Biffin, Steven v XL Express Pty Ltd T/A XL Express - [2017] FWC 3702

1

Fair Work Act 2009 
s.394—Unfair dismissal

Steven Biffin

v

XL Express Pty Ltd T/A XL Express
(U2016/14475)

DEPUTY PRESIDENT ASBURY BRISBANE, 18 JULY 2017

Application for relief from unfair dismissal – Allegation of bullying and breach of company 
procedure amounting to serious misconduct – Finding that there was no valid reason for 
dismissal – Serious allegations of misconduct require cogent proof - Bullying allegations 
based on hearsay and not substantiated – Finding that breach of company procedures was 
misconduct but was not of sufficient gravity to constitute valid reason for dismissal – Denial 
of procedural fairness – Reinstatement not appropriate – Compensation awarded.

BACKGROUND

[1] Mr Steven Biffin applies under s. 394 of the Fair Work Act 2009 (the Act) for an 
unfair dismissal remedy with respect to his dismissal from employment with XL Express Pty 
Ltd T/A XL Express (XL Express/the Company). Mr Biffin was employed by XL Express as 
a Depot Manager in Brisbane, from 6 May 2008 until his dismissal on 23 November 2016.

[2] XL Express is a third generation family owned and operated Tier 2 national road 
express business with distribution centres in all mainland Capital cities and seven regional 
depots across Queensland, New South Wales and the Northern Territory.1 A significant part 
of the Company’s business is the delivery of new release and embargo publications to retail 
outlets. Delivery of embargo publications can only be undertaken if the carrier agrees in 
writing to a Delivery Embargo Agreement which requires the carrier to indemnify the 
distributors against all losses suffered as a consequence of the early release of a copyright 
work before the worldwide “on-sale time”. Examples of embargoed publications are the Harry 
Potter novels by JK Rowling.

[3] Mr Biffin was dismissed on the grounds of serious misconduct following a meeting on 
23 November 2016 during which management of XL Express asserted that Mr Biffin had 
engaged in workplace bullying and had wrongly denied being provided with training about 
workplace bullying in an interview with a Workplace Health and Safety Queensland (WHSQ) 
Inspector, resulting in the Company being issued with an Improvement Notice under the 
Workplace Health and Safety Act 2011 (Qld). The workplace bullying allegation followed the 
death of an owner driver who allegedly named a number of managers in a note left before his 
death. The death is subject of a coronial investigation. The WHSQ investigation was in 
relation to the workplace generally. XL Express maintains that it dismissed Mr Biffin on the 

[2017] FWC 3702[Note: a correction has been issued to this document].

DECISION


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc3702_pr594669.htm


[2017] FWC 3702

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basis of the WHSQ investigation findings and not because of any allegation relating to the 
death of the owner driver.

[4] XL Express has no documents and called no evidence from WHSQ to support the 
bullying allegations against Mr Biffin. Rather, the Company relied on evidence given by its 
Human Resources Manager about what the WHSQ Investigator told her in a meeting on 18 
November 2016. This is a matter I will return to later. It was further asserted by XL Express 
that on 16 November 2016 Mr Biffin was responsible for the breach of a world-wide delivery 
embargo on a book by JK Rowling entitled: “Fantastic Beasts and Where to Find Them”
which was delivered to a particular retail outlet a day early.

[5] Mr Biffin denies that he engaged in workplace bullying or that his statement to the 
WHSQ Inspector was incorrect. Mr Biffin also maintains that he was not responsible for the 
embargo breach and that his dismissal was unfair. Mr Biffin’s application was filed within the 
time required in s.394(2) of the Act. It is not in dispute that Mr Biffin is a person protected 
from unfair dismissal as defined in s.382 of the Act. XL Express is not a small business and 
the Small Business Fair Dismissal Code is not relevant to this matter. The dismissal was not a 
case of genuine redundancy. 

[6] At the Hearing, Mr Biffin gave evidence on his own behalf.2 Evidence on behalf of 
XL Express was given by:

 Mr Joe Kosecki, National Operations Manager;3 and 
 Ms Carolyn Davitt, Human Resources Manager.4

[7] Both parties referred in their submissions and witness statements to a number of 
emails which were appended to the Form F3 Employer Response to Mr Biffin’s application.
These emails were referred to on the basis of an incorrect assumption that they were in 
evidence before the Commission and that it was not necessary to tender them. Where possible 
I required the parties to tender those emails as exhibits during their evidence. Where emails 
referred to in submissions and witness statements were not tendered, and are able to be 
identified by reference to the appendices to the Form F3, I have taken them into account in 
deciding this matter.

[8] After the Decision was reserved, Mr Biffin sent an email requesting that his identity be 
suppressed in this Decision. The hearing was open. No application was made to suppress 
transcript or material filed. At this stage, I see no reason why this request should be granted 
and decline to do so.

LEGISLATION

[9] Section 387 of the Act requires the Commission, in considering whether a dismissal 
was harsh, unjust or unreasonable, to take into account a number of matters specified in sub-
sections (a) to (h) of the section as follows: 

“387 Criteria for considering harshness etc.

(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








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(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] A valid reason for dismissal is one that is “sound, defensible or well founded” and not 
“capricious, fanciful, spiteful or prejudiced.”5 The reason for dismissal must also be 
defensible or justifiable on an objective analysis of the relevant facts,6 and validity is judged 
by reference to the Tribunal’s assessment of the factual circumstances as to what the 
employee is capable of doing or has done.7 Misconduct justifying dismissal is conduct so 
serious that it goes to the heart of the employment relationship8 or evinces an intention that 
the employee no longer intends to be bound by the employment contract.9 While the employer 
bears the onus of establishing the validity of the reason for dismissal10, the dismissed 
employee bears the onus of establishing that the dismissal was unfair.

[11] Where the reason for dismissal is misconduct, the Commission must be objectively 
satisfied that the misconduct occurred. However, a minor failing or trivial misdemeanour on 
the part of an employee will not constitute a valid reason for dismissal simply because it was 
proven to have occurred.11

[12] Consideration of whether there is a valid reason for dismissal requires – where the 
relevant conduct upon which the dismissal proceeded is found to have occurred – an
assessment of whether the conduct was of sufficient gravity or seriousness such as to justify 
dismissal as a sound, defensible or well-founded response to the conduct. As Vice President 
Hatcher observed in his Bista v Glad Group Pty Ltd:

“…merely establishing the factual basis for the reason for dismissal does not by itself 
make it a valid reason. It must, as s. 387(a) makes clear, be a valid reason for 
dismissal – that is, dismissal must be a justifiable response to the relevant conduct or 
issue of capacity.”12








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[13] The matters in s.387 go to both substantive and procedural fairness and it is necessary 
to weigh each of those matters in any given case, and decide whether on balance, a dismissal 
is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the 
employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the 
employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have 
been drawn from the material before the employer.13

EVIDENCE

Reasons for dismissal

[14] If a termination letter was provided to Mr Biffin setting out the reasons for his 
dismissal, it was not tendered by either party. However it is not in dispute that the reasons for 
Mr Biffin’s dismissal were those set out in the Form F3 Response to Mr Biffin’s unfair 
dismissal application filed by XL Express in which it was asserted – citing Regulation 1.07 of 
the Fair Work Regulations – that the following matters amount to serious misconduct on the 
part of Mr Biffin:

 workplace bullying;
 breaching a delivery “Embargo”; and
 denying to a WH&S Inspector having been given anti-bullying training.

[15] The first of these matters is said to be serious misconduct on the basis that it causes 
serious and imminent risk to the health and safety of a person and the second and third matters 
are said to be serious misconduct that causes serious and imminent risk to the reputation, 
viability or profitability of the employer’s business.

Bullying allegations and related matters

[16] Ms Davitt gave evidence about the allegations against Mr Biffin in relation to 
workplace bullying. Ms Davitt’s evidence can be summarised as follows. In July 2016, 
Workplace Health and Safety Queensland (WHSQ) commenced an investigation into bullying 
allegations following the death on 29 April 2016, of one of the owner drivers engaged by XL 
Express to perform work out of its Brisbane Depot. I have referred to that driver in this 
Decision as “T”. The WHSQ investigation did not cover the matter of T’s death. Ms Davitt 
states that she acted as a liaison between the Company, its solicitors and WHSQ during the 
investigation, and her evidence is based on what she was told by the WHSQ Investigator and 
Solicitors acting for XL Express.

[17] T left a note, the contents of which Ms Davitt set out in her witness statement. As T’s 
death is the subject of a coronial inquest, XL Express has not been provided with a copy of 
the note and Ms Davitt’s knowledge of its content is based on information from the firm of
Solicitors representing XL Express in the coronial inquest. The contents of the note as set out 
in Ms Davitt’s affidavit include statements that “XL Express bullies owner drivers”, “Andrew 








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Mallory is a workplace bully” and that “Colin Mallory and Joe Kosecki are behind this 
practice and Steve Biffin is as well.”14 Mr Colin Mallory is the owner of XL Express, Mr 
Andrew Mallory who holds a management position with the Company is the son of Mr Colin 
Mallory and Mr Kosecki – who gave evidence in this case – is the Company’s National 
Operations Manager.

[18] Ms Davitt arranged on-site interviews between the WHSQ Inspector and Mr Biffin 
and Mr Mallory. An email appended to Ms Davitt’s witness statement dated 11 July 2016 
from WHSQ indicates that these interviews were sought to be conducted on 18 or 20 July 
2016. I assume that these interviews did not occur at that time on the basis that Ms Davitt 
states that on 5 October “immediately after the interviews” she spoke to Mr Andrew Mallory 
and Mr Biffin about their interviews. Both stated that the WHSQ Inspector asked them if they 
had been trained in relation to bullying, who they would contact about bullying and what they 
would do to address an instance of workplace bullying. Mr Mallory stated that he told the
WHSQ Inspector that he had been trained and had delivered training to others. Mr Mallory 
also said that he told the WHSQ Inspector that he would contact Ms Davitt about any issue 
relating to bullying and would report the issue to HR or a senior manager. Ms Davitt said that 
Mr Biffin told her that he had responded to the same questions by stating that he had not had 
training but had “rolled it out for others” and that he would contact HR about bullying and 
report it to Ms Davitt.

[19] Ms Davitt said that she was shocked when Mr Biffin told her that he had stated to the 
WHSQ Inspector that he had not been trained and pointed out to Mr Biffin that she had 
provided him with training. According to Ms Davitt, the Company has had an Anti-Bullying 
Policy since 2003. Ms Davitt recalls a discussion in 2016 with Mr Biffin during which she 
told him that she was working on an updated Policy and procedure. This conversation was 
“sparked” by the fact that Ms Davitt had included the updating of the Policy on a task list 
written on her whiteboard. Ms Davitt states that she told Mr Biffin during this discussion that 
bullying was included in Workplace Health and Safety Legislation and it was a very serious 
matter.

[20] Ms Davitt also states that she remembers telling Mr Biffin what the definition of 
bullying was because Mr Biffin would joke about it, and that she also told Mr Biffin that he 
would need to know about the Anti-Bullying Policy because as soon as the update was 
released employees would have questions about it. The updated Policy was released on 22 
June 2016. Ms Davitt recalls assisting Mr Biffin to deal with a bullying complaint received by 
him on 20 July 2016. Ms Davitt states that at this time, she explained the full process to Mr 
Biffin and included him in every step, explaining what was being done and why, including 
how to conduct interviews and take notes and the requirement to offer the complainant a copy 
of the Company’s Anti-Bullying Policy. Ms Davitt also states that she gave Mr Biffin 
“frequent and on-going training” in relation to this Policy.

[21] Ms Davitt appended to her witness statement an email she received on Friday 18 
November at 8.24 am from XL Express’ solicitors informing her that WHSQ intended to 
issue XL Express with an Improvement Notice. The solicitors also forwarded to Ms Davitt an 
email received from the Principal Inspector (Investigations) Brisbane South Gold Coast for 
WHSQ dated 16 November 2016, stating:

“In relation to the ongoing investigation into allegations of bullying by various 
employers and its Director, the investigation to date has provided WHSQ with 








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evidence to indicate that minimal or no change has occurred in relation to the 
management of psychological risks to workers associated with current workplace 
practices.

The evidence is based on our interaction with Ms Carolyn Davitt, HR Manager; 
recorded interviews with Mr Steven Biffin and Andrew Mallory and interviews with 
other contractors. On 11 May 2016, Ms Davitt was supplied with documents created 
by Safe Work Australia, including the Guide to preventing and responding to 
workplace bullying. That document is the most contemporary information to assist 
persons conducting businesses or undertakings to identify the hazards and control the 
risk associated with allegations of bullying. Based on the interviews to date, we 
believe that XL Express has not provided all workers, including mangers (sic) with 
appropriate information, training, instruction and/or supervision that is necessary to 
protect all persons from risks to their health and safety arising from work carried out 
as part of the conduct of the business or undertaking.

At this juncture, WHSQ will be issuing an improvement notice under s. 191 of the Act 
in relation to alleged contraventions of s. 19(1) and 19(3)(f) by XL Express Pty Ltd. If 
within the last 14 days your client has significantly changed the manner in which it 
provides information, training, instruction and/or supervision to its workers in 
relation to managing the risks associated with workplace bullying, please provide any 
evidence within 24 hours. If we do not receive further evidence with that time frame, 
WHSQ will be issuing the improvement notice alleging that a contravention of the Act 
is occurring…”15

[22] Ms Davitt further states that on Friday 18 November 2016 she received a phone call 
from WHSQ’s Principal Inspector Psychosocial, Ms Trish Waterford. During that call, Ms 
Waterford stated that her investigation found that XL Express owner drivers were in fear of 
losing their jobs, and complained of being yelled at, sworn at and disrespected and told that if 
they did not like it they could “fuck off”. Ms Davitt further states that Ms Waterford told her 
that owner drivers “have absolute incredible respect for Andrew Mallory” and that Mr 
Mallory “always follows up”. According to Ms Davitt, Ms Waterford told her that this 
comment was “repeated over and over” by contractors and the compliments were 
unsolicited.16

[23] Also on Friday 18 November 2016, Ms Davitt and XL Express’ Chief Financial 
Officer met with Ms Waterford. During that meeting, Ms Davitt states that Ms Waterford told 
her that she had interviewed four drivers and they had stated that Mr Biffin had engaged in 
bullying behaviour. Ms Davitt also states that Ms Waterford advised that she was not able to 
divulge the names of those making the allegations but there was unlawful behaviour that 
needed to be addressed immediately. Ms Davitt further states that Ms Waterford said that Mr 
Biffin treated drivers like school children and used abusive language and that he had no 
intuitive understanding and did not think workplace bullying was important. In addition, Ms 
Waterford said that Mr Biffin’s responses in the interview she had conducted indicated that 
the culture of the workplace is bad and that Ms Waterford made no adverse comments about 
Mr Mallory. Ms Davitt tendered a handwritten Improvement Notice on a Form 13 with an 
additional page that appears to have been torn from a notebook, which had been given to her 
by Ms Waterford indicating that “s. 19(3)(f) 33” of the Work Health and Safety Act 2011
(Qld) had been contravened as follows:








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“You have failed to provide sufficient information, training, instruction and supervision 
in relation to workplace bullying to workers. The supervisor conducting the training 
has stated that they have not received specific training to conduct training, 
information sessions and instruction around workplace bullying. Contractors have 
advised that they do not know what the organisational processes are in reporting and 
responding to alleged incidents of workplace bullying by supervisors.”

[24] The Improvement Notice goes on to state that: “Guidance may be found in the How to 
Manage Workplace Risks Code of Practice more specific information can be found in the 
Guide to Preventing and Responding to Workplace Bullying 2016.” Ms Davitt also tendered 
an email from Ms Waterford dated 6 December 2016, in which it is stated that at a meeting 
with Ms Davitt and Mr Prescott (XL Express In-house Legal Advisor) on that date, 
information had been provided by the Company showing that it had taken action to achieve 
compliance with the Improvement Notice by: “conducting information sessions with workers 
and supervisors”. The email goes on to state that the Company was in the process of 
facilitating further training for Supervisors and Managers in relation to communication and 
people management on 15 December 2016 and that this was sufficient to close the Notice.
The email further sets out suggestions to improve the Company’s policies and procedures for 
dealing with workplace bullying and records a suggestion by Mr Prescott that the 
Company wished to achieve a “best practice” complaints handling process.

[25] In her oral evidence, Ms Davitt responded to Mr Biffin’s assertion that her statement 
that she had trained Mr Biffin in relation to how he should talk to people who claimed to have 
been bullied was untrue and said: “That statement is my truth” and that this was something 
she had gone over with Mr Biffin repeatedly.17 In relation to the meeting with Ms Waterford 
on 18 November 2016 at which the Improvement Notice was provided, Ms Davitt said:

“We went in to the board meeting and sat down. There was Scott Taylor, myself and 
Trish Waterford, and I thought she was just going to hand us an improvement notice 
and leave, and it turned into 90 minutes of conversation. She, Trish Waterford, said 
that we had significant problems at the Brisbane depot; that Steve Biffin was a bully.
She repeated that over and over for 90 minutes. She said that he didn’t seem to have 
any understanding or inherent understanding about bullying; that he didn’t seem to 
take it seriously; that the workers were in fear of losing their jobs. She repeated that 
numerous times. She then said that this had to be addressed. It was a priority and that 
was why we were given the improvement notice.”18

[26] Ms Davitt went on to state that Ms Waterford had not referred to bullying by anyone 
else and had mentioned Mr Mallory’s name “only in a very complimentary fashion”.19 Ms 
Davitt further stated that the death of T had been the incident that caused the investigation by 
WHSQ to commence and that the issue of bullying generally had fallen out of that 
investigation. Ms Davitt said:

“During their general investigations they had discovered that we had a bully in place; 
that that was Steve Biffin that we were being instructed to deal with that. The problem 
was: (a) that he was a bully; and that (b) because he was the manager our workforce
had nowhere – well, she didn’t believe they had knowledge of where to report to 
because they were fearful of reporting to him. So the – we were under instructions to 
give training to all persons so that they knew how to report an incident of bullying, 








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whether it was from a peer, a report, or their own manager so that they knew the 
procedures there, and that we were to address Steve’s bullying.”20

[27] Under cross-examination, Ms Davitt rejected the proposition that Mr Biffin told her 
that he had been asked by the Inspector whether he had received training about bullying 
before T’s death and his answer to that question was “no”.21 Ms Davitt agreed that Mr Biffin 
had never been counselled about bullying drivers. In response to questions from the 
Commission, Ms Davitt agreed that the Company had concluded that Mr Biffin had engaged 
in bullying behaviour on the basis of statements made by the WHSQ Investigator and had not 
conducted an internal investigation. Ms Davitt said that the investigation by WHSQ had been 
“long and thorough” and when asked how she knew that to be the case said that this is what 
she would expect from a senior Inspector of the Department. Ms Davitt agreed that the 
Company had not been provided with any statements, reports or other documentation by
WHSQ and that this had been a concern. Ms Davitt also agreed that the management of XL 
Express had accepted the WHSQ Inspector’s statement that Mr Biffin had bullied drivers 
without conducting its own investigation, either before or after his dismissal.22 Further, Ms 
Davitt agreed that the training in relation to workplace bullying after Mr Biffin’s dismissal, 
had been conducted by an external provider.

[28] Mr Biffin said that he had not seen the note left by T until its contents were set out in 
Ms Davitt’s witness statement in these proceedings, and had simply been informed by an 
officer of WHSQ that his name was mentioned at the end of the note. Mr Biffin stated that as 
far as he is aware there have never been any allegations of bullying made against him and 
there has never been an investigation into such allegations. Further, Mr Biffin said that until 
the day he was dismissed, he had no idea that he had been accused of bullying or that an 
investigation into his conduct was being undertaken. Mr Biffin maintained that he had not 
engaged in any conduct that could be described as bullying. He also said that he had been 
friendly with T and had known him for a number of years. 

[29] Mr Biffin asserted that he was being used as a scapegoat to protect Mr Andrew 
Mallory who is the son of the owner of XL Express. According to Mr Biffin, T was sacked by 
Mr Andrew Mallory before his death and Mr Andrew Mallory told T to “fuck off”. Further Mr 
Biffin denied that he stated to the WHSQ Inspector that he had never had training in relation 
to dealing with complaints of bullying. Rather, consistent with the statement in the 
Improvement Notice issued by WHSQ, Mr Biffin said that he told the WHSQ Inspector that 
he had never received training on how to train employees about bullying prior to T’s death 
and had only conducted one tool box meeting on bullying prior to that point. After T’s death, 
Mr Biffin received documents from Ms Davitt comprising an Anti-Bullying Safety Alert and 
a Code and was required to read and sign them. Mr Biffin complied with this requirement. Mr 
Biffin also pointed to the fact that a Safety Alert & Attendance Record appended to the Form 
F3 Response filed by XL Express related to a meeting about bullying that was conducted after 
T’s death.

[30] In response to the matters raised in Ms Davitt’s affidavit, Mr Biffin said in his 
evidence that he was asked by the WHSQ Inspector if he had received specific training about 
bullying before T’s death and responded that he had not. In relation to the bullying complaint 
he had referred to Ms Davitt in July 2016, Mr Biffin said that this occurred after T’s death and 
he knew the process after that point and referred the driver who had made the complaint to Ms 
Davitt. Mr Biffin also said that Ms Davitt’s idea of training was to give him a document and 
ask him to read, sign and return it to her. In response to Ms Davitt’s evidence that he joked 








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about information relating to XL Express’ bullying policy, Mr Biffin said that he shared a 
number of jokes with Ms Davitt to the effect that once the bullying policy was distributed 
there would be bullying complaints simply because staff would read the policy. Mr Biffin also 
maintained that he had not seen any policies on workplace bullying until after the death of T.
He had then been required to post those policies on notice boards.

Breach of embargo on 16 November 2016

[31] Mr Kosecki gave evidence about the reasons for Mr Biffin’s dismissal associated with 
the breach of the embargo on the JK Rowling novel on 16 November 2016. Mr Kosecki said 
that in the industry and in the Company, the delivery of embargoed freight is the pinnacle of 
its operations and is the most critical distribution that is undertaken. The overall procedure is 
to make sure that the embargoed freight is all delivered on the same date Australia wide and 
on some occasions, world-wide. It is a major event and there a number of steps in the process 
to make sure that the embargo is complied with. Some of the basic steps are confirmation of 
the receipt of all the product prior to distribution and isolation of the product away from all 
other freight so that it is quarantined. There are a range of processes at depots to quarantine 
the embargoed freight including putting it on pallet racking, putting it in a separate area in the 
depot or putting tape around it.23

[32] Mr Kosecki tendered a number of documents relating to the embargo delivery which 
was to take place on 17 November 2016. Those documents included a copy of the delivery 
embargo agreement entered into between XL Express and Hatchette Australia (the supplier of 
the embargoed book) requiring among other things that sealed cartons containing the book are 
to be kept in an enclosed secure area and that XL Express indemnify Hatchette and its related 
companies in respect of breach of the agreement or negligent acts or omissions by XL 
Express.24 Those emails were not sent to Mr Biffin and he was not provided with a copy of 
the agreement with Hatchette until the Form F3 Employer Response to his unfair dismissal 
application was filed by XL Express.

[33] Mr Kosecki also tendered emails to Depot Managers including Mr Biffin about the 
delivery of the embargoed freight. On 26 October at 10.29 am Mr Kosecki sent an email to all 
Depot Managers, including Mr Biffin, in the following terms:

“Ladies and Gents

I’m pleased to advise that XLE will be doing the national distribution for the 
upcoming world-wide release of JK Rowling’s ‘Fantastic Beasts and Where to Find 
Them’.

This email is a ‘heads up’ aimed at giving all operations and customer service 
departments ample time to prepare for this VIP event.

I will be distributing more information in due course but the critical points are:

 Absolute EMBARGO rules apply
 The required day of delivery will be Thursday 17 November 2016
 ADS has estimated this EMBARGO NR to be approx. ¼ of the most recent 

release [25/10/16] approx. the size of the HP8 release we did back in July








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 Deliveries into XLE Capital City depots will commence around Friday 4 
November

 All depots will be required to confirm initial receipt and condition of stock and 
will need to report stock condition on a daily basis

 All depots will be required to store this release in a special area which is 
isolated from all other freight and covered by CCTV – the area must be secure 
and easily monitored by the depot and operations managers

 ADS will send all invoices and carton labels to XLE Capital City depots well in 
advance of the in-store date

 The CSTL’s in BNE, SYD and MEL will be the dedicated CS person for this 
release with Tony and Matt to fill this requirement in PER and ADL

 ADS may have personnel stationed in our SYD and MEL depots for the release 
delivery day – I will confirm this at a later date

 All drivers must be briefed on the absolute requirement for security – all 
delivery vehicles must be locked at all times whilst carrying this release – no 
exceptions

 Operations/depot managers must inspect all delivery vehicles before the 
release date and again on the release date

 All release consignments must be signed for – strict no signature no delivery 
rule to apply…”25

[34] At 10.41 am on 16 November 2016, Mr Kosecki emailed Mr Biffin and other Depot 
Managers stating in relation to the embargo release: “Gents, all GO for this and any issues at 
this point in time?”26 At 1.45 pm on 16 November Mr Kosecki again emailed Depot 
Managers stating:

“Thanks everyone, all sounds like a GO….the book is gaining quite a bit of hype so 
will be eagerly anticipated by the book sellers. In the extremely unlikely event a 
delivery is not made on Thursday, it will be important to have that delivery to the store 
before 9.00 am on Friday…”27

[35] On 16 November 2016, the Brisbane Depot effected an early delivery. According to 
Mr Kosecki, until this incident no embargo had ever been breached. Mr Kosecki states that he 
asked Mr Biffin to report on the breach and in a series of emails between 17 and 22 
November 2016, Mr Biffin identified that on 16 November 2016, the day of the breach, staff 
and drivers under his management control:

 Moved the freight from the quarantine area;
 Removed the consignment note from the quarantined consignment notes; 
 Loaded the freight on to a truck; and
 Delivered the freight.

[36] Mr Kosecki asserts that all of these actions were contrary to the embargo procedures 
that Mr Kosecki had expressly instructed Mr Biffin to follow. Mr Kosecki also states that 
despite being the Brisbane Depot Manager, responsible for depot operations, management of 
staff and owner drivers and being paid a salary package in excess of $140,000 per annum, 
including superannuation and a company vehicle, Mr Biffin does not accept responsibility for 
the actions or inactions of those under his control or the failure to perform the role.








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[37] Mr Kosecki appended an email chain to his witness statement in relation to the 
embargoed publication. In that chain are a number of emails from Mr Biffin to Mr Kosecki in 
which Mr Biffin explains how the embargo on Fantastic Beasts and Where to Find Them”
was breached. That explanation is that the stock was sorted by the Country Supervisor 
without being told to do so; moved to the bulk staging area by a forklift driver; new release 
paperwork was retrieved by a bulk checker; the freight was marked for delivery and delivered 
without the bulk checker, the forklift driver or the truck driver checking the special 
instructions.

[38] The chain also includes an email dated 18 November and sent at 10.41 am by Mr 
Kosecki to Mr Biffin asking a range of questions about the early delivery of the embargoed 
freight. That email states that the early delivery is a very serious matter and asks a series of 
detailed questions about where the pallet containing the embargoed freight was stored; 
security controls in the staging area for the pallet; where the other pallets containing 
embargoed freight were stored; the labelling or marking on the pallet; where consignment 
notes for the embargoed freight were kept and who had access to them; instructions given to 
various staff members about accessing the embargoed freight; whether the special instructions 
were highlighted on the consignment note and how they were missed; and whether certain 
employees understood what an embargo release was and why they failed to read the 
instructions with respect to handling the freight.

[39] Mr Biffin responded to that email at 2.37 pm on 18 November stating that there is one 
staging area and there is no security tape or bollards to section off this area; pallets were 
unlabelled cartons until they were sorted by the country supervisor who labelled them with 
embargo and receive stickers and marked them with a blue “texter” indicating the retailer 
they were to be delivered to. In relation to who made the decision to palletise the orders, Mr 
Biffin advised that the country supervisor had done this and it was not known why he had 
done so because he was away sick. In relation to staff members involved in the breach, Mr 
Biffin further advised that: one staff member understands what embargo freight is but had 
“not been given until now by me clear instructions on what is required”; another staff 
member “now has more understanding” and has been clearly told not to access embargo 
freight unless under clear direction from Mr Biffin or the AM Supervisor; and that another 
staff member knows what embargoed freight is but missed the special instructions. In relation 
to the consignment note, Mr Biffin states that they are normally kept in the AM supervisor’s 
office but had been taken to the ticket office on 16 November for sorting and delivery on the 
next day and that special instructions were not highlighted.

[40] Mr Kosecki responded with a further email at 7.51 am on 22 November 2016, seeking 
clarification about whether the pallet was marked/stickered “embargo” or “do not deliver 
before 17/11/16” or with another warning; whether other pallets in the area had been marked 
with a blue pen and how any such pallets had been handled. Mr Biffin responded at 10.47 am 
on 22 November 2016 advising that the cartons were marked but the pallet was not; there 
were other smaller pallets in the embargo area also marked with a blue pen; and these were 
not moved and Mr Biffin was unable to get a response from the staff member who moved the 
embargoed pallet as to why he had not moved other pallets also marked with a blue pen. In 
response to further questions in an email dated 22 November 2016 as to whether the staff 
member could see the embargo stickers through the “SW” [I assume this is an abbreviation 
for stretch wrap] and whether he knew it was an embargo pallet, Mr Biffin said that the 
stickers were on top of cartons and could not be seen through the shrink wrap and that the 








[2017] FWC 3702

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staff member when asked why he had moved the pallet was “like a deer in the headlights” and 
was unable to answer the question.

[41] Mr Kosecki also tendered an email to the distributor of the book in question stating 
that an investigation of the embargo breach had indicated that the failure was due to the 
Brisbane Depot Manager of XL Express [Mr Biffin] failing to ensure that staff followed the 
long established and proven embargo processes. The email goes on to detail the main failure 
points as follows:

 A forklift driver removed the embargo consignment from the embargo area when he 
was not authorised to do so;

 An operation staff member removed the consignment note from the embargo file 
which is normally only accessible to the Depot and AM Operations Managers; and

 The Brisbane Depot Manager failed to ensure that staff were following set procedures 
for embargo releases.

[42] The email concludes with Mr Kosceki stating that there will be a full review/retraining 
with Brisbane operations staff and a refresher in other capitals and that disciplinary action will 
be taken against the operational staff involved. In his oral evidence Mr Kosecki said that 
embargo procedures ensure that the embargoed freight is isolated away from other freight so 
that it is quarantined. This is done in a variety of ways depending on the depot. There is also a 
requirement that the Depot Manager keeps a close eye on such freight. Paper work such as 
consignment notes is kept in the Manager’s office and not in the normal place for paperwork, 
to ensure that there is no chance of an early delivery, on the basis that the freight cannot be 
delivered without paperwork.

[43] Under cross-examination Mr Kosecki agreed that XL Express has not lost the contract 
with the distributor of the embargoed publication and had not suffered any financial penalty.
Mr Kosecki also agreed that the CCTV cameras in the Brisbane Depot do not work and that 
Mr Biffin had reported this to him. Mr Kosecki did not agree that Mr Biffin had also reported 
that only one of the motion detectors inside the Depot was working and that two of the fire 
exit doors were unarmed. Mr Kosecki also rejected the proposition that the AM Supervisor 
was in charge of all of the embargoed freight and consignment notes (in Brisbane Mr Andrew 
Mallory) and said that he was not aware that the paperwork relating to the embargoed freight 
was in Mr Mallory’s office. In response to a question from the Commission, Mr Kosecki said 
that this did not change his view that Mr Biffin was responsible for the breach because the 
process had always been that the paperwork was kept in the Depot Manager’s office due to 
the critical nature of the embargo process.

[44] Mr Kosecki agreed under cross-examination that Mr Andrew Mallory and Mr Brad 
Mallory had been moved out of the Brisbane Depot and that Mr Biffin had raised concerns 
about this. Mr Kosecki said that he had arranged for Mr Brad Mitchell to take over from Mr 
Andrew Mallory to back up Mr Biffin, but agreed that Mr Mitchell is also Regional Manager 
responsible for six other depots. Further, Mr Kosecki agreed that Mr Mitchell was present in 
the Brisbane Depot on 16 November 2016 when the breach occurred. Mr Kosecki rejected the 
proposition that the breach on that date occurred because the Depot was short staffed but 
conceded that Mr Biffin was under pressure at the time.

[45] In relation to the embargo breach on 16 November 2016, Mr Biffin said in his written 
statement that he had done necessary training and toolbox meetings with supervisors and 








[2017] FWC 3702

13

employees regarding embargo deliveries. Mr Biffin also said that the error with the sorting 
and handling of the consignment note occurred on 15 November 2016 when he was absent 
from work on approved leave and was not the “commander in charge”. Mr Biffin also said 
that he returned to work on 16 November 2016 totally unaware that someone had “accessed 
his office, gained access to the box where the embargo labels were kept and also retrieved the 
con-note from the embargo con-notes and had labelled the freight”. Mr Biffin maintained that 
these actions were taken by no less than six people on a day when he was away from the 
Depot. 

[46] Mr Biffin also asserts that the error which resulted in the breach of the embargo on 16 
November 2016 was not through any fault on his part. Mr Biffin states that he provided 
instructions and training to staff including toolbox meetings on new release and embargo 
freight and special instructions relating to embargoed and new release freight. Mr Biffin also 
asserts that XL Express should have taken steps to ensure that there were sufficient staff on 
duty at the Brisbane Depot in his absence and that the person who was second in charge had 
been sent to Sydney with only a part-time replacement and the customer service team leader 
had also been sent to another Depot and not replaced. Prior to the breach, Mr Biffin expressed 
concern to Mr Kosecki and Ms Davitt about the fact that two crucial people had been sent 
away from the Depot at the busiest time of the year. Further, a ticket officer had not been 
replaced after the person in that position resigned, despite Mr Biffin’s requests for a 
replacement employee. Mr Biffin also asserts that he was working 14 hour days at the time 
the breach of the embargo occurred, to try to keep the Depot operational.

[47] In support of his evidence that the issue of understaffing had been raised with Mr 
Kosecki, Mr Biffin referred to an email he sent to Mr Kosecki dated 7 November in which he 
pointed out that with Mr Andrew Mallory and Mr Brendan Mallory not in the 
Brisbane Branch it was short staffed and that an endeavour not to affect the Depot’s 
performance would be made. The email also states that Mr Biffin had an appointment on 15 
November that he was unable to cancel and would take a minimum of six hours. There was a 
response to that email sent by Mr Kosecki on 9 November in which he states that there is a 
blackout on all annual leave due to seasonal peak and that he trusts that Mr Biffin’s absence 
and that of another manager is for serious family reasons. Mr Kosecki also expresses surprise 
with a comment made by Mr Biffin on 8 November that he did not require assistance from 
“BM” [Mr Brad Mitchell] to assist in the morning operations given Mr Andrew Mallory’s 
absence, and that it was “lucky we have Brad to back up”.28

[48] A series of emails appended to the Form F3 were also tendered about earlier breaches 
of special release delivery requirements.29 The witness statements filed by XL Express did not 
contain detail about the substance of these breaches and I have obtained relevant background 
information from the content of the emails and the Form F3 filed by XL Express. It appears 
from these emails that on or around 17 May 2016, there was an early delivery of freight by the 
Brisbane Depot in circumstances where that freight was not to be delivered until 30 May 
2017. The customer involved complained about the early delivery and sought an explanation 
and an apology. In an internal email, Mr Biffin questioned whether XL Express was pre-
alerted to this delivery and stated that he had instructed all drivers that special instructions 
needed to be adhered to. In an email to Mr Kosecki, Mr Biffin stated that there had been no 
notification about the delivery and the consignment note and the freight was not sent by the 
client in the usual way.30








[2017] FWC 3702

14

[49] On or around 18 May there was a further early delivery of delayed freight resulting 
from failures in the Sydney and Melbourne warehouses which resulted in a book being sold in 
book stores in the ACT and Victoria before its official release date. The email from Mr 
Kosecki raising the issue is addressed to all Depot Managers including Mr Biffin and states 
that early delivery of such a product is a serious breach in operational processes with serious 
consequences for XL Express and relationship with customers. The email also states:

“I will be reviewing our New Release/Embargo procedures with the object of 
developing a water-tight procedure to be re-implemented in all states – an updated 
procedure that should be out next week for all to review.

In the interim I ask all managers to ensure we check all release procedures/freight; 
the basic core disciplines of ensuring that the PW is not distributed early, the special 
instructions are strictly followed, the freight is quarantined and presented in strict 
release dates and the freight/PW is checked by a manager prior to distribution being 
the main points/safety nets in our long established Release procedures.”31

[50] Mr Kosecki agreed under cross-examination that he had not sent out an updated 
procedure for review,32 but said that it had been discussed. Another failure involving the same 
distributor occurred on 11 August 2016 when the Brisbane Depot failed to follow special 
instructions on a consignment to deliver ASAP. On that occasion, Mr Kosecki sent a series of 
emails to Mr Biffin requesting an explanation of what had occurred. The explanation provided 
by Mr Biffin in an email dated 11 August 2016 was that there was a service failure on the part 
of the Brisbane Depot to follow special instructions on the consignment note to deliver as 
soon as possible but that the consignment note did not have a delivery date or a new release 
and had been held due to volume. Mr Biffin also states in the email that he had spoken to two 
employees and both were now aware that when holding freight it must be agreed to by Mr 
Biffin or Andrew [Mallory] in the future. Mr Kosecki responded to this email stating:

“Please ensure that this never happens again Steve…Too many people in XLE have 
worked too hard [including yourself] to have this very type of avoidable failure; it 
seriously hurts our reputation. Not so long ago I put out a note regarding NRs [New 
Releases] and in that note I made it very clear that ‘the special instructions are to be 
strictly followed’…there are few things that upset our customers more than when we 
fail to follow these special instructions”.33

[51] Mr Biffin said that he followed all Company procedures regarding reminding drivers 
about their work obligations. This included conducting a tool box meeting on 25 May 2016 
with the topic being following special instructions on consignment notes. According to Mr 
Biffin, normally this freight is sent with a separate EDI file and then the consignment notes 
are segregated to be handed out on the required delivery date. The freight is normally set out 
on separate pallets/skids with the delivery date attached to the pallet. The pallets are also 
segregated until the delivery date. According to Mr Biffin, the early delivery by the Brisbane 
Depot on 17 May 2016 resulting in the complaint was due to “the original direct error of the 
client not following normal procedures”. Mr Biffin said that the freight was sent along with 
the general freight and the consignment note was sent with “the general freight EDI file”. Mr 
Andrew Mallory was second in charge supervisor on that day and it fell under his jurisdiction.
Mr Biffin also said that there are 5,000 to 6,000 consignment notes received by the Brisbane 
Depot every day and that it was not his role to read every one of them.








[2017] FWC 3702

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[52] In relation to the complaint about the early delivery on 18 May 2016, Mr Biffin said 
that it did not concern the Brisbane Depot. With respect to the 9 August 2016 incident, Mr 
Biffin said that he recalled Mr Kosecki telephoning him in relation to the matter and his 
advice to Mr Kosecki was that he would find out details and locate the freight. Mr Biffin 
found the freight and organised for it to be delivered. The incident occurred because two 
supervisors had elected to hold the freight without informing Mr Biffin. Mr Biffin also 
pointed to the fact that 9 August 2016 was the day before a public holiday in Brisbane and 
freight volumes in the Brisbane Depot were increased as it was the only Depot to be closed on 
the following day. After this incident Mr Biffin put procedures in place to the effect that if 
freight was held in the future he was required to be notified and freight for that client was 
never to be held. Mr Biffin also maintained that it was not his job as manager to do the jobs of 
others and it was expected that they would follow procedures. On this occasion there was a 
failure to do so.

[53] Under cross-examination Mr Biffin agreed that in his role as Brisbane Depot Manager 
he was responsible for the operations of the Brisbane Depot, but maintained that this was only 
while he was in the Depot. Mr Biffin did not disagree with the proposition that in respect of 
the embargo breach, the only actions that were taken while he was absent from the Depot on 
15 November were that the freight in the embargo area was taken from loose freight to 
palletised freight, stretch wrapped and labelled. Further, Mr Biffin did not disagree with the 
proposition that on 15 November the freight and the paperwork were still embargoed. In 
response to the proposition that the freight was moved out of the embargo area, put on a truck 
and delivered on 16 November when he was at work, and that seven people including Mr 
Biffin could have stopped this from occurring, and that it was a result of his total failure as a 
manager, Mr Biffin said:

“I would agree to a point, but I also believe that being short staffed and Andrew 
Mallory, in particular, and Brendan Mallory removed from the Depot, who are in 
direct control of that procedure, weren’t there.”34

[54] Mr Biffin maintained that he instructed his staff to follow procedures but agreed that 
this had not occurred in relation to the embargo delivery. Mr Biffin confirmed that he had 
received the email from Mr Kosecki on 4 November 2016 instructing that the delivery was 
not to occur until 17 November 2016 and the restrictions in relation to dealing with the 
freight. Mr Biffin also agreed that he received the email from Mr Kosecki on 16 November at 
10.41 am checking that arrangements were in place for the delivery of the embargoed freight 
on 17 November 2016. Mr Biffin said that he verbally confirmed with the supervisors at the 
Brisbane Depot that the arrangements for the delivery were in place for the following day but 
did not speak to the people under the supervisors who had actually caused the freight to be 
delivered early. Mr Biffin said that he spoke to the only two supervisors he had on the dock.35

[55] Mr Biffin disputed the assertion that he told Mr Kosecki that he did not need help from 
Mr Mitchell and said that if Mr Mallory was in Brisbane on 17 November he would have 
been in charge of the bulk fleet. Mr Biffin agreed that another employee – Mr McLean – was 
in charge of the bulk fleet on that day but said that the paperwork for the embargoed freight 
was stored in Mr Andrew Mallory’s office and was accessed from there. Mr Biffin also said 
that if Mr Andrew Mallory was there he would have walked the floor and noticed the 
embargoed freight being loaded early. In response to the proposition that he could have 
walked the floor on 16 November before the embargoed freight was delivered, Mr Biffin 
maintained that he did walk the floor but was doing drivers’ pays on that day because Mr 








[2017] FWC 3702

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Brendan Mallory was also absent from the Brisbane Depot, and did not notice any issues with 
the embargoed freight.

[56] A number of emails were also tendered in which Mr Kosecki expressed dissatisfaction 
to Mr Biffin about various matters in the Brisbane Depot such as damage to freight and 
reporting of such matters.36

The dismissal process

[57] Mr Biffin gave the following evidence in relation to the manner in which his dismissal 
was effected. At approximately 2.00pm on Wednesday 23 November 2016, Mr Biffin was 
informed that a meeting with Mr Colin Mallory, the owner of XL Express and Ms Carolyn 
Davitt, National HR Manager, was to take place in the Boardroom. Mr Biffin attended the 
meeting and said that as soon as he was seated Ms Davitt informed him that his employment 
was terminated immediately for serious misconduct. Ms Davitt explained that the serious 
misconduct related to an early delivery of an embargoed consignment and a bullying 
allegation that had been made against Mr Biffin. Mr Biffin stated that this was the first 
occasion that he had heard of the bullying allegation. Ms Davitt offered Mr Biffin the option 
to resign, as this would look better on his resume for future employment. Ms Davitt also 
advised Mr Biffin that Mr Colin Mallory had agreed to pay him an additional six weeks 
wages in addition to his entitlements. Mr Biffin refused to resign and placed his company 
phone and car keys on the table. Mr Biffin said that Mr Colin Mallory did not speak during 
the meeting and that he stated to Mr Mallory:

“I’ve been doing 3 people’s jobs because we are short staffed. I’ve been working 12-
14 hours a day and yesterday was the first day I’ve left at 5.00 pm. I left at 4.30 pm 
and I started at 4.30 am. After all of the years of being with you, you couldn’t even tell 
me yourself which I would have preferred. You’ve now lost my respect. I would have 
done anything for you and this company.”37

[58] Mr Biffin said that he then went and collected his personal possessions, put them into 
a box provided by Ms Davitt, gave the pin number for his mobile phone to Ms Davitt and left 
the workplace after saying goodbye to a number of colleagues. Mr Biffin said that the whole 
process took approximately 15 minutes. Mr Biffin also said that Ms Davitt offered him a 
personal reference.

[59] Ms Davitt said that at the meeting during which Mr Biffin was dismissed, she told him 
that the embargo breach had caused the Company significant reputational damage and 
brought the Company into disrepute. Ms Davitt states that she also told Mr Biffin that an 
embargo breach had never occurred before and the Company was still dealing with the fallout.
Mr Colin Mallory stated that the breach had cost the Company dearly with regard to the 
customer and the Company’s reputation. Ms Davitt also states that she told Mr Biffin that the 
embargo breach had damaged the employment relationship and the Company had lost faith in 
his ability to do his job to the required standard. Further, Ms Davitt states that she told Mr 
Biffin that WHSQ had advised the Company that Mr Biffin is a bully and that a number of 
people have complained to WHSQ about him bullying them. Ms Davitt also told Mr Biffin 
that WHSQ had informed her that Mr Biffin had stated that he had not received training in XL 
Express’ anti-bullying policy and procedures, when Ms Davitt had personally given him 
training in relation to these matters and explained the Policy on a number of occasions.








[2017] FWC 3702

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[60] Mr Davitt further states that she told Mr Biffin that the Company would pay him a 
more generous severance package than was required due to his length of service. “Out of 
respect” Ms Davitt offered Mr Biffin an opportunity to resign which he did not accept, despite 
Ms Davitt strongly counselling him to do so. In her oral evidence Ms Davitt maintained that 
Mr Colin Mallory had spoken to Mr Biffin during the termination meeting.

Other relevant matters

[61] Mr Biffin states that he has applied for six positions since the termination of his 
employment. In response to a question from the Commission about why he had not applied 
for more positions, Mr Biffin said that he had suffered health issues after his dismissal and his 
marriage had broken down. Mr Biffin states that this incapacity was caused by the loss of his 
employment. After the Hearing, Mr Biffin provided certificates from his treating medical 
practitioner stating that he was suffering from stress, inability to concentrate, low mood and 
anhedonia from 3 January 2017 and that this would likely continue to 17 June 2017. The 
medical certificates do not state the cause of the condition.

[62] Mr Biffin also said that he was not paid his accrued long service leave entitlements on 
termination of his employment on the basis that he was dismissed because of his conduct.

CONSIDERATION 

Was there a valid reason for Mr Biffin’s dismissal?

[63] Contrary to the submission of XL Express, in determining whether there is a valid 
reason for dismissal, the Commission is not confined to determining that the employee 
engaged in serious misconduct as defined in Regulation 1.07. As Vice President Hatcher 
observed in Sharp v BCS Infrastructure Support Pty Limited38 it is not necessary to 
demonstrate for the purposes of s. 387(a) of the Act that an employee engaged in misconduct 
sufficiently serious to justify summary dismissal in order to establish that there was a valid 
reason for the employee’s dismissal (although established conduct of that nature would be a 
valid reason for dismissal). The expression “serious misconduct is not used anywhere in Part 
3-2, Unfair Dismissal, of the Act and has no relevance to s. 387(a) of the Act, which requires 
the Commission to consider whether the reason for dismissal is valid in the sense that it is 
sound, defensible or well founded.39 As previously stated, where conduct relied on by the 
employer as a valid reason for dismissal is in dispute, the Commission is required to 
determine whether the conduct in fact occurred. Where it is not in dispute that the relevant 
conduct occurred, or the Commission finds that it did occur, the Commission must also 
consider whether the conduct was of sufficient gravity or seriousness to justify dismissal as a 
sound, defensible or well-founded response to the conduct.40

[64] In the present case, I do not consider that the bullying allegations constituted a sound, 
defensible or well-founded reason for Mr Biffin’s dismissal for the following reasons. I am 
not satisfied that Mr Biffin was a bully or that he engaged in bullying behaviour. Regardless 
of the fact that XL Express does not assert that Mr Biffin bullied T or that Mr Biffin is in any 
way responsible for his death, to assert that Mr Biffin bullied drivers in the work place is a 
serious allegation and one that should be based on cogent evidence. There is no WHSQ 
investigation report and XL Express did not conduct its own investigation. Ms Davitt 
concedes that the lack of documentation or other material from WHSQ was problematic.








[2017] FWC 3702

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Regrettably this matter does not appear to have been considered before Mr Biffin was 
dismissed.

[65] The representation on which XL Express relies to the effect that Mr Biffin bullied four 
drivers, is hearsay. The evidence of the representation is that of Ms Davitt who states that the 
representation was made to her during a meeting by Ms Waterford of WHSQ. I did not find 
Ms Davitt’s evidence about the meeting with the WHSQ Inspector to be convincing. Ms 
Davitt appeared to be more intent on establishing that Mr Andrew Mallory was not a bully 
than she was on establishing that there was a valid basis for the conclusion that Mr Biffin was 
a bully. While it is true that the Commission is not bound by the rules of evidence, as 
previously stated, an allegation of bullying is a serious matter and should not be found to be a 
valid reason for dismissal, based on hearsay.

[66] Ms Waterford was not called to give evidence and no attempt was made to require her 
to attend or to produce any details of her investigation or a report to underpin the allegations 
that Mr Biffin bullied drivers at XL Express. There is no evidence that Ms Waterford was 
unavailable to give evidence. There is also no basis for assuming that Ms Waterford could 
have resisted on the basis that there is an ongoing coronial inquest into T’s death. XL Express 
asserts that the investigation that Ms Waterford conducted which concluded that Mr Biffin 
was a bully did not relate to T’s suicide, but to the workplace generally.

[67] XL Express is a large and well-resourced employer with a dedicated human resources 
manager and in-house legal counsel. The Company could and should have taken steps to 
require Ms Waterford to attend the Commission to give evidence and to produce a report or 
some evidence about the basis for her alleged conclusions. Furthermore, the Company could 
and should have conducted its own investigation of the allegations rather than simply 
accepting Ms Waterford’s refusal to provide a report or any evidence of the basis for the 
allegation that Mr Biffin was a bully. In circumstances where the Company did not have even 
the most basic information about who Mr Biffin allegedly bullied, when the alleged bullying 
occurred and what it involved, it cannot be concluded that Mr Biffin was a bully. This was not 
a valid reason for Mr Biffin’s dismissal.

[68] This is not a case involving the small business fair dismissal code where it could be 
argued that the information provided by the WHSQ Inspector provided reasonable grounds 
for XL Express to believe that Mr Biffin had engaged in bullying behaviour. XL Express is 
required to establish that the behaviour alleged did occur and that it constituted a valid reason 
for dismissal. If it was established that Mr Biffin bullied drivers, then such conduct would be 
a valid reason for dismissal. However, for the reasons set out above, such an allegation cannot 
be made out on the evidence that XL Express had at the point the decision to dismiss Mr 
Biffin was made, or on the evidence before the Commission.

[69] I do not accept that the Improvement Notice issued to XL Express by WHSQ or the 
correspondence in relation to it from the Principal Inspector WHSQ, establishes that Mr 
Biffin engaged in bullying behaviour such that there was a valid reason for his dismissal. At 
best, the Improvement Notice and the correspondence from WHSQ establishes that the 
Improvement Notice was issued on the basis that the WHSQ Inspector found that XL Express 
had not changed its practices in relation to the management of workplace risks associated with 
bullying by providing appropriate information, training, instruction, and/or supervision to its 
workers in relation to managing the risks associated with workplace bullying. 








[2017] FWC 3702

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[70] The Improvement Notice and the correspondence make no reference to Mr Biffin 
being a bully. Rather, the Improvement Notice indicates that “the supervisor conducting 
training has stated that they have not received specific training to conduct training 
information sessions” and refers the Company to Codes of Practice and Guides.

[71] I also do not accept that Mr Biffin telling the WHSQ Inspector that he had not been 
provided with specific training on conducting training sessions about bullying, is a valid 
reason for Mr Biffin’s dismissal. Mr Biffin simply told the truth about this matter and his 
evidence to the Commission is consistent with the statement in the Improvement Notice. The 
fact that Ms Davitt told Mr Biffin about the company policy in relation to bullying does not 
necessarily equip him to train other employees and does not constitute formal training. It is 
telling that since Mr Biffin’s dismissal, an external provider has been engaged to provide
formal training on this subject.

[72] Further, I do not accept that the breach of the embargo on 16 November provided a 
valid reason for Mr Biffin’s dismissal. However, I accept that the breach was a serious matter 
and involved misconduct on the part of Mr Biffin. I also accept that Mr Kosecki and other 
managers of the Company were entitled to take a very dim view of the incident and Mr 
Biffin’s part in it and to issue him with a warning.

[73] Mr Biffin was the responsible manager at the relevant time. He did not cease to be so 
because he was on leave the day before the breach occurred. Mr Biffin could and should have 
taken steps to ensure that the freight was isolated from other freight and clearly marked as 
embargoed until 17 November 2016. At very least, on 16 November 2016, Mr Biffin should 
have made visual contact with the freight and checked that the procedures for the embargo 
delivery had been followed and that all appropriate measures were in place to effect the 
delivery as required. Mr Kosecki asked for such confirmation at 10.41 am on the day the 
breach occurred. Mr Biffin did not provide that confirmation and took no steps to ensure that 
this was done and a final check undertaken. Had Mr Biffin taken a few minutes to make a 
visual inspection of the embargoed freight to ensure that it was ready to be delivered in 
accordance with the process, the breach would likely have been averted. Mr Biffin’s failure to 
take these steps contributed to the breach. That Mr Biffin was busy on 16 November is not the 
issue. Mr Biffin does not dispute the assertion of Mr Kosecki that delivery of embargo freight 
is the pinnacle of XL Express’ business and he should have treated the delivery accordingly.

[74] It is also not to the point that XL Express did not suffer any loss as a result of the 
embargo breach and retained the contract. Such a breach had a real prospect of causing loss or 
damage and I do not doubt that reputational damage was or could have been suffered by XL 
Express as a result of a breach of a world wide embargo on a popular publication attended by 
much media hype.

[75] Mr Biffin persistently refused to accept any responsibility for what occurred. It was 
only under cross-examination in this hearing that Mr Biffin agreed that he did have some role 
in the embargo breach. Even allowing for the fact that Mr Biffin’s reaction to the allegations
about the embargo breach may have been impacted by the unfounded bullying allegations, his 
failure to accept any responsibility for the embargo breach at the time it occurred, was not 
reasonable.

[76] However there also are a range of factors which militate against the responsibility for 
the breach being laid solely at the feet of Mr Biffin. On the day when steps were taken which 








[2017] FWC 3702

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allowed the breach to occur, Mr Biffin was absent from the workplace on leave. It is also not 
in dispute that Mr Andrew Mallory and Mr Brendan Mallory were also not at the Brisbane 
Depot having been temporarily reassigned to other Depots. Mr Biffin’s evidence that Mr 
Andrew Mallory would have been responsible for the bulk fleet and that the embargo 
documentation was in his office, was not disputed, although it is surprising that this critical 
documentation would have been in the office of a manager who was working in another 
Depot at the time. It was also not disputed that on the day the freight was delivered, Mr Biffin 
was administering pays for drivers and that this task would normally have been undertaken by 
Mr Brendan Mallory. Further, it is the case that Mr Biffin had raised concerns in writing 
about understaffing of the Brisbane Depot some ten days before the breach occurred. Mr 
Biffin also states that he conducted a tool box talk with all staff to ensure that they understood 
the requirement to read special instructions on consignment notes and this evidence was not 
disputed. While the tool box talk was not sufficient to ensure that the breach did not occur, Mr 
Biffin took some steps to communicate the requirements relating to embargoed freight with 
drivers.

[77] I am also of the view that as at 16 November, XL Express’ processes for dealing with 
embargoed freight were not clear. While the process required that the freight be isolated from 
other freight, there was no uniform procedure set down about how this should be done. It was 
stated in the submissions for XL Express that the procedures for isolating embargoed freight 
differed depending on the particular depot and ranged from taping off the embargoed freight, 
putting it on pallets or skids or putting it in an area away from other freight. The freight that 
was delivered from the Brisbane Depot in breach of the embargo was on pallets and this was 
insufficient to isolate it. Further, the description in the evidence of Mr Kosecki and the 
submissions on behalf of XL Express in relation to the procedure for the isolation of 
embargoed freight was not consistent with the requirements set out in the email from Mr 
Kosecki to Depot Managers on 16 October 2016 which required that the freight be stored “in 
a special area which is isolated from other freight”.

[78] Similarly, there did not appear to be a uniform procedure for marking the freight. Issue 
was taken by Mr Kosecki with the fact that the freight that was delivered from the Brisbane 
Depot was marked with a “blue texter” (sic)” so that it looked like other freight. However, 
there was no evidence of a standard process for marking embargoed freight in a way that 
distinguished it from other freight. There is evidence that the labels on the freight were 
obscured by shrink wrap which was applied to the pallet on which the freight was stored at a 
time when this should not have occurred. There did not appear to be a procedure in relation to 
when a pallet containing embargoed freight should be stretch wrapped. Further, there does not 
appear to be consistency about where the consignment notes are stored. Although there was 
some inconsistency in his evidence, Mr Biffin maintained that they were in Mr Andrew 
Mallory’s office and Mr Kosecki maintained that they should have been in the Depot 
Manager’s office. Mr Biffin’s evidence about this matter and the inconsistencies in that 
evidence were not the subject of cross-examination, and I generally accept his evidence on 
this point. There was no evidence of a procedure or an instruction about where the 
consignment notes are to be stored. Neither is there an explanation about why the 
documentation was stored in Mr Andrew Mallory’s office, in circumstances where he was 
absent from the Depot. All of these matters should have been investigated and were not. It is 
also telling that Mr Kosecki informed the client in that case that a review/retraining of the 
Brisbane operations team would be conducted and that this review did not take place.








[2017] FWC 3702

21

[79] While I accept that as the Depot Manager Mr Biffin had overall responsibility for the 
breach of the embargo, and that he engaged in misconduct in relation to it, the blame cannot 
be laid entirely at his feet. In light of the matters set out above, I do not accept that the 
embargo breach was a valid reason for Mr Biffin’s dismissal. Further, I am of the view that 
the unfounded bullying allegations tainted the reasons for the dismissal so that on balance, 
there was no valid reason for dismissal.

Was Mr Biffin notified of the reason for his dismissal?

[80] I am satisfied and find that Mr Biffin was notified of the reason for his dismissal at the 
meeting on 23 November 2016 at which he was dismissed.

Was Mr Biffin given an opportunity to respond to the reasons for his dismissal?

[81] I do not accept that Mr Biffin was given an opportunity to respond to the reasons for 
his dismissal. Mr Biffin was called into a meeting and presented with the fact that he was to 
be dismissed as a fait accompli. Even on Ms Davitt’s evidence of the meeting, the allegations 
were presented to Mr Biffin on the basis that they were substantiated and that a decision had 
already been made that Mr Biffin was a bully and was responsible for the early delivery of 
embargoed freight.

[82] The Company had no information about the basis of the allegation that Mr Biffin was 
a bully. On Ms Davitt’s evidence, WHSQ did not provide XL Express with any detail of who 
it had interviewed, its findings and the basis for those findings. Notwithstanding this Ms 
Davitt and Mr Colin Mallory proceeded to rely on this matter as a reason for dismissal on the 
basis that the allegation was made out. Mr Biffin could not respond to that allegation as he 
was given no information to which he could properly make a response. Mr Biffin’s 
uncontested evidence is that he was not even aware that there was a WHSQ investigation into 
his alleged bullying much less that any findings had been made. 

[83] The requirement to afford procedural fairness to an employee who has engaged in 
conduct or is alleged to have engaged in conduct that the employer considers justifies 
dismissal, is a fundamental principle underpinning the unfair dismissal provisions in the Act.
XL Express could not abrogate its obligation to afford procedural fairness to Mr Biffin by 
simply accepting a verbal report from a WHSQ Inspector to the effect that he was a bully, 
without any evidence upon which that report was based. If WHSQ would not provide 
evidence then XL Express should have made its own inquiries and conducted its own 
investigations and established that the allegations were substantiated.

[84] Other than assertions in the oral evidence of Ms Davitt that information was requested 
from WHSQ about its investigation and that the request was refused, there is no evidence of 
any attempt being made by XL Express to obtain information from WHSQ about its findings 
with respect to Mr Biffin. The manner in which the bullying allegations were dealt with 
resulted in a total denial of procedural fairness to Mr Biffin. I can only wonder about how 
WHSQ could have conducted a proper investigation of serious allegations against Mr Biffin 
without even putting those allegations to him, much less informing him that he was the 
subject of an investigation.

[85] There is also no evidence that the basis of the conclusion that Mr Biffin was 
responsible for the embargo breach was put to him during the dismissal meeting, or at any 








[2017] FWC 3702

22

time prior to it. The fact that Mr Kosecki had sent a series of emails asking questions about 
the embargo breach, does not constitute an opportunity to respond to reasons for dismissal. At 
the point that Mr Kosecki asked the questions, Mr Biffin had not been told that his job was in 
jeopardy and was not responding to the questions in that context.

[86] On Ms Davitt’s evidence about the dismissal meeting, more time was spent informing 
Mr Biffin of her conclusions and attempting to persuade him to resign, than was spent putting 
allegations to Mr Biffin and allowing him to respond to them. As a result, Mr Biffin was 
denied procedural fairness.

Was there an unreasonable refusal allow Mr Biffin to have a support person?

[87] There is no evidence that Mr Biffin requested to have a support person present at the 
dismissal meeting. This is not surprising given that he was not forewarned that this would be 
subject of the meeting.

Was Mr Biffin warned about unsatisfactory performance before the dismissal?

[88] Mr Biffin was dismissed for misconduct that is said to justify summary dismissal, 
rather than ongoing unsatisfactory performance and in such cases a warning or lack thereof is 
not relevant to the fairness of a dismissal. To the extent that warnings may be relevant, the 
Act does not specify the form that a warning must take or a number of warnings that are 
required to be given before a dismissal for unsatisfactory performance will be found not to be 
unfair.

[89] The approach to considering whether a warning has been given is to consider whether 
what is said to constitute a warning: 

 Identifies the relevant aspect of the employee’s conduct or performance which is of 
concern to the employer; and

 Makes it clear that the employee’s employment is at risk unless the conduct or
performance issue is addressed.

[90] The question of whether a warning has been given in a manner that satisfies these 
criteria is to be considered in a practical and common-sense way, taking into account the 
employment context.41

[91] I accept in the present case that there are emails in which Mr Kosecki expresses 
dissatisfaction with the manner in which Mr Biffin has undertaken his role as Manager of the 
Brisbane Depot and entreats Mr Biffin not to let a particular issue (such as damage to freight 
or failure to report damage) arise again. However, many of those emails are directed at Depot 
Managers generally and where they are directed at Mr Biffin they do not make clear that the 
issues raised are of such significance that his employment is at risk.

Did the size of the employer’s enterprise and the absence of dedicated human resource 
management specialists or expertise impact on the procedures followed in effecting the 
dismissal?

[92] As previously noted, XL Express is a large and well-resourced employer with access
to an in-house lawyer and a dedicated human resource manager. The lack of such resources 








[2017] FWC 3702

23

did not impact on the procedures followed in effecting the dismissal. Given the resources that 
were available to the Company, the manner in which the allegations against Mr Biffin were 
dealt with and his dismissal effected, is surprising.

Other relevant matters

[93] I consider that the following matters are relevant and favour a conclusion that Mr 
Biffin’s dismissal was unfair.

 Mr Biffin had an unblemished employment record in the sense that prior to his 
dismissal there is no evidence that Mr Biffin had been warned or counselled in relation 
to his conduct, capacity or work performance.

 An investigation into the manner in which Mr Biffin dealt with a female colleague in 
Adelaide did not result in any adverse findings against him.

 Mr Biffin had a lengthy history with XL Express having been engaged as a contractor 
and employed by the Company for a total of 24 years and employed in a management 
role since May 2008.

 Mr Biffin was not paid for pro-rata long service leave on the basis that XL Express 
dismissed him because of his conduct as provided in s.95(4)(c) of the Industrial 
Relations Act 2016 (Qld). 

 To the extent that Mr Biffin’s engaged in misconduct which contributed to the 
embargo breach, it was not serious misconduct that warranted dismissal.

Mr Biffin’s dismissal was unfair

[94] On balance and after weighing the matters in s. 387 of the Act that I am required to 
consider, I find that Mr Biffin’s dismissal was unfair. In summary, for the reasons set out 
above, Mr Biffin’s dismissal was harsh because it was disproportionate to his misconduct in 
relation to the breach of the embargo. The dismissal was unjust because there was no proper 
basis for the Company to conclude that Mr Biffin was guilty of bullying drivers and 
unreasonable because the conclusion that he had engaged in such conduct was based on 
inferences that could not reasonably be drawn from the material that was before the employer.

REMEDY

[95] Given that I have found that Mr Biffin’s dismissal was unfair, it is necessary to 
consider the question of remedy. As required by s. 390 of the Act, I am satisfied that Mr 
Biffin was protected from unfair dismissal and that he was unfairly dismissed. I am also of the 
view that Mr Biffin should have a remedy for his unfair dismissal. Mr Biffin did not seek 
reinstatement. In my view reinstatement is not appropriate. On Mr Biffin’s evidence he has 
lost respect for the Company and it is clear from the evidence of Mr Kosecki that the 
Company has lost trust and confidence in Mr Biffin.

[96] I have made the necessary findings that are prerequisite to awarding compensation. In 
relation to the assessment of compensation, s. 392 of the Act provides as follows:

“392 Remedy—compensation

Compensation








[2017] FWC 3702

24

(1) An order for the payment of compensation to a person must be an order that 
the person’s employer at the time of the dismissal pay compensation to the person in 
lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), 
the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have 
been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the 
person because of the dismissal; and

(e) the amount of any remuneration earned by the person from 
employment or other work during the period between the dismissal and the 
making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the 
person during the period between the making of the order for compensation 
and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the 
employer’s decision to dismiss the person, the FWC must reduce the amount it would 
otherwise order under subsection (1) by an appropriate amount on account of the 
misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) 
must not include a component by way of compensation for shock, distress or 
humiliation, or other analogous hurt, caused to the person by the manner of the 
person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) 
must not exceed the lesser of:

(a) the amount worked out under subsection (6); and








[2017] FWC 3702

25

(b) half the amount of the high income threshold immediately before the 
dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during 
the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so 
employed during any part of that period—the amount of remuneration taken to 
have been received by the employee for the period of leave in accordance with 
the regulations.”

[97] The approach to the calculation of compensation is set out in a decision of a Full 
Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival 
Supermarket.42 That approach, with some refinement, has subsequently been endorsed and 
adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District 
Retirement Villages inc T/A Ottrey;43 Jetstar Airways Pty Ltd v Neeteson-Lemkes44 and 
McCulloch v Calvary Health Care (McCulloch).45

[98] I turn now to the particular criteria I am required to consider in deciding the amount of 
compensation to be awarded to Mr Biffin for his unfair dismissal. 

The effect of the order on the viability of XL Express – s. 392(2)(a)

[99] There is no evidence that an Order for compensation will have any impact on the 
viability of XL Express and there was also no submission to this effect.

Length of Mr Biffin’s service – s. 392(2)(b)

[100] Mr Biffin was employed in a managerial role for an eight year period prior to the 
termination of his employment and had a lengthy history of other employment and 
engagements with XL Express. In my view the most recent period of employment is of itself 
sufficient to support the making of an order for compensation.

Remuneration Mr Biffin would have or would likely have received – s. 392(2)(c)

[101] This consideration requires an assessment of how long Mr Biffin would likely have 
remained in employment but for his dismissal, and is necessarily speculative. Mr Biffin had 
been employed in a managerial role for some eight years. He had not previously been warned 
about his conduct or work capacity. Although it was not a valid reason for dismissal, Mr 
Biffin’s responsibility for the Depot operations meant that he had a role in the series of events 
that led to the embargo breach. This would have at least warranted a warning. Mr Biffin did 
not accept or concede that he had a role in the embargo breach until he was cross-examined in 








[2017] FWC 3702

26

the Hearing of his unfair dismissal application and I have taken his refusal to accept 
responsibility into account. 

[102] Making allowances for the unfairness with which Mr Biffin was treated and the 
manner in which his dismissal was effected, his reaction at the dismissal meeting is not a 
basis for finding that his employment would not have continued for some time. Had he been 
warned about the embargo breach and his role in it, Mr Biffin may have accepted that he 
needed to improve the performance of the Brisbane Depot and taken steps to do so as he had 
done in the past when issues were raised with him. Further, there is no reason to suppose that 
Mr Biffin would have repeated his conduct in relation to the embargo breach and it is equally 
probable that he would have ensured such a breach did not happen again.

[103] Had XL Express conducted a proper investigation of the alleged bullying, it may have 
concluded that Mr Biffin was innocent of such allegations or that any conduct in this respect 
on his part could be rectified by participation in the training that was conducted by an external 
provider for all employees. 

[104] There is no evidence that Mr Biffin was considering leaving his employment with XL 
Express and to the contrary, he states that he planned to stay in employment until retirement. 
In all of the circumstances, I find that but for his unfair dismissal, Mr Biffin would have 
remained in employment for a period of at least twelve months.

[105] Based on payslips provided to Mr Biffin and tendered to the Commission, in the 
anticipated period during which he would have remained in employment but for his dismissal, 
Mr Biffin would have earned an amount of $115,000.00 plus superannuation contributions of 
$10,925.20.

[106] I now turn to consider whether this twelve month period should be discounted on 
account of contingencies. As a Full Bench of the Commission pointed out in McCullough v 
Calvary Health Care46 a deduction for contingencies is applied to prospective losses 
occasioned after the date of the hearing. Such losses may be caused by illness or other similar 
events. Mr Biffin was dismissed on 23 November 2016. I have found that but for his 
dismissal, he would have remained in employment for at least a further period of twelve 
months (ie. until 23 November 2017). Any contingency calculation would only have 
relevance for the period after the decision was reserved (19 April 2017) and the end of the 
anticipated period of employment, a period of some seven months.

[107] Notwithstanding Mr Biffin’s evidence that his dismissal caused the stress related 
condition from which he suffers, the medical certificates provided by Mr Biffin do not 
confirm that this is the case.  On the other hand there is no indication that Mr Biffin was 
suffering from such a condition prior to his dismissal. The medical certificates indicate that 
Mr Biffin was unfit for work from 3 January until 17 June 2017. I am concerned at applying a 
contingency deduction on the basis of an illness that may have been caused by a dismissal that 
I have found to be unfair. However, I cannot exclude the possibility that Mr Biffin would 
have suffered an illness regardless. In the circumstances I apply a 20% deduction for 
contingency. This results in an amount of $92,000.00 for wages and $8,740.16
superannuation contributions.








[2017] FWC 3702

27

Mr Biffin’s efforts to mitigate loss – s. 392(2)(d)

[108] I am satisfied that Mr Biffin made reasonable attempts to mitigate his loss by seeking 
alternative employment. Mr Biffin states that at the time his application was heard he had 
applied for six positions and that he applied for positions for which he was qualified 
regardless of the fact that the salary attaching to them was significantly less than his salary 
while employed by XL Express. At the time his application was heard Mr Biffin had not 
obtained alternative employment.

[109] Mr Biffin also stated that his medical issues had impacted on his ability to obtain 
employment as had the breakdown of his marriage and I accept that this had an impact on his 
capacity to seek further employment. The medical certificates tendered by Mr Biffin state that 
he was not fit to undertake his usual employment or any employment, for the period 3 January 
2017 to 17 June 2017. The medical certificates have now been provided to XL Express to 
provide an opportunity for further submissions on mitigation to be made. Subject to 
considering any further submissions that may be made by XL Express, I have decided in 
principle that I will not reduce the amount of compensation awarded to Mr Biffin on the basis 
that he was unable to work either before or after the Hearing.

The amount of any remuneration earned since dismissal – s. 392(2)(e) 

[110] The hearing of Mr Biffin’s unfair dismissal concluded on 18 April 2017. At that time 
Mr Biffin had not earned any non-refundable remuneration from other sources. I will require 
Mr Biffin to provide current information in relation to this consideration for the period up 
until 19 July 2017.

The amount of any income reasonably likely to be earned during the period between the 
making of the order for compensation and the actual compensation – s. 392(2)(f)

[111] I am also unable to calculate this amount on the basis of material currently before me 
and will require Mr Biffin to provide current information in relation to his non-refundable 
remuneration earned from other sources following his dismissal up until 19 July 2017.

Any other matter that the FWC considers relevant – s. 392(2)(g)

[112] It is relevant that Mr Biffin was paid an amount of 12.4 weeks wages amounting to
$27,423.08 on termination of his employment and this amount will be taken into account in 
the final calculation of compensation. The deduction of this amount results in $64,576.92
wages and does not impact on the $8,740.16 of superannuation contributions that Mr Biffin 
would have earned had he remained in employment for the anticipated period.

Deduction for misconduct – s. 392(3)

[113] I am of the view that Mr Biffin did engage in misconduct which contributed to his 
dismissal. As Depot Manager, Mr Biffin was responsible for ensuring that the embargoed 
delivery was undertaken as required. This is the case notwithstanding my finding that the 
misconduct did not constitute a valid reason for dismissal. It is of concern that Mr Biffin did 
not concede any responsibility for the embargo breach until he was cross-examined in the 








[2017] FWC 3702

28

hearing of his application. I make a deduction of 25% on the ground of misconduct resulting 
in wages of $48,432.69 and superannuation contributions of $6,555.12.

Compensation cap – s. 392(5)

[114] Section 392(5) imposes a legislative “cap” on the amount of compensation the 
Commission can order. The cap in the context of the present case is the lesser of the total 
amount of remuneration that Mr Biffin received for his employment with XL Express in the 
26 weeks prior to the termination of his employment or half of the amount of the high income 
threshold immediately before the dismissal – an amount of $69,450. Mr Biffin received an 
amount of $57,500 in the 26 week period prior to his dismissal and therefore his 
compensation is capped at that amount. The total amount calculated above is less than the 
compensation cap and it is not necessary to apply it.

Instalments – s. 393

[115] There was no submission that any amount of compensation should be subject to 
payment by instalments. There is no evidence that XL Express would have difficulty paying 
the amount of compensation I intend to award Mr Biffin within the period it will be payable.

[116] In summary I find as follows:

1. An order for the payment of compensation would not affect the viability of XL 
Express’s business (s.392(2)(a)).

2. The length of Mr Biffin’s service favours the making of an order for compensation 
and no diminution of any amount that might otherwise be determined is warranted 
because of this circumstance (s.392(2)(b)).

3. The remuneration that Mr Biffin would have been likely to receive, but for his unfair 
dismissal is $115,000.00 in wages and $10,925.20 in superannuation contributions 
(s.392(2)(c)).

4. I deduct 20% for contingencies resulting in an amount of $92,000 in wages and 
$8,740.16 in superannuation contributions.

5. In principle I have decided to make no deduction for failure to mitigate loss on the 
basis that Mr Biffin was unable to work from 3 January 2017 to 17 June 2017 because 
of an illness, subject to any further submissions XL Express may wish to make in 
relation to the medical certificates provided by Mr Biffin.

6. I make no deduction for remuneration earned between Mr Biffin’s dismissal and the 
date this application was heard and/or the Decision reserved (s.392(2)(e)).

7. I require Mr Biffin to provide further information in the form of a statutory declaration 
in relation to any non-refundable income earned by him in the period after 18 April 
2017 and the making of the order for compensation that will follow this Decision (s. 
392(2)(f)) – ie. to 26 July 2017.








[2017] FWC 3702

29

8. I deduct the amount of $27,423.08 paid to Mr Biffin on the termination of his 
employment (s. 392(2)(g)) resulting in $64,576.92 in wages and $8,740.16 in 
superannuation contributions.

9. I deduct 25% for misconduct (s.392(3)) resulting in $48,432.69 in wages and 
superannuation contributions of $6,555.12.

10. The resulting amount of compensation to be paid to Mr Biffin is $48,432.69 and 
superannuation contributions of $6,555.12 (subject to whether Mr Biffin has earned 
any non-refundable from 19 April 2017 to 19 July 2017.

[117] I have taken into account all of the circumstances of the case and all of the matters I 
am required to take into account pursuant to subsections 392(2), (3) and (5), other than the 
additional information I require Mr Biffin to provide in relation to income from non-
refundable sources since 19 April 2017 and subject to consideration of any further 
submissions from XL Express in relation to mitigation, on the basis of the medical certificates 
provided by Mr Biffin. If Mr Biffin has earned non-refundable income during this period, it 
will be necessary to consider whether any of that income should be deducted from the 
compensation calculated above.  If XL Express makes further submissions in relation to 
mitigation it will also be necessary to consider whether a further adjustment should be made 
to the compensation award on that ground.

[118] Mr Biffin is to provide a statutory declaration within 7 days of the date of this 
Decision, setting out details of any non-refundable remuneration received by him since (if 
any) 19 April 2017. XL Express is to indicate whether it wishes to take issue with the contents
of the statutory declaration or to be heard in relation to this matter or in relation to mitigation 
as a result of the information in the medical certificates provided by Mr Biffin. In the event 
that Mr Biffin has not earned any non-refundable remuneration in the relevant period or XL 
Express does not seek to be heard further, an Order will issue requiring XL Express to pay to 
Mr Biffin the amount of $51,661.54 in wages, less tax according to law and an amount of 
$6,992.13 in superannuation contributions, as compensation for his unfair dismissal, within 
21 days of the date the Order is issued.

[119] If the Company wishes to be heard further in relation to the medical certificates or the 
contents of Mr Biffin’s statutory declaration, written notice is to be provided by 26 July 2017, 
to the Commission and served on Mr Biffin, setting out the nature of the issues proposed to be 
raised.  If necessary the matter will be listed for further mention/hearing.

DEPUTY PRESIDENT

Appearances:


AL OF THE FAIR WORK COMMISSION THE




 



[2017] FWC 3702

30

Mr S. Biffin appeared on his own behalf. 

Mr C. Prescott appeared on behalf of the Respondent.

Hearing details:

Brisbane
2017
March 14

Printed by authority of the Commonwealth Government Printer

Price code G, PR594540

                                               
1 Transcript of Proceedings 14 March 2017 PN363.
2 Statement of Steven Biffin - Exhibit 1; Further Statement of Steven Biffin “Statement of Dismissal Day” – Exhibit 2.
3 Witness Statement of Joe Kosecki – Exhibit 10
4 Witness Statement of Carolyn Davitt – Exhibit 13.
5 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
6 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
7 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
8 Culpeper v Intercontinental Ship Management (2004) 134 IR 243; [2004] AIRC 261; Print RP 944547.
9 North v Television Corporation Ltd (1976) 11 ALR 599.
10 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 

at 204.
11 Bista v Glad Group Pty Ltd [2016] FWC 3009 at [37] citing the judgement of Moore J in Edwards v Giudice (1999) 94 

FCR 561.
12 [2016] FWC 3009.
13 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines 

(1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
14 Witness Statement of Carolyn Davitt – Exhibit 13 paragraph 3.
15 Exhibit 13 Annexure B.
16 Exhibit 13 Paragraph 13.
17 Transcript of Proceedings 14 March 2017 PN704.
18 Transcript of Proceedings 14 March 2017 PN707.
19 Transcript of Proceedings 14 March 2017 PN708.
20 Transcript of Proceedings 14 March 2017 PN709.
21 Transcript of Proceedings 14 March 2017 PN731.
22 Transcript of Proceedings 14 March 2017 PN770-786.
23 Transcript of Proceedings 14 March 2017 PN517-519 (including a statement in the form of evidence from the bar table by 

Mr Prescott, the representative of XL Express).
24 Exhibit 11.
25 Exhibit 10 Witness Statement of Joe Kosecki Annexure A.
26 Exhibit 8.
27 Exhibit 8.
28 Form F3 Employer Response to Unfair Dismissal Application filed on 13 December 2016 by XL Express -

Annexure L.
29 Exhibit 9.
30 Form F3 filed by XL Express Annexure C.








[2017] FWC 3702

31

                                                                                                                                                  
31 Exhibit 5 and Annexure D to the Form F3 filed by XL Express.
32 Transcript of Proceedings 14 March 2017 PN668.
33 Form F3 filed by XL Express Annexure E.
34 Transcript of Proceedings 14 March 2017 PN211.
35 Transcript of Proceedings 14 March 2017 PN235-242.
36 Exhibit 9.
37 Exhibit 2 – Witness Statement in Reply of Mr Biffin.
38 [2015] FWCFB 1033.
39 Ibid at [33] – [34].
40 Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009 at [40].
41 Goodwin v Fastidia Pty Ltd Dec 1023/00 M Print S9280 at [43] considering similar terms in s. 170CG(3)(d) of the former 

Workplace Relations Act 2006.
42 (1998) 88 IR 21.
43 [2013] FWCFB 431.
44 [2014] FWCFB 8683. 
45 [2015] FWCFB 2267.
46 [2015] FWCFB 2267.

Cases cited by this decision: