Mr Gregory Brass v KDR Victoria Pty Ltd - [2022] FWC 2527

1

Fair Work Act 2009 
s.394—Unfair dismissal

Gregory Brass
v
KDR Victoria Pty Ltd t/a Yarra Trams
(U2022/5588)

DEPUTY PRESIDENT COLMAN MELBOURNE, 21 SEPTEMBER 2022

Unfair dismissal application – horseplay at the tram depot – whether valid reason for dismissal 
– whether dismissal proportionate to conduct – dismissal unfair – reinstatement ordered

[1] Mr Gregory Brass has made an application for an unfair dismissal remedy under s 394 
of the Fair Work Act 2009 (Act). For over eleven years Mr Brass was employed as a tram driver 
by KDR Victoria Pty Ltd (company), which trades as Yarra Trams. Mr Brass was dismissed 
following an incident in which he raised his knee in jest towards a colleague’s groin. The 
colleague made no complaint, but the matter was reported. Some ten months earlier, Mr Brass 
had been spoken to by his manager about another incident in which he had jokingly kneed the 
same colleague in the back. He was told not to do this again but was not given a warning under 
the disciplinary procedure in the Yarra Trams Enterprise Agreement 2019 – Operations (2019 
Agreement). The company regarded Mr Brass’s behaviour on both occasions as misconduct 
and dismissed him on notice. Mr Brass contends that there was no valid reason for his dismissal, 
and that dismissal was a disproportionate and manifestly unfair response to what occurred.

[2] There are no jurisdictional objections to the application. I have considered each of the 
four preliminary matters referred to in s 396 and determined that the relevant requirements have 
been met. I will proceed to consider the merits of the application. 

[3] The factual background is largely uncontroversial, however there are several significant 
facts in contention that will require findings to be made. 

Evidence of Mr Brass 

[4] Mr Brass gave evidence that around lunchtime on 23 February 2022, he walked into the 
mess area at the Malvern tram depot after finishing his shift. He saw two colleagues, Brian 
Perry and Romelle Cleur, talking to one another. As he walked past Mr Perry, Mr Brass lifted 
his knee towards Mr Perry’s groin. Mr Brass said that he did not intend to make contact with 
Mr Perry, nor did he do so. Rather, he raised his knee in a playful gesture, as a joke. Mr Brass 
said that he has known Mr Perry for many years, and that they have a good relationship. The 
impetus for his gesture was a remark made by Mr Cleur, who had called out that Mr Perry was 

[2022] FWC 2527

DECISION


AUSTRALIA FairWork Commission




 



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making off with a loaf of bread. Evidently, the jest in the gesture was the notion that Mr Perry 
should be punished for stealing the bread.

[5] Two days later, at the end of his shift on 25 February 2022, Mr Brass was approached 
by Ms Silvana Amendola, the team manager responsible for tram drivers at the Malvern depot. 
Ms Amendola handed him a letter, which stated that he was suspended from work in connection 
with a complaint that involved allegations of misconduct. The letter did not say what the alleged 
misconduct was. It did not identify who the complainant was, or when the alleged misconduct 
was said to have occurred. Despite this, Mr Brass was told not to interfere with the investigation 
in any way or to discuss the matter with anyone inside or outside the company. The letter stated 
that Mr Brass was not to attend work, that the investigation would take three to four weeks, and 
that he would be advised should the expected timeframe change. The letter further stated that 
if the allegations against him were substantiated, he might be dismissed. Attached to the letter 
was a suspension notice, which Mr Brass was expected to sign. The form recorded the details 
of the incident as ‘alleged inappropriate behaviour’. 

[6] Mr Brass said in his evidence that he was in shock and had no idea what the alleged 
misconduct was. He asked Ms Amendola why he was being suspended. She replied that she 
was not allowed to talk about it. Mr Brass asked to speak with his manager, Mr Tarik Sheikh, 
the company’s manager of lines. Ms Amendola then called Mr Sheikh, who told Mr Brass that 
he was unable to disclose anything, and that Mr Brass should sign the suspension letter and go 
home. For several days, Mr Brass was in a Kafkaesque limbo: like Josef K in The Trial, he had 
been accused of something serious but no one would tell him the charge. 

[7] Then on 28 February 2022, Mr Brass received a letter from Ms Amendola stating that 
she was investigating an allegation that he had moved his knee towards Mr Perry’s groin, 
causing him to bend over and move away from him. The letter stated that on 25 June 2021 Mr 
Brass had been given a verbal warning in relation to ‘substantially similar behaviour’ towards 
Mr Perry, in which he had walked up behind Mr Perry in the kitchen and kneed him in the back 
several times while he was seated. The letter further stated that Mr Brass had been told at that 
time that any ‘further similar behaviour’ would result in disciplinary action including dismissal, 
and that Mr Brass had agreed that he would not engage in similar behaviour again. 

[8] Mr Brass gave evidence that he was very surprised by the letter. He said that on 8 May 
2021 he had had a ‘playful interaction’ with Mr Perry, and that they had a playful relationship. 
(This was Mr Brass’s perception: these were not inadmissible conclusory statements, as the 
company suggested.) Mr Brass said that he had prodded Mr Perry in the back with his knee 
while Mr Perry was doing a Sudoku, as a joke, and that they had both laughed. Mr Brass said 
that some six weeks later, Mr Sheikh told him that he had seen CCTV of the incident on 8 May 
2021, and that someone had made a complaint. According to Mr Brass, Mr Sheikh then said: 
‘You are a leader at this depot and you shouldn’t behave in this manner, you should set a better 
example to others.’ Mr Brass said that he would not do it again. 

[9] Mr Brass said that his discussion with Mr Sheikh on 25 June 2021 was brief, casual and 
friendly, and that Mr Sheikh did not mention a verbal warning or say that any further similar 
behaviour could result in disciplinary action or dismissal, as Ms Amendola had claimed in her 
letter. Mr Brass’s evidence was that he would remember if Mr Sheikh had said these things, for 
several reasons. First, he would have found it shocking as he had never received a disciplinary 








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sanction in his life. Secondly, it would have been memorable because it would have been 
inconsistent with the casual and friendly nature of the short discussion. Thirdly, because he had 
been the proxy delegate for the Australian Rail, Tram and Bus Industry Union (RTBU) at the 
Malvern depot for a time, he was aware of the disciplinary process in the 2019 Agreement, 
under which a verbal warning was a formal disciplinary sanction, and he knew that an employee 
had a right to be informed that they could have a representative present at disciplinary meetings. 
Mr Brass said that, had Mr Sheikh given him a verbal warning and referred to possible 
disciplinary action, he would have known that the 2019 Agreement was not being followed, 
and requested a representative. 

[10] On 2 March 2022, Mr Brass attended a meeting with Ms Amendola and his RTBU 
representative. Ms Amendola said that the company had seen CCTV footage from 23 February 
2022 of Mr Brass raising his knee towards Mr Perry’s groin. Mr Brass said that it had been a 
playful interaction, that he had a good relationship with Mr Perry and that they liked to joke 
around with each other. Mr Brass’s evidence was that he told Ms Amendola that he was 
embarrassed and would not do anything like that again. Ms Amendola referred to the earlier 
incident on 8 May 2021 and said that Mr Perry had asked him to stop, and that Mr Sheikh had 
given him a verbal warning. Mr Brass replied that these things were not true. Rather, following 
the incident in May 2021, Mr Perry had said to him words to the effect that they should both 
make sure that they did not get each other into trouble when mucking around. (Contrary to the 
employer’s objection, this evidence is not sought to be admitted for a hearsay purpose). At a 
further meeting on 10 March 2022, Mr Brass and Ms Amendola went over these matters again. 
Mr Brass said that he was sorry for any offence his actions may have caused to anyone who 
witnessed the interaction.

[11] At a meeting on 17 March 2022, Ms Amendola gave Mr Brass two letters. The first 
stated that the allegation that on 23 February 2022 he moved his knee towards Mr Perry’s groin 
was substantiated. It also stated that Mr Sheikh had told Mr Brass, in connection with 
‘substantially similar behaviour’ towards Mr Perry in May 2021, that any ‘further similar 
behaviour’ would result in disciplinary action up to and including termination. The second letter 
asked Mr Brass to show cause why he should not be dismissed (show cause letter). 

[12] In a written response to the show cause letter on 21 March 2022, Mr Brass stated that 
he had not been given a verbal warning in relation to the incident in May 2021, nor was he 
informed of any disciplinary outcome in relation to that matter. Mr Brass acknowledged the 
need for professionalism in the workplace and awareness of how his interactions might be 
perceived by others. He said that he apologised profusely and now that he knew how seriously 
the company took such matters he promised never to engage in such behaviour with Mr Perry 
or anyone else again.  

[13] Mr Brass said that on 23 and 31 March 2022 he attended further meetings with Ms 
Amendola and others concerning his interaction with Mr Perry. On 1 April 2022, Mr Brass sent 
to the company an email attaching written responses to certain questions. On 8 April 2022, Mr 
Brass received an email from Ms Amendola stating that a depot manager, Mr David McKenzie, 
would consider all of the information and make a decision regarding his ongoing employment. 

[14] Nearly a month later, on 5 May 2022, Mr Brass received an email from Ms Amendola 
requesting him to attend a meeting on 10 May 2022. At the meeting, Mr McKenzie told Mr 








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Brass that he was dismissed. Shortly afterwards Mr McKenzie emailed Mr Brass a letter 
confirming his dismissal and stating that he would receive payment in lieu of notice.

Evidence of Ms Amendola

[15] Ms Amendola gave evidence that on 24 February 2022, Mr Sheikh told her that there 
had been an incident involving Mr Brass the previous day in the Malvern depot mess area. She 
and Mr Sheikh viewed the CCTV footage. Ms Amendola was aware of a previous incident in 
the mess area involving Mr Brass and Mr Perry in May 2021. Mr Sheikh told her that he had 
spoken to Mr Brass about that incident and had told him that ‘if he behaved this way again’, he 
could be dismissed. On 25 February 2022, Ms Amendola met with Mr Brass and told him that 
there would be an investigation into a misconduct allegation against him. She also spoke to Mr 
Perry about the incident. Mr Perry told her that he and Mr Brass joked regularly but that ‘they 
were not physical anymore after being spoken to by Tarik’ (Mr Sheikh). Ms Amendola asked 
Mr Perry whether he had asked Mr Brass to stop this behaviour and Mr Perry replied that after 
the first incident he ‘personally spoke to him and warned him’. These words appear in Ms 
Amendola’s file note of her discussion with Mr Perry about the incident on 23 February 2022. 
So do the words: ‘We joke regularly – we are not physical anymore after being spoken to by 
Tarik – it’s all a joke, a laugh.’

[16] Ms Amendola’s evidence was that during her meeting with Mr Brass on 2 March 2022, 
they discussed the incident on 23 February 2022, and Mr Brass said that it was just ‘fun and 
play’ and that although Mr Sheikh had previously told him that he needed to set a better 
example, no warning had been issued about the previous incident. Mr Brass told her that he 
‘never took it seriously’ and that his discussion with Mr Sheikh was a friendly chat. He said 
that he was ‘ashamed’ of his behaviour, that it was wrong and that it would not happen again. 

[17] Ms Amendola said that during the meeting on 10 March 2022, she asked Mr Brass again 
to explain why he had moved his knee towards Mr Perry’s groin, and he repeated that it was 
just playing and joking, and that this was how they normally interacted. Mr Brass said that he 
and Mr Perry had spoken about the June 2021 incident, but that Mr Perry had not asked him to 
‘stop’. Ms Amendola said to Mr Brass that she had spoken to Mr Perry about that incident and 
that Mr Perry had told her that he had asked Mr Brass to stop his behaviour. In fact, her file 
note does not record Mr Perry saying this. Mr Brass replied that he did not remember Mr Perry 
saying anything like that. Ms Amendola told Mr Brass that, given Mr Sheikh had told him that 
this type of behaviour was unacceptable, she had no confidence that he would change his 
behaviour if he was given a final warning. Mr Brass said that he was ashamed of what had 
occurred and that it would not happen again. 

[18] Ms Amendola’s evidence was that on the basis of the CCTV footage, she considered Mr 
Brass’s action in bringing his knee toward Mr Perry’s groin to be misconduct, particularly given 
that he had previously engaged in similar conduct towards Mr Perry. Ms Amendola said that 
she had no doubt that Mr Sheikh had told Mr Brass that the conduct was unacceptable and that 
if it was repeated it could result in dismissal. 

[19] Ms Amendola said that in late March 2022 the RTBU raised a dispute under the 2019 
Agreement, in which the union contended that the company had failed to follow the disciplinary 
procedure in Attachment 1 of the 2019 Agreement. Ms Amendola appended to her witness 








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statement correspondence that passed between the RTBU and the company between 21 and 
28 March 2022. On 28 March 2022, Ms Lauren Drummond, the company’s senior employee 
relations officer, confirmed to the RTBU that the company did not rely on the discussion 
between Mr Sheikh and Mr Brass as a verbal warning. 

[20] Ms Amendola gave evidence that during the meeting of 31 March 2022, she said to Mr 
Brass that, even on his version of the discussion with Mr Sheikh in June 2021, he had not done 
what Mr Sheikh had told him to do, namely not to behave in that manner and to set a better 
example. She asked Mr Brass why he had then engaged in the same behaviour again by lifting 
his knee towards Mr Perry’s groin. Mr Brass said that he did not think that the two incidents 
were similar, and again said that his discussion with Mr Sheikh had been a friendly chat and he 
‘had not taken it seriously’. 

[21] Ms Amendola said that she considered Mr Brass’s behaviour towards Mr Perry on 
23 February 2022 to be unacceptable and inconsistent with appropriate standards of workplace 
behaviour. She believed that Mr Brass had engaged in substantially similar behaviour towards 
Mr Perry the previous year and had been told by Mr Sheikh that his ‘May 2021 conduct’ was 
unacceptable. She said that she was troubled by Mr Brass’s statement that the incident was just 
play or fun, because she believed that it showed Mr Brass did not appreciate the impact that his 
behaviour could have on others, and that he lacked insight into his conduct. Ms Amendola 
considered that Mr Brass’s behaviour had the capacity to create an unsafe or unpleasant working 
environment for Mr Perry and for others who witnessed the behaviour and felt uncomfortable. 
She said that she was troubled by Mr Brass’s statement that he had not taken his discussion 
with Mr Sheikh seriously. She considered that Mr Brass had disregarded what Mr Sheikh had 
said about appropriate standards of behaviour. 

[22] Ms Amendola concluded that dismissal was the appropriate disciplinary outcome. She 
regarded Mr Brass’s behaviour as misconduct because it was conscious and deliberate and in 
breach of a direction. In her witness statement, Ms Amendola said that Mr Brass had been given 
‘fair warning not to behave like this in the workplace: not to invade a person’s personal space 
and/or make physical contact’. She believed that he had ignored that warning. She had no 
confidence that Mr Brass would refrain from similar conduct if given a final warning. On 
11 April 2022 Ms Amendola sent Mr McKenzie a recommendation that Mr Brass be dismissed. 
Ms Amendola said that she and Mr McKenzie went on leave until late April 2022. Mr McKenzie 
then fell ill. It was only on 4 May 2022 that Mr McKenzie approved the recommendation. 

Evidence of Mr Sheikh

[23] Mr Sheikh gave evidence that on 24 June 2021, he received a ‘confidential report’ from 
an employee of an incident that had occurred on 8 May 2021 in the Malvern depot kitchen 
involving Mr Brass and Mr Perry, in which Mr Brass had kneed Mr Perry in the back several 
times. Mr Sheikh watched the CCTV footage. He was disturbed because Mr Perry appeared to 
flinch each time he was kneed, which suggested that Mr Brass had used some force. Mr Sheikh 
said that, while drivers can engage in some ‘horseplay’, Mr Brass’s conduct had gone too far. 
He believed Mr Brass’s conduct had made Mr Perry feel uncomfortable. Mr Sheikh’s evidence 
was that later that day he spoke to Mr Perry about the incident, and that Mr Perry said that he 
did not like this behaviour from Mr Brass and that he wanted it to stop. Mr Perry also said that 
he did not wish for the matter to be dealt with formally. 








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[24] Mr Sheikh said that he considered Mr Brass’s conduct unprofessional and unacceptable, 
and that on 25 June 2021 he spoke to Mr Brass about the matter and asked him to explain. Mr 
Brass said that it was just play. Mr Sheikh replied that this was not play, that it was 
unacceptable, that such behaviour would not be tolerated, and that it had to stop. He told Mr 
Brass that he needed to set a better example. Mr Brass agreed and apologised. Mr Sheikh’s 
evidence was that he then said to Mr Brass that he would be disciplined if he engaged in this 
type of behaviour again, and that he could be sacked for it. In his witness statement, Mr Sheikh 
said that the same day, shortly after his discussion with Mr Brass, he typed up a file note setting 
out his recollection of the discussion, which he attached to his statement. In his oral evidence 
Mr Sheikh corrected this account. I return to this matter below. Mr Sheikh said that he decided 
not to take the matter further and did not commence a process under the disciplinary procedure 
in the 2019 Agreement, even though he considered that Mr Brass had engaged in misconduct. 
In his oral evidence, Mr Sheikh said that he made a conscious decision to deal with the issue as 
he did, and that he took account of the fact that Mr Perry did not wish for it to go any further.

[25] Mr Sheikh said that on 24 February 2022 he received a report, on a ‘confidential basis’, 
of another incident involving Mr Brass and Mr Perry that had occurred the previous day. Mr 
Sheikh and Mr Amendola watched the CCTV footage. Mr Sheikh said that he was very 
surprised by what he saw, as he recalled his discussion with Mr Brass from June 2021, and this 
was ‘the very behaviour’ that he had told Mr Brass not to engage in. Ms Amendola then 
commenced her investigation.

[26] Mr Sheikh said that he disagreed with Mr Brass’s statement that their conversation in 
June 2021 was brief and friendly. He said that it was a serious discussion, and that he could see 
that Mr Brass understood this, because he was shaking. Mr Sheikh said that he specifically 
recalled stating to Mr Brass that he could be sacked if he repeated this type of conduct. He said 
that he was astonished to see CCTV footage of Mr Brass engaging in similar conduct again.

[27] In a reply statement, Mr Brass insisted that contrary to the evidence of Mr Sheikh, their 
discussion in June 2021 was short, and that Mr Sheikh spoke in his usual friendly manner. He 
did not perceive the discussion to be a serious one. He was not shaking or nervous because he 
did not think there was anything to be nervous about. Mr Brass said that when Mr Sheikh told 
him that he was a leader at the depot and should not have behaved in that manner, he took it as 
friendly advice. He understood Mr Sheikh to be saying that the interaction with Mr Perry was 
unbecoming, but not that it was misconduct. Mr Brass denied that Mr Sheikh had said to him 
that his conduct was unacceptable and would not be tolerated. Rather, he said that he should 
not behave in that manner. Mr Brass denied that Mr Sheikh used the words ‘inappropriate’ or 
‘unprofessional’ but agreed that Mr Sheikh told him not to behave the way he did, and that he 
said that he would not do so again. He did not apologise at that time because he was not asked 
to apologise and it was not the type of conversation where he considered an apology was 
expected. Mr Brass said that he was positive that Mr Sheikh did not refer to disciplinary 
consequences if he engaged in the same behaviour again or say that he could be sacked. 

[28] In reply to Ms Amendola’s evidence, Mr Brass said that he and Mr Perry had a 
conversation sometime in late June 2021 in which Mr Perry told him that Mr Sheikh had spoken 
with him about the interaction on 8 May 2021 and that he had told Mr Sheikh that they were 
only joking and that he did not want to complain. Mr Perry had said to him words to the effect 








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that they should be careful not to get each other into trouble when mucking around. Of Ms 
Amendola’s evidence about the meeting on 2 March 2022, Mr Brass said that he had tried to 
tell Ms Amendola that he had not understood how seriously the company regarded the matter. 
Mr Brass said that Ms Amendola was wrong to conclude that he did not appreciate the impact 
that his behaviour could have on others, and that he had acknowledged this in his written 
response to the company on 21 March 2022, stating that he needed to be mindful of how his 
interactions might be perceived by others and that he needed to be professional. In a message 
to the company on 1 April 2022 he had acknowledged that ‘unprofessional interactions do not 
only affect the participants but may also affect people who view the interaction’.

Contentions of the parties

[29] Mr Brass contended that his dismissal was unfair because his conduct on 23 February 
2022 was not sufficiently serious to constitute a valid reason for his dismissal, and in any event 
his dismissal was manifestly harsh because his conduct on that day did not justify this course. 
Whilst the conduct might be viewed as somewhat distasteful or unprofessional, it fell well short 
of being the type of conduct that could constitute misconduct or a valid reason for dismissal. It 
was light-hearted and playful, involving a person with whom Mr Brass had a good relationship. 
Mr Perry did not complain about the conduct and would himself engage in light-hearted and 
playful behaviour. 

[30] Mr Brass submitted that he was not warned that further conduct could result in dismissal, 
and that although the company had initially tried to characterise Mr Sheikh’s statements to him 
in June 2021 as a verbal warning, it later recognised that they were no such thing, because a 
verbal warning would have required the company to comply with the disciplinary procedure in 
the 2019 Agreement, which plainly it did not. Instead the company had sought to reframe Mr 
Sheikh’s statement as a lawful and reasonable direction to Mr Brass not to engage in the 
conduct, but the scope of the direction was unclear and in any event Mr Brass did not breach it 
because the conduct in February 2022 was different from that in May 2021. Whereas in the first 
instance Mr Brass had kneed Mr Perry’s back, in the second he had merely made a motion 
towards Mr Perry without making any contact with him. Mr Brass said that this was different 
and much less serious conduct. In all the circumstances, the decision to dismiss him for this 
conduct was harsh. 

[31] Mr Brass said that reinstatement was the primary remedy prescribed by the Act for 
dismissals which have been found to be unfair, and that there was no good reason why he should 
not be reinstated in this case. Mr Brass said that contrary to the submissions of the company, 
he had insight into his conduct and had agreed never to engage in any similar conduct again as 
he was not a ‘rule breaker’. Mr Brass said that he bore no ill will, and that he would be ‘over 
the moon’ to get his job back.

[32] The company submitted that there was a valid reason for the dismissal of Mr Brass 
constituted by his conduct towards Mr Perry on 23 February 2022. The behaviour was a breach 
of Mr Sheikh’s lawful and reasonable direction on 25 June 2021 that Mr Brass not engage in 
conduct of the kind that occurred in May 2021. Mr Brass’s defiance of the direction amounted 
to misconduct and a valid reason for dismissal.  








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[33] The company submitted that in May 2021, Mr Brass had engaged in an improper 
physical interaction with Mr Perry which amounted to an assault, albeit of a minor nature. Such 
conduct was not to be condoned in a modern workplace. Mr Sheikh had told Mr Brass that this 
conduct was unacceptable, that he was not to do it again, and that further conduct could result 
in dismissal. The company contended that Mr Brass’s misconduct was a serious matter because 
it involved unwanted and unsolicited physical interaction with a work colleague, and an 
invasion of personal space. It was not merely a bit of fun. Although Mr Brass showed some 
contrition, he also refused to accept any wrongdoing.

[34] The company submitted that Mr Brass had done the wrong thing twice. He had been 
warned not to repeat his behaviour of May 2021 but had proceeded to do so, showing that he 
was not able to correct his behaviour. Although Mr Sheikh’s discussion with Mr Brass was not 
one taken under the disciplinary procedure in Attachment 1 of the 2019 Agreement, it was 
nevertheless a serious discussion in which it was made plain to Mr Brass that his conduct was 
unacceptable, that he must not engage in further such conduct in the future, and that if he did, 
it could result in dismissal. 

[35] As to any remedy that might be ordered if the Commission determined that the dismissal 
was unfair, the company said that reinstatement was not appropriate because the bond of trust 
and confidence had been broken, and Mr Brass lacked insight into his misconduct. As to 
compensation, it submitted that the Commission should take into account any finding of 
misconduct in its calculation of compensation as required by s 392(3).

Consideration 

[36] In order for a dismissal to be unfair, the Commission must be satisfied that it was harsh, 
unjust or unreasonable (s 385(b)). Section 387 requires the Commission to take into account 
particular matters in considering whether it is so satisfied. One of these is whether there was a 
valid reason for dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason 
is one that is valid in the sense that it was a good or sufficient reason for dismissal, and also a 
substantiated reason. A valid reason is one that is sound, defensible and well-reasoned. 

[37] It is convenient at this point to set out my factual findings in this matter. 

[38] I find that Mr Brass’s conduct on 8 May 2021 was inappropriate. However, seen in its 
proper context, it was not a grave matter. It was not misconduct. The CCTV footage shows Mr 
Brass walking up behind Mr Perry while he is seated on a stool facing a table, writing on some 
paper. With moderate force, Mr Brass knees Mr Perry three times in succession in the lower 
back or backside. After a few seconds, Mr Brass knees him a fourth time. On each occasion Mr 
Perry is jolted and moves forward slightly. After the first jolt, he continues writing. After the 
second, he looks up from his work. He and Mr Brass appear to talk to a colleague to their left. 
After the fourth jolt, Mr Perry turns to talk to Mr Brass. As Mr Brass walks off out of screen, 
Mr Perry continues to talk to him and puckers his lips, appearing to blow Mr Brass a kiss, and 
then smiles. There is no indication in the video that Mr Perry objects to the behaviour of Mr 
Brass. Mr Perry shows no sign that he is annoyed or disturbed. I accept Mr Brass’s evidence 
that he and Mr Perry had a good relationship. This is also apparent from the video footage. It is 
also clear that Mr Brass’s conduct was well-intentioned. It was most certainly not an assault. 
Nevertheless, it is understandable that Mr Sheikh might be concerned about Mr Brass’s 








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conduct. It is easy to see how this conduct could become tiresome or irritating over time. 
Further, other employees may have apprehended that they too could be the subject of such 
antics, and not wanted this to occur. I find that it was reasonable of Mr Sheikh to speak to Mr 
Brass about the incident.  

[39] As to what Mr Sheikh said to Mr Brass during their discussion on 25 June 2021, I prefer 
and accept the evidence of Mr Brass to that of Mr Sheikh. I found Mr Brass to be a credible 
witness. There were some minor inconsistencies. In his oral evidence he initially denied that 
his conduct on 23 February 2022 was unbecoming, despite having acknowledged this in his 
witness statement. I found that Mr Brass was somewhat nervous in the witness box, and at times 
he was confused by the questions he was asked in cross-examination. Generally however I 
consider that his evidence was clear and convincing, including in respect of his discussion with 
Mr Sheikh in June 2021. He categorically denied that Mr Sheikh told him that he could be 
dismissed if there was further conduct or that there was any mention of disciplinary 
consequences. Mr Brass gave a persuasive explanation for why he would have remembered if 
Mr Sheikh had said these things, including that he would have found it shocking, as he had 
never received a disciplinary sanction before. He was clear that instead Mr Sheikh had told him 
that he needed to set a better example and that he was not to behave in this manner again. 

[40] By contrast, there were several respects in which Mr Sheikh’s evidence contained 
significant inconsistencies, specifically in relation to the conversation of 25 June 2021. In his 
witness statement, Mr Sheikh said that, shortly after his discussion with Mr Brass on 25 June 
2021, he typed up a file note setting out his recollection of the meeting. Mr Brass’s lawyers 
requested from the company an electronic copy of the file note. The document’s electronic data 
properties disclosed that the document was not created on 25 June 2021, but eight months later, 
on 25 February 2022. This was the same day that Mr Brass was suspended in connection with 
the second incident. Mr Sheikh said in his oral evidence that he simply made a mistake in his 
witness statement and that instead it was a handwritten note that he had made shortly after his 
meeting with Mr Brass on 25 June 2021, which Mr Sheikh produced. I find it difficult to accept 
that Mr Sheikh would not remember that he had typed up the file note of the discussion of June 
2021 some eight months later and on the same day that Mr Brass was suspended in respect of 
the second incident. It would be memorable because the typed file note would be of obvious 
potential relevance to any action taken by the company in respect of the second incident, which 
Mr Sheikh and Ms Amendola had discussed the previous day. I note that the truth about when 
the typed file note was created only came to light as a result of investigations by Mr Brass’s 
solicitor. It was not volunteered. 

[41] Why does it matter when Mr Sheikh’s typed file note was created if there was a 
contemporaneous handwritten file note? Because when Mr Sheikh prepared the typed document 
eight months later, he included details that are not found in the handwritten file note. In 
particular, he stated that he had told Mr Brass that his conduct could be described as ‘bullying’, 
and that Mr Brass had agreed. Mr Brass denied this and said that he would have been alarmed 
to hear such a statement. I accept Mr Brass’s evidence. I find that these words were not spoken 
and that the reference to bullying is either an embellishment or a misremembered detail made 
by Mr Sheikh eight months later when he prepared the typed document. Moreover, it is striking 
that the typed file note is a narrative account of the discussion on 25 June 2021, whereas the 
handwritten note is a series of brief bullet points. The narrative in the typed file note has the 








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effect of conveying to the reader an impression of precision that the handwritten note lacks. 
This impression is misleading because the narrative was written eight months after the event.

[42] These matters raise a question about the credibility, or at least the reliability, of Mr 
Sheikh’s evidence about his discussion with Mr Brass on 25 June 2021. I approach that evidence 
with caution.

[43] I accept that Mr Sheikh made the handwritten file note shortly after the meeting on 
25 June 2021, but I do not accept that it is accurate insofar as it records Mr Sheikh having said 
that he told Mr Brass that he could be disciplined and sacked. Perhaps Mr Sheikh believed that 
he had conveyed this impression to Mr Brass. Whatever the reason for Mr Sheikh writing these 
words in the handwritten file note, in the face of Mr Brass’s convincing denial, and in light of 
my concerns about Mr Sheikh’s evidence, I do not accept that the words were spoken. 

[44] Another point of inconsistency in Mr Sheikh’s evidence concerned the scope of the 
instruction that he gave to Mr Brass on 25 June 2021. In his witness statement, Mr Sheikh said 
that he told Mr Brass that he had viewed the CCTV footage of 8 May 2021 and that he told Mr 
Brass that if he engaged in this ‘type’ of behaviour again, he could be sacked for it, suggesting 
that there was a category of behaviour that was the subject of his instruction. But Mr Sheikh’s 
handwritten file note does not refer to any category of behaviour. It states only: ‘Watched 
footage with Perry. Foolish – knew how it looked. Told wasn’t play and not acceptable. Needs 
to stop’. The handwritten file note indicates that Mr Sheikh told Mr Brass not to repeat the 
particular behaviour of 8 May 2021, not some class of conduct. Elsewhere in his evidence Mr 
Sheikh said that he told Mr Brass that ‘such behaviour’ must stop. Mr Sheikh’s evidence about 
the scope of his instruction to Mr Brass is not clear. Despite this, Mr Sheikh went on to say that 
Mr Brass’s conduct on 23 February 2022 was ‘the very behaviour’ that had been discussed with 
him and that he had a clear recollection that he told Mr Brass not to behave ‘like that’, meaning 
the conduct in the second incident. He did not persuasively explain why he regarded the conduct 
in the second incident to be the same as that in the first. Clearly it was not the same. 

[45] In relation to the scope of Mr Sheikh’s instruction, Mr Brass’s evidence was clear and 
consistent. Mr Sheikh had told him that he ‘shouldn’t behave in this manner’. Mr Brass also 
stated that he understood from Mr Sheikh that he was not to make physical contact with others. 
This was a concession potentially against Mr Brass’s forensic interests and underscores further 
his credibility as a witness. 

[46] More generally, I consider the fact that Mr Sheikh decided to deal with the incident on 
8 May 2021 informally rather than under the disciplinary process in the 2019 Agreement is 
more consistent with Mr Brass’s account of the discussion as a ‘friendly chat’ than it is with Mr 
Sheikh’s account of a sombre disciplinary discussion. 

[47] Because I accept Mr Brass’s evidence about the discussion on 25 June 2021, I find that 
Mr Brass was not told that he could be dismissed (or ‘sacked’) if there were to be a recurrence 
of his conduct. However, even if he had received such a warning, I find that Mr Brass’s second 
encounter with Mr Perry on 23 February 2022 did not fall within the scope of the instruction 
that Mr Sheikh had given him. Mr Brass did not behave in the same manner as on 8 May 2021. 








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[48] The CCTV footage of the incident on 23 February 2022 shows Mr Brass walk towards 
Mr Perry, who is standing talking to Mr Cleur and holding a loaf of bread. As Mr Brass 
approaches Mr Perry, barely breaking his slow-paced ambling stride, he pauses briefly and lifts 
his knee gently up towards Mr Perry’s groin, at an angle of some 45 degrees. He does not make 
contact with Mr Perry. In my view it is clear that he does not intend to do so. The motion is not 
sudden, forceful or aggressive. Mr Perry bends forward slightly. This was a reflex. Mr Perry is 
talking to Mr Cleur and would only have seen Mr Brass’s motion in his peripheral vision. Mr 
Perry does not move away. Mr Brass keeps walking and proceeds into the background where 
other workers are seated at tables. Mr Perry continues talking to Mr Cleur. There is not the 
remotest indication that Mr Perry is concerned about Mr Brass’s action, or that he is 
uncomfortable. This feigned punishment of Mr Perry for absconding with the bread was a 
momentary and silly pantomime. It was inappropriate. But there is no basis to conclude from 
the video that it invaded Mr Perry’s personal space, or that it was unwelcome or upsetting to 
Mr Perry or even that it bothered him. 

[49] Mr Brass’s behaviour on 23 February 2022 was not misconduct in its own right. And it 
did not contravene Mr Sheikh’s instruction of 25 June 2021, because it was not a recapitulation 
of the conduct that occurred on 8 May 2021, nor did it fall within any genus of proscribed 
conduct that might be divined from that instruction. Mr Brass’s knee did not make contact with 
Mr Perry. The conduct in the two incidents was not ‘substantially similar’ (as Ms Amendola 
stated in her letters to Mr Brass of 28 February and 17 March 2022). Both incidents had in 
common the superficial fact that Mr Brass directed his knee towards Mr Perry. But the first 
involved a moderate element of force and repeated contact. The second involved no force and 
no contact. In my view there was no attempted contact either. Nor were the two incidents of 
comparable significance, even taking the first incident into account for the purpose of 
evaluating the seriousness of the second. The two incidents were very different. 

[50] I find that Mr Perry was not the victim of unwanted attention from Mr Brass in May 
2021 or February 2022. The evidence does not support such a finding. Mr Sheikh’s evidence 
that Mr Perry told him that he did not like Mr Brass’s behaviour and wanted it to ‘stop’ is 
hearsay to the extent it is relied on to prove the truth of Mr Perry’s statement. I do not exclude 
it, but I afford it no weight. It is not safe to rely on this statement. Mr Perry might have said this 
out of concern not to be implicated in conduct of which the company disapproved or a desire 
to avoid disciplinary action for involvement in horseplay. It would be unfair to rely upon this 
evidence because Mr Brass has not had the opportunity to cross-examine Mr Perry about it. 

[51] The notion that Mr Brass’s conduct was unwelcomed by Mr Perry is inconsistent with 
Mr Brass’s evidence about what Mr Perry said to him. It is also inconsistent with the content of 
Ms Amendola’s file note of her discussion with Mr Perry, in which he said that it was all a joke. 
It appears that Ms Amendola overlooked the actual words that Mr Perry spoke to her, and which 
she recorded in her file note. When she asked Mr Perry whether he had asked Mr Brass to stop, 
he did not say ‘yes’. Instead, Mr Perry said that Mr Sheikh spoke to Mr Brass, and that he 
himself then spoke to Mr Brass ‘and warned him’. I find that what this warning refers to is 
explained by Mr Brass’s evidence that Mr Perry told him they should both be careful not to get 
into trouble by ‘mucking around’. It may be that Mr Perry intentionally gave Ms Amendola an 
ambiguous response to her question. It is not hard to imagine that, after Ms Amendola told Mr 
Perry at the start of their discussion that the company was ‘incredibly concerned’ about Mr 
Brass’s behaviour on 23 February 2022 (see third paragraph at CB126), Mr Perry may not have 








[2022] FWC 2527

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wanted to appear to endorse that conduct. Of course, we will never know, because neither party 
called Mr Perry to give evidence. 

[52] Each party asked me to draw a Jones v Dunkel inference against the other for not calling 
Mr Perry to give evidence. There is no basis to draw such an inference against Mr Brass. There 
was no need for him to call Mr Perry. Mr Brass was content to give direct evidence of his 
relationship with him. Although Mr Brass also gave evidence of what Mr Perry said to him 
following the first incident, this was in response to the company’s evidence about what Mr 
Perry had said to Ms Amendola and Mr Sheikh. On the other hand, the company relied on what 
Mr Perry had said, particularly to Mr Sheikh, to bear out its contention that Mr Brass’s conduct 
was unwelcomed by Mr Perry, which would be relevant to the Commission’s assessment of the 
gravity of the conduct. I consider that the company had more to gain forensically from Mr Perry 
giving evidence than did Mr Brass. As it was the company’s contention that the conduct was 
unwelcome, it was for the company to prove this. It failed to do so. Nevertheless, I do not draw 
a Jones v Dunkel inference against the company.

[53] For completeness, I make the following further findings. First, Mr Brass agreed in cross-
examination that, in light of his discussion with Mr Sheikh on 25 June 2021, he should not have 
behaved as he did on 23 February 2022. I consider that this was simply a recognition that the 
conduct was imprudent or inappropriate. It was not an acceptance that he contravened Mr 
Sheikh’s instruction to him. When asked whether his conduct on 23 February 2022 was the sort 
of behaviour that Mr Sheikh had asked him not to engage in, Mr Brass said firmly ‘no’. 

[54] Secondly, Ms Amendola gave evidence that in the meetings of 2 and 10 March 2022, 
Mr Brass said that he was ashamed of his conduct. In my assessment, this reflected his insight 
that he had done an inappropriate thing, not a grave thing, and that his employer was 
disappointed in him. In this regard, I note that Mr Brass apologised profusely. He had resolved 
never to engage in such conduct again. 

[55] Finally, Mr Brass said to Ms Amendola that he had not taken the discussion with Mr 
Sheikh seriously. I find however that what he meant was that he did not understand how 
seriously the company took the matter. This is consistent with Mr Brass’s evidence about the 
tone and content of his discussion with Mr Sheikh in June 2021 regarding the first incident in 
May 2021.

[56] Returning to s 387, I am not satisfied, in light of my factual findings, that there was a 
valid reason for Mr Brass’s dismissal. His conduct on 23 February 2022 did not amount to 
misconduct. He did not fail to follow a lawful and reasonable direction. Nor did the conduct on 
23 February 2022 constitute misconduct in its own right. It was simply not serious enough to 
amount to misconduct. The absence of a valid reason for dismissal is a weighty consideration 
favouring a conclusion that the dismissal was unfair.

[57] The considerations prescribed by ss 387(b) to (g) are neutral matters in the present case. 
Section 387(b) asks whether the applicant was notified of ‘that reason’, which is a reference to 
the valid reason referred to in s 387(a). There was no valid reason, as I have said. Nevertheless, 
I would not consider the fact that Mr Brass was not notified of a valid reason to be an additional 
factor that points to unfairness. The company notified Mr Brass of the reason that it considered 
to be the valid reason for dismissal. 








[2022] FWC 2527

13

[58] Mr Brass was given an opportunity to respond to the reasons for dismissal (s 387(c)). 
There was no refusal by the company to allow Mr Brass to have a support person present to 
assist at discussions relating to the dismissal (s 387(d)). Mr Brass was not dismissed for 
unsatisfactory performance, therefore s 387(e) is not relevant. The company is a large 
organisation with dedicated human resources management specialists; the considerations in 
ss 387(f) and (g) have no bearing on this matter. That brings me to s 387(h), ‘any other matters 
that the FWC considers relevant’. I consider several others matters to be relevant to the question 
of whether Mr Brass was unfairly dismissed. 

[59] First, there is the question of whether dismissal was a proportionate response to Mr 
Brass’s conduct. In my view, the answer is clearly ‘no’. Upon watching the CCTV footage of 
the incident on 23 February 2022 for the first time, my reaction was to think that there must be 
more footage to come, because surely Mr Brass could not have been dismissed for this. Having 
heard all of the evidence about the incident and its context, including the earlier incident on 
8 May 2021, it is my firm opinion that the conduct was not sufficiently serious to warrant 
dismissal. The decision to dismiss Mr Brass was disproportionate to his conduct. It was harsh. 

[60] Secondly, the company failed to comply with the disciplinary procedure in 
Attachment 1 of the 2019 Agreement in relation to the incident in May 2021. Contrary to the 
company’s contention, it does not have a discretion as to whether it will apply the disciplinary 
procedure. The procedure is part of the 2019 Agreement. It applies on its terms, and when it is 
engaged, its use is mandatory. Clause 12 of the 2019 Agreement states that ‘staff discipline will 
be conducted in accordance with Attachment 1 of this Agreement’. To admonish an employee 
for their conduct and tell them not to do something, as occurred when Mr Sheikh spoke to Mr 
Brass on 25 June 2021, is to engage in ‘staff discipline’. But Mr Sheikh did not conduct the 
discipline in accordance with the procedure. Further, clause 2.1 of Attachment 1 states that 
individuals ‘who may not be conforming to required standards and/or against whom 
disciplinary action is being contemplated, are entitled to be informed’ of the various matters 
set out in subclauses (a) to (g). This is language of broad and mandatory effect. Mr Brass was 
not informed of these various matters. Clause 4.1 of the Attachment then states:

“Where there is clear evidence of misconduct which justifies action, the following 
procedures shall apply:

(a) Interview with verbal warning;
(b) Written advise and instruct;
(c) Written warning;
(d) Final written warning.”

[61] Again, clause 4.1 uses mandatory language (‘shall apply’) but provides for an exception. 
Clause 4.2 states that, ‘while the sequence above would normally be followed, there will be 
some instances of serious misconduct where the first step in the process may result in a final 
written warning, or even a recommendation for dismissal’. 

[62] The company contended that Mr Sheikh’s discussion with Mr Brass in June 2021 was 
simply not an interview with a verbal warning for the purposes of clause 4.1(a). But plainly Mr 
Sheikh thought that there was clear evidence of misconduct, and that ‘action’ was justified: he 








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considered Mr Brass’s behaviour on 8 May 2021 to be misconduct; and he proceeded to take 
action by speaking to Mr Brass and giving him an instruction not to repeat the conduct. The 
fact that Mr Sheikh believed that misconduct had occurred and that action was warranted 
engaged the disciplinary procedure in the 2019 Agreement. 

[63] The company did not apply the disciplinary procedure to Mr Brass in relation to the 
incident on 8 May 2021. Mr Brass was not informed of the matters in clause 2.1. None of the 
steps in the ‘sequence’ set out in clause 4.1 were used. The company did not fully comply with 
the procedure in relation to the incident on 23 February 2022 either. The fact that the dismissal 
occurred in circumstances where the terms of the disciplinary procedure in the 2019 Agreement 
were not followed is a relevant matter under s 387(h) and an additional reason to conclude that 
the dismissal was unfair, because Mr Brass was deprived of his procedural rights. 

[64] Even if I had concluded that the company was not required to follow the disciplinary 
procedure in the 2019 Agreement, I would have considered that it ought reasonably to have 
followed the procedure on a discretionary basis or adopted a similar robust process. Mr Sheikh 
considered that Mr Brass’s conduct on 8 May 2021 was serious and amounted to misconduct. 
A serious disciplinary matter warrants a serious disciplinary process, including a clear statement 
of what is expected of the employee. Mr Brass was not clearly told what the company’s 
expectations of him were. Nor does it appear that the company is entirely clear what the relevant 
standards of behaviour are. Mr Sheikh said in his witness statement that he accepted that drivers 
‘enjoy each other’s company and can engage in some horseplay’. He said in cross-examination 
that some forms of horseplay were acceptable but others were not, and that it was difficult to 
say where to draw the line but perhaps it was where conduct was ‘unexpected or unwanted’. 
He said that bumping someone might be acceptable but it depended on the circumstances. 
Clearly then, making physical contact with a co-worker does not necessarily cross the line of 
acceptable behaviour. Mr Sheikh acknowledged that drivers had not been told which forms of 
horseplay were acceptable and which were not. If Mr Sheikh could not clearly draw the line, 
how could Mr Brass be expected to do so?

[65] Mr Sheikh said that he consciously decided to deal with the matter in the way he did, as 
Mr Perry did not want the matter to be taken further. I do not accept that Mr Perry was a victim 
in this matter, but even if he had been the object of unwanted attention from Mr Brass, Mr 
Perry’s preferences would not have been a good reason not to apply the disciplinary procedure 
in the 2019 Agreement, had this been discretionary. Absent some very compelling reason 
related to the circumstances of a particular case, concern for the sensibilities of an alleged 
workplace victim is not a legitimate reason to derogate from the rights and fair treatment of a 
worker accused of misconduct. By prioritising the interests of an alleged victim, one risks 
creating a victim of the accused. The decision not to follow the disciplinary procedure meant 
that Mr Brass was deprived of the important protections referred to earlier. Further, the 
company did not keep ‘detailed and comprehensive notes’, as clause 6.1 of Attachment 1 would 
have required it to do. These could have provided a clear and objective record of what was said. 
Had the disciplinary procedure been used I consider it likely that Mr Sheikh’s instruction to Mr 
Brass on 25 June 2021 would have been clearer. The second incident might never have 
occurred. 

[66] In my opinion, an additional dimension of harshness in this matter is that the company 
has not adopted a consistent approach to disciplinary action involving what one might broadly 








[2022] FWC 2527

15

refer to as physical horseplay. Mr Sheikh said in cross-examination that he had witnessed 
horseplay in the mess area involving physical contact, including touching on the shoulder, and 
bumping with the shoulder. Evidently employees who engaged in this behaviour were not 
disciplined. The company effectively condoned such conduct. But Mr Brass was dismissed for 
merely raising his knee towards Mr Perry’s groin.

[67] Finally, I take into account Mr Brass’s lengthy period of employment and good record. 
The company submitted that Mr Brass had been the subject of some customer complaints, but 
these were evidently not serious enough to bring to his attention. Mr Brass was a good and loyal 
worker who loved his job. His career as a tram driver was effectively brought to an end at a 
time when he was approaching retirement. This had significant adverse financial and personal 
implications for Mr Brass. In this regard, I respectfully adopt the observations of Mortimer J in 
Trego v Wesbeam Pty Ltd [2019] FCA 1030 at [78] concerning the myriad of important 
dimensions to the role that work plays in the lives of members of the community.

[68] In conclusion, I am satisfied that the dismissal of Mr Brass was unreasonable, because 
there was no valid reason to dismiss him. Even if the reason for dismissal had been regarded as 
valid, it would still have been harsh to dismiss Mr Brass in the circumstances, because dismissal 
was disproportionate to what Mr Brass did. Accordingly, Mr Brass was unfairly dismissed 
within the meaning of s 385 of the Act. 

Remedy

[69] Section 390 provides that, if the Commission determines that a person was unfairly 
dismissed, it may order either reinstatement or compensation. However, compensation can only 
be ordered if the Commission is satisfied that reinstatement is ‘inappropriate’ (s 390(3)(a)). In 
this sense, reinstatement is the primary remedy. In my assessment, reinstatement is clearly 
appropriate in this case. 

[70] The company submitted that its relationship of trust and confidence with Mr Brass had 
broken down, but this is not supported by the evidence. Mr Sheikh said that he would not 
support Mr Brass’s reinstatement because he had been given an instruction not to act in a 
particular way and had then proceeded to do so. But this is not what occurred. Mr Sheikh said 
that in his opinion Mr Brass would not be able to follow instructions in the future. I reject this. 
I am very confident that Mr Brass will follow clear instructions. 

[71] Mr Sheikh said that reinstatement would send the wrong message to employees, by 
which I understand him to mean that employees would believe that they can ignore instructions 
of their employer. But reinstatement would not send any such message. This decision suggests 
nothing of the kind. Mr Sheikh also said that he was concerned about the negative impact that 
reinstatement might have on Mr Perry, but there is no reliable evidentiary basis to conclude that 
there would be any such impact.

[72] Ms Amendola gave evidence similar to that of Mr Sheikh in relation to the question of 
whether Mr Brass should be reinstated. That evidence does not assist the company’s submission 
on this matter, for the reasons given above. Ms Amendola also said that reinstatement would 
disappoint many of the drivers. No evidentiary basis for this statement has been identified. If I 
am to understand that drivers have told Ms Amendola this, it is hearsay, and I place no weight 








[2022] FWC 2527

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on it. In my view, the company’s perspective that there has been a loss of trust and confidence 
in Mr Brass is not soundly and rationally based (see Tenterfield Care Centre Limited v Wait 
[2018] FWCFB 3844 at [15]).   

[73]  Mr Brass said that if he were reinstated, he would bear no grudges, put the past behind 
him, shake hands with his managers and get back to doing the job that he loves. I accept this 
evidence. He has also explained that, while he maintains that his conduct on 23 February 2022 
was a joke and that there was no malice behind it, he now understands that the company 
considers this conduct warrants disciplinary action, and that he will not engage in such conduct 
ever again. I believe him. I note that Mr Brass has not been successful in his efforts to obtain 
alternative employment. In all the circumstances, I consider that it is appropriate to order, under 
s 391(1) of the Act, that Mr Brass be reinstated to the position of tram driver that he held 
immediately before his dismissal.

[74] I further consider that it is appropriate to make an order under s 391(3) of the Act that 
the company pay to Mr Brass the amount of remuneration that he has lost as a result of his 
dismissal. It is appropriate to do so because Mr Brass was dismissed without a valid reason and 
in circumstances where the dismissal was in any event harsh. He has suffered monetary loss. 
Based on Mr Brass’s evidence, I consider that he made reasonable but unsuccessful efforts to 
find employment, including by applying without success for jobs with Metro Trains, V/Line 
and Kmart. Mr Brass earned a gross annual amount of $80,282.80 at the time of his dismissal, 
which is $1543.90 per week. He was dismissed on 10 May 2022, 19 weeks ago. The amount to 
be paid to Mr Brass is $29,334.10, less applicable taxation. 

[75] Mr Brass asked for an order to ‘maintain continuity of service’. This is clearly a 
contention that the Commission should make orders under ss 391(2)(a) and (b) to maintain both 
the continuity of Mr Brass’s employment and the period of his continuous service. It is 
appropriate to do so because Mr Brass was dismissed without a valid reason and in 
circumstances that were harsh. A separate order will be issued to give effect to this decision. 

DEPUTY PRESIDENT

Appearances:
Y. Bakri of counsel for Mr Brass
N. Harrington of counsel for KDR Victoria Pty Ltd

Hearing details:
2022
Melbourne
8 and 12 September 

Printed by authority of the Commonwealth Government Printer
PR746060


EWORK ISSION THE SEAL OF THE F

Cases cited by this decision: