Emery, Kevin v City of Stirling - [2018] FWC 914

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Fair Work Act 
2009 
s.394—Unfair dismissal

Kevin Emery

v

City of Stirling
(U2017/2986)

DEPUTY PRESIDENT BINET PERTH, 9 FEBRUARY 2018

Application for relief from unfair dismissal - summary dismissal – reinstatement – back pay.

[1] Mr Kevin Emery (Mr Emery) has filed an application (Application) pursuant to 
section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) 
alleging he was unfairly dismissed by the City of Stirling (City of Stirling).

[2] Mr Emery, who had been employed as a Beach Inspector by the City of Stirling for 
more than five years, was summarily dismissed after modifying the air-conditioning units in 
two City of Stirling vehicles.  Mr Emery claimed the modifications were done with the 
knowledge and approval of his supervisor.  He also claimed that the investigation into the 
modifications was procedurally defective.

[3] The City of Stirling lodged a Form F3 Employer Response to the Application noting it 
had no jurisdictional objection to the Application.  The City of Stirling asserted that the 
modifications were done without Mr Emery’s supervisor’s knowledge and that his behaviour
amounted to serious misconduct.  The City of Stirling asserted that it afforded Mr Emery 
procedural fairness.

[4] The issues in dispute between the parties could not be resolved by conciliation and the 
matter was listed for arbitration.  Taking into account the parties circumstances, and their 
wishes, it was determined that a hearing rather than a determinative conference would be the 
most effective and efficient way to determine the matter.   

[5] The matter was listed to be heard on 29 November 2017 and 30 November 2017.  The 
matter was not completed on 30 November 2017 and was listed for a further day of hearing on 
13 December 2017 (in combination, the Hearing). 

[6] Directions were issued to ensure the efficient conduct of the Hearing (Directions).  
Those Directions required Mr Emery and City of Stirling to file and serve an outline of 
submissions, copies of authorities on which they proposed to rely at the Hearing, witness 
statements of any witnesses they proposed to call, and copies of any documents on which they 

[2018] FWC 914 [Note: This decision and the associated order has been 
quashed - refer to Full Bench decision dated 20 April 2018 
[[2018] FWCFB 2279]

DECISION


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb2279.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr600330.htm


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sought to rely as evidence on or before close of business, Thursday 7 September 2017 and 
Thursday 21 September 2017 respectively.  

[7] On Thursday, 21 November 2017 the City of Stirling filed and served supplementary 
submissions (Supplementary Submissions).

[8] The Directions also required any party who sought to be represented by a lawyer or 
paid agent at the Hearing to file written submissions to this effect addressing the provisions of 
section 596(2) of the FW Act.

[9] Both Mr Emery and the City of Stirling sought permission to be represented at the 
Hearing.

[10] Section 596 of the Fair Work Act 2009 (Cth) (FW Act) provides as follows: 

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be 
represented in a matter before the FWC (including by making an application 
or submission to the FWC on behalf of the person) by a lawyer or paid agent 
only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or 
paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into 
account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the 
person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into 
account fairness between the person and other persons in the same
matter…”

[11] Commissioner Cambridge in Karkamakar v Australian Campus Network Pty Ltd
[2013] FWC 2340 made the following comments about section 596 of the FW Act:

“[9] These provisions represent a more stringent requirement for the granting of 
permission than existed under the predecessor provisions of the Workplace Relations 
Act 1996. There have been a number of Decisions of the Commission which have 
recognised the legislative intention to broadly restrict and limit the basis upon which 
permission would be granted for legal (and paid agent) representation in proceedings 
before the Commission as compared with the Australian Industrial Relations 
Commission. In this respect I refer, in particular, to the Decision of Harrison C in 
Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 
572, and the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens 
Board [2011] FWA 1520.”






http://www.fwc.gov.au/decisionssigned/html/2011fwa1520.htm
http://www.fwc.gov.au/decisionssigned/html/2009fwa572.htm
http://www.fwc.gov.au/decisionssigned/html/2009fwa572.htm


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[12] Taking into account the submissions of both parties and in the absence of any 
objections from either party opposing representation for the other, leave to appear was granted 
to both parties pursuant to section 596(2)(a) and (c) of the FW Act.

[13] At the Hearing Mr Emery was represented by Mr Patrick Mullally of Workclaims 
Australia (Mr Mullally).  At the Hearing the City of Stirling was represented by Tracy 
Caspersz, of Counsel.

[14] At the Hearing Mr Mullally called as witnesses:
a. Mr Emery; and

b. Mr John William Hardbattle, Beach Inspector (Mr Hardbattle)

[15] At the Hearing Mr Caspersz called as witnesses:

a. Mr Andreas Kolm, Beach Inspector (Mr Kolm);

b. Mr Adam Anthony Gugiatti, Beach Inspector (Mr Gugiatti);

c. Mr Arthur John Snook, Team Leader Beach Services (Mr Snook);

d. Ms Tracy Ann Watts, Coordinator Employee Relations and Resourcing
(Ms Watts);

e. Mr Trevor Charles Holland, Director Community Development
(Mr Holland); and

f. Mr David Alexander Carter, Co-ordinator Fleet Services (Mr Carter).

[16] Both representatives objected to various parts of the witness statements filed on behalf 
of the witnesses of the other side.  Where those objections held any merit I adjusted the 
weight I attached to that evidence accordingly.

[17] Final written submissions were subsequently filed on behalf of Mr Emery on Friday,
22 December 2017 and on behalf of the City of Stirling on Thursday, 4 January 2018. 

Background

[18] Mr Emery commenced employment as a Beach Inspector with the City of Stirling on 1 
September 2011.1

[19] Mr Emery, and the three other Beach Inspectors employed by the City of Stirling (Mr 
Kolm, Mr Gugiatti, and Mr Hardbattle), reported to Mr Snook (Beach Services Team).  Mr 
Snook reports to Ms Simone Pastor, Co-ordinator Planning and Projects (Ms Pastor).  At the 
time of the incidents which resulted in Mr Emery’s dismissal Ms Pastor was Acting Manager, 
Recreation reporting to Mr Holland.2

[20] Beach Services is one of five separate business units which Mr Holland is responsible 
for. 3  For the twelve years prior to his appointment as Executive Manager Cultural and Social 
Services, Mr Holland was the City of Stirling’s Manager of Human Resources.4








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[21] The Beach Services Team, whose numbers are bolstered in summer by casual 
lifeguards, oversee the safety and well being of the public along a 7.5km stretch of beach 
front which includes Brighton, Scarborough and Trigg beaches plus Watermans and Mettams 
Pools.

[22] The duties of the Beach Inspectors are described in the position objectives of the 
position description as follows:5

 “Undertake preventative life saving measures including the establishment and 
enforcement of safe swimming areas, surveillance, prevention of incidents, first 
aid, rescues and resuscitation.

 Enforce State Government and Local Laws, regulations and policies as they 
apply to the beach.

 Supervise Casual Beach Lifeguards (during the course of their employment), 
including the establishment of work rosters, and ensure that they conduct their  
activities in accordance with established procedures.

 Prepare and participate in staff training programs aimed at maintaining a 
high level of physical fitness and procedural standards.

 Acceptance of new technologies to improve the efficiency of Beach Service 
operations.

 Make recommendations and implement initiatives that include staffing, 
operational procedures, equipment and beach facilities to maximize beach 
safety.

 Maintain all City beach safety equipment including 4WD vehicles, powercraft, 
advisory signage, communication equipment and first aid supplies in the best 
possible condition.

 Inspect City infrastructure within the beach areas and report any damage or 
vandalism.

 Liaise and co-ordinate with marine safety and emergency service groups 
including volunteer Surf Life Saving Clubs and Surf Life Saving WA.

 Provide accurate written reports relating to major incidents and compile daily 
report log forms.

 Provide direction and advice to Council approved beach activities and ensure 
that agreed conditions are adhered to.

 Ability to work independently and show initiative.

 Act in an advisory capacity (where necessary) to Council and staff.








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 Undertake other duties as directed by the Team Leader Beach Services or 
Managers in the Business Unit

 Maintain the following awards and certificates:

o SLSA Bronze Medallion (renewed annually)

o SLSA Advanced Resuscitation  Certificate (renewed annually)

o SLSA IRB Drivers Certificate (renewed annually)

o St John  Ambulance  (or equivalent) Occupational First Aid 
Certificate (renewed 3 yearly)”

[23] Normally the Beach Services Team are rostered to work as follows:6

“(a) one Beach Inspector stationed at Scarborough Beach;

(b) one Beach Inspector stationed at Trigg Beach;

(c) one floating Beach Inspector to move between the beaches as deemed 
necessary; and

(d) a minimum of five casual lifeguards at Scarborough and Trigg beaches as 
required, particularly during the peak summer season.”

[24] The equipment at the disposal of the Beach Services Team to perform their duties 
includes three all terrain vehicles, jet skis, three beach inspector vehicles (used exclusively by 
the Beach Inspectors) and two inflatable rescue boats.7

[25] In November 2016 the City of Stirling replaced their existing beach inspector vehicles 
with three new BT50 Mazda utes (BIVs).8  The BIVs are part the City of Stirling’s fleet of 
vehicles which are managed by Mr Carter.  Mr Carter is based at the City of Stirling depot.

[26] At some time between 6 December 2016 and 11 December 2016 Mr Emery made a 
modification to the air-conditioning units of the BIVs designated BIV U481 and BIV U483.

[27] On 7 February 2017 Mr Gugiatti reported to Mr Snook that he had noticed a noise 
coming from the engine bay of BIV U481.  Mr Snook instructed Mr Gugiatti to take the 
vehicle to the City of Stirling Depot.  BIV U481 was inspected at the City of Stirling Depot 
and Mr Gugiatti was instructed to take the vehicle to the Mazda dealership from which it was 
purchased.9

[28] Mr Gugiatti drove the vehicle to the dealership the same day.  The vehicle was 
inspected at the dealership and the modification to the air-conditioning unit discovered by 
Mazda.10

[29] This was reported to Mr Norm Bryant (Mr Bryant) who is employed as the Leading 
Hand at the City of Stirling’s fleet workshop.  Mr Bryant passed on this information to Mr 








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Carter on 7 February 2017 who then contacted Mr Snook.11  Later on 7 February 2017 Mr 
Carter and Mr Bryant attended at Mazda, spoke to the Service Manager Mr Seb Melis (Mr 
Melis) and inspected the modification.12  

[30] Mr Snook attended the next team meeting of the Beach Services Team on 8 February 
2017 and reported that Mazda had discovered a modification to BIV U481.  In attendance at 
the meeting were Mr Gugiatti, Mr Kolm and Mr Hardbattle.  Mr Hardbattle told Mr Snook he 
should speak to Mr Emery about the modification.13

[31] Mr Carter subsequently inspected the other BIVs and discovered a similar 
modification in BIV U483 which he removed.14  Some time later BIV U483 was found to 
have a fault with its air conditioning and was sent to Mazda to be repaired under warranty.15

[32] On 9 February 2017 Mr Snook sought advice from the human resource department of 
the City of Stirling and on 13 February 2017 met with Ms Watts and Ms Pastor to discuss 
how the matter should be investigated.16

[33] On 23 February 2017 a letter was hand delivered to Mr Emery’s home address 
instructing him to attend an investigation meeting to be held the following day.  17At Mr 
Emery’s request the investigation meeting was rescheduled until 1 March 2017.18

[34] On 1 March 2017 Mr Emery attended the investigation meeting with his support 
person Mr Hardbattle (Investigation Meeting). Also at the meeting were Mr Snook and 
Ms Watts.  The minutes of the Investigation Meeting record that Ms Watts role was minute 
taker. At that meeting Mr Emery asserted that Mr Snook had given him permission to make 
the modifications.  Mr Snook denied this.

[35] At the end of the Investigation Meeting Mr Emery provided Mr Snook and Ms Watts 
with a bundle of documents which Mr Emery said proved that the modifications which he 
undertook were not dissimilar to other tasks he performed.  These included emails between 
Mr Snook and the Beach Inspectors regarding the repair and maintenance of various items of 
equipment used by the Beach Inspectors.20

[36] The following day Mr Emery was instructed to attend a further meeting on 3 March 
2017 (Disciplinary Meeting).  Sometime between the Investigation Meeting and the 
Disciplinary Meeting Mr Snook and Ms Watts met with Mr Holland to report to him on the 
Investigation Meeting.  Based on this oral report Mr Holland took the view that Mr Emery 
ought to be dismissed.

[37] In attendance at that meeting were Mr Emery, Mr Hardbattle, Mr Snook and 
Ms Watts.  At the meeting on 3 March 2017 Mr Emery was informed that he was summarily 
dismissed.

[38] On 16 March 2017 Mr Emery received written notice of termination dated 9 March 
2017 (Notice of Termination).  The letter contained no reasons for his dismissal.

[39] On 19 March 2017 Mr Emery filed the Application.

[40] On 19 April 2017 Mr Emery received a letter dated 11 April 2017 which attached 
what was described as a letter of termination dated 9 March (Letter of Termination) and a 








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copy of the minutes of the investigation meeting held on 3 March 2017.24 The Letter of 
Termination identifies the reason for Mr Emery’s dismissal as the unauthorised modification 
of two vehicles in breach of the Code of Conduct and the Fleet Management Practice resulting 
in:

a.substantial damage to the vehicles voiding the warranty of the vehicles;

b.costing the City of Stirling expense; and

c.potentially impacting on the City of Stirling’s capacity to perform life saving 
services. 25

[41] Mr Emery asserts that he undertook the modifications with the authority of his 
supervisor Mr Snook, that he had the necessary expertise to perform the modifications and 
that performing repairs was not dissimilar to other tasks he performed.  Mr Emery also asserts 
that the investigation had procedural fairness defects, key among which, was that the 
investigation was conducted by Mr Snook notwithstanding Mr Snook’s conduct being a key 
issue in dispute.  

[42] Mr Emery maintains that he was unfairly dismissed and seeks an Order than he be 
reinstated with continuity of service and back pay.

Is Mr Emery Protected from Unfair Dismissal?

[43] Section 396 of the FW Act requires that the FWC to decide four preliminary issues 
before considering the merits of an application for unfair dismissal:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order 
under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in 
subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair 
Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[44] I am satisfied that the Application was made within the 21 day period required by 
subsection 394(2) of the FW Act.26  I am also satisfied that the Small Business Fair Dismissal 
Code, which applies to employers of fewer than 15 employees, does not apply to Mr Emery’s 
dismissal. There is no assertion that Mr Emery’s dismissal involved redundancy.27








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[45] Section 382 sets out the circumstances that must exist for Mr Emery to be protected 
from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment 
with his or her employer of at least the minimum employment period; 
and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the 
employment;

(iii) the sum of the person’s annual rate of earnings, and such other 
amounts (if any) worked out in relation to the person in 
accordance with the regulations, is less than the high income 
threshold.”

[46] There is no dispute, and I am satisfied, that Mr Emery has completed the minimum 
employment period, and is covered by the City of Stirling Inside Agreement 2016.28

Consequently, I am satisfied Mr Emery was protected from unfair dismissal.

Was Mr Emery’s dismissal unfair?

[47] Section 385 of the FW Act sets out the circumstances in which a dismissal will be 
considered unfair:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal 
Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: 
see section 388.”








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[48] It is not contested, and I am satisfied, that Mr Emery was dismissed for the purposes of 
section 385(a) of the FW Act and that his dismissal was not a case of genuine redundancy, nor 
subject to the Small Business Fair Dismissal Code.29

Was Mr Emery’s dismissal harsh, unjust or unreasonable?

[49] Having been satisfied of each of subsections 385(a), (c) and (d) of the FW Act, it is 
necessary to determine whether Mr Emery’s dismissal was harsh, unjust or unreasonable. The 
criteria to be taken into account when assessing whether a dismissal was harsh, unjust or 
unreasonable are set out at section 387 of the FW Act:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[50] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or 
unreasonable’ was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 
by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but 
not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the 
concepts will overlap. Thus, the one termination of employment may be unjust because 








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the employee was not guilty of the misconduct on which the employer acted, may be 
unreasonable because it was decided upon inferences which could not reasonably 
have been drawn from the material before the employer, and may be harsh in its 
consequences for the personal and economic situation of the employee or because it is 
disproportionate to the gravity of the misconduct in respect of which the employer 
acted.”

[51] To determine whether Mr Emery’s dismissal was, in the circumstances, harsh, unjust 
or unreasonable, it is necessary to consider each of the criteria set out in section 387 of the 
FW Act.

Did the City of Stirling have a valid reason for dismissing Mr Emery? (s.387(a))

[52] An employer must have a valid reason for the dismissal of an employee protected from 
unfair dismissal.  A valid reason is one which is sound, defensible and well-founded, and not 
capricious fanciful spiteful or prejudiced. 30 The reason or reasons relied upon by an employer 
as a valid reason for dismissal, need not be the ones given to the employee at the time of the 
dismissal.31

[53] In the invitation to attend the Investigation Meeting Mr Emery was informed that the 
allegation he was required to respond to was that he had made non approved modifications to 
two of the City of Stirling’s vehicles resulting in substantial damage including voiding of the 
warranty.

[54] At the Disciplinary Meeting he was informed that he was dismissed for engaging in 
gross misconduct and breaching the Code of Conduct and Fleet Management Practice by 
making non approved modifications which:

“…had the potential to affect the ability of the City to perform potential life saving 
services and has cost the City substantial money …”32

[55] The City of Stirling did not identify any reasons for Mr Emery’s dismissal in the 
Notice of Termination provided to him on 16 March 2017.  

[56] After Mr Emery filed the Application the City of Stirling issued the Letter of 
Termination which identified the grounds for Mr Emery’s dismissal as the unauthorised 
modification of two vehicles in breach of the Code of Conduct and the Fleet Management 
Practice resulting in:

a. substantial damage to the vehicles voiding the warranty of the vehicles;

b. costing the City of Stirling expense; and

c. potentially impacting on the City of Stirling’s capacity to perform life saving services.

[57] In its initial submissions filed in accordance with the Directions on 28 September 2017
the City of Stirling identified the reason for dismissal.  It was described as wilful and 
deliberate conduct going to the heart of the employment contract by causing damage which, if 
not discovered, could have resulted in the BIVs malfunctioning.  The City of Stirling assert








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this would have jeopardised the capacity of the Beach Inspectors to attend rescues and save 
lives.

[58] In Supplementary Submissions filed on 21 November 2017 the City of Stirling sought 
to expand the reasons on which it relied for Mr Emery’s dismissal to include wilful and 
deliberate breaches of an implied duty of fidelity, a fiduciary duty and a duty of care which 
the City of Stirling say Mr Emery owed to them with respect to the BIVs.

[59] To determine whether grounds for dismissal relating to conduct are a valid reason for 
an employee’s dismissal, the Commission must determine whether, on the balance of 
probabilities, the conduct allegedly engaged in by the employee actually occurred.33

  The test 
is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the 
employee was guilty of the conduct. The Commission must make a finding as to whether the 
conduct occurred based on the evidence before it. 34

[60] Mr Emery was summarily dismissed for serious misconduct.  Where serious 
misconduct is alleged the test for a valid reason for dismissal does not change. The test 
remains whether the reason was ‘sound, defensible or well founded’.35 However where the 
conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw 
(1938) 60 CLR 336 may be relevant: 

“The standard of proof remains the balance of probabilities but ‘the nature of the 
issue necessarily affects the process by which reasonable satisfaction is attained’283 

and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, 
or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing 
with a wavering finger to an affirmative conclusion.”

Was Mr Emery authorised to conduct the modifications?

[61] Mr Emery admits he modified BIV U481 and BIV U483 however he says that he was 
given approval to do so by Mr Snook and that in any event, undertaking such modifications
was not inconsistent with the range of tasks that he and the other three Beach Inspectors were 
expected or encouraged to perform.36

[62] Mr Emery says he first met with Mr Snook on or about 2 December 2016 to discuss a 
problem with the air-conditioning units in BIV U481 and BIV U483 heating rather than 
cooling the vehicles.37  Mr Emery said that at this meeting he asked Mr Snook for the problem 
to be rectified by the vehicle manufacturer, Mazda, at the first service due at 1000km, at that 
time only about 200kms away.  Mr Emery says that Mr Snook agreed to do this.38

[63] Mr Emery says that he met with Mr Snook again on or about 5 December 2016 and 
was told that the service for the BIVs had been scheduled for 3000km rather than 1000km and 
the heating problem would have to wait until then.  Mr Emery says that he told Mr Snook that 
this would be a problem from an occupational health and safety perspective given it was 
summertime.  Mr Emery says that he offered to investigate a temporary fix to the problem and 
was invited by Mr Snook to do so.39

[64] Mr Emery says that his research revealed that installing a bridging wire could 
temporarily keep the vehicle air-conditioning unit locked on cold until a permanent repair 
could be undertaken.40  








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[65] Mr Emery says that he reported the outcome of his research to Mr Snook and Mr 
Snook agreed that Mr Emery should make the temporary modification to the BIVs until the 
vehicles could be properly repaired by Mazda at the scheduled 3000km service.41

[66] Mr Emery says he made the modification to the vehicles on or before 11 December 
2016 and informed the other Beach Inspectors of the modification which he had made.42

[67] Mr Snook denies he approved, or had the authority to instruct, Mr Emery to perform 
the modifications.43

[68] The City of Stirling rely on a comment made by Mr Emery at the Investigation 
Meeting that Mr Snook was busy and Mr Emery didn’t “want to bother him” as evidence that 
Mr Emery’s assertion that Mr Snook authorised the modifications was false.

[69] Ms Watts, in her witness statement, places Mr Emery’s statement in the temporal 
context that on completing the modifications, Mr Emery informed the other Beach Inspectors 
that he had undertaken the modifications but that Mr Snook was busy and he didn’t want to 
bother him with it.  This is consistent with the physical record of the comment in the Minutes 
of the Investigation Meeting prepared by Ms Watts and suggests that the comment was made 
by Mr Emery in this context.

[70] The City of Stirling dedicated significant portions of its closing submissions to 
discrediting Mr Emery.  This included headings labelled as follows:

a. “Applicant tended to big note himself”.
b. “Applicant was prone to exaggerate and argue”.
c. “Applicant non responsive and argumentative”.

[71] Throughout its Closing Submissions the City of Stirling relied heavily on the colourful 
use of emotive language to characterise Mr Emery’s evidence as unreliable.  For example the 
City of Stirling asserted that Mr Emery’s evidence “demonstrated a scant regard for 
important policy documentation”, a “lackadaisical attitude to his contractual responsibilities” 
and that he “tended to exaggerate as evidenced by his dramatic argument” and that he was 
“not qualified to give such an opinion” (that it was not ideal for employees to be working in a 
heated vehicle during the peak of summer) and that such an “opinion is worthless”.  

[72] My observations of Mr Emery were that he was no less cooperative and forthcoming 
than City of Stirling witnesses such as Mr Holland and Mr Snook when pressed by opposing 
counsel in relation to evidence perceived as unhelpful to their case.  During the course of the 
hearing I had cause to counsel both Mr Emery and Mr Snook in relation to their obligations to 
answer questions put to them44.  Witnesses on both sides gave evidence which appeared to be 
exaggerated and/or inconsistent.  For example Mr Gugiatti asserted that: “Without the BIV, I 
could not do my job.”  It was clear from the evidence of Mr Gugiatti and the other Beach 
Inspectors that while the BIVs were useful to the performance of their duties the absence of 
the vehicles would not render the Beach Inspectors unable to do their job at all.  

[73] I have made an assessment of the evidence of each witness and where I judged that it
was less credible, because for example it appeared to be exaggerated, I have weighed it 
accordingly.








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[74] There are no witnesses to the conversations in which Mr Emery says Mr Snook invited 
him to undertake the repairs to the BIVs.  However:

a. Mr Gugiatti gave evidence that he had experienced problems with the air conditioning 
on the BIVs and had discussed this with Mr Emery on 11 December 2016.45

b. Mr Kolm gave evidence that he had experienced problems with the air conditioning on 
the BIVs from December 2016.46

c. Mr Hardbattle gave evidence that Mr Emery informed him that he was going to 
discuss the heating fault with Mr Snook.47

d. Mr Hardbattle says that he observed Mr Emery depart the Beach to attend at least two 
of the three meetings Mr Emery says he held with Mr Snook.48

e. Mr Snook concedes that on 2 December 2017 he discussed with Mr Emery when the 
BIVs would be serviced and that he subsequently clarified with the Depot that the 
service would occur at the 3000km mark.49  

f. Mr Emery gave unchallenged evidence that Mr Snook was on a last warning and 
therefore Mr Snook was “loathe to commit any instructions to writing”.50  This would 
also provide a clear motivation for Mr Snook to deny authorising the modifications.

[75] It is clear from the evidence of the other witnesses that Mr Emery made no secret of 
the fact that he had undertaken the modifications to the air-conditioning units of the BIVs to 
correct the heating problem.51  In fact Mr Gugiatti tendered a text exchange between himself 
and Mr Emery on 11 December 2016 in which Mr Emery informed Mr Gugiatti that he had: 
“…bridged the air-conditioning so it is on all the time”.  To which Mr Gugiatti responded 
“Roger good stuff”.

[76] The fact that Mr Gugiatti did not report the modification to Mr Snook at that time and 
that he commended Mr Emery for performing it is consistent with Mr Emery’s submission 
that conducting repairs of this nature was normal.  Mr Gugiatti, in his witness statement, says 
that he knew the work done by Mr Emery was outside the scope of work Beach Inspectors 
were permitted to do and that he did not report Mr Emery to Mr Snook because he did not 
want to get Mr Emery in trouble.  This is inconsistent with Mr Gugiatti’s contemporaneous 
response “Roger good stuff” and his subsequent provision of the text message to Mr Snook in 
the course of the investigation.52

[77] Mr Snook conducted the investigation so there was no independent assessment during 
the course of the investigation as to whether in fact Mr Snook did give approval for the 
modifications to occur.  The minutes for the Investigation Meeting reveal that Mr Snook did 
not seek to challenge the veracity of Mr Emery’s allegation that he authorised the repairs by 
asking Mr Emery to provide particulars of when and where that authorisation occurred.  
Instead at the Investigation Meeting Mr Snook simply denied the authorisation was given and 
avoided any forensic investigation of the veracity of Mr Emery’s assertion.  The opportunity 
for forensic analysis was shut down further by the manner in which Mr Snook conducted the 
investigation in breach of the City of Stirling Employee Discipline Management 
Practice. Mr Snook’s failure to exclude himself from conducting the investigation, his failure 








14

to test the veracity of Mr Emery’s defence and his failure to prepare and tender any written 
statement in the course of the investigation gives some credibility to the assertion that Mr 
Snook had something to hide.

[78] A reason relied upon by an employer might not be valid because the conduct did not 
occur or it did occur but did not justify termination.53  The City of Stirling rely on 
modification of the BIVs occurring without approval as a valid reason for Mr Emery’s 
dismissal.  In its Closing Submissions the City of Stirling conceded that it bore the onus of 
establishing that the modifications occurred without authority.54  On the evidence before me I 
am not satisfied that the modifications were unauthorised.  

[79] Given my finding below that undertaking such modifications was not inconsistent with 
the range of tasks that Mr Emery was expected or encouraged to perform I am not satisfied 
that Mr Emery had reason to believe that Mr Snook was not authorised to approve such work.

Were the modifications consistent with the range of tasks Mr Emery was encouraged or 
expected to perform?

[80] Mr Emery says that notwithstanding he was given express approval to undertake the 
modifications, in any event, the Beach Inspectors were expected in the course of performing 
their duties to undertake repair and maintenance work to City of Stirling assets.  

[81] Mr Emery tendered Minutes of Beach Inspectors meetings in support of this assertion. 
See for example Minutes of the Beach Inspectors meeting held on 14 May 201555 which 
records inter alia that the Beach Inspectors will:

a. In relation to the IRB hulls “Beach Inspectors to complete repairs as required.”
b. In relation to the board racks “Beach Inspectors to install them ASAP.”

[82] Mr Emery also gave evidence and tendered emails between Mr Snook and the Beach 
Inspectors (including himself) regarding maintenance and repair tasks which the Beach 
Inspectors had undertaken, or intended to, undertake.  This included the stripping apart and 
cleaning of corroded parts of hand held portable audio units, the construction of danger 
signs,56 removing jet ski rollers and attaching them to the IRB trailer57 and repairing the 
external microphone unit of a radio.58

[83] According to Mr Emery he performed at least 40 tasks in the last five years for the 
City of Stirling utilising his auto electrical training and experience.59

[84] As evidence of this, Mr Emery tendered an email dated 4 May 2015 in which 
Mr Emery reported to Mr Snook that he had undertaken the following modification to the 
then Holden made Beach Inspector vehicles in response to a safety recall issued by Holden.

“I checked all three cars today and the fault is present but very very minor in our case. 
I have cable tied the offending cable to ensure it is clear of the bracket and will not 
cause any problems. No doubt somewhere down the track Holden will want to check 
and fix it. We can just wait for them to contact us.”60

[85] According to the Australian Competition and Consumer Commission website the 
recall occurred because: 








15

“The Alternator B+ Electrical Cable may have been assembled in contact with a steel 
bracket at the battery tray. Under certain driving conditions the insulation on the 
cable may wear, resulting in the potential for an electrical short circuit to develop 
between the cable and the bracket.”

[86] In the same email Mr Emery also noted that:

“I also fixed the following

Steering tilt adjuster on beach 3 car. (should be fine now sensitive adjustment).
CCTV on beach 3 car. (think the wireless contact software is faulty but formatted and 
upgraded it, working now).
Reverse light on beach 1 car
Two way radio mic on Beach 2 car
CCTV on beach 1 car (had not been working since April 14th)”61

[87] None of these are tasks that fall strictly within the scope of Mr Emery’s position 
description or are duties which a Beach Inspector charged with patrolling beaches to ensure 
the safety of the public might be typically expected to perform.  They are, however, tasks 
which Mr Emery was assisted in performing by his auto electrical training and experience.

[88] Mr Snook responded by return email acknowledging that Mr Emery had undertaken 
the work and praising him for doing so in the following terms: 

“Thank you for your efforts in attending to the items listed below – I’m sure it is 
appreciated by all.”62

[89] It is not surprising, given Mr Emery was praised for his efforts in undertaking this 
work, that he proceeded to undertake the repairs to the BIVs.  In this context it is also not 
unreasonable for Mr Emery to presume that Mr Snook had the authority to approve him 
undertaking repairs of the nature of the modifications he made to the BIVs.  

[90] To be a valid reason for Mr Emery’s dismissal, the reason relied upon by the City of 
Stirling must be valid in the context of the Mr Emery’s capacity or conduct or based upon the 
operational requirements of the City of Stirling’s business.  The requirement to be reasonable 
must be applied in a practical common sense way to ensure that Mr Emery and the City of 
Stirling are each treated fairly.63

[91] The City of Stirling assert that the maintenance and repair tasks it authorised Mr 
Emery to perform were limited to basic maintenance and did not extend explicitly or 
implicitly to the modifications Mr Emery made to the air-conditioning units in the BIVs 
which led to his summary dismissal.

[92] The modifications undertaken by Mr Emery which resulted in his summary dismissal 
are at first blush not ones which a person employed as a Beach Inspector might typically be 
expected to perform in the course of their duties.  However Mr Emery is a trade qualified 
auto-electrician and an air-conditioning fitter and was employed as such for more than 25 
years.  He conceded that he was last employed full time as an auto electrician in 2003.  








16

However he gave evidence that he has, in the intervening years, continued to utilise his auto 
electrical training and expertise both privately and to perform tasks for the City of Stirling.64

[93] It is clear that the City of Stirling relied on the Beach Inspectors to perform a range of 
repair and modification tasks to equipment the Beach Inspectors used in the discharge of their 
duties which extended well beyond basic maintenance.  The City of Stirling impressed upon 
the Beach Inspectors the importance of minimising maintenance and repair costs by making it 
a KPI in the performance reviews of Beach Inspectors.65

[94] It would appear that the City of Stirling were in the past happy to take advantage of 
Mr Emery’s willingness, self initiative and his prior training and experience to perform a 
range of tasks which sensibly reduced the costs to City of Stirling ratepayers.

[95] Mr Emery was, in the past, congratulated for his efforts in performing maintenance 
and repair tasks which relied on skill sets and experience not identified in Mr Emery’s job 
description or which might reasonably be considered to fall within the skill sets required for 
the performance of his primary duty, which was to keep beach users safe.  In fact, relevantly 
he was praised specifically for performing temporary modifications to the auto electrics of a 
City of Stirling vehicle.

[96] I am not satisfied that the modifications which Mr Emery made to the BIVs were so 
far removed from the range of tasks he was expected and encouraged to perform by the City 
of Stirling as to form a valid reason for his dismissal. Particularly in circumstances where the 
modifications were well intentioned (there is no evidence that he would do anything to put 
lives at risk), made with care (based on prior research he undertook) and within his skill set 
(based on his prior training and experience in auto-electrics).

Did the modifications cause damage to BIV U481 and BIV U483?

[97] In the invitation to attend the Investigation Meeting Mr Emery was informed that the 
allegation he was required to respond to was that he had made non approved modifications to 
two of the City of Stirling’s vehicles resulting in substantial damage including voiding of the 
warranty.  At the Investigation Meeting he was told that the modifications had:  “… voided 
the warranty and cost over $2000 each vehicle to remedy.”66

[98] Mr Emery disputed at the Investigation Meeting, and subsequently, that the 
modifications he undertook caused any damage to the BIVs or that the modification created a 
risk to his own safety or the safety of others.67

[99] The evidence reveals that only BIV U481 was inspected by Mazda.  According to Mr 
Carter he removed the modification to BIV U483 himself.68  

[100] There is no evidence that BIV U483 was damaged by the modifications, that its 
warranty was voided or that any repair costs were incurred by the City of Stirling as a 
consequence of Mr Emery’s modification.  In fact, the email Mr Carter sent to Mr Snook on 8 
February 2017 appears to confirm that the warranty for U483 was still valid.69

[101] Turning to the nature of the alleged damage to BIV U481, its implications for the 
operation of the vehicle and the impact on its warranty.  Mr Holland, in cross examination,








17

stated that no diagnostic report of the alleged damage to BIV U481 and no written 
confirmation that the warranty of BIV U481 had been voided was obtained from Mazda.70

[102] Ms Watts on the other hand in cross examination stated that statements had been 
sought from Mazda and that copies of those statements were on the investigation file which 
she kept in the HR Department. She gave evidence that she was unaware why these were not 
tendered at the Hearing.71  The failure to produce these documents might suggest that these 
documents would not have been helpful to the City of Stirling’s case.

[103] The evidence actually relied on by the City of Stirling of the nature of the alleged 
damage to BIV U481, its implications for the operation of the vehicle and the impact on the 
vehicles warranty was the written and oral evidence of Mr Carter, an email sent from 
Mr Melis, a Service Advisor at Mazda to Mr Carter on 28 February 2017 and an undated,
unsigned letter on Mazda letterhead.  

[104] Mr Carter gave evidence that on his arrival at Mazda on 7 February 2017 he inspected 
BIV U481.  There is no evidence that Mr Carter conducted other than a visual inspection of 
the vehicle at that time.  This is unsurprising given the vehicle was then in the custody of 
Mazda in order for its service staff to assess and repair any damage.  Based on this visual 
inspection Mr Carter says in his witness statement that he concluded that the compressor had 
failed and that there was a possibility that the serpentine drive belt might subsequently fail 
and/or that the computer codes could have shut down the vehicle.72  

[105] In his witness statement Mr Carter says that he completed a motor mechanic 
apprenticeship in 1980 and was employed as a motor mechanic for 18 months thereafter.  
After a period as a Telecom linesman, according to his witness statement, he held a variety of 
roles which appear to have been exclusively in supervisory and managerial roles in mining 
and construction during which time he became qualified as a diesel fitter.73  At the hearing he 
gave evidence that he received training on air-conditioning systems in 1978 and conceded that 
he hasn’t worked on air-conditioning systems.74  No evidence of Mr Carter’s trade 
qualifications were tendered, nor how long he worked in any particular role or of its relevance 
to his expertise to assess the cause of, or nature of, the damage to BIV U481 other than a 
course he undertook in 1978.

[106] The email sent from Mr Melis to Mr Carter on 28 February 2017 asserts that the 
modification caused the compressor to burn out and says that due to the modification the 
repair would not be covered by the vehicle warranty.  The unsigned and undated letter says 
that:

“Bridging wires like this caused the compressor to seize (due to overheating from over 
use), but could’ve also fried the entire wiring loom and burnt out the ECU completely 
– this would obviously have voided the new vehicle warranty and been a very costly 
repair.” 75

[107] This suggests that the warranty was not actually voided.  The City of Stirling did not 
tender the warranty.  On the available evidence it is unclear as to whether the modifications 
did in fact void the warranty of BIV U481.  

[108] In his witness statement Mr Carter asserts that he received the letter and email from 
Mr Melis on 28 February 2017.  However under cross examination Mr Carter conceded that 








18

the letter was received at some later date, which he could not recall, and was attached to an 
email, which he did not produce.76

[109] The City of Stirling did not call Mr Melis as a witness which would have allowed the 
veracity of the assertions made in the email and the letter to be tested.  There is no evidence of 
the qualifications of Mr Melis other than Mr Carter’s assertion that service advisors are 
normally qualified mechanics.

[110] Mr Carter says in his witness statement that Mr Melis estimated the cost of the repair 
to BIV U481 at $1,902.  An email indicating that this would be the estimated cost for repairs 
was tendered by the City of Stirling but no documentary evidence was produced of an invoice 
or receipt which would prove the actual cost of the repair and/or that such costs were ever 
actually paid by the City of Stirling.

[111] Mr Emery asserted that there was a known defect with the Mazda air conditioning
clutch. At the Hearing, Mr Carter gave evidence that he removed the modification from BIV 
U483 and that the air conditioner subsequently malfunctioned.  He says that the vehicle was 
returned to Mazda and repaired under warranty.  This is consistent with Mr Emery’s assertion 
that a fault did exist with the air conditioning clutch and notwithstanding his intervention, the 
vehicle would have needed repair.77

[112] Mr Emery also gave evidence that the air conditioning unit was not part of the drive 
train of the engine and could not therefore cause the engine of the BIV to fail.  He asserted 
that the risk of the serpentine drive belt subsequently failing was extremely remote and denied 
that there was risk that the computer codes could have shut down the vehicle.78

[113] Mr Emery says that he undertook research to ensure the modification could be made 
safely before he informed Mr Snook that he was able to undertake the repair because he took 
his responsibility of saving lives very seriously and would never damage equipment which 
would assist him to perform this task.79

[114] Mr Emery asserted that the presence of a fuse prevented damage occurring because the 
fuse would blow before damage occurred.  He also asserted that an inline pressure switch 
meant that if the pressure got too high or too low the air conditioning would turn off 
regardless of the modification he had made.80  Mr Carter agreed under cross examination that 
the BIV has a safety switch and a fuse to stop over pressurisation occurring.

[115] In contrast to Mr Carter, whose only evidence of knowledge of vehicle air 
conditioning was his oral evidence of a course he conducted in 1978, Mr Emery produced 
evidence that he is a trade qualified auto-electrician and an air-conditioning fitter.  He gave 
evidence that he was employed as such for more than 25 years.  He conceded that he was last 
employed full time as an auto electrician in 2003.  However he says that he has, in the 
intervening years continued to utilise his auto electrical training and expertise both privately 
and to perform tasks for the City of Stirling.81  The City of Stirling submitted that automotive 
work is a specialised area of mechanical work.82

[116] There is limited weight I can attach to the email and an unsigned and undated letter 
from Mazda particularly in light of the fact that the author of that information was not called 
as a witness and therefore was unavailable for cross examination in relation to either their 
evidence or their qualifications to give that evidence.  As between Mr Carter and Mr Emery it 








19

would appear that Mr Emery has far greater and more recent relevant experience in auto 
electrics and I have preferred his evidence where their evidence differed. 

Were the modifications in breach of the Fleet Management Practice?

[117] There was some dispute as to whether Mr Emery had read the latest rendition of the 
Fleet Management Practice however there is evidence that he had read the document shortly 
after his appointment and that he had agreed in writing to be bound by it.  In these 
circumstances, if he wasn’t, he should have ensured that he remained familiar with its terms.

[118] In relation to vehicle maintenance the Fleet Management Practice provides at page 5 
that general maintenance is the responsibility of the employee to whom the vehicle is assigned 
and, at page 6, that the vehicle is to be made available for service, maintenance and repairs as 
required.  At page 5, the Fleet Management Practice provides that no additional features may 
be added to the vehicle unless these are required to undertake the functions of the person 
using the vehicle.  

[119] The modification undertaken by Mr Emery relied on his specialist auto electrical 
training and could not be said to fall within general maintenance.83 The modification was a 
change to the existing air conditioning unit rather than the adding of an additional feature.  
There is no evidence that Mr Emery did not make the vehicle available for repair.  In fact, the 
evidence is that he raised with Mr Snook the need to have the vehicle serviced at the earliest 
opportunity.  

[120] The Fleet Management Practice provides no disciplinary consequences for its breach 
and the letter acknowledging that he had read and understood the Fleet Management Practice
expressly states that84:

“I accept that any of breach of the terms and conditions of the Policy may result in a 
withdrawal of access to the vehicle.”

[121] I am not satisfied that a breach of the Fleet Management Practice, if it occurred, of 
itself constitutes a valid reason for Mr Emery’s dismissal particularly in circumstances where 
he was given authority to undertake the repair or where undertaking of such modifications 
was not inconsistent with the range of tasks that Mr Emery was expected or encouraged to 
perform.

Were the modifications in breach of the Code of Conduct?

[122] There was some dispute as to whether Mr Emery had read the latest rendition of the 
Code of Conduct however there is evidence that he had read the document shortly after his 
appointment and that he had agreed in writing to be bound by it.  In these circumstances if he 
wasn’t, he should have ensured that he remained familiar with its terms.85

[123] The precise breach of the Code of Conduct relied upon for his dismissal is not 
identified in the Letter of Termination.  However City of Stirling say in its Supplementary 
Submissions that it relied on the prohibition in the Code of Conduct not to engage in 
misconduct including:86 “… careless or negligent action that could endanger an Employee’s 
own safety or the safety of others;” and the obligations to protect assets from damage and to 
use vehicles with care.








20

[124] Even in the absence of the Code the FWC has recognised that conduct which causes a 
serious and imminent risk to health and safety, although not intentional or deliberate can 
constitute a valid reason for dismissal where the conduct is reckless or careless.87

[125] In light of the research Mr Emery undertook in respect of the modifications, his 
evidence in relation to the existence of the fuse and pressure switch, that he notified his 
colleagues of the modifications and his long professional career in saving lives. I am not 
satisfied that Mr Emery intended or could be said to have been careless, reckless or negligent
or that he failed to protect the vehicle or use it with care.  Such an assertion is particularly 
difficult to sustain in circumstances where he was given approval to undertake the repair or 
where undertaking of repairs was not inconsistent with the range of duties his employer 
required or encouraged him to perform.

[126] There is no evidence that the modifications posed any risk to the safety of Mr Emery 
or his fellow Beach Inspectors.  

[127] There is no doubt that the BIVs play an important part in the rescues performed by the 
Beach Inspectors and life guards employed by the City of Stirling.  However, I do not accept 
Mr Gugiatti’s evidence that without the BIVs he could not do his job,88 given that:

a. There is a fleet of three BIVs which could be utilised in the event that one 
suddenly broke down.

b. The evidence is that BIV U481 showed warning signs of a need for maintenance 
(increasingly louder whirring sounds) for at least a month before it was taken to 
the Depot.  There is no evidence that the vehicle might, without warning,
become inoperable mid rescue or at short notice when other arrangements could 
not be made.89

c. The Beach Inspectors operate without a BIV when the BIV is removed from 
service for example to undergo scheduled servicing and for repairs and 
maintenance as evidenced when Mr Gugiatti took BIV U481 to the Depot and 
then to Mazda and when Mr Carter inspected and removed the modification in 
BIV U483.

d. A number of the beaches patrolled by the Beach Inspectors are inaccessible by
the BIVs.90

e. The beaches may be patrolled from the water which avoids the traffic, access 
and visibility issues which hamper the BIVs.91

f. The Beach Inspectors also have three ATVs available to them to evacuate 
injured members of the public.92

g. The ATVs have the same lifesaving equipment as the BIVs with the exception 
of a pain reliever which, by law, must be double locked.  Lifesaving equipment 
is also stored in lifeguard huts and shelters scattered along the beaches.93








21

h. In an emergency situation the emergency vehicles are brought as close to the 
perimeter of the beach as possible.94

i. The local Life Saving Clubs also have vehicles which might be called upon in 
an emergency.95

[128] Most importantly it is the Beach Inspectors and the Lifeguards which perform the 
rescues rather than the BIVs.   The circumstances in which the breakdown of a BIV would 
lead to an otherwise avoidable injury or death were not made clear in the evidence before 
me.96

[129] The evidence was also inconsistent in relation to the period of time each day which 
inspectors spent in the BIVs and consequently the importance of the vehicle to the 
performance by the Beach Inspectors of their daily duties.  It is the City of Stirling’s own 
evidence that typically two of the Beach Inspectors were stationed at a beach and only one 
Beach Inspector was rostered to move between beaches as necessary.

[130] Mr Emery gave evidence that the amount of time per day a Beach Inspector would 
typically use a BIV ranged from 0 to 20 minutes.  Mr Gugiatti gave evidence that the BIVs 
were his office and he “spent the majority of his shift patrolling the beaches in it”.97  The 
evidence suggested that BIVs averaged 300km per week which equates to 42km per day.98  
The Beach Inspectors home garaged the vehicles and used the vehicles to drive to and from 
work.  In the case of Mr Gugiatti for example the round trip between Mr Gugiatti’s residential 
address and Scarborough Beach is 24km.  The length of coast line patrolled by the Beach 
Inspectors is 7.5km suggesting that if Mr Gugiatti was the roving inspector he might, on 
average only make two trips of the coast line in a single day.99  This would seem to indicate 
less reliance on the BIVs than suggested by Mr Gugiatti’s evidence.

Was Mr Emery’s conduct in breach of any implied duty of fidelity, a fiduciary duty or a 
duty of care?

[131] The City of Stirling asserted that it was an implied term of Mr Emery’s contract of 
employment that he owed the City of Stirling a duty of fidelity and that Mr Emery breached 
this duty of fidelity by not acting faithfully, honestly or contrary to the City of Stirling’s 
interest.  The City of Stirling also asserted that Mr Emery owed the City of Stirling both a 
fiduciary duty and a duty of care not to render the BIVs unfit for purpose as a life saving 
vehicle or cause undue costs.

[132] Given Mr Emery’s evidence of the research he undertook in respect of the 
modifications, his evidence in relation to the existence of the fuse and pressure switch, that he 
notified his colleagues of the modifications and his professional career in saving lives, I am 
not satisfied that Mr Emery intended or could be said to have been acting unfaithfully, 
dishonestly or contrary to the City of Stirling’s interest, particularly in circumstances where 
he was given authority to undertake the repair or where undertaking of the modifications; was 
not inconsistent with the range of tasks that Mr Emery was expected or encouraged to 
perform.

[133] There is no evidence that BIV U483 was rendered unfit for purpose or that the City of 
Stirling incurred any repair costs in relation to that vehicle.  There is evidence that Mazda 
quoted to perform work on BIV U481.  There is insufficient evidence to determine whether 








22

this was as a result of a pre-existing fault with the vehicle or as a result of Mr Emery’s 
modifications to the vehicle.  If the vehicle was damaged by Mr Emery, there is insufficient 
evidence that this would cause the vehicle to cease operating or that if the vehicle did cease 
operating that it would prevent the Beach Inspectors from saving lives.

[134] In Qantas Airways Ltd v Cornwell [1998] FCA 865, the Full Court of the Federal 
Court said:

“The question is whether there was a valid reason.  In general, conduct of that kind 
would plainly provide a valid reason stop however, conduct is not committed in a 
vacuum, but in the course of the interaction of persons and circumstances, and the 
events which led up to an action and those which accompany it may qualify or 
characterise the nature of the conduct involved.”

[135] Mr Emery’s conduct and the outcome of that conduct did not occur in a vacuum.  It 
occurred in the course of interaction of persons and circumstances.  When those interactions 
and circumstances are taken into account I am not satisfied that his conduct constituted a valid 
reason for his dismissal.  Even if it did, for the reasons below, I am satisfied that the dismissal 
was harsh, unjust and unreasonable.

Was Mr Emery notified of the reason for his dismissal? (s.387(b))

[136] Notification of a valid reason for termination must be given to an employee protected 
from unfair dismissal before the decision is made,100 in explicit terms,101 and in plain and 
clear terms.102 In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151, a Full 
Bench of the Australian Industrial Relations Commission, dealing with a similar provision of 
the Workplace Relations Act 1996 (Cth), stated that:

“As a matter of logic procedural fairness would require that an employee be notified of 
a valid reason for their termination before any decision is taken to terminate their 
employment in order to provide them with an opportunity to respond to the reason 
identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it 
was sufficient to notify employees and give them an opportunity to respond after a 
decision had been taken to terminate their employment. Much like shutting the stable 
door after the horse has bolted.”

[137] The City of Stirling submit that Mr Emery was verbally notified of the reasons for his 
dismissal at the Disciplinary Meeting.  The minutes for that meeting reveal that at the 
Disciplinary Meeting he was informed that he was dismissed for engaging in gross 
misconduct and breaching the Code of Conduct and Fleet Management Practice by making 
non approved modifications which “…had the potential to affect the ability of the City to 
perform potential life saving services and has cost the City substantial money …”103

[138] In Supplementary Submissions filed on 21 November 2017 the City of Stirling sought 
to expand the reasons on which it relied for Mr Emery’s dismissal to include wilful and 
deliberate breaches of not only of his contract of employment but also of an implied duty of 
fidelity, a fiduciary duty and a duty of care which the City of Stirling say Mr Emery owed to 
them with respect to the BIVs.








23

[139] The City of Stirling concedes that these reasons were not put to Mr Emery before his 
dismissal and therefore he was not in a position to respond to them before his dismissal.

[140] I therefore find that Mr Emery was notified of some, but not all, of the reasons for his 
dismissal before he was dismissed.

Was Mr Emery Provided with an Opportunity to respond to the reasons for his 
Dismissal? (s.387(c))

[141] An employee protected from unfair dismissal must be provided with an opportunity to 
respond to any reason for dismissal relating to the conduct or capacity of the person. This 
criterion is to be applied in a common sense way to ensure the employee is treated fairly and 
should not be burdened with formality.104

[142] The City of Stirling submit that Mr Emery was afforded the opportunity to respond to 
the allegations against him at the Investigation Meeting and at the Disciplinary Meeting.  

[143] The minutes for the Investigation Meeting and the Disciplinary Meeting reveal that Mr 
Emery responded to the allegations that were put to him at those meetings.  

[144] However, the invitation to attend the Disciplinary Meeting did not set out the proposed 
reasons for dismissal and those reasons were not put to Mr Emery until he arrived at the 
meeting.  While those reasons were similar to the allegations put to him at the Investigation 
Meeting, the failure to provide the reasons in advance of the Disciplinary Meeting 
compromised Mr Emery’s ability to properly respond to those reasons.

[145] As Mr Emery was not notified of the additional grounds for dismissal until the
Supplementary Submissions were filed by the City of Stirling he could not therefore have 
responded to those reasons at the time of his dismissal.

[146] I therefore find that Mr Emery was provided with the opportunity to respond to some, 
but not all, of the reasons for his dismissal before he was dismissed and his capacity to 
properly respond was compromised by the failure to provide the reasons in advance of the 
Disciplinary Meeting.

Was Mr Emery unreasonably refused a support person? (s.387(d))

[147] Where an employee protected from unfair dismissal has requested a support person be 
present to assist in discussions relating to the dismissal, the employer should not unreasonably 
refuse that person being present.  There is however, no positive obligation on an employer to 
offer an employee the opportunity to have a support person.105

[148] Mr Hardbattle attended the two investigation meetings at which discussions were held 
in relation to Mr Emery’s dismissal in the capacity of Mr Emery’s support person.106

[149] I therefore find that the City of Stirling did not unreasonably refuse to allow Mr Emery 
to have a support person present at discussions relating to his dismissal.

Was Mr Emery given warnings regarding his unsatisfactory performance? ( s.387(e))








24

[150] Where an employee protected from unfair dismissal is dismissed for the reason of 
unsatisfactory performance, the employer should warn the employer about the unsatisfactory 
performance before the dismissal. Unsatisfactory performance is more likely to relate to an 
employee’s capacity than their conduct.107

[151] It is agreed that Mr Emery was dismissed for misconduct and not for unsatisfactory 
performance.108  I have therefore treated this criterion as neutral.

What is the impact of the size of the City of Stirling and the presence or absence of 
dedicated human resources management specialist/expertise on the procedures 
followed? (s.387(f) and s.387(g))?

[152] The evidence of Ms Watts was that the City of Stirling Human Resource department 
consists of a Manager Human Resources, Coordinator Employee Relations and Resourcing, 
Senior Human Resource Advisor, Human Resources Advisor, Recruitment Officer, 
Recruitment Administration Officer and an Employee Relations Administrator.109  

[153] Ms Watts also revealed that a lawyer attended her meeting with Mr Snook and Mr 
Carter following the Investigation Meeting and provided advice in relation to the management 
of the investigation110  Notwithstanding the human resource and legal expertise available to it 
the City of Stirling failed to comply with its own written policies instead conducting an 
investigation of a standard more typically associated with a small business bereft of such 
expertise.

[154] The City of Stirling Employee Discipline Management Practice sets out the process 
for disciplinary inquiries.  At page one the Practice states that:  

“This management practice will be applied when an employee fails to behave in 
accordance with the City’s policies, procedures, management practices, Code of 
Conduct, position description, employment contract and statute or common law 
provisions applicable to the employer-employee relationship.”

[155] At page 2 the Practice states that:

“All allegations/disciplinary matters must be fully investigated. Whilst the details may 
vary from case to case, as a rule, the investigation will involve seeking statements from 
those involved and any others who may have relevant information to contribute.  
Where possible, Supervisors/Managers seeking the statement should ensure that the 
employee involved and/or witnesses are not present as a support person when a 
statement is being collected.”

[156] Relevantly the Code of Conduct provides at page 17 that employees of the City of 
Stirling are to avoid conflicts of interest which are defined as a situation: “…where a personal 
interest in conflict with the public interest.”  At page 7 it provides that any suspected breach 
of the Code must be reported to the Manager Governance and Council Support or the 
Employee Relations Team.111

[157] Despite the Practice quite sensibly expressly excluding witnesses being present when a 
statement is being collected and the obligation in the Code of Conduct to avoid conflicts of 
interest, Mr Snook, whose evidence was central to the issues in dispute, was not only 








25

permitted to be present when Mr Emery gave his evidence but in fact Mr Snook was given 
carriage of the entire investigation.

[158] Notwithstanding the express terms of the Practice Mr Holland, Mr Snook and Ms 
Watts conceded that no witness statements were taken and no investigation report was 
prepared by Mr Snook or Ms Watts in the course of the investigation. Mr Holland admitted 
that he relied solely on the oral reports provided to him by Mr Snook and Ms Watts to 
determine that Mr Emery ought to be summarily dismissed.112

[159] Mr Holland acknowledged that the manner in which the investigation was conducted 
was not good practice113 and that the City of Stirling didn’t discharge its procedural fairness 
obligations.114  Mr Snook acknowledged that he breached the Employee Discipline 
Management Practice.115

[160] I find that notwithstanding the size of the employer’s enterprise the procedures 
followed in effecting the dismissal failed to comply with the City of Stirling’s own policies 
with respect to procedural fairness and with the standards which would normally be expected 
of an organisation with the expertise the City of Stirling had available to it.

Are there any other relevant matters? (s.387(h))?

[161] Section 387(h) provides the Commission with a broad scope to consider any other 
matters it considers relevant.  I consider the following matters to be relevant to the 
determination of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

[162] There is some considerable irony in Mr Emery being dismissed for breach of City of 
Stirling policies and procedures as a consequence of an investigation, the hallmarks of which 
were a disregard of a City of Stirling policy by his superiors conducting the investigation and 
those with oversight of the investigation.

[163] The flaws in the investigatory process were not minor.  They went to the very integrity 
of the process.

[164] Notwithstanding that Mr Snook’s evidence was central to the issues in dispute, he was 
not only permitted to be present when Mr Emery gave his evidence but in fact Mr Snook was 
given carriage of the entire investigation.  As Mr Snook conducted the investigation there was 
no independent assessment during the course of the investigation as to whether in fact Mr 
Snook did give approval for the modifications to occur.116  

[165] The minutes for the Investigation Meeting reveal that Mr Snook did not seek to 
challenge the veracity of Mr Emery’s allegation that he authorised the repairs by asking Mr 
Emery to provide particulars of when and where that authorisation occurred.  Instead at the 
Investigation Meeting, Mr Snook simply denied the authorisation was given and avoided any 
forensic investigation of the veracity of Mr Emery’s assertion.  The opportunity for forensic 
analysis was shut down further by the manner in which Mr Snook conducted the investigation 
in breach of the City of Stirling’s Discipline Process. Mr Snook’s failure to exclude himself 
from conducting the investigation, his failure to test the veracity of Mr Emery’s defence and 
his failure to prepare and tender any written statement in the course of the investigation gives 
credibility to Mr Emery’s assertion that Mr Snook had something to hide.








26

[166] As a consequence of deficiencies in the investigation process, even as at the date of the 
Hearing, the decision makers and investigators were misinformed of the truth of fundamental 
elements of the case against Mr Emery.

[167] Mr Holland admitted at the Hearing that he concluded that Mr Emery ought to be 
dismissed based on an incorrect presumption that both vehicles had been damaged and their 
respective warranties voided. 117

[168] Mr Holland says that he wrongly believed both warranties had been voided based on 
his discussions with Mr Snook and Ms Watts.  This evidence and the minutes of the 
Investigation Meeting suggest that Mr Snook and Ms Watts were also proceeding on the 
misapprehension that two vehicles had been damaged; the City had incurred 2 x $2000 in 
repair costs and both vehicle warranties had been voided.  Even as late as the Hearing it is 
clear from Ms Watts’ evidence that she believed that Mr Emery had caused damage to two 
vehicles and voided the warranties attached to both.   

[169] It is apparent from Mr Carter’s evidence that it is not the case that the City of Stirling 
incurred repair costs and the vehicle warranties voided for two vehicles.

[170] Mr Holland also conceded that he concluded that Mr Emery should be dismissed 
based on the oral reports provided to him by Mr Snook and Ms Watt before Mr Emery had the 
opportunity to respond to his proposed dismissal at the Disciplinary Meeting.  Reports which 
Mr Carter now concedes were substantially incorrect. 118  The assertion that a definite decision 
had been made to dismiss Mr Emery prior to the Disciplinary Meeting is also given weight by 
the evidence of the script prepared prior to the meeting which sets out an explanation of the 
reasons for dismissal. In these circumstances the Disciplinary Meeting appeared to offer little 
or no genuine opportunity for Mr Emery to respond to the reasons for his termination.  

[171] Despite the strenuous arguments of Counsel as to how Mr Emery’s conduct was so 
serious that it clearly constituted serious misconduct warranting summary dismissal, at 
Hearing Ms Watts gave evidence that it was not in fact her intention to dismiss Mr Emery 
summarily and that she had considered it appropriate that Mr Emery be terminated on 
notice.119  

[172] Even if Mr Emery’s conduct constituted a valid reason for his dismissal I am satisfied 
that the lack of procedural fairness afforded to him made his dismissal unjust and 
unreasonable.  As noted by the Full Bench of the FWC in B, C and D v Australian Postal 
Corporation T/A Australia Post [2013] FWCFB 6191 at [41]:

“Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the 
Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding 
the existence of a “valid reason” for the dismissal.”

[173] Having considered each of the matters specified in s.387, I am satisfied that the 
dismissal of Mr Emery was harsh, unjust or unreasonable. Accordingly, I find Mr Emery’s 
dismissal was unfair.

Remedy








27

[174] Mr Emery seeks an order that he be reinstated with continuity of service and be 
compensated the remuneration lost between the date of his dismissal and his reinstatement.

[175] Section 390 of the FW Act sets out the circumstances in which an order for 
reinstatement or compensation may be made:

“390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

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

[176] I am satisfied that Mr Emery was protected from unfair dismissal pursuant to 
section 382 of the FW Act and was dismissed unfairly.

[177] Reinstatement is the FW Act’s primary remedy for unfair dismissal and must be 
ordered if sought unless the FWC is satisfied on proper grounds that reinstatement is not 
appropriate.  In DP World Sydney Limited v Lambley [2013] FWCFB 9230 at [138], the Full 
Bench of the FWC said:

“The language of s.390 makes the position pellucidly clear.  The Commission “must” 
order reinstatement unless reinstatement of the person is inappropriate.”

[178] The City of Stirling submits reinstatement would be inappropriate because:

a. Mr Emery had failed to show remorse
b. The City of Stirling would not have the trust and confidence in Mr Emery safely 

performing his duties.
c. Mr Emery’s reinstatement would send a signal to other employees that City of 

Stirling policies did not need to be strictly adhered to.








28

[179] In Regional Express Holdings Ltd T/A Rex Airlines120 a Full Bench of Fair Work 
Australia considered what factors may be taken into account when considering if 
reinstatement is inappropriate under s.390(3)(a) of the FW Act:

“[26] Whenever an employer dismisses an employee for misconduct, assuming the 
employer is acting honestly, there is an implied loss of trust and confidence in the 
employee. If it is subsequently found that the termination was harsh, unjust or 
unreasonable it is appropriate to consider whether the relationship can be restored if 
the employee is reinstated. That question cannot be answered solely by reference to the 
views of management witnesses. All of the circumstances should be taken into account. 
In this case there is a number of relevant matters. They include the fact that not all of 
the conduct alleged against the respondent has been proven, the respondent’s 
apparently unblemished record in the performance of his flying duties over a period of 
14 years, the fact that the misconduct is not directly related to the performance of the 
respondent’s professional duties as a first officer and Rex’s failure to pursue any 
substantial disciplinary action against another pilot who, it is alleged, has been guilty 
of misconduct at least as serious as that of which the respondent was accused. The 
significance of the last consideration is that the pilot in question is still carrying out 
the full range of his duties, despite allegations of conduct of a kind which, in the 
respondent’s case, is said to have led to an irrevocable loss of trust and confidence. 
Assuming a positive approach on both sides we find there is a reasonable chance that 
the employment relationship can be restored with the necessary level of mutual 
trust.”121

[180] There is a difference between an employee contesting the factual basis for their 
dismissal and failing to show remorse.  I don’t think it is correct to characterise Mr Emery’s 
efforts to respond to the allegations put to him as a lack of remorse.  The Minutes of the 
Disciplinary Meeting reveal that Mr Emery explained that it was not his intention to cause any 
damage to any vehicles and that Mr Emery was keen to demonstrate his remorse by 
undertaking never to make modifications to vehicles in the future.

[181] The crux of the City of Stirling defence to Mr Emery’s claim of unfair dismissal is that 
the modifications Mr Emery performed were not within his duties.  There is no evidence of 
any concerns in relation to Mr Emery’s performance.  In fact, Mr Snook conceded that other 
than the incident which led to Mr Emery’s dismissal he had been a good employee.  Given 
that Mr Emery is prepared not to perform any work beyond that strictly delineated in his job 
description it is difficult to understand the basis on which City of Stirling say they do not have 
confidence or trust in Mr Emery performing his duties as a Beach Inspector.122

[182] For the reasons articulated above I am not satisfied that Mr Emery breached any City 
of Stirling policy, whereas senior employees in the City of Stirling conceded in these 
proceedings that their conduct was not consistent with City of Stirling policies.  In these 
circumstances the submission that Mr Emery’s reinstatement would send the wrong signal to 
other employees is not a sustainable ground on which the City of Stirling might resist Mr 
Emery’s reinstatement. 

[183] In the circumstances I am satisfied that I should order reinstatement. 

[184] Section 391 of the FW Act provides:








29

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s 
employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was 
employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no 
less favourable than those on which the person was employed 
immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the 
dismissal is no longer a position with the person’s employer at the time 
of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated 
entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed 
immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less 
favourable than those on which the person was employed immediately 
before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate 
to do so, the FWC may also make any order that the FWC considers 
appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if 
subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate 
to do so, the FWC may also make any order that the FWC considers 
appropriate to cause the employer to pay to the person an amount for the 








30

remuneration lost, or likely to have been lost, by the person because of the 
dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), 
the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by 
the person during the period between the making of the order for 
reinstatement and the actual reinstatement.”

[185] There is no evidence that Mr Emery’s position is not still available and therefore I will 
make an order requiring the City of Stirling to reappoint Mr Emery to the position in which he 
was employed immediately before his dismissal.  

[186] Section 390(2) of the FW Act provides a discretion to the Commission to determine if 
it is appropriate for an order maintaining Mr Emery’s continuity of employment and 
continuous service with the City of Stirling.

[187] The City of Stirling made no submissions with respect to the appropriateness of an 
order maintaining Mr Emery’s continuity of employment and continuous service with the City 
of Stirling.  Mr Emery submitted that in the circumstances such an order was appropriate.

[188] The Hearing was delayed in part at the request of the City of Stirling and the duration 
of the Hearing was extended to accommodate the large amount of witness evidence called by 
the City of Stirling.

[189] Given my findings in relation to the reasons for dismissal and the deficiencies in the 
process which led to the dismissal I consider it appropriate to make an order maintaining the 
continuity of the Mr Emery’s employment and continuous service with the City of Stirling.

[190] Section 390(3) of the FW Act provides the Commission with a discretion to determine 
if it is appropriate to make an order causing the Respondent to pay the Applicant an amount 
for the remuneration lost, or likely to be lost, by the Applicant because of the dismissal.

[191] Pursuant to section 391(4) I must take into account any remuneration earned from 
employment or other work by Mr Emery since the dismissal and the making of the order for 
reinstatement and any remuneration to be earned from employment or other work by Mr 
Emery between the time of the making of the order and the actual reinstatement.

[192] There is no evidence of what, if any, income Mr Emery has earned since his dismissal.

[193] The City of Stirling made no submissions with respect to the appropriateness to make 
an order for back pay.  Mr Emery submitted that in the circumstances such an order was 
appropriate.








31

[194] Therefore I have decided to make an order maintaining Mr Emery’s continuity of 
employment and continuous service. I will also make an order for back pay less any income 
Mr Emery has earned since his dismissal.  Mr Emery will be required to provide the City of 
Stirling with a statutory declaration setting out the source and gross quantum of any income 
earned from employment or other work by Mr Emery between the date of his dismissal and 
his reinstatement and this will be deducted from any back pay to which he would otherwise be 
paid.

Conclusion

[195] I am satisfied that Mr Emery was protected from unfair dismissal, that the dismissal 
was unfair and a remedy of reinstatement is appropriate.

[196] An order will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

P Mullally of Workclaims Australia for the Applicant.
T Caspersz of counsel for the Respondent.

Hearing details:

2017.
Perth:
November 29, 30.
December 13.

Final written submissions:

Applicant, 22 December 2017.

Respondent, 3 January 2017

Printed by authority of the Commonwealth Government Printer

 PR6003296


THE SEAL OF THE FAIT SEAL OF LIA WORK COMMISSION




 



32

                                               
1 Exhibit B1.
2 Exhibit R7 at [32].
3 Exhibit R6 at [11].
4 Exhibit R6 at [2].
5 Exhibit A1 at Attachment 17.  Mr Emery says that this job description which he tendered as part of his witness statement 

was the subject of some discussions but there was no evidence that any changes to it had yet been agreed by the parties.
6 Exhibit R4 at [9].
7 Exhibit R11 at [12]-[13] and Exhibit R10 at [9].
8 Exhibit R9 at [15].
9 Exhibit R8 at [35]-[38] and Exhibit R11 at [43]-[50].
10 Exhibit R8 at [42]-[43].
11Exhibit R9 at [20].
12 Exhibit R9 at [24]-[27].
13 Exhibit R8 at [44]-[47].
14 Exhibit R9 at [33].
15 Exhibit R9, Attachment DAC6.
16 Exhibit R8 at [52], [57]-[58] and Exhibit R7 at [32].
17 Exhibit R7, Attachment TAW10.
18 Ibid, Attachment TAW13.
19 Exhibit R8 at [62] and Exhibit R7 at Attachment TAW14.
20 Ibid at [69].
21 Exhibit R6 at [21].
22 Exhibit R7, Attachment TAW15.
23 Exhibit A1, Attachment 18.
24 Exhibit A1, Attachment 19.
25 Ibid.
26 Transcript at PN 55-56.
27 Transcript at PN66- PN68.
28 Transcript at PN58-PN 61.
29 Transcript at PN62-PN69.
30 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
31 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373 and 377-378.
32 Exhibit R7, Attachment TAW16.
33 Edwards v Justice Giudice [1999] FCA 1836 at [6]–[7].
34 King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 AT [24]. 
35 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 cited in Annetta v Ansett Australia Ltd 

(2000) 98 IR 233 at [10]. 
36 Transcript at PN1027.
37 Exhibit A1 at [12].
38 Ibid at [13].
39 Ibid at [14]-[15].
40 Ibid at [16].
41 Ibid at [17].
42 Exhibit A1 at [18].
43 Exhibit R8 at [56].
44 Transcript at PN545, PN2566 and PN2611-2614.
45 Exhibit R11 at [32]-[33].








33

                                                                                                                                                  
46 Exhibit R10 at [16]-[17].
47 Exhibit A5 at [8].
48 Ibid.
49 Transcript at PN2742-PN2750.
50 Transcript at PN1030.
51 Exhibit A5 at [10] –[11], Exhibit R11 at [34], Transcript at PN1310-1311.
52 Exhibit A11 at [36]-[37] and [56]-[59].
53 Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520 at [28].
54 Closing Submissions of City of Stirling at [11].
55 Exhibit A1, Attachment 20-24.
56 Ibid, Attachment 6.
57 Ibid, Attachment 9.
58 Ibid, Attachment 10.
59 Transcript at PN1172-PN1173.
60 Exhibit A1, Attachment 11.
61 Ibid.
62 Ibid.
63 Ibid.
64 Transcript at PN604-PN606, PN795 and Exhibit A2
65 Exhibit A1 at [29] and at Attachment KE5.
66 Exhibit R7 at Attachment TAW14.
67 Exhibit A1 at [27].
68 Exhibit R9 at [30] – [33].
69 Exhibit R9 at DAC6.
70 Transcript at PN 1838.
71 Transcript at PN2207-PN2213.
72 Transcript at [1040].
73 Exhibit R9 at [5].
74 Transcript at PN287-288.
75 Exhibit R9 at DAC7.
76 Transcript at PN187-PN208.
77 Transcript at PN134-PN136.
78 Transcript at PN1040-PN1046.
79 Transcript at PN1046 and PN1274-1275
80 Transcript at PN1325.
81 Transcript at PN604-PN606, PN795 and Exhibit A2.
82 Respondents Closing Submissions at [51].
83 Exhibit A1 at Attachment KE5
84 Ibid, Attachment KE4.
85 Ibid, Attachment KE3.
86 Ibid, Attachment KE6.
87 IGA Distirbution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070; Northey V Bradken Resources Pty Limited [2013] FWC 

6423 at [177].
88 Exhibit R11 at [19].
89 Exhibit R11 at [20]-[24].
90 Transcript at PN334.
91 Ibid at PN331-337.








34

                                                                                                                                                  
92 Ibid at PN347.
93 Ibid at PN347 and PN1249.
94 Ibid at PN356.
95 Ibid at PN1249.
96 Ibidat PN330-349, PN458.
97 Exhibit R11 at [16] and Transcript at PN1240.
98 Transcript at PN2760.
99 Transcript at PN1239-1243, Exhibit R10.
100 Chubb Security Australia Pty Ltd v Thomas (Print S2679) at [41].
101 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151].
102 Previsic v Australian Quarantine Inspection Services (Print Q3730).
103 Exhibit R7 at attachment TAW15
104 RMIT v Asher (2010) 194 IR 1, 14-15.
105 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
106 Transcript at PN73.
107 Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 237.
108 Transcript at PN75.
109 Exhibit R7 at [12].
110 Transcript at PN 2266.
111 Exhibit R7, Attachment TAW11.
112 Transcript at PN 1565-1648 and Transcript at PN2197-2202.
113 Ibid at 1655.
114 Ibid at PN 1785.
115 Ibid at PN2628.
116 Ibid at PN2849-PN2852.
117 Exhibit R6 at [20]-[22] 
118 Transcript PN1811-1813
119 Transcript PN2396
120 [2010] FWAFB 8753.
121 Ibid at [26].
122 Transcript at PN2688.

Cases cited by this decision: