Johnson, Chaya v Chelgrave Contracting Australia Pty Ltd - [2020] FWC 5784

1

Fair Work Act 
2009 
s.394—Unfair dismissal

Chaya Johnson

v

Chelgrave Contracting Australia Pty Ltd
(U2020/8446)

COMMISSIONER WILSON MELBOURNE, 4 NOVEMBER 2020

Application for an unfair dismissal remedy - Whether misconduct - Dismissal found to be 
harsh, unjust or unreasonable - Reinstatement is an appropriate remedy - Orders made for 
reinstatement, maintenance of continuity and for partial restoration of lost pay.

[1] Chaya Johnson was employed by Chelgrave Contracting Australia Pty Ltd (Chelgrave) 
as a maintenance fitter.  Chelgrave is a labour hire provider of services to a number of 
businesses and Mr Johnson’s work with Chelgrave was entirely in relation to a contract the 
company had to provide maintenance services at the Carlton United Breweries (CUB) site at 
Abbotsford, Victoria.  Mr Johnson started work with Chelgrave in May 2017 and was 
dismissed with effect on 28 May 2020.

[2] This decision concerns Mr Johnson’s application for unfair dismissal remedy and for 
the reasons set out below I have found that the dismissal was unfair and that the appropriate 
remedy is reinstatement.

PRELIMINARIES

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four 
initial matters before consideration of the merits of the application. Those matters are 
whether the application was made within the period required in s.394(2), whether the person 
was protected from unfair dismissal, whether the dismissal was consistent with the Small 
Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy. 
Neither party put forward that any of the initial matters required consideration. In relation to 
the elements within s.396, I find that Mr Johnson’s application was lodged with the 
Commission within the 21 day period for making such applications, that at the relevant time 
he was dismissed he was a person protected from unfair dismissal, and that questions of 
consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[4] Evidence was given in these proceedings by Mr Johnson himself, and a delegate from 
his union, Mr Chris Brown.  Evidence was given on behalf of Chelgrave by Mr Mark Hale, its 
National General Manager, and Mr Rob McGrillen, its General Manager, Technical and 
Contracts.

[2020] FWC 5784 [Note: An appeal pursuant to s.604 (C2020/8357) was 
lodged against this decision - refer to Full Bench decision dated 
8 February 2021 [[2021] FWCFB 411]  for the result of the appeal.]

DECISION


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb411.htm


[2020] FWC 5784

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[5] Mr Johnson was represented by Mr Barry Terzic, from the Automotive, Food, Metals, 
Engineering, Printing, and Kindred Industries Union, known as the Australian Manufacturing 
Workers’ Union (AMWU). Chelgrave was represented by Mr Stephen Lucas, solicitor, from 
Kingston Lawyers. Permission for Chelgrave to be represented in these proceedings by a 
lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal 
representation would enable the matter to be dealt with more efficiently taking into account 
the complexity of the matter, as well as that a matter of unfairness may arise if permission 
were not granted (s.596(2)(a) and (c)).

BACKGROUND

[6] The engagement which is the subject of this application had been from May 2017 and 
is entirely in relation to the provision of services by Chelgrave at CUB Abbotsford. Mr 
Johnson has had other employment with Chelgrave, however that employment appears to 
have been some time ago.

[7] Mr Johnson completed a fitting and turning apprenticeship around 19 years ago and 
has worked as a maintenance fitter in numerous businesses since qualification as a 
tradesperson, specialising in maintaining plant and equipment in production industries and 
especially in the food and beverage industries. He is 40 years of age and has a young child 
with his partner, as well as two older children with a former partner.  His earnings with 
Chelgrave have been considerable, but below the high-income threshold; in the range of 
$125,000 – $130,000 per year.  His partner is a full-time carer for the young child and is not 
in paid employment.

[8] Mr Johnson’s conditions of employment were under the Chelgrave Contracting 
Australia Pty. Ltd. AMWU & ETU (CUB Abbotsford) Agreement 2017.1 The offer of 
employment made to him stated both that the offer is for the classification of “Maintenance 
Fitter C7”2 as well as “C10 Maintenance Fitter”3 with his actual pay level set in accordance 
with the site-specific enterprise agreement (the Chelgrave Enterprise Agreement).4 The 
nature of work at CUB is that Mr Johnson and his Chelgrave colleagues appear to have been 
fully integrated into the CUB workplace, taking their instructions from CUB managers and 
working in accordance with the policies, procedures and expectations of CUB. Two points
arise in that regard: Mr Johnson was obliged to follow and conform to CUB’s health and
safety expectations and his performance, conduct and attendance was subject to oversight and 
critique by CUB managers and supervisors.

[9] In the past year Mr Johnson’s conduct and behaviour has been subject to some concern 
for Chelgrave and CUB, with Chelgrave arguing it has had to counsel Mr Johnson about 
several matters.  Mr Johnson resisted the propositions both that his conduct and behaviour 
deserved criticism or that Chelgrave actually counselled him, let alone warned him about 
matters.  For practical purposes, the concerns Chelgrave may have had with Mr Johnson were 

                                               
1 AE426803.
2 Exhibit R1, Offer of Employment- Assignment detail, filed 6 July 2020; Form F3, Employer Response Form, 6 July 2020, 

item 3.1.6.
3 Exhibit R1, Offer of Employment, filed 6 July 2020.
4 Exhibit A2, Witness Statement of Chaya Johnson, 4 August 2020, [11]; Attachment CJ-1, Chelgrave Contracting Australia 

Pty. Ltd. AMWU & ETU (CUB Abbotsford) Agreement 2017, AE426803.








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not, it seems, its own observations and instead were matters fed to it by CUB. If Chelgrave’s 
concerns hold validity, Mr Johnson may be criticised for either or both insufficiently 
communicating with his host employer and/or inadvertently or deliberately not following 
procedures.

[10] Both Mr Hale and Mr McGrillen gave evidence that Chelgrave was aware of 
numerous conduct concerns which had arisen since February 2019. These included 
allegations about the following:5

 Mr Johnson failed to communicate sufficiently about his whereabouts (2 February 
and 2 and 11 October 2019) and his non-attendance for work (23 January 2020);

 Mr Johnson failed to report an injury (16 July 2019) and to report an exacerbation 
to an existing injury (July 2019);

 Mr Johnson working overtime without approval (16 July 2019);

 Mr Johnson pre-recorded an absence on sick leave (8 October 2019);

 Insufficient communication about an un-rostered RDO (29 January 2020);

 Concerns Mr Johnson had not completed assigned tasks (13 March 2020);

 Concerns that time sheets were inconsistent with turnstile records (19 March 2020);

 Refusal by Mr Johnson and his colleague Craig Stevens “to attend breakdown 
raising safety concerns without going to area to assess the situation” (3 April 
2020).

[11] Discussions were recorded with Mr Johnson by the Chelgrave site supervisor Russell 
Walsh6 as follows:

“Notes by Russell

01 July 2019
Discussion re Overtime approval required

28 July 2019
Injury concerns communication

3 October 2019
Discussion with Chaya re changeover and having breaks

8 October 2019
Discussion re changeover

10 October 2019

                                               
5 Exhibit R9, Summary of issues raised by CUB to Chelgrave in relation to Chaya Johnson, filed 6 July 2020.
6 Transcript, PN 699.








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Further discussion re changeover with Erwin and Chaya.”7

[12] None of these matters were the subject of documented warnings before Mr Johnson 
lost his job in May, although they are claimed to have been considered by Chelgrave in its 
decision to dismiss Mr Johnson.

[13] Further matters (or possibly the same matters, but just with inconsistent dates) were 
raised with Chelgrave’s solicitors by CUB’s solicitors shortly before the hearing of this 
matter. These were couched as a “list of transgressions by Mr Johnson during his time on the 
CUB site which have caused CUB to form the conclusion that it would not accept any attempt 
by your client to return him to the CUB site”:

“1 30/09/2019 - Failure to report aggravation of injury (recorded “sick leave” on future 
date on timesheet but didn’t report injury).

2 7/10/2019 - Abandoned job task midway to take a break, without notifying 
supervisor, and caused the packaging line to be inoperable (repeat occurrence as Mr 
Johnson had done the same thing in July 2019).

3 23/01/2020 - Failure to notify planned absences (booking appointments in advance 
to occur during his shift but not notifying his supervisor).

4 12/03/2020 - Refusal to perform job task without first attending breakdown location 
to risk assess work via completion of JSA.

5 Failure to report aggravation of injury (repeat occurrence).

6 17/03/2020 - Failure to notify supervisor of late arrival, and falsified timesheet 
record.

7 19/03/2020 - Claimed sick leave when he wasn’t sick (provided Stat Dec as 
evidence, stating he was at Anglesea Police Station on 19/3 & no mention of being ill.  
Mr Johnson lives at Anglesea).

8 06/04/2020 - Refusal to perform work on breakdown in CIP caustic storage without 
first attending location to risk assess work via completion of JSA (repeat occurrence).

9 21/04/2020 - Breach of 2 Life Saver safety protocols (removed fixed guarding 
without isolating equipment; didn’t test that equipment was properly isolated). Failure 
to immediately notify supervisor of near miss.”8

[14] By May 2020 Mr Johnson had worked at the Abbotsford site for three years. He 
considered himself to be familiar with the maintenance requirements of much of the plant. He 
was mainly assigned to the Bottling Plant 3, the Main Packaging Hall and the palletising and 
warehousing area.

                                               
7 Exhibit R9.
8 Exhibit A1, Correspondence from Rigby Cooke Lawyers (for CUB) to Kingston Lawyers (Respondent’s solicitors), 14 

September 2020.








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[15] The events that led to Mr Johnson’s dismissal took place on Tuesday, 21 April 2020.

[16] On that day Mr Johnson and a colleague, Craig Stevens, were to perform preventative 
maintenance work on a palletising machine.  The work was subject to a CUB “Work Order”
which required the inspection of all turntables.9 Their task that day was to inspect, and 
correct malfunctioning conveyor rollers associated with a turntable.

[17] The purpose of the turntable is to receive a laden pallet travelling down an incline, turn 
the pallet at right angles, and then send the pallet down another conveyor at right angles to the 
initial incline. There is no question the equipment on which work was to be performed is 
potentially hazardous to workers and it could kill or permanently disfigure a person who met
moving parts. The palletiser consists of several elements operated mechanically, electrically 
and hydraulically. Its task is to receive cartons of filled bottles or cans of beer or cider and 
load them onto pallets, ultimately for distribution to customers, and Mr Johnson described its 
task in the following manner:

“27. There are several palletisers in the Brewery, and they are all in the warehouse.  The 
palletisers receive cartons of filled beer or cider bottles/cans (usually 24 bottles/cans 
per carton) and loads the cartons onto standard pallets.  The palletiser does this by 
firstly arranging about 10 cartons in a single layer on a table so this arrangement of 
cartons covers about the same area as a pallet.  Once the cartons are so arranged, the 
palletiser slides the cartons off the table onto a pallet.  This is then repeated 5 times per 
pallet so about 6 layers of cartons are stacked on each pallet.

28. Once a pallet is fully loaded, it is moved about 2 metres to a turntable to be rotated 
90 degrees and then the pallet moves along another conveyor to a machine that wraps 
the loaded cartons with plastic film.”10

[18] A short after-the-event video made by the AMWU delegate, Chris Brown, confirms 
the scale of machinery and potential hazards associated with its operation.  The palletiser is 
not a single machine, but an integrated unit of several different pieces of machinery working 
to perform different tasks, but ultimately moving to collect and transfer numerous cartons 
filled with product onto pallets, after which the plastic wrapped cartons are dispatched 
elsewhere, presumably for warehousing and then shipping.

[19] The palletiser is well guarded and encased in a cage of about 30m x 25m.  The cage 
has numerous doors for access to the machinery. There are sensors on the doors as well as 
light curtains within the cage designed to stop the machinery if triggered:

“However, the door sensors and light curtains do not operate to stop all of the caged 
machinery from operating: some sensors are linked to one part the caged area, so it is 
possible to be inside the caged area while some equipment remains operational. 
Unfortunately, it is not clear which sensors are linked to which machines.”11

[20] In accordance with usual procedure, the two workers, Mr Johnson and Mr Stevens, 
commenced by undertaking a Job Safety Assessment (JSA). The JSA is a pre-printed form 

                                               
9 Exhibit A2, Attachment CJ – 4.
10 Exhibit A2.
11 Ibid, [31].








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requiring identification of all potential risks and hazards, noting that neither a copy of the 
completed JSA or an uncompleted JSA pro forma are before the Commission.

[21] Preparation of the JSA was started by Craig Stevens at around 1.00 PM on Mr 
Johnson’s evidence and evidently proceeded to just before the point at which the tradespeople 
were required to sign on the form that a lock had been put by them on the relevant isolation 
point. Before that stage of the JSA preparation Mr Stevens became unwell and left the area, so 
Mr Johnson continued completion of the form and signed that it had been completed.  Mr 
Johnson’s evidence is that since the form required signing off by a CUB controller, he took it 
to such a person, Parshva Shah, who signed it off.

[22] Even though Mr Johnson stated work on the form had commenced at about 1.00 PM 
and that he asked Mr Shah to sign it between that time and 1.45 PM when he started working 
on the palletiser, Mr Shah apparently told the Chelgrave investigation he had been asked to 
sign it between 12.15 to 12.30 PM. The same note in the investigation report refers to Mr 
Shah as having told the investigation that Mr Stevens attended the site nurse at 1.05 PM, 
however there is no formal evidence on the subject before me to corroborate the assertion. Mr 
Shah did not give evidence in these proceedings, and Mr Johnson was not cross-examined 
about the time he sought Mr Shah’s signature. There is no other evidence that would suggest 
Mr Johnson’s version of the timeline is incorrect, and there is no evidential reason to not rely 
on his evidence.  I therefore place no weight on the contention and find that the invitation to 
sign the form took place was most likely in accordance with the timeline Mr Johnson stated,
that is, at a time between 1.00 PM and 1.45 PM.

[23] The completed JSA has not been seen by anyone since the day after it was completed.  
Apparently Mr Shah accepted to the Chelgrave investigation that he had seen the form and 
signed it as required in order to authorise the work, but misplaced it, with the investigation 
report noting that “normally the JSA and work Order would be returned to office in Tray for 
review end of week, actually collected after the incident by Parsh and placed in the tray in 
Parsh’s office. Next day went to review they were not in tray”.12

[24] Having completed the JSA as required and had it authorised Mr Johnson commenced 
work on the palletiser at around 1.45 PM. Since Mr Stevens had left the area feeling unwell 
Mr Johnson undertook the maintenance work alone.

[25] In order to undertake the required work, he locked out the palletiser from outside the 
cage of the main door nearest the turntable. Mr Brown’s after-the-event video shows what is 
ordinarily done in such a case.  The door is large, appearing to be about 1m wide by 2m high, 
and comprises heavy duty meshing and is opened by pressing an electrical release button.  
The door is then manually pushed open by an authorised person, who then applies a padlock 
with a tag by passing the padlock through holes in the gate’s striking plate in order to prevent 
the gate closing and re-engaging the machine’s operating circuit.  While this is not evidence 
of what was actually done, I accept it as an illustration of the process that would ordinarily be 
followed, with Mr Johnson’s evidence being that he applied his locks to the main door nearest 
the palletiser.13

                                               
12 Exhibit A2, Attachment CB-2, p.8.
13 Exhibit A1, [33].








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[26] However, Mr Johnson did not enter the caged area through that main door (also known 
as Door 7) because access to the area in which he needed to work was difficult and dangerous.
Instead, he entered through another hinged entry point, nearer the work area.14 That entry 
point appears to be about as large as the main door15 however is secured by bolts, rather than 
an electrical release button.  Mr Johnson told the Chelgrave investigation that he did not have 
experience on the required task for the machine in question and that what he did was 
consistent with what he had been explained to him earlier in the day.16

[27] Mr Johnson says the entry point he used was recorded on the JSA submitted to Mr 
Shah.17 Sometime after the incident on 21 April 2020, but before completion of the 
Chelgrave investigation report on 7 May 2020, Mr Shah commented to the Chelgrave 
investigation that his recollection was that removal of the fixed guarding was not recorded on 
the JSA.18

[28] After removing guards from the turntable Mr Johnson started examining chains 
driving the rollers and noticed they were loose.  When he used a wrench to undo some bolts 
holding the chain sprocket brackets the turntable moved unexpectedly.  He was startled by its 
movement since it “meant that the turntable was live and the only reason it did not operate 
earlier was that I was setting off a stop sensor”.19 He stopped what he was doing and 
reinstated the guards and readied the palletiser for operation, knowing that production was 
due to start shortly.

[29] Chelgrave and CUB are critical about how long it took Mr Johnson to report what had 
occurred.  Chelgrave’s investigation report summarised CUB’s concern that Mr Johnson had 
breached its Lifesavers rules in three regards, including that he “[d]id not report the incident 
in an acceptable time frame.  Two-hour delay approximately”.20 (underlining added)

[30] Mr Johnson’s evidence is that he and Mr Stevens started filling in the JSA at around 
1.00 PM and then he alone started the maintenance work at around 1.45 PM. Mr Brown’s 
after-the-event video includes a somewhat unclear shot of the palletiser’s controller screen 
which appears to include a real-time schematic of the overall machine. The Commission is 
unaware of whether the controller records events such as the time when the machine was 
locked out or when a particular sensor or light curtain was triggered, and is similarly unaware 
of whether any such information was accessed either by Chelgrave or CUB for the purposes 
of either’s investigation. If the machine did record those events it is possible the dispute 
between the parties about when Mr Johnson started and finished work on the palletiser would 
not still be unresolved.  Nonetheless, it being the only formal evidence before me on the 
subject I accept Mr Johnson’s evidence that he started work on the palletiser around 1.45 PM.  
It was not put to him in cross-examination that he started work on the machine at another 
time.

                                               
14 Ibid.
15 Transcript, PN 810 – 811.
16 Exhibit A2, Attachment CB-2, p.4.
17 Exhibit A1, [33].
18 Exhibit A2, Attachment CB-2, p.7.
19 Exhibit A1, [36].
20 Exhibit A2, Attachment CB-2, p.6.








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[31] After the turntable moved and Mr Johnson had returned the palletiser to an operational 
state, he reported the event to Chelgrave’s health and safety representative, Nick Cleever, who 
told him to report to his team leader, Lucas, which he did.  He also sent an email to his 
colleagues to warn them of the hazard.21 The email is not before the Commission.  A 
Chelgrave interview with Mr Johnson about the incident, taken on 29 April 2020 recorded
that when he went looking for his team leader, he “ended up attending the Afternoon Shift 
Team Briefing that was held after 2:00pm.  In his mind, so that all team members would be 
aware of the situation, reporting it here was a favourable option.”22

[32] After those things, and close to 2:30 PM Mr Johnson spoke about the matter with 
Parshva Shah and the CUB Maintenance Controller, Matt Petrofes, who asked him to show 
them what had happened:

“38. …The 3 of us went to area, and once there, we went through the isolation process 
again, effectively halting production for this palletiser’s line.  I also showed them 
which door I entered and where I was when the turntable moved.

39. At that point, with my replicating my earlier isolation and opening the same door, 
Matt beckoned an operator to see if he could put the turntable into operation.  The first 
operator so beckoned could not do this, so a second operator was called over and he 
could put the turntable into operation while the measures I used were taken.

40. Matt then pointed out to me an isolation switch for the turntable.  At that moment I 
was in the cage, and Matt was outside of the cage.  The switch was at about knee 
height, behind a bollard, and not in anyways obvious.  I would say it was hidden and it 
was not in arm’s reach.  Matt asked me to turn-off the switch, and to do this I had to 
crawl on my hands and knees about a metre in to get to the switch.  Once there, I 
turned the switch to the off position.  I then crawled back out and Matt again asked the 
operator to see if the turntable could operate—it was now inoperable.

41. I should add that the switch was visible from another side of the line, and, 
theoretically, the switch would be accessible from this side too, but this side is a no-go 
area because there is forklift traffic, and, it is fenced off, so access is not possible.

42. There was not discussion or debate about what just happened.  After this re-
enactment, I was told to go back to work and carry on.”23

[33] After these events Mr Johnson was stood down on full pay on 22 April 2020 and the 
incident was fully investigated by Chelgrave and likely by CUB.  Evidence before me about 
the CUB investigation is largely limited to a report Mr Brown attached to his evidence, being 
a tabular “abnormality report” prepared by CUB (referred to as ABInBev on the document).  
The Abnormality Report is stated as having been initiated by Mr Shah, who also had 
accountability for its completion and included the following pertinent observations about the 
incident:

“2 Fitters given Non routine corrective task to work on

                                               
21 Exhibit A2, [37].
22 Exhibit A1, Attachment CJ-4, p.2.
23 Exhibit A1.








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1 fitter did not continue with work and left to attend personal medical issue

second fitter proceeded to work on corrective task

attended site following completion of JSA and isolated side gate near B3 palletiser 
(Gate 7).  Waited for machine to shut down and opened gate, placing personal lock on

Pallet was sitting on other side of light curtain, so proceeded to corner external to zone 
and opened hinged door cap screws to access turntable

removed turntable covers and began work to inspect chain tension and inspect 
sprockets (1 arm inside machine and blocking PE, other arm has blocked PE when 
moved past secondary PE causing turntable to move)

Note: didnt realise that motor isolator (103) was on other side of turntable.”24

[34] Mr Brown claimed in his evidence that the the report indicated only process faults and 
that human error was not mentioned,25 which is obviously not correct, since at several points 
the report referred to errors of belief by Mr Johnson or a lack of understanding by him.

[35] The same report considered several root causes for the incident and concluded the 
machine moved because the wrong zone had been isolated, that the wrong zone had been 
isolated because of a lack of understanding of palletiser zoning, and that the reason the 
turntable was not isolated was “[b]ecause of belief that isolation of zone is satisfactory 
isolation of equipment”.26 In a section dealing with prevention of repetition the report lists 18 
actions requiring consideration, each at various stages of completion. The actions deal with 
training, presentation of the JSA’s, changes to procedure, introduction of new hardware and 
software and allocation of capital for purchase of equipment and the like.  The table detailing 
the actions is extracted and shown at ATTACHMENT 1.

[36] Another CUB initiated meeting with Mr Johnson took place in the week following the 
incident.  Attendees at the meeting included three managers from Chelgrave, Mr Hale, Mr 
McGrillen and Mr Wynne, as well as Mr Brown, Mr Petrofes and two CUB safety officers:

“This meeting went for about an hour, and a big part the meeting was CUB setting out 
its case that there was a safety breach.  As for Chelgrave, they indicated more that they 
were in the process of investigating the incident.  Chris argued on my behalf, pointing 
out that there were concerns with the systems in place around the palletiser and my 
conduct did not amount to a serious safety breach.  The meeting ended with CUB and 
saying that they would respond later.”27

[37] On 29 April 2020, Chelgrave managers met with Mr Johnson and recorded his views 
about the cause of the incident.  The matters put forward by Mr Johnson in that interview 
were then incorporated into a comprehensive Chelgrave investigation report dated 7 May 

                                               
24 Exhibit A3, Witness Statement of Chris Brown, 4 August 2020, Attachment CB-4.
25 Ibid, [37].
26 Ibid.
27 Exhibit A1, [48].








[2020] FWC 5784

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2020.  The report sought to “find root cause for the risk potential presented and to identify 
whether there was a breach of CUB lifesavers” being a reference to the CUB policy and 
procedures dealing with safe work on machinery, entitled “Lock, Tag, Clear And Try”. These 
procedures are variously known as the CUB Lifesavers or LTCT.  The investigation was 
undertaken by John Wynne, a Chelgrave manager, with interviews being conducted not only 
with Mr Johnson but also with CUB’s Matt Petrofes, an Engineer, and Parshva Shah, a 
Maintenance Controller.  Neither Mr Wynne nor the latter mentioned CUB managers gave 
evidence in these proceedings.

[38] The investigation report is comprehensive and balanced.  While it ultimately attributes 
some criticism of Mr Johnson for breach of the CUB Lifesavers it does not go so far as to 
identify his conduct as misconduct, let alone serious misconduct.  First, the report summarised
what Mr Johnson told Mr Wynne:

“Chaya went to the area and opened Door 7, the Door nominated as the entry point.  
The machine appeared to shut itself down with motors stopping and air bleeding down.  
Chaya tested the system by resetting.  Nothing restarted, so was confident of full 
isolation.  Chaya, having no experience on this particular task on this machine 
proceeded with the method that had been explained to him to access the turntable.  
There was also a pallet on the conveyor just near Door 7.  Near the corner of the
perimeter guarding is a hinged access panel in the fencing that is secured by hex socket 
screws on the swing side.  He undid these screws and opened the access panel entering 
the space.

Chaya undid the securing screws on the upper cover of the turntable and removed it.  
On inspection of the chains and sprockets the turntable began to index around.  His 
hand or arm must have passed through one of the sensors which started the drive 
motor.  He was surprised with the movement as he had assumed the isolation covered 
the whole of the area and when resetting the machine earlier the table did not move.

Chaya removed himself from the equipment.  He put the covers back on, closed and 
secured the hinged fence panel knowing that the line had to be ready for production 
around 2:00pm. Chaya removed his locks and secured the machine for production.”

[39] The Chelgrave investigator interviewed CUB’s Matt Petrofes, who whilst confirming 
the above summary was also critical of Mr Johnson.  The criticism acknowledged both that 
the work requirements on Mr Johnson had changed during the day, and that he was not fully 
trained in the relevant area.  While the report is critical of Mr Johnson the absence of oral 
evidence either from the author of the report (Mr Wynne) or the person he recorded as 
expressing the concerns (Mr Petrofes) and the manner in which those criticisms are expressed 
lead me to not regard the recorded matters as being an expression by Mr Petrofes that Mr 
Johnson had committed misconduct:

“Other relevant information

The scope of the work order had changed owing to the limited time on the day.

Chaya said that he had not been fully trained in that area.








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The Work Order and the JSA have gone missing from Parsh’s desk.  The maintenance 
Controller said that he did sign off on the JSA.  There was nothing on the JSA to 
indicate a section of Fence Guarding has to be removed to gain access.

Chaya went to enter at Door 7, but there was a pallet blocking the area on the 
conveyor.  He used the hinged Door instead, which is not a proper Door and is opened 
by removing bolts requiring a tool.

Chaya did admit that he failed to apply a Tag to the Hinged Guard when opened.

The Matrix of Functional Validation od (sic) Safety Systems has been checked.  There 
are no gaps apparent in this.

CUB Management Concerns

Three breaches committed by Chaya of company “Lifesavers”.

1. Not complying with LCTC, (sic) in particular the ‘Try’ component.

2. Interfering with or removal of a fixed guard.  Did not follow the correct 
procedure for its removal.

3. Did not report the incident in an acceptable time frame.  Two-hour delay 
approximately.

Chaya has demonstrated misconduct on other issues.  There is a concern over his own 
safety and that of work mates and CUB employees.”28

[40] Mr Shah’s comments as recorded by the Chelgrave investigation appear concerned 
with whether the way Mr Johnson performed his work had been authorised by the JSA, with 
him believing it was not:

“… The focus was to be on the turntable and conveyor inspection there may be some 
adjustment required for tensioning, but they can come back to it at the end of week.  In 
the end, due to time, the expectation was to inspect one turntable particularly and the 
others as time permitted.

The Depalletiser was on separate JSA to the Palletiser work.

From memory removal of any fixed guarding was not covered on the JSA which was 
signed by Parsh about 12: 15 to 12:30. Work commenced round 1 :00 pm, Craig and 
Chaya went down to the job together and then Craig presented to the site Nurse around 
1 :05pm due to a personal medical issue. Chaya continued on by himself.

Mark Hale asked if it was normal practice to sign a JSA in office and not at worksite.  
Parsh stated that was a normal practice, for jobs that are routine and simpler non-
routine tasks where there are no involved complications.

                                               
28 Exhibit A3, Attachment CB – 2, p.6.








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Anyone can sign off a JSA down to Trade level and cross check if there are two or 
more trades, as long as they are not doing the job by themselves.  In this case however 
Parsh signed off the document.

Mark Hale asked Parsh what he thought the competence level was of Chaya in this 
area, and how would he know what was required from the point of view isolations.  
Parsh responded that the expectation is the trades conduct LTCT on equipment to be 
worked on, i.e. isolate the machine along with associated equipment to left and right 
and carry out ‘TRY’ component of the process.  Chaya asked for clarification of the 
zoning area for the line from the Door, Parsh provided this and nothing else was asked 
for or offered.

Chaya had completed this LCTC (sic) training in August 2019.

The JSA form has a number of prompts relevant ones being working near nip points 
and moving parts.  LTCT and PPE are a control measure option to detail, there was no 
selection or detail written of fixed guards being removed.  Chaya did not raise any 
concerns and the he started the work.  It was at some point during this time that the 
event occurred.

Parsh gets notification that the line will be starting, he goes to see the status of work 
about 2:00.  Chaya was not there, and the job appears to be packed up and ready to go 
back into service.

Parsh talks to Chaya over radio for a status at this time, and he is told by Chaya that he 
is out of the area and in the workshop completing an email about the job.  He did not 
mention any issues then.

Parsh spoke to Lucas (Team Leader) and was told about the incident.  This was about 
2:30. Lucas had only learnt of this some five minutes earlier.”29

[41] After speaking with several people and examining numerous documents, with the 
exception of the JSA which was missing, the investigator then made findings about the 
incident.  After noting that Mr Johnson was trained in the CUB Lifesavers, the investigator 
made these general findings and findings about the safety integrity of the machine:

“The Work Environment

A Risk Assessment previously conducted in 2012 and updated as of 22nd April 
identified slip/trip hazards and control measures to be put in place including 
installation of additional interlocked access point near the turn table, removal of 
redundant bollards and the installation of permanent access stairs to go across the 
conveyor. These items have not been actioned and have been raised for some time.  
Access is a known difficulty.

On the 28th April a Safety Validation was completed with the following notes as a 
result of this incident:

                                               
29 Ibid, pp.6 – 7.








[2020] FWC 5784

13

No major defects were found, the safety systems in the MPH Palletiser operated in a 
safe manner.  Though minor defects were found, which were mainly insufficient 
indication:

•·investigate ES101 and ES202.  Functionally this fails safely, however tripped 
multiple zones and a maintenance corrective is required to investigate/rectify;

• Not all Estop locations shown on SCADA, providing this clarity will ensure a speedy 
recovery in the event of accentual activation;

• Clearer indication required for TOSA wrapper when in safety fault;

• Unable to find ES210, although ES110 was located twice;

• Globes to be checked on Pall C1A and C1 B Exit Light Curtain;

• New Tipper Estop to be added to Validation Sheet;

• Muting on light curtains is inconsistent and will need some fine tuning.  Completed 
28th April, with Monthly validations required until simplification (muting removed) 
achieved; and

• In addition to this, and in alignment with the risk assessment performed;

There are some items that will require action:

• Additional signage to align with depal visualisation standard and update of zone 
maps;

• Removal of internal bollards; and

• Scope up Capex required to enable simplification of zoning, relocate estops, remove 
muting of some light curtains and provide additional Doors for entry Zone1 and 2.

There are clearly deficiencies within the system that need to be addressed and provide 
for some lenience in Chaya’s reasoning for how things operate and his apparent lack 
of plant knowledge.

There is no “safe” way to access the outer perimeter of the line, it is either under or 
over the line which provides safety issues, in my opinion, there is a deliberately placed 
hinged fence guard in place for this work.”30

[42] The findings then moved to criticism of Mr Johnson, and in particular that he did not 
fully engage the “Try” component of the CUB Lifesavers.

[43] By way of background, “Try” is described in the CUB LTCT material before the 
Commission (which appears highly summarised and is not likely to be the full policy or 
procedure) as requiring steps such as to “[p]ush, buttons, test circuits to confirm the energy 

                                               
30 Ibid, p.10.








[2020] FWC 5784

14

source is off and the equipment safe to work on”.31 The training Mr Johnson had completed 
on the subject exhorts that “LTCT steps - apply locks, tag, clear material and persons, test 
TRY restart.  TRY step is the most important- it can save your life!”.32

[44] The Chelgrave investigation report concluded that Mr Johnson did not do everything 
he should have, but tempered that criticism by considering the context within which he was 
performing his work, and concluded that he could not be held entirely responsible for what 
happened:

“Training and Competence

One of the key aspects of a successful Lockout/ Tagout program is clear and decisive 
training that is regularly reviewed, and refreshers provided to all trades and operators.  
Chaya has done refresher training in the last 12 months, dated in August 2019.  A 
review of the training slides provided clearly states the process involving Lock, Tag, 
Clear and Try.  A failure identified in this process that Chaya undertook centres around 
the ‘Try” component.  Had Chaya fully pursued this component he would have 
succeeded in a successful isolation; however, this process goes hand in hand with the 
knowledge of the plant itself.

Chaya indicates he has not had full training in the LG3 Area and was not aware of the 
limitations of the isolation created by opening Door 7.  Chaya was unaware that the 
whole compound is not one zone and is in fact split and controlled by various points.  
He was not aware either of the tripping of the light curtain would effectively disable 
the zoning of the turntable.  Had he crossed through the light curtain the incident 
would not have occurred.

Chaya was possibly not of aware of the potential for the turntable to start manually 
from the SCADA Panel or by breaking one of the turntable PE beams.

Given Chaya’s position on this apparent lack of equipment training and Leadership not 
providing records or a definitive position on equipment training received and ultimate 
competence, it is conceivable that he has a deficiency in area knowledge of this 
equipment.

A deficiency does not necessarily mean that he did not believe he was carrying out the 
isolations incorrectly.  According to Chaya’s account he had spoken with other trades 
to get their view of how to go about the task.  This combined with a lack of knowledge 
of the zoning and isolation points may be a salient point in arguing a case of 
contributing factors or mitigating circumstances.

Chaya’s site and L TCT training records for August 2019 do not have correct answers 
stated or the trainer’s sign off.

There is an inconsistency in how gaining entry to the area safely and conducting the 
work could be done.  Ranging from entry through middle gat and climbing over or 
under to Parsh’s view that entry through Door 7 and through the light curtain.  Is it 

                                               
31 Exhibit R4, Lock, Tag, Clear and Try, Carlton United Breweries, Abbotsford, filed 6 July 2020, p.11.
32 Exhibit R3, Site Compliance Training, August 2019, filed 6 July 2020.








[2020] FWC 5784

15

safe to solely rely on the light curtain to Lock out at Equipment Level? The Light 
Curtain can be reset by others and is not tagged.”33

[45] The findings concluded as well:

 That Mr Johnson’s competence to undertake the assigned tasks was not established:

“Chaya makes the claim that he has not been adequately trained.  The 
Leadership team are not in a position substantiate this one way or the other.

Chaya’s level of competency in these areas cannot be supported as a result”;34

 It was relevant that Mr Johnson started the work with another person, Mr Stevens, 
who likely had greater expertise in the assigned tasks, and when he left because of 
illness, his knowledge, including about possible safety measures was no longer 
available to Mr Johnson;35

 Mr Johnson believed he had correctly applied the lock and applied the “Try”
component’;36

 Although noting the criticism that Mr Johnson delayed reporting the incident, and 
should have done so with greater urgency, that criticism was “not relevant as it is 
unclear of the timing of the actual reporting”.37

[46] The investigator explicitly considered the meaning and gravity of these findings and 
whether disciplinary action should be taken against Mr Johnson and concluded a final 
warning should be issued to him.  It did so after putting forward seven other recommendations 
for action directed at improving the overall safety system.38 The recommendation made about 
Mr Johnson was framed in this manner:

“Disciplinary Actions

Although this report provides for what may appear to be leniency considering Chaya’s 
apparent breaking of Lifesaver Rules, given the circumstances contained within the 
report it should not take away the fact that there were some errors made in reference to 
two Lifesaver Rules which are important. The investigation and preparation of this
report does not ignore this fact.  This investigation determined that Chaya should be 
issued with a written Final Warning for his unintended failure to adequately Isolate to 
Equipment Level as prescribed for maintenance tasks.  This is to be issued on the
agreement of Carlton and United Breweries Management Team forthwith.  This, along 
with the other recommendations made above can only go toward a better learning 

                                               
33 Exhibit A3, Attachment CB – 2, pp.10 – 11.
34 Ibid.
35 Ibid, p.12.
36 Ibid.
37 Ibid.
38 Ibid, p.14.








[2020] FWC 5784

16

outcome for Chaya and the rest of the Trades Team, but also enhance maintenance 
management within the organisation.”39

[47] The Chelgrave investigation report was concluded on 7 May 2020.

[48] Mr Johnson’s evidence is that he was informed him was dismissed on 28 May 2020 
with the termination taking effect on the same day.  Chelgrave’s email on the subject was 
short and to the point:

“Hi Chaya,

Further to our conversation this morning I would take this opportunity to confirm that 
due to an incident on the 22nd April 2020 where you did not follow required safety 
procedure to Isolate machine.  As a result CUB have instructed Chelgrave that you are 
not to return to site and as a result your employment with Chelgrave is terminated 
effective 28th May 2020

Rob McGrillen
General Manager, Technical.”40

[49] The circumstances of how Mr Johnson came to be dismissed are referred to briefly in 
Chelgrave’s evidence to the Commission, with Mr McGrillen stating:

“12. On 28 May 2020, I received an email from the CUB Abbotsford Plant Manager, 
David Baxter, providing notice of their instructions to us to permanently remove the 
Applicant due to a safety incident, multiple previous occurrences of unacceptable 
behaviour and multiple opportunities to correct his unacceptable behaviour.  Mr Baxter 
advised that the Applicant had not improved his behaviour and that CUB had come to 
believe that the Applicant could not be trusted to comply with lawful directions and 
procedures and therefore posed a safety risk to himself and his colleagues on the site 
working with heavy machinery.

13. Accordingly, that morning I telephoned the Applicant out of courtesy and also sent 
a followup email confirming that CUB had requested he not return to the site and that, 
accordingly, his employment with Chelgrave was terminated.”41

LEGISLATION

[50] The legislative provisions relevant to this matter are set out in s.387 of the Act, which 
is as follows:

“387 Criteria for considering harshness etc.

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

                                               
39 Ibid.
40 Termination Letter, 28 May 2020.
41 Exhibit R8, Witness Statement of Rob McGrillen, 26 August 2020.








[2020] FWC 5784

17

(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.”

[51] Determination of whether the Applicant’s dismissal was harsh, unjust or unreasonable 
requires each of the matters specified in s.387 to be taken into account.

[52] The Full Bench has summarised the approach that should be taken by the Commission 
to the criteria within s.387 in the following way:42

“[28] The following propositions concerning consideration as to whether there is a valid
reason for dismissal for the purpose of s.387 are well established:

 a valid reason is one which is sound, defensible and well-founded, and not 
capricious, fanciful, spiteful or prejudiced;43

 a reason would be valid because the conduct occurred and justified termination; 
conversely the reason might not be valid because the conduct did not occur or it did 
occur but did not justify termination (because, for example, it involved a trivial 
misdemeanour);44

 it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently 
serious to justify summary dismissal in order to establish a valid reason for 
dismissal;45

 the existence of a valid reason to dismiss is not assessed by reference to a legal right 
to dismiss46 (so that, for example, where summary dismissal has occurred, it is not 

                                               
42 Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.
43 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
44 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6] - [7].
45 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 

at [9] - [10].








[2020] FWC 5784

18

necessary to determine whether the right of summary dismissal was legally 
available); and

 the criterion for a valid reason is not whether serious misconduct as defined in 
reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a 
finding that misconduct of the type described might well ground a conclusion that 
there is a valid reason for dismissal based on the employee’s conduct).”47 (original 
references)

WAS MR JOHNSON UNFAIRLY DISMISSED?

[53] A dismissal is unfair in the case of a person protected from unfair dismissal, dismissed 
by the employer which is not a small business employer and for reasons other than genuine 
redundancy, if it was harsh unjust or unreasonable, taking into account the criteria within 
s.387. I will deal with each of the criteria within s.387 in turn.

(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)

[54] Chelgrave responded to Mr Johnson’s unfair dismissal application by stating he had 
been dismissed on the ground of serious misconduct.48 The serious misconduct identified by 
Chelgrave is repetitively stated as being his breach of CUB’s Lifesaver Rules, his failure to 
comply with CUB’s occupational health and safety requirements, and his wilful disobedience 
or disregard of a lawful direction,49 all stemming from the incident on 21 April 2020.

Valid reason – general principles

[55] To be a valid reason the reason must be “… sound, defensible or well-founded.” A 
reason which is “… capricious, fanciful, spiteful or prejudiced …” cannot be a valid reason. 50

The reason for termination must be defensible or justifiable on an objective analysis of the 
relevant facts.51 The valid reason for termination is not to be judged by legal entitlement to 
terminate an employee, “… but [by] the existence of a reason for the exercise of that right”
related to the facts of the matter.52 Ascertainment of a valid reason involves a consideration 
of the overall context of the “practical sphere“ of the employment relationship.53

“Capacity”

[56] A dismissal relating to an employee’s “capacity”, as that term is used in s.387(a) of the 
Act, means the employee’s ability to do the work he or she is employed to do.  A capacity 
related reason for dismissal might be concerned with an employee’s performance, the 

                                                                                                                                                  
46 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 

FCR 266 at [15].
47 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat 

Gas Pty Ltd [2015] FWCFB 8205 at [22] - [23].
48 Form F3, Employer Response Form, 6 July 2020, item 3.1.
49 Ibid, item 3.1.22 – 3.1.29; see also item 3.2.
50 Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373.
51 Robe v Burwood Mitsubishi [Print R4471].
52 Miller v UNSW [2003] FCAFC 180 per Gray J at [13].
53 Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373.








[2020] FWC 5784

19

employee’s physical capacity to perform the work, the loss of a qualification or licence 
necessary to perform the work, or an inability to perform the inherent requirements of the job 
because of some injury, illness or other disability.54

[57] It is possible the actions of a third party may mean the loss of an employee’s capacity 
to perform their work.  For example, it has been found that dismissal by an employee by one 
government agency because they lost a security clearance issued by another government 
agency was a valid reason for dismissal related to their incapacity to undertake the inherent 
requirements of their job.55 A labour hire employee may be validly dismissed where the host 
employer requires their removal by exercising a contractual right to do so, provided the labour 
hire employer does not rely exclusively on the host employer’s actions as their defence to a 
claim of unfair dismissal.56 However, even in such situations the reasons the third party came 
to their view are still important and require scrutiny, with it being the case that “where a 
labour hire employer dismisses a worker based on an endorsement of an allegation of 
misconduct by the host employer, it may be the case that the dismissal is better characterised 
as conduct-based rather than capacity-based, and its validity under s.387(a) is to be assessed 
on that basis”.57

“Conduct”

[58] Where an employee has been dismissed without notice (summary dismissal) for 
serious misconduct the Commission may find that, although there was a valid reason for the 
dismissal, the dismissal was harsh because summary dismissal was a disproportionate 
response.  Where the conduct involves serious misconduct, the principle established in
Briginshaw v Briginshaw58 may be relevant.  While an “elevated standard”,59 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” 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”.60

[59] It is not the Commission’s role to “stand in the shoes of the employer and determine 
whether or not the decision made by the employer was a decision that would be made by the 
court.”61 However, the Commission “must consider the entire factual matrix in determining 
whether an employee’s termination was for a valid reason.”62

                                               
54 Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42], with reference to Crozier v Australian Industrial Relations 

Commission 2001 FCA 1031 at [14].
55 Applicant v Department of Defence [2014] FWC 4919 at [61] – [68].
56 Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243 at [40].
57 Tasports v Gee [2017] FWCFB 1714 at [36].
58 [1938] HCA 34; (1938) 60 CLR 336.
59 Wong v Taitung Australia Pty Ltd [2017] FWCFB 990 at [11].
60 [1938] HCA 34; (1938) 60 CLR 336 at 350, 363.
61 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185 at 

[46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
62 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185 at 

[46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413.








[2020] FWC 5784

20

[60] For there to be a valid reason related to the Applicant’s conduct, it must be found that 
the conduct relied on occurred as a necessary step in the process of determining whether a 
valid reason existed.63 Further, “[t]he question of whether the alleged conduct took place and 
what it involved is to be determined by the Commission on the basis of the evidence in the 
proceedings before it. The test is not whether the employer believed, on reasonable grounds 
after sufficient enquiry, that the employee was guilty of the conduct which resulted in 
termination.”64

[61] It has been said by the Full Bench with reference to the definition of “serious 
misconduct” within the Fair Work Regulations 2009 that “the criterion for a valid reason is 
not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no 
application to s.387(a) (although a finding that misconduct of the type described might well 
ground a conclusion that there is a valid reason for dismissal based on the employee’s 
conduct).”65 The Full Bench has also found there is not a “clear rule of law defining the 
degree of misconduct justifying summary dismissal”,66 and that it “is certainly well 
established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct 
sufficiently serious to justify summary dismissal on the part of the employee in order to 
demonstrate that there was a valid reason for the employee’s dismissal (although established 
misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).”67

Principles associated with labour hire arrangements

[62] The Full Bench has held that in matters involving a labour hire arrangement in which 
an employee is removed from a worksite on the instruction of the host employer resolution of 
whether there is a valid reason for dismissal will depend upon the circumstances of the case.68

A relevant issue will include the terms of the contract between the host employer and the 
labour hire employer, but only if those terms are disclosed to the Commission. Relatedly, 
there is no presumption to be made that a contractual obligation to remove an employee from 
a worksite if instructed to do so69 is a universal term.70 The simple acquiescence of a labour 
hire employer to such an instruction and the resultant dismissal of an employee may mean it 
being “difficult to imagine that such a dismissal could be justified on the basis of the worker’s 
incapacity, since the inability of the worker to continue working for the host employer would 
be the result of the labour hire employer’s failure to insist upon compliance with its contract 
with the host employer rather than any incapacity on the part of the worker.”71 The
Commission will take account of a failure by a labour hire employer to form an independent 
view about whether the employee has engaged in misconduct if that is alleged.72

Whether a valid reason in Mr Johnson’s case

                                               
63 Edwards v Giudice [1999] FCA 1836 at [7].
64 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23] - [24].
65 Titan Plant Hire Pty Ltd v Malsen [2016] FWCFB 5520 at [28].
66 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [36].
67 Ibid, [32].
68 Tasports v Gee [2017] FWCFB 1714 at [34].
69 Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243 at [37].
70 Tasports v Gee [2017] FWCFB 1714 at [35].
71 Ibid.
72 Kool v Adecco Industrial Pty Ltd T/A Adecco [2016] FWC 925 at [72].








[2020] FWC 5784

21

[63] The facts of Mr Johnson’s conduct on the day in question, 21 April 2020, are well 
established and save for the questions of the characterisation of certain of his actions and how 
long it took him to report the safety incident are not especially in dispute between the parties.
The evidence allows the following findings to be made:

 Mr Johnson and Craig Stevens were instructed in the morning to undertake work 
associated with maintaining the turntables.  After being instructed the scope of the 
job reduced owing to time constraints.  Mr Stevens commenced filling out the JSA 
in tandem with Mr Johnson.  Before it was signed as approved, Mr Stevens became 
ill and left.  Mr Johnson took the completed JSA to Mr Shah for approval, who 
signed it.

 Mr Johnson commenced work on the palletiser alone.  Once at the palletiser, Mr 
Johnson opened the nominated entry point, Gate 7, and applied a lock.  He tested 
the lockout system by resetting.  When nothing restarted, he believed there was full 
isolation of the palletiser.  Whether these were sufficient actions on his part is 
contested.

 Mr Johnson believed that work needed to be done on the conveyor furthest from 
him.  He believed he could not go under the conveyor line nearest him, and that it 
was unsafe for him to go over the line.  There were no permanent access stairs 
across the conveyor.73 He believed the safest access was through a hinged access 
panel secured by hex socket screws and proceeded to remove the panel and enter 
the palletiser space.  Whether using this point of access was permissible is 
contested.

 After entering the palletiser space Mr Johnson undid the screws on the turntable’s 
upper cover and inspected the chains and sprockets.  That process tripped a sensor 
or light curtain which activated a drive motor which in turn caused the turntable to 
move.

 Mr Johnson returned the covers to the turntable and left the palletiser space.  He 
closed and secured the hinged access panel, removed his locks from Gate 7 and 
returned the machine to a state ready for production.

 Mr Johnson left the palletiser area and reported what occurred.  The timeliness of 
the report is contested.

[64] At least three of the above matters potentially indicate misconduct on Mr Johnson’s 
part: whether he sufficiently tested the palletiser’s full isolation, his access and egress to the 
palletiser area through the hinged access panel, and the timeliness of his report of what 
occurred.  Those matters though are not extensively referred to in Chelgrave’s evidence, and 
the company’s criticism of Mr Johnson, or more likely that of CUB, is to be discerned mainly 
from the Chelgrave investigation report.  While shedding some light on its view of his actions 
Chelgrave’s notes of its earlier interview with him do not detail criticism of those actions.  In 
summary, the two documents record the following:

 From the notes of the Chelgrave interview with Chaya Johnson, 29 April 2020:

                                               
73 Exhibit A3, Attachment CB-2, p.10.








[2020] FWC 5784

22

 In relation to the machine’s isolation and when at Gate 7, he applied his lock 
and tested the system by resetting, and nothing restarted which gave him 
confidence of full isolation.

 Pertinent to access through the hinged access panel, this was because he “felt 
he could not go under the line, unsafe to go over the line”.  Other fitters had 
described the best access as being through the hinged fence panel, which was 
stated on the JSA.

 He readied the palletiser for use after the incident, and before production 
resumed at 2.00 PM.  He went to see the health and safety representative, 
Nick Cleever, who told him to report it to the Team Leader, who Mr Johnson 
went looking for.  He ended up at the Afternoon Shift Team Briefing that was 
held after 2.00 PM, the purpose being “so that all team members would be 
aware of the situation”.  At some later time, Mr Petrofes and Lucas asked Mr 
Johnson to demonstrate what had occurred and at that time Mr Petrofes 
established that “isolating at Gate 7 did not isolate the turntable”.  That
established that the turntable was only isolated by turning off a motor 
isolation switch mounted adjacent to the turntable.

 From Chelgrave’s investigation report, 7 May 2020:

 The report is entitled “Breach of Three Lifesaver Rules at CUB”.  The report 
may be technically correct but is not well-written with a logical narrative and 
flow and quite often uses confusing and ambiguous paragraphs.  The three 
potential breaches are not to be easily discerned, however appear to relate to 
the extent of the isolation mapping conducted before work started on the 
palletiser and the extent to which the Lifesaver Rules “Try” obligation was 
met.  The report concludes there were some errors made in reference to two 
Lifesaver Rules, and that was not responsible for a third potential breach, 
being the claim made about the timeliness of his reporting of the incident.

[65] The evidence before this Commission leads to findings only that Mr Johnson had not 
done everything reasonably practicable in order to test that the palletiser was fully isolated 
and that he had not established that the safest access and egress to the palletiser area was 
through the hinged access panel. The evidence does not lead to the conclusion he failed to 
give a timely report of the incident to his supervisors or CUB.

[66] These are the only relevant matters of conduct made about Mr Johnson; relevant that is 
for the purposes of assessment of whether Chelgrave had a valid reason for his dismissal.

[67] Chelgrave relied for its reasoning about Mr Johnson’s dismissal that it was required by 
CUB’s Plant Manager, David Baxter, on 28 May 2020 to remove Mr Johnson from its site, 
effective immediately.  There is no independent reasoning on Chelgrave’s part on the subject 
and there is no evidence that anyone in Chelgrave thought before that point that Mr Johnson’s 
conduct warranted dismissal.








[2020] FWC 5784

23

[68] The Chelgrave investigation report was concluded on 7 May 2020 and recommended a 
final warning be issued to Mr Johnson.74 There is no evidence that the subject was discussed 
with CUB and the recommended actions found to be wanting, or that discussions took place 
with CUB about the sanction that should instead be applied to Mr Johnson, or that Chelgrave 
was engaged in a reasoned process jointly with CUB to ascertain Mr Johnson’s culpability, 
whether alone or in conjunction with others involved. There is not even evidence that 
Chelgrave was consulted – in the true sense of the word – by CUB about what it proposed to 
do.  Instead, the only evidence before the Commission is that CUB instructed Mr Johnson be 
removed from its site.  Why it issued such instruction is not known; nor are the matters of 
whether Chelgrave debated the wisdom of the instruction with CUB, or of what, if anything, 
CUB took into account when it complied.  Some insight into the decision is given by advice 
given to Mr Hale by the CUB Plant Manager, Mr Baxter, after the event, on 6 August 2020.  
After enquiring about the possible re-engagement of Mr Johnson after the commencement of 
these proceedings, Mr Baxter advised Mr Hale “that CUB was not prepared to have Chaya 
work in any CUB department due to the serious nature of his safety breach, which he 
described as “serious misconduct” combined with a very poor history of failing to follow 
reasonable directions leading to CUB ‘s belief that Chaya could not work safely at the CUB 
site”.75

[69] Having been issued with the instruction to immediately remove Mr Johnson from the 
CUB site, Chelgrave promptly told him he was dismissed.  No consideration was given at that 
time to redeployment of Mr Johnson to another Chelgrave site.

[70] The instruction given by CUB to Chelgrave is that Mr Johnson should be dismissed 
for the combination of two reasons; the serious nature of his conduct in relation to the safety 
breach, coupled with his “very poor history” of following its reasonable directions.  The 
subjects of CUB’s concerns about Mr Johnson’s history of following its directions are set out 
above.  Some of the matters are recorded as having been discussed with Mr Johnson, however 
many of the issues appear never to have been raised with Mr Johnson by anyone, let alone 
someone in Chelgrave’s management chain. Mr Johnson recalled some discussion of the 
subjects and recalls agreeing he needed to do better but argued there was not extensive or 
repeated discussion and no documented warnings.  In these regards:

 He conceded he could have communicated with supervisors better in February 
2020 when he stopped for lunch, thereby delaying production;76

 He does not accept he failed to report an injury exacerbation in July 2019, arguing 
it was a “little tweak and pain” and that it would be unreasonable to require him to 
report all events of that type;77

 He does not recall having left part-way during a changeover in October 2019;78

 He does not recall general issues with absenteeism, sick leave or RDO’s.  In 
relation to the specific complaint that in March 2020 he had claimed sick leave 

                                               
74 Exhibit A3, Attachment CB – 4, p.14.
75 Exhibit R7, Witness Statement of Mark Hale, 26 August 2020, [10].
76 Exhibit A1, [16].
77 Transcript, PN 71.
78 Exhibit A2, [18].








[2020] FWC 5784

24

without entitlement by providing a statutory declaration he conceded he had been 
spoken to on the matter, but explained the situation arose out of claiming sick leave 
pertinent to himself, when he should have sought compassionate leave owing to his 
mother’s illness with pneumonia;79

 He argued the contention that he had refused to do a particular task in April 2020 
was in the context of him having safety concerns.  He and Mr Stevens had been 
asked to perform work in an area in which a dangerous caustic cleaning agent was 
used.  It was the first time the two had been asked to do this work and the 
instructions were not clear.  After raising safety concerns, they were not required to 
undertake the work.80

[71] What may be drawn from these complaints is a finding that Mr Johnson’s 
communications with Chelgrave and/or CUB on important working and workplace matters 
were not exemplary in 2019 and 2020.  Those matters included when he proposed to stop 
work and when he expected to be late for work, was absent from work or needed to work 
overtime.  The matters raised and sought to be relied upon by Chelgrave may have justified 
disciplinary action, however Chelgrave did not take such action, and instead only discussed 
some but apparently not all of the matters with Mr Johnson.

[72] No finding reasonably arises either that Mr Johnson deliberately or wilfully sought 
sick leave to which he was not entitled in March 2020 or that he refused a reasonable 
direction in April 2020 to undertake work.

[73] In relation to the former matter, the Chelgrave Enterprise Agreement provides that 
Personal/Carer’s Leave and Compassionate Leave are provided for in accordance with the 
National Employment Standards (NES) and legacy terms of the National Electrical, 
Electronic and Communications Contracting Industry Award 1998 which have been 
incorporated into the Agreement. The incorporated Award does not refer to caring for family 
members, however the NES in s.97 of the Act does, by entitling an employee upon 
presentation of suitable evidence to care for an immediate family member. There is no 
suggestion in the evidence before me that Mr Johnson was not entitled to carer’s leave under 
s.97.

[74] On the subject of the refusal to undertake work in April 2020 which Mr Johnson 
considered to be unsafe, there is no evidence that it was unreasonable for him to express that 
view and there is no evidence that his contention that in the end the work was not required is 
not correct.

[75] Consequently, no findings can be made that Mr Johnson’s conduct extended to 
claiming sick leave he was not entitled to or refusing work in the face of a reasonable 
direction that it be performed.

[76] As set out above, Chelgrave levelled three complaints against Mr Johnson: his breach 
of CUB’s Lifesaver Rules, his failure to comply with CUB’s occupational health and safety 
requirements, and his wilful disobedience or disregard of a lawful direction.  I find that he 
indeed did breach CUB’s Lifesaver Rules by not following as well he could the “Try”

                                               
79 Transcript, PN 78 – 82.
80 Exhibit A2, [20].








[2020] FWC 5784

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principles and that such likely would also be a failure to fully comply with CUB’s 
occupational health and safety requirements. The material before me on the Lifesaver 
“Rules” is very limited and hardly establishes them as “rules”; instead what is before me is a 
set of slides exhorting safe practice. Perhaps there is a comprehensive set of “rules” however 
they are not in evidence in this matter. The same may be said about CUB’s occupational 
health and safety requirements. I do not find that Mr Johnson wilfully disobeyed or 
disregarded a lawful direction: firstly I am uncertain as to what the disobeyed direction or 
requirement may have been, and secondly the evidence does not lead to a conclusion that Mr 
Johnson’s conduct was wilful or reckless.

[77] The conduct I have found to have occurred and for which Mr Johnson may be held to 
account is two-fold:

 He did not do everything he could have in order to test that the palletiser was fully 
isolated, and he did not establish that the safest access and egress to the palletiser 
area was through the hinged access panel; and

 His communications with Chelgrave and/or CUB on important working and 
workplace matters were not exemplary in 2019 and 2020.

[78] Mr Johnson’s failure to test that the palletiser was fully isolated and to establish that 
the safest access and egress to the palletiser area was through the hinged access panel are 
breaches of his obligation to work safely and more particularly to follow the CUB Lifesavers.  
His lack of familiarity with the palletiser, the fact he was working alone, and the fact there 
was no safe access over or around the inside of the machine are factors which each 
contributed to his decision making.

[79] An employer seeking to rely upon misconduct in the form of contravention of safety 
policies as a valid reason for dismissal does not have to demonstrate intentional behaviour, as 
compared with a mere error of judgement, although intentionality may be a relevant 
consideration under s.387(h).81 Serious misconduct is defined by the Act to include the 
matters set out in the Regulations which in turn provides the term has its ordinary meaning 
including several listed elements.82

[80] While it is the case that the incident on 21 April 2020 had the potential for “serious 
and imminent risk” to Mr Johnson’s health or safety, including because of the contribution of 
his own conduct, with that risk being one of the included matters listed in the Regulations, I 
am not satisfied on the balance of probabilities either that it was his conduct alone or 
substantially which led to the events. I am also not satisfied that his decisions and his related 
actions were so unreasonable as to be characterised as serious misconduct.  Mr Johnson’s 
conduct is not to be regarded as a trivial misdemeanour because plainly it could have had far 
more serious consequences than it did; however, his culpability is reduced because of the poor 
decision making of those around him.  Relevant considerations in this regard include:

 The design and deployment of the palletiser’s safety mechanisms were likely 
substandard or at least deployed in such a way as to mean that the problem 
encountered by Mr Johnson was reasonably foreseeable.  Opening and locking out 

                                               
81 Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [33] – [34].
82 Fair Work Regulations 2009, r.1.07.








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26

Door 7 did not isolate the whole machine; Mr Johnson’s explanation to the CUB 
managers after the incident that “he did not think it was necessary to isolate at the 
[turntable] level as opening the Door rendered all the line inoperable” was likely a 
reasonable explanation as well as one which exposed an obvious problem. There 
were differing views about how to safely enter the turntable area: another fitter said 
he would go through a middle door, and Mr Shah said he would go through the 
light curtain.  CUB management apparently knew turntable access and egress was a 
problem, with Mr Shah telling the Chelgrave investigation that “jumping down 
from the conveyor is not good idea”.83 The Chelgrave investigation report records 
a 2012 risk assessment with unactioned matters:

“A Risk Assessment previously conducted in 2012 and updated as of 22nd April 
identified slip/trip hazards and control measures to be put in place including 
installation of additional interlocked access point near the turn table, removal 
of redundant bollards and the installation of permanent access stairs to go 
across the conveyor. These items have not been actioned and have been raised 
for some time.  Access is a known difficulty.”84

I concur with that part of the Chelgrave investigation report which finds the 
absence of comprehensive isolation mapping to have been a contributory factor:

“Given the complexity of the plant it is not unreasonable to expect information 
to be provided at a level easily seen and understood by employees concerning 
LCTC (sic) as an adjunct to the Training provided.

Some parts of the plant now have this in place, the LG3 area does not, 
evidenced by comparative photos.  This combined with a possible deficiency in 
understanding of the function of some of the safety systems of this plant and its 
intricacies of operation gives rise to a reasonable deduction that Chaya did not 
act and finally perform below expectation due to being reckless or deliberately 
by-passing the site rules.

It would not be unreasonable to lay some of the responsibility on CUB for not 
addressing Isolation Mapping and indeed Isolation Point labelling on the 
outcomes seen on this day.”85

 The decision on the day to allow the work to be undertaken by Mr Johnson alone is
questionable and especially so without a worksite view of the proposed work by a 
responsible CUB manager before the JSA was signed.  Mr Johnson should not have 
been permitted to work on the palletiser alone after his colleague became ill, and 
the fact he was going to do so demanded an on-site check of the JSA by the CUB 
supervisors before it was signed.  Mr Johnson was plainly not fully trained or 
familiar with the machinery and permitting him to proceed was a significant lapse 
in judgement and likely inconsistent with standard supervisory obligations to 
ensure everything reasonably practicable has been done to ensure worker safety.  
The fact that the JSA was signed without visiting the worksite was the subject of a 

                                               
83 Exhibit A3, Attachment CB-2, p.7.
84 Exhibit A3, Attachment CB-2, p.10.
85 Exhibit A3, Attachment CB-2, p.11








[2020] FWC 5784

27

question by Chelgrave’s manager, Mark Hale, which was not fully explained by 
what the Maintenance Controller, Mr Shah, had to say to the Chelgrave 
investigation.  Plainly the JSA should not have been authorised:

“Mark Hale asked if it was normal practice to sign a JSA in office and not at 
worksite.  Parsh stated that was a normal practice, for jobs that are routine and 
simpler non-routine tasks where there are no involved complications.

Anyone can sign off a JSA down to Trade level and cross check if there are 
two or more trades, as long as they are not doing the job by themselves.  In this 
case however Parsh signed off the document.”86 (underlining added)

[81] One of the criticisms advanced by CUB to the Chelgrave investigation against Mr 
Johnson about his actions on the day is that he removed the hinged access guard and that “if 
removing the guard was necessary or preferred it would require detail on the JSA. There was 
no detail of this”.87 The JSA is said to be missing and there is no means by which the CUB 
proposition may be tested.  No evidence has been taken from any CUB employee in these 
proceedings.  Mr Johnson’s evidence, however, was that the JSA identified the entry he 
would make.  The alternative, that he was wrong in his recollection was not put to him in 
cross-examination.  Instead, Mr Johnson confirmed in his oral evidence his recollection that
the JSA documented the access point he proposed to use:

“On that JSA you wrote down where you could isolate the equipment?---Yes. So - yes. 
So I wrote down that I would be placing a lock on the access door, and also put in 
there another one, that I would be opening another access door that is right adjacent to 
the turntable, which is the closest access point to where I’d be working.”88

[82] I am not satisfied the JSA incorrectly identified the work proposed to be done by Mr 
Johnson.

[83] Section 387(a) requires consideration of whether there is a valid reason for a person’s 
employment relating to their capacity or conduct (including its effect on the safety and welfare 
of other employees).  I do not draw the conclusion that the conduct I have found and its 
connection with matters of occupational health and safety impel a finding that the 
circumstances were a valid reason for dismissal. While a level of culpability may be assigned 
to Mr Johnson for his actions that level is not at the high end. He was not reckless in his 
actions and did not exhibit any behaviours that would suggest he knew what had to be done 
but was going to disregard those matters for reason of saving time or making the job easier.
Such culpability as may be attributed to Mr Johnson is shared by others.

[84] Taken together, the matters of Mr Johnson’s actual conduct, the failings in 
management systems and the failure to remedy identified safety issues with the palletiser, lead 
to the conclusion that Mr Johnson’s actions on the day were insufficient reason for his 
dismissal.

                                               
86 Exhibit A3, Attachment CB-2, p.7.
87 Ibid.
88 Transcript, PN 173.








[2020] FWC 5784

28

[85] Consideration of those matters in tandem with the general behavioural or conduct 
matters Chelgrave relied upon as part of its decision to dismiss Mr Johnson does not tip the 
balance toward a finding there was a valid reason for his dismissal.  This is not a case in 
which borderline conduct on the part of an employee coupled with prior warnings and a poor 
disciplinary history tip the balance in favour of a finding that dismissal was warranted.

[86] Mr Johnson may plainly be criticised for some degree of less than desirable workplace 
behaviour or conduct over the past year, and there is a case to be made that he needs to ensure 
he avoids a repetition.  Although that may be the case, the matters about which CUB and 
Chelgrave now express concern have not been substantially put to him, let alone with a 
request for explanation or a demand for remedy.  There has been no reasonable or systematic 
attempt by Chelgrave or CUB to document concerns about Mr Johnson’s communications 
with it or CUB or to caution or warn him about repetition of the matters which led to those 
concerns.  It is not even clear which of the matters identified as concerns were known to 
Chelgrave before dismissal; some were most likely merely irritants known only to CUB and 
expressed to no one.  At best Mr Johnson was counselled about some of the matters and not 
warned.  Because of this situation, the general behavioural or conduct concerns held by 
Chelgrave (or CUB) do not tip the balance in favour of a finding Chelgrave held a valid 
reason for Mr Johnson’s dismissal.

[87] For the reasons set out above, I do not find that Mr Johnson’s conduct either on 21 
April 2020 or on that date combined with his other work history was a valid reason for his 
dismissal.

Final consideration on valid reason – capacity

[88] Chelgrave do not rely upon matters of capacity for being a valid reason for Mr 
Johnson’s dismissal.  Even so, I have considered whether separate to the matters of his 
claimed serious misconduct it may be argued that he lost his capacity to be employed by 
Chelgrave when it was instructed by CUB to remove Mr Johnson from its Abbotsford site.

[89] Such a finding is not available to the Commission.  While Chelgrave contend it was 
contractually obliged to act on CUB’s instructions, the Commission is unable to test that 
proposition since Chelgrave have not brought its contract with CUB forward for examination.  
While Chelgrave contend that it has offered alternative positions to Mr Johnson and he has 
refused those offers, any such offers appear to have been in the course of conciliation89 which 
if so, may be inferred to have been after dismissal and not before.  In all there is no evidence 
that Chelgrave, having been instructed to remove Mr Johnson from the CUB site then turned 
its mind to where else he could be employed.

Conclusion on valid reason

[90] When Chelgrave dismissed Mr Johnson from its employment, it did not have a valid 
reason for doing so, being a “sound, defensible or well founded” reason within the overall 
context of the employment relationship.  Its dismissal of Mr Johnson was contrary to its 
investigation report recommendation and not supported by the report’s findings.  The 
misconduct I have found is not serious misconduct and is not a valid reason for dismissal.

                                               
89 Transcript, PN 143 – 147.








[2020] FWC 5784

29

(b) whether the person was notified of that reason

[91] The evidence is that Mr Johnson was notified of his dismissal first by phone and then 
by email on 28 May 2020.  He was told in the email that his dismissal had been instructed by 
CUB with him unable to return to site, with the dismissal being because he “did not follow 
required safety procedure to Isolate machine”.90

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

[92] For the Commission to have regard to whether an employee has been given an
opportunity to respond to the reason for dismissal there needs to be a finding that there is a 
valid reason for dismissal.91 While so, it is also accepted that “an opportunity to respond”
amounts to an opportunity to provide reasoning to a decision maker that would, all things 
being equal, allow a reasoned explanation to cause the decision maker to accept what is 
proffered and to change from their foreshadowed path.92

[93] A provision in predecessor legislation requiring there not be dismissal until “the 
employee has been given an opportunity to defend himself or herself against the allegations 
made” has been held to be a requirement not needing any particular formality, being 
“intended to be applied in a practical, common sense way so as to ensure that the affected 
employee is treated fairly.93 Where the employee is aware of the precise nature of the 
employer’s concern about his or her conduct or performance and has a full opportunity to 
respond to this concern, this is enough to satisfy the requirements of the section”.94

[94] CUB notified Mr Johnson on 23 April 2020 it had commenced an investigation and 
put him on notice that it took seriously any established breaches of safety obligations, and that 
if breaches were substantiated he may be liable for “disciplinary action up to a request for 
your removal from Site”. It interviewed him for that purpose on 24 April 2020.

[95] Chelgrave conducted an investigation into Mr Johnson’s conduct as well, most likely 
in the following week and he later received notes of the interview, dated 29 April 2020, from 
an unnamed source.  Mr Brown later received a copy of the Chelgrave investigation report.  
There is no evidence Mr Johnson was informed of the findings of either the Chelgrave or 
CUB investigations before his dismissal.

[96] Findings are unable to be made by me that Mr Johnson either knew that Chelgrave 
thought his conduct warranted dismissal or had the opportunity to provide it with a response 
that may have caused a change from the path of termination of employment.  It follows that 
Mr Johnson was not afforded an opportunity to respond to the reasons held by Chelgrave for 
his dismissal.

                                               
90 Termination Letter, 28 May 2020.
91 Chubb Security Australia Pty Ltd v Thomas (2000), unreported, AIRCFB, Print S2679 at [41].
92 Wadey v YMCA Canberra [1996] IRCA 568 cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544; 
(2010) 204 IR 399 at [85].
93 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1; [2010] FWAFB 1200 at [26] citing Gibson v Bosmac 

Pty Ltd [1995] IRCA 222; (1995) 60 IR 1 at 7 (Wilcox CJ).
94 Gibson v Bosmac Pty Ltd [1995] IRCA 222 (5 May 1995); (1995) 60 IR 1 at 7 (Wilcox CJ).








[2020] FWC 5784

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(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

[97] There were no discussions as such about an impending dismissal, with Mr Johnson
simply being told on 28 May 2020 that he was being dismissed.  Accordingly, consideration 
of this criterion is a neutral factor in my decision.

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

[98] There had been no warnings to Mr Johnson of unsatisfactory performance.  Although 
there had been some concerns about general behaviour or conduct, the matters are relatively 
low level and were not documented or the subject of written cautions or warnings.  It is not 
clear which of the matters identified as concerns were known to Chelgrave before dismissal; 
some most likely were known only to CUB and expressed to no one.  Consideration of this 
criterion is a neutral factor in my decision.

(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

[99] There is no evidence before the Commission that the size of the employer’s enterprise 
impacted on the procedures it followed in effecting Mr Johnson’s dismissal.  Consideration of 
this criterion is therefore a neutral factor in my decision.

(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

[100] There is no evidence before the Commission that there may have been an absence of 
dedicated human resource management specialists or expertise in Chelgrave, or that such may 
have impacted on the procedures followed in effecting Mr Johnson’s dismissal.  
Consideration of this criterion is a neutral factor in my decision.

(h) any other matters that the FWC considers relevant

[101] It is relevant to take into account the special circumstances of the parties, being 
involved as they are in a labour hire arrangement. There is though no general proposition that 
the actual employer, the labour hire company, may rely on the instruction of a host employer 
to cause an otherwise unfair dismissal to somehow be fair.

[102] This matter is considerably different to the situation considered by the Full Bench in 
Pettifer v MODEC Management Services Pty Ltd.95 In that matter, the terms of the contract 
were before the Commission:

“[36] Clause 18 of the contract between MODEC and BHPB which governed Mr 
Pettifer’s hire to BHPB provided that:

                                               
95 [2016] FWCFB 5243.








[2020] FWC 5784

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“The Company Representative may direct the Contractor to have removed from 
the Site or from any activity connected with the work under the Contract, 
within such time as a Company Representative reasonably directs, any 
subcontractor or person employed in connection with the work under the 
contract, whose involvement the company representative considers not to be in 
the best interests of the project.

The costs associated with removing such persons shall be borne by the 
Contractor. The person shall not be employed elsewhere on the Site or on 
activities connected with the work under the Contract without the prior written 
approval of the Company. Within a reasonable period of time those person who 
have been removed from the work under the Contract shall be replaced at the 
expense of the Contractor if the Company so requires by other suitable 
qualified persons Approved by the Company”

[37] MODEC was therefore contractually obliged to remove Mr Pettifer from the 
BHPB Site if instructed to do so. This was the role which Mr Pettifer was employed to 
perform. No longer capable of performing the inherent functions of this role, MODEC 
sought to find alternative employment for Mr Pettifer. Only after exhausting these 
inquiries did MODEC rely on this reason to terminate Mr Pettifer’s employment. In 
these circumstances the Full Bench is satisfied that MODEC had a valid reason 
relating to Mr Pettifer’s capacity to terminate his employment and only exercised this 
reason because it genuinely was unable to find suitable alternative employment for 
him.”

[103] The decision in Pettifer followed and endorsed96 the decision of Deputy President 
Asbury in Kool v Adecco Industrial in which it was held that the contractual relationship 
between a labour hire company and a host employer cannot be used to defeat the rights of a 
dismissed employee seeking a remedy for unfair dismissal.97 That finding in turn was 
endorsed by the later Full Bench in Tasports v Gee.98

[104] Had Chelgrave placed its contract before the Commission, appropriate findings about 
its contractual obligations could have been made. No endeavours were made by Chelgrave to 
do so in any manner, not even in a manner which preserved its commercial terms from public 
scrutiny. In such situations it cannot just be inferred there was a contractual obligation to 
remove an employee from a worksite if instructed to do so.99

[105] The submission that Chelgrave “has offered the Applicant alternate positions but he 
has declined these”100 was not elaborated upon and likely because they were only offered 
during conciliation after dismissal occurred.101

                                               
96 Ibid, [48].
97 [2016] FWC 925 at [48] – [49].
98 [2017] FWCFB 1714 at [34].
99 See Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243 at [37]; Tasports v Gee [2017] FWCFB 1714 at 

[35].
100 Exhibit R10, Respondent’s Outline of Submissions, 26 August 2020, [65].
101 Transcript, PN 143 – 147.








[2020] FWC 5784

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[106] I do not consider there to be any further matters requiring consideration under 
s.387(h).

Conclusion on the s.387 criteria

[107] After considering each of the criteria within s.387, I am not satisfied there was a valid 
reason for Chelgrave’s dismissal of Mr Johnson, and I am further satisfied he was not 
afforded fairness in the process by which he was dismissed.

[108] The Act requires the Commission to consider whether a dismissal was harsh, unjust or 
unreasonable by taking into account the matters at ss.387 (a) to (h). The meaning of the term
“harsh, unjust or unreasonable” was considered by the High Court in the matter of Byrne and 
Frew v Australian Airlines Limited:

“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 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.”102

[109] It has been further held that a dismissal may be unjust, because the employee was not 
guilty of the misconduct on which the employer acted; unreasonable, because it was decided 
on inferences which could not reasonably have been drawn from the material before the 
employer; and/or 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.103

[110] I find that Mr Johnson’s dismissal was harsh, unjust and unreasonable. It was harsh 
because the penalty of dismissal was disproportionate to the established facts before 
Chelgrave; it was unjust since he was not afforded an opportunity to provide a response to 
Chelgrave’s consideration of dismissal and it took into account and relied upon general 
behavioural and conduct matters which had not been adequately put to Mr Johnson as 
criticisms of his performance; and it was unreasonable because it did not adequately take into 
account the contributing factors to the events of 21 April 2020.

REMEDY

[111] The sections of the Act dealing with remedy once a finding of unfair dismissal has 
been made are set out in ss.390 – 393. Reinstatement, for which Mr Johnson presses, is dealt 
within s.391, with the section providing, so far as is relevant:

“391 Remedy—reinstatement etc.

                                               
102 [1995] HCA 24 [128], per McHugh and Gummow JJ.
103 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, p.10, with reference to Byrne v Australian Airlines Ltd

[1995] HCA 24 [128], per McHugh and Gummow JJ.








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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 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:








[2020] FWC 5784

34

(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.”

[112] Pursuant to sub-s.390(3) an order for the payment of compensation to a person must 
not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is 
inappropriate” and also that the Commission “considers an order for payment of 
compensation is appropriate in all the circumstances of the case.”

[113] Chelgrave submitted it would be inappropriate to reinstate Mr Johnson. The 
submission made in that regard included both that the necessary trust and confidence had been 
lost104 and in particular relied upon reinstatement being inappropriate because of “a history of 
poor work performance”.105 Chelgrave also relied for inappropriateness on the contention that 
it lacked the contractual power to compel CUB to reinstate.106 It was also claimed that Mr 
Johnson “would not have difficulty getting new work because he’s had a lot of employers 
previously and it shouldn’t be the case necessarily that he just has to return to this employer in 
the event that the dismissal is found to not be valid”.107

[114] In relation to matters of trust and confidence, Chelgrave’s solicitor, Mr Lucas 
submitted:

“… Labour hire is not a shield to any unfair dismissal claim, if it was, probably more 
people would use labour hire companies because they’d use people that way to get out 
of the possibility of an unfair dismissal or an invalid dismissal. So we take no issue 
with the applicant’s submission on the power of the Commission to order 
reinstatement.

We say in this case it is, however, not appropriate. We say it for a number of reasons, 
the principal ones being that there had been a history of poor work performance. If you 
take CUB out of the equation – I know it’s hard to do that, but if it was just my client, 
the respondent and the applicant, the evidence which is really in play is a minimum 
two counselling sessions with Mr McGrillen in relation to various performance 
matters, then there was the very serious safety breach which my client investigated, 
and in all of the circumstances of the case, the respondent would say that ultimately it 
was a valid dismissal.”108

“But in my respectful submission, reinstatement is not an appropriate circumstance in 
this case. And I also reiterate if the applicant is reinstated and there has been clear 
difficulties in his employment in the preceding 12 months, it would be my respectful 

                                               
104 Form F3, Employer Response Form, 6 July 2020, item 3.2.4.
105 Transcript, PN 952.
106 Exhibit R10, [64] – [66].
107 Transcript, PN 434.
108 Ibid, PN 951 – 952.








[2020] FWC 5784

35

submission it is likely there’s going to be other matters which may arise, and the 
performance written warnings and appropriate procedural fairness hopefully would be 
of a higher standard than what may have existed previously. And we’ll be back here, 
Commissioner, because we’ll be back here to determine – because clearly there’s a 
loss of confidence, loss of faith in this employee. The host employer has lost all 
confidence in his abilities to remain at the work site. They don’t trust him. They think 
that he does things inappropriately, and they are very concerned about safety 
matters.”109

[115] The issue of when reinstatement is inappropriate and the related question of the need 
for trust and confidence between the parties was considered by the Full Bench of the 
Commission in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese 
Community Ethnic School South Australia Chapter.110 In its decision, the Full Bench held 
that:

 “trust and confidence” in this context is that which is essential to make an 
employment relationship workable, which is “not to be confused with an implied 
term in a contract of employment of mutual trust and confidence, the existence of 
which was recently eschewed by the High Court in Commonwealth Bank of 
Australia v Barker”; and

 while “trust and confidence is a necessary ingredient in any employment 
relationship, it would be wrong to assume that it is the sole criterion or even a 
necessary one to determine whether or not reinstatement is appropriate”.111

(references omitted)

[116] The Full Bench has also summarised the relevant principles to be followed in 
assessments of trust and confidence as follows:

“[27] The following propositions concerning the impact of a loss of trust and 
confidence on the question of whether reinstatement is appropriate may be distilled 
from the decided cases: 

• Whether there has been a loss of trust and confidence is a relevant 
consideration in determining whether reinstatement is appropriate but while it 
will often be an important consideration it is not the sole criterion or even a 
necessary one in determining whether or not to order reinstatement.

• Each case must be decided on its own facts, including the nature of the 
employment concerned. There may be a limited number of circumstances in 
which any ripple on the surface of the employment relationship will destroy its 
viability but in most cases the employment relationship is capable of 
withstanding some friction and doubts.

• An allegation that there has been a loss of trust and confidence must be 
soundly and rationally based and it is important to carefully scrutinise a claim 

                                               
109 Ibid, PN 956.
110 [2014] FWCFB 7198.
111 Ibid, [23] – [24].








[2020] FWC 5784

36

that reinstatement is inappropriate because of a loss of confidence in the 
employee. The onus of establishing a loss of trust and confidence rests on the 
party making the assertion.

• The reluctance of an employer to shift from a view, despite a tribunal’s 
assessment that the employee was not guilty of serious wrongdoing or 
misconduct, does not provide a sound basis to conclude that the relationship of 
trust and confidence is irreparably damaged or destroyed.

• The fact that it may be difficult or embarrassing for an employer to be 
required to re-employ an employee whom the employer believed to have been 
guilty of serious wrongdoing or misconduct are not necessarily indicative of a 
loss of trust and confidence so as to make restoring the employment 
relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and 
confidence restored to make the relationship viable and productive. In making this 
assessment, it is appropriate to consider the rationality of any attitude taken by a 
party.”112 (references omitted)

[117] I am unpersuaded that there has been a mutual loss of trust and confidence that would 
make reinstatement of Mr Johnson to his former position inappropriate. There is no evidence 
before the Commission on the subject except for Chelgrave’s contentions about its contractual 
obligations and its workplace behaviour and conduct concerns. Those latter matters do not 
reasonably suggest a loss of trust and confidence. In fact, absent the events of 21 April 2020, 
Mr Johnson’s employment would likely still be continuing despite the indicated concerns. If 
he transgressed further and had to be warned and then dismissed on the basis of a failure to 
heed warnings, then so be it – but that plainly would be in the future, or at least some time 
beyond May 2020. Both at the date of his dismissal and the date of the hearing, there is no 
material before the Commission that would reasonably allow a finding there has been a loss of 
trust and confidence by either party. Such wrinkles in the relationship as Chelgrave have 
pointed to are not soundly and rationally based or will be set to one side by the findings made 
in this decision.

[118] Chelgrave argued that “[r]einstatement is not possible due to the Respondent’s lack of 
contractual power to compel CUB to re-engage the Applicant” and that it “is powerless under 
its contract with CUB to force them to re-employ the Applicant.”113

[119] Chelgrave’s contract with CUB is not in evidence before the Commission. Because of 
that I do not accept the propositions either that Chelgrave has no contractual power with CUB 
over the situation, or that somehow it is powerless on the subject.

[120] I am satisfied in all the circumstances that it would be appropriate to reinstate Mr 
Johnson. There is no evidence before me that suggests his pre-dismissal position is no longer 
in existence or otherwise not available to him, and so it is my decision that he be reinstated to 
that former position.

                                               
112 Ibid, [27] – [28].
113 Exhibit R10, [64], [66].








[2020] FWC 5784

37

Order to maintain continuity

[121] Section 391(2) permits a discretionary decision on the part of the Commission to make 
an order maintaining the continuity of a reinstated person’s employment or the period of the 
person’s continuous service with the employer.  Having considered all the evidence in the 
matter and taking into account my findings in relation to the circumstances of Mr Johnson, I 
am persuaded that an order should be made both for the continuity of his employment as well 
as for the maintenance of his continuous service.

Order to restore lost pay

[122] Section 391(3) permits a further discretionary decision on the part of the Commission 
for an order that an employer pay a reinstated person an amount for the remuneration lost, or 
likely to have been lost, by the person because of the dismissal.

[123] The section requires the Commission to take into account in making such decision the 
amount of any remuneration earned by an employee subsequent to termination as well as the 
amount of any remuneration reasonably likely to be earned by them between the making of 
the order and the actual reinstatement. The discretion within the provision is general in 
nature, and in considering such an order the Commission may properly take into account all 
of the circumstances in the matter, including the conduct of the applicant which led to the 
dismissal.114

[124] The Commission’s consideration of these matters may lead to an order for part 
payment of lost remuneration.  In the recent matter of Hilder v Sydney Trains,115 Deputy 
President Sams reinstated a customer service employee he found to have been unfairly 
dismissed and made a consequential order for lost pay. The dismissal was because of serious 
misconduct in the form of contravention of policies which expressed a “zero tolerance” of 
drug use. On appeal the Full Bench found in relation to the central findings of misconduct, 
that while it should be “reasonably obvious that Mr Hilder’s contravention of the Policy 
constituted a valid reason for dismissal” it was the case that not every established breach of a 
requirement of workplace policy will constitute a valid reason for dismissal.116 After 
affirming the applicant had been unfairly dismissed albeit for different reasoning to that 
employed at first instance, the Full Bench did not disturb either the order for reinstatement or 
the order for lost pay.117

[125] The order for lost pay, with a 50% reduction was dealt within the Deputy President’s 
decision in this way:

“[141] An order to restore lost pay does not necessarily follow an order for 
reinstatement.  The Commission ‘may make any order that it considers appropriate’
(my emphasis); thus, it is a discretionary exercise to be undertaken by the 
Commission.  However, where an employee has engaged in misconduct, the 
Commission may refuse to make any order to restore lost pay or make an order for part 
payment of lost remuneration.

                                               
114 Kenley v JB Hi Fi (unreported) (2000) AIRCFB Print S7235 at [36].
115 [2019] FWC 8412.
116 Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [35].
117 Ibid, [42].








[2020] FWC 5784

38

[142] In the circumstances of this matter, I have concluded that restoration of full lost 
remuneration would not be appropriate.  I determine that Mr Hilder should receive 
50% of the amount of lost remuneration he would have otherwise received had he not 
been dismissed, less any income earnt by him since his dismissal.  While Mr Hilder’s 
dismissal was unfair, his conduct was nevertheless a serious lapse of judgment, which 
he readily acknowledged was a mistake.  It will also serve as a timely reminder of the 
seriousness this Commission regards the health and safety of employees and the public 
in this inherently dangerous industry, and the obligations on employees to ensure they 
always conduct themselves consistent with this objective.”118

[126] The deduction of 50% from the order for lost remuneration must be seen against the 
particular facts of the Hilder matter.  The misconduct in question was that the applicant failed 
a random urine drug test and tested positive for cannabis metabolites.  He later agreed he had 
smoked cannabis the night before attending for work.  He was 63 years of age at the time of 
dismissal and had worked for Sydney Trains for 6 years.  The restoration of lost pay order 
was pertinent to the period between the 26 April 2019 and 21 days after the date of the 
decision on 12 December 2019 by when reinstatement was required.

[127] Similar reasoning was adopted by Deputy President Saunders in the recent matter of 
Geoffrey Dyson v Centennial Myuna Pty Ltd.  After estimating that the applicant’s lost 
earnings were in excess of $100,000, the Deputy President concluded a deduction of three 
months earnings was appropriate,119 noting that this represented about half the period of lost 
earnings.  The applicant in that matter had been found to have committed serious safety 
breaches, which amounted to misconduct, but that termination of employment was harsh.

[128] I consider it to be appropriate to make an order for lost remuneration but with a 
reduction to take account of Mr Johnson’s conduct which led to his dismissal.  The 
circumstances in which he was dismissed, together with my findings about whether there was 
a valid reason for his dismissal, lead me to consider it appropriate that there be an order to 
restore lost pay.  While that is so, I have made findings about his conduct which require being 
taken into account.  In particular, I have found that he did not do everything he could have
done in order to test that the palletiser was fully isolated and he did not establish that the 
safest access and egress to the palletiser area was through the hinged access panel.

[129] Mr Johnson’s evidence is that he was unfamiliar with the palletiser, and especially so 
given that he was to work on his own.  He should have drawn that to the attention of the 
supervisor, Mr Shah, and either requested further information or the provision of assistance.

[130] I consider in the circumstances it to be appropriate to make a 15% deduction for these 
circumstances from the restoration of lost pay order.  A deduction in the order of that made in 
Hilder or Dyson would be unwarranted and likely excessive given the level of contribution 
which can be indicated as attributable to Mr Johnson’s actions.

[131] In forming my view about the nature of an order for lost remuneration, I have also 
taken into account that Mr Johnson was cooperative with Chelgrave and CUB about the near 
miss incident and its causes.  That cooperation was to his credit.

                                               
118 [2019] FWC 8412.
119 [2020] FWC 5486, [95].








[2020] FWC 5784

39

[132] While satisfied there is a sufficient level of trust and confidence in order to make the 
relationship viable and productive that it is appropriate to order reinstatement I have also 
considered whether there should be any discount applied for reason of the general behavioural 
or conduct concerns held by Chelgrave, but do not apply any discount. Firstly, I have not 
found the matters were sufficiently put to Mr Johnson as to constitute disciplinary counselling 
or warnings.  While there were some efforts to discuss some of the matters, they were not 
significant or to be relied upon.  Secondly, I do not accept they were concerns actually held by 
Chelgrave; at best it was acting as a late-coming and out-of-the-loop surrogate on these 
matters for CUB, which in turn never counselled or warned Mr Johnson.  It would be unjust 
to make a deduction from the order for lost pay for these matters.

[133] Even so, Mr Johnson would be living in a fantasy world if he did not now realise that 
his supervisors at CUB thought his level of communications required improvement.  
Demonstrably they do – the lengthy list of recorded concerns speaks to that need, even if they 
had not been put to him as matters that must be addressed.  Mr Johnson is now on notice, 
through this decision, that his performance on these matters must be demonstrably and 
sustainably improved.

[134] I am satisfied with Mr Johnson’s efforts to obtain employment after losing his job with 
Chelgrave.  His witness statement records he has applied for about 4 or 5 jobs since dismissal 
and has not been successful in obtaining alternative employment.  He believes he came close 
to obtaining employment with one firm, but that prospect evaporated after adverse 
commentary from CUB.  There is though, no evidence that such was the case, and I make no 
finding on the subject.  As a result, I am satisfied it is appropriate no deduction from lost 
remuneration is made for reason of Mr Johnson’s efforts to mitigate his loss after dismissal.

[135] After the hearing concluded, and at my request, Chelgrave advised that since Mr 
Johnson’s termination on 28 May 2020, maintenance workers did not work at the CUB 
Abbotsford site because of the COVID-19 pandemic for 5 days between 22 June 2020 and 26 
June 2020.  It is not known what payments, if any were made to the employees concerned, or 
whether any had access to paid leave on those days.  In view of the deduction made by me to 
the restoration of lost pay order I do not consider it necessary to make a further deduction for 
the impact of the COVID-19 pandemic.

[136] No deduction is to be made for Mr Johnson’s earnings after he was dismissed.  He had 
not earned anything after being dismissed and at the time of the hearing, on 22 September 
2020, was not in employment.

[137] No deduction is made from the order for lost pay for any social security payments Mr 
Johnson may have received after dismissal.  Any question which arises about an obligation to 
repay those benefits is a matter between Mr Johnson and the relevant authority and is not a 
relevant consideration for the purpose of determining the amount of lost pay ordered.

[138] The period since Mr Johnson’s dismissal and the publication of this decision is just 
under 23 weeks [28 May to 4 November].  A 15% deduction will reduce the order for lost pay 
by an amount of slightly more than 3 weeks.  I do not consider the remaining amount to 
require further adjustment in the overall circumstances of this matter because it is 
disproportionately high or low.








[2020] FWC 5784

40

Reinstatement to where?

[139] Questions arise about the interrelated matters of the nature of the position in which Mr 
Johnson was employed immediately before his dismissal as well as the capacity and 
desirability of the Commission reinstating Mr Johnson to work at CUB Abbotsford.

[140] I am satisfied the Commission may order reinstatement to the CUB Abbotsford site.

[141] As recorded at the start of this decision the offer of employment made to Mr Johnson 
refers both to the classification of “Maintenance Fitter C7” as well as “C10 Maintenance 
Fitter” with his actual pay level set in accordance with the Chelgrave Enterprise Agreement, 
with him having been paid at the C7 level.

[142] I find that position to be as a Maintenance Fitter at the CUB Abbotsford site and 
remunerated at the C7 level of the Chelgrave Enterprise Agreement.  While Mr Johnson’s 
initial contract of employment refers to him being a “C10 Maintenance Fitter” with no 
specific place of work, there is clear evidence before me that at some time after his initial 
employment, if not from the time of initial employment, he has been continuously engaged at 
the C7 level, working at all times at the CUB Abbotsford site. Reinstatement as a C7 
Maintenance Fitter at the CUB Abbotsford site will be consistent with the reasoning of the 
High Court in Blackadder v Ramsey Butchering Services Pty Ltd, involving a matter arising 
under predecessor legislation:

“The central issue in this appeal is one of statutory construction.  What is meant in s 
170CH(3)(a) by “an order requiring the employer to reinstate the employee by … 
reappointing the employee to the position in which the employee was employed 
immediately before the termination”.  In particular, what is meant in that provision by 
“position”?

“Position”, when used in s 170CH(3)(a), refers to the place in the employer’s 
commercial structure which the employee occupied before termination.  It refers not 
only to the pay and other benefits which an employee may earn in a position, but also 
to the work which the person filling that position does.  It follows that an employer, 
ordered to reinstate an employee by reappointing the employee to the position in 
which the employee was employed immediately before the termination, not only must 
recommence paying or providing the financial or other benefits attached to the 
position, but also must put the employee back to the performance of those duties 
which the employee was fulfilling before termination.”120

[143] As a result of the matters set out above an Order is issued by the Commission at the 
same time as this decision, requiring Chelgrave to reinstate Mr Johnson to the position of C7 
Maintenance Fitter at the CUB Abbotsford site; to maintain his continuity of employment and 
continuous service; and to pay him an amount for lost remuneration for the period between 28 
May 2020 and the date on which he is reinstated, taxed according to law. The order will 
require Mr Johnson’s reinstatement within 14 days from the date of this decision.

[144] An order for reinstatement will be issued separately to this decision, which provides 
for the following:

                                               
120 [2005] HCA 22; 139 IR 338 at [42] – [43] (Hayne J).








[2020] FWC 5784

41

a) Pursuant to s.391(1) of the Fair Work Act 2009 (the Act) the Respondent, Chelgrave 
Contracting Australia Pty Ltd, shall reinstate the Applicant, Mr Chaya Johnson, to his 
former position as C7 Maintenance Fitter at the Carlton United Breweries Abbotsford 
site;

b) Pursuant to s.391(2) of the Act, the Respondent shall maintain the Applicant’s 
continuity of employment and the period of the Applicant’s continuous service;

c) Pursuant to ss.391(3) and (4) of the Act, the Respondent shall pay to the Applicant 
all lost remuneration, including superannuation, from the date of dismissal to his 
reinstatement, from which shall be deducted an amount of 15%.  The payment to the 
Applicant is to be taxed according to law;

d) Lost remuneration shall be calculated by reference to Mr Johnson’s average 
earnings, including overtime and other penalties, in the six months prior to him being 
stood down on full pay on 22 April 2020;

e) Reinstatement is to occur within 14 days of the date of this Order;

f) Liberty to apply is given to either party in the event that there is a dispute about the 
calculation of the amount of lost remuneration to be paid.

COMMISSIONER

Appearances:

Mr B. Terzic for the Applicant

Mr S. Lucas for the Respondent

Hearing details:

Melbourne (via video conference);
22 September; 
2020.


OF THE FAIR WORK C AUSTRALIA MMISSION THE SEAL




 



[2020] FWC 5784

42

Final written submissions:

Filed 23 September 2020 for the Applicant;

Filed 23 September 2020 for the Respondent.

Printed by authority of the Commonwealth Government Printer

PR724074








[2020] FWC 5784

43

ATTACHMENT 1 – PREVENTION TABLE – FROM EXHIBIT A2, ATTACHMENT 
CB – 4.

REVENTION - Action Log (Root Cause Elimination & 
Routine Update Actions)
# Date Topic Action Comments Accountability Due 

Date
Status

1 Training
Clarification of 

Zoning and 
labelling

Update zone maps 
and place signage

NV
15/05/

2020
Complete

2 Equipment

Remove 
redundant 
bollards to 

make access to 
motor isolator 

easier

PS
15/05/

2020
Complete

Training
Review training 
for fixed guard 

removal process

Update procedure 
and use case 

examples.
1. Independent audit 

of Draft procedure
feedback to meet 
industry leading 

practice -COMPLETE
2. Isolation hardware 
audit (MPH, Brewing 

& Utilities) -
COMPLETE

3. Present Draft 
procedure and 

hardware 
recommendations to 
safety committee for 

feedback and
implementation

SP 30/6/2020
In 

Progress

Training
Review training 

for LTCT

Training package 
update once 

procedure finalised. 
(Update to discuss 

cases including areas 
with zoning (eg

depal & palletisers) ).

SP 30/7/2020
In 

Progress

Compliance

Update JSA 
forms to 

booklet with 
carbon copies.

Eliminate missing 
JSA & increase audit 

capability with 
greater document 

control
19/05 - JSA feedback 

from all areas in 
progress. Seek 

feedback on JSA 
suggested changes 

through safety 
committee to finalise 
template for printed 

SP 29/5/2020 Delayed








[2020] FWC 5784

44

books

Equipment

Investigate re-
introduction of 

lock box 
stations

Hardware Audit of 
LOTO equipment & 

practice.
Recommendations 
to be presented to 
safety committee - 

09/06/2020 Lock Out 
station audits across 

site commencing. 
MPH completed 
19/05, Utilities & 

Brewing completed 
04/06.

SP 29/5/2020 Complete

Communication Re-
communicate 
need to isolate 
to machine 
component 
level when 
conducting 
correctives

Send out COMS to 
trades & share in 
L1’s including need 
to “TRY”

PS/BC 4/24/20 Complete

Training
Review machine 

lockout 
procedure

1. HSE - 
Rollout finalised 
Procedure (June)
2. HSE - Update & 
rollout (July)
3. PC’s responsible 
for OWD ongoing

SP 30/6/2020
In 

Progress

Compliance
Safety

Validation 
Frequency

Review 
validations of area, 
muting sensors and 
light curtains

KM/RK/JR 29/4/2020 Complete

0
Training

Update Safety 
validation SOP 
for new muting 

sensor setup

Muting on light 
curtains is 

inconsistent and will 
need some fine 
tuning. This was 
Completed 28th 

April, with Monthly 
validations required 

until 
simplification(muting 
removed) achieved.

RK to update WI. 
Linked to RIA for 6/7

JR 10/7/2020
In 

Progress

1
Equipment

Update SCADA 
Screen Layout 

and Mimics
KM 31/5/2020 Complete








[2020] FWC 5784

45

2
Capex

Install additional 
fixed guards / 

modify existing 
based on new 

zoning 
philisophy.

JR has provided 
new map of 
future state.

Scope up Capex 
required to enable 
simplification of 
zoning, relocate 
estops, remove 
muting of some light 
curtains and provide 
additional gates for 
entry Zone1 and
2. RiA being 
developed for July 
Capital approval 6/7 
approval

JR/SP 31/06
In 

Progress

13 Equipment
Purchase step 

through 
platform

Interim measure 
to climb ontop of 
conveyors to access 
isolators without 
guard removal. 
Ladder purchased

PS 24/06/2020
In 

Progress

14 Communication

Conducted 
toolbox meeting 

with all shifts 
within 24hrs of 

incident

MP 20/04/2020
Com
plete

15 Compliance

Additional 
signage to align 
with depal 
visualization std 
and update 
zone maps. 
(Note zoning 
available SCADA 
screen)

Signage matching 
SCADA screen has 
been updated on 

line. Next action is to 
update based on 

depall visualisation 
stds - reviewing 

techncial resource to 
support. Updates 
completed as per 

line item 11. SCADA 
upgrades to be 
completed with 

CAPEX support as 
per line item 12

KM 20/07/2020
In 

Progress

16 Compliance

Complete safety 
systems 

validation 
program across 

the site and 
maintain on a 9 

monthly 
frequency.
Long term 

program – due 
to stand downs, 

progress 
paused.

Long term program –
due to stand downs, 

progress paused. 
(PS. This should be in 

a monthly rhythm 
for Sherlyn, Ben and 

myself to review 
monthly until 

embedded 
completely)

KM
In 

Progress

17 Training

Conduct 
OWD for 
isolations to 
cover 
operations and 
maintenance 
machine access.

Not 
Started








[2020] FWC 5784

46

18 Training

Refresher 
training in JSA 
including work 
instruction –
MPH trades 
04/06/2020, B1, 
Brewing & 
Utilities to be 
planned.

LG3 trades 
completed prior to 
LG3 overhaul. Plan 

to complete 
refresher training 
before B1 and Can 

Line overhaul. Team 
Leader training 10 & 

13th July

SP 30/08/2020
In 

Progress

Cases cited by this decision: