evidence
currently before the Commission that relates to Mr Gee’s medical incapacity to present for
work, both prior to, and subsequent to, his termination is incomplete.
Conclusion
[87] I am satisfied that Mr Gee’s dismissal was harsh, unjust and unreasonable.
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#reinstatement
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s394.html
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#made
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#unfairly_dismissed
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#unfairly_dismissed
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#dismissed
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#protected_from_unfair_dismissal
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#reinstatement
[2017] FWC 31
19
[88] To enable a proper consideration of an order for the remedy, to be applied in this
matter, I will require further evidence and submissions from the parties relevant to the matters
contained in ss.391, 392 and 393. The parties are directed to confer on the nature of the
further evidence to be presented and advise my chambers of preferred directions and hearing
dates, within 14 days of this decision, with leave to apply to the Commission for a directions
hearing should that be required.
DEPUTY PRESIDENT
Appearances:
Mr M Burns, for the Applicant
Ms S Masters, for the Respondent
Hearing details:
Launceston
16 & 17 June 2016
Hobart
6 July 2016
Final written submissions:
The Applicant – 6 September 2016
The Respondent – 12 September 2016
Printed by authority of the Commonwealth Government Printer
Price code C, PR589063
1 Exhibit A1, Statement of Warwick Gee, Attachment WG3
2 Exhibit A1
3 Exhibit R1, Statement of Belinda Beltz
4 Exhibit R5, Statement of Ashley Ralston
5 Exhibit R4, Statement of Tim Duncombe
6 Exhibit R7, Statement of Paul Sturzaker
7 Transcript, PN2005
8 Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373
9 Ibid
10 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
OF F THE S AUSTRALIA, TORA COMMISSION
[2017] FWC 31
20
11 Ibid
12 J Boag & Son Pty Ltd v Button [2010] 195 IR 292 at [29]
13 Exhibit A1, attachment WG3
14 Exhibit R4, paragraph 16
15 AE409960
16 Exhibits A3 and A4, Log Books
17 PN58-PN60
18 Exhibit A1, paragraph 4
19 PN139
20 PN137
21 PN140
22 PN679
23 PN680
24 PN711
25 PN141
26 Exhibit R5, attachments ‘E’ and ‘F’
27 PN705
28 Exhibit R1, paragraph 23
29 Exhibit R5, paragraph 49
30 Exhibit R5, attachment ‘D’
31 Exhibit R5, attachment ‘C’
32 PN317
33 Exhibit R6, Respondent’s Closing Submissions, paragraph 2
34 Exhibit R5, attachment ‘E’
35 PN760
36 PN768-769
37 PN373
38 Exhibit R4, attachment ‘C’
39 Exhibit R4, attachment ‘D’
40 Exhibit R4, attachment ‘E’
41 Exhibit R4, paragraph 24
42 PN1714-1715
43 Exhibit A2, Screenshot of Facebook friend request
44 Starting at PN1705
45 Exhibit A1, paragraph 49, attachment WG15
46 [2009] AIRC 893
47 PN1775
48 Exhibit R4, attachment ‘E’, page 3
49 PN1657
50 PN811-812
51 PN1881
52 [2016] FWC 925
53 [2016] FWCFB 5243
54 Exhibit R8, paragraph 1
55 169 CLR 245 at 269
56 PN56
57 PN1137-PN1138
[2017] FWC 31
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58 PN1374
59 Exhibit R7, paragraph 13(a)
60 Ibid
61 Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000)
Print 22679 [41]
62 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [70]-[73]
63 Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730
64 Ibid
65 (2000) 98 IR 137 [73]
66 Exhibit R5, attachment ‘B’
67 PN1289-1291, PN1920
68 R5, attachment ‘C’
69 Exhibit R1, paragraph 15
70 Ibid
71 Exhibit R1, paragraph 14
72 Exhibit R5, attachment ‘D’ email dated 25 August 2015
73 Exhibit R5, attachments ‘E’ and ‘F’
74 PN1947
75 Exhibit R5, paragraph 61
76 Exhibit A1, paragraphs 2 and 3
77 Exhibit A1, paragraph 18
78 Exhibit A1, paragraph 19
79 Exhibit R5, paragraph 56
80 PN1207-1213
81 Exhibit A1, paragraph 6
82 Form F3 – Employer Response to Unfair Dismissal Application
83 [2015] FWC 2751
84 PN895
