Mr Robert Crook v CITIC Pacific Mining Management Pty Ltd - [2023] FWC 2446

1 

 

Fair Work Act 2009  

s.394—Unfair dismissal 

Robert Crook 

v 

CITIC Pacific Mining Management Pty Ltd 
(U2023/3578) 

DEPUTY PRESIDENT O’KEEFFE PERTH, 22 SEPTEMBER 2023 

Application for relief from unfair dismissal.  Applicant unfairly dismissed.  Reinstatement, 
continuity of employment and service, and restoration of lost pay ordered. 

 

[1] On 27 April 2023, Mr Robert Crook (the Applicant) made an application to the Fair 

Work Commission (the FWC) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a 

remedy, alleging that he had been unfairly dismissed from his employment with CITIC Pacific 

Mining Management Pty Ltd (the Respondent). The Applicant sought reinstatement, restoration 

of lost pay and maintenance of his continuity of service. 

 

Background 

 

[2] The Applicant was employed by the Respondent from 20 August 2020 until 6 April 

2023 as a Dump Truck Operator at the Cape Preston mine site.   

 

[3] On 25 March 2023 a fellow employee, Ms Sarah Kimber (Ms Kimber), made a 

complaint to the Respondent about the Applicant’s behaviour.  Specifically, she claimed that 

the Applicant had, in late December 2022 or early January of 2023 during an end of shift bus 

ride, instigated a sexually explicit conversation with several other employees that took place 

around the seat in which she was sitting.  During this conversation, the complainant claimed 

that the Applicant passed a mobile phone showing explicit images between herself and the 

passenger beside her in a manner such that they were able to clearly see the contents.  Ms 

Kimber further complained that in early March 2023 at a light vehicle park-up area, the 

Applicant stared at her in a lewd manner and remarked to fellow employees “Cooore look at 

that”. 

 

[4]  As a result of this complaint, the Applicant was called to a meeting with his supervisor 

Mr Greg Peillon and Mr Quinton Dowler on 25 March 2023 and asked to make an immediate 

written response to the allegations made by Ms Kimber.  Having made this response, he was 

then stood down pending further investigation. 

 

[5] On 27 March 2023 the Applicant was called to a further meeting with Mr Jason 

Woolaston (Mr Woolaston), Area Manager for Load and Haul at Cape Preston and Mr Steven 

[2023] FWC 2446 

DECISION 


AUSTRALIA FairWork Commission




 



[2023] FWC 2446 

 

2 

Reynolds, Manager of Employee Relations to discuss the allegations against him.  At this 

meeting the Applicant was represented by Mr Andy Duffy, Organiser for the Australian 

Workers’ Union (AWU).  The result of that meeting was that the Respondent undertook to 

investigate the matter further.  The Applicant remained on stand-down but was flown home to 

Perth. 

 

[6] On 6 April 2023 a third meeting was held in the offices of the Respondent in Perth.  

Present were the Applicant, his wife, Mr Michael Reynolds, the Mining Manager for the Cape 

Preston Mine and Mr Peter Stillman, Manager of Industrial Relations for the Respondent.  

AWU Official Mr Duffy attended the meeting via telephone.  The outcome of this meeting was 

that the Respondent terminated the Applicant’s employment. 

 

The hearing 

 

[7] There being contested facts involved, the Commission is obliged by s.397 of the FW 

Act to conduct a conference or hold a hearing. 

 

[8] After taking into account the views of the Applicant and the Respondent and whether a 

hearing would be the most effective and efficient way to resolve the matter, I considered it 

appropriate to hold a hearing for the matter (s.399 of the FW Act). 

 

Permission to appear 

 

[9] The Applicant was represented by the AWU.  As set out in s596(4)(b)(i) of the FW Act, 

the Applicant did not need permission to be represented by the AWU.   

 

[10] The Respondent sought to be represented by counsel.  The Applicant did not object to 

the Respondent being represented.  In addressing s596(2)(a) the Respondent noted, in its 

submissions on representation, the significant factual disagreements between the parties and 

the issues that would inevitably arise from that disagreement, such as the need for careful and 

appropriate cross examination.  The Respondent also made relevant submissions with respect 

to 596(2)(b) and (c).  It is clear that the FWC only needs to find one of the circumstances in 

s596(2) to be applicable and in this instance, I was persuaded that the complexity of the matter 

was such that the efficient conduct of the hearing would be best served by the Respondent being 

granted permission to be represented. 

 

Witnesses 

 

[11] The Applicant gave evidence on his own behalf and the following witnesses also gave 

evidence on his behalf: 

 

• Mr Cooper Flowers (Mr Flowers), co-worker with the Applicant 

• Mr Jay Manu (Mr Manu), co-worker with the Applicant 

• Ms Kim Paterson (Ms Paterson), co-worker with the Applicant 

• (Name Redacted), co-worker with the Applicant 

• Mr Piotr Rogala (Mr Rogala), co-worker with the Applicant 

• Mr Gavin Pearmine (Mr Pearmine), co-worker with the Applicant 

 








[2023] FWC 2446 

 

3 

[12] The following witnesses gave evidence on behalf of the Respondent: 

 

• Mr Michael Reynolds, Mine Manager at the Cape Preston mine site 

• Ms Sarah Kimber, co-worker with the Applicant 

• Mr Jason Woolaston, Area Manager – Load and Haul at the Cape Preston mine site 

• Mr Brynn Boyd (Mr Boyd), Superintendent of Mine Production at the Cape Preston 

mine site 

• Ms Tamara Klimova (Ms Klimova), co-worker with the Applicant 

• Mr Steven Reynolds, Employee Relations Manager at the Cape Preston mine site 

 

Has the Applicant been dismissed? 

 

[13] A threshold issue to determine is whether the Applicant has been dismissed from their 

employment.  In this matter the relevant consideration is as per s386(1)(a) of the FW Act, which 

provides that an Applicant has been dismissed if the Applicant’s employment with the 

Respondent has been terminated on the Respondent’s initiative. 

 

[14] There was no dispute and I find that the Applicant’s employment with the Respondent 

was terminated at the initiative of the Respondent.  I am therefore satisfied that the Applicant 

has been dismissed within the meaning of s.385 of the FW Act.  

 

Initial matters 

 

[15] Under section 396 of the FW Act, the Commission is obliged to decide the following 

matters before considering the merits of the application: 

 

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

 

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

 

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

 

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

 

Was the application made within the period required? 

 

[16] Section 394(2) requires an application to be made within 21 days after the dismissal 

took effect.  It is not disputed and I find that the Applicant was dismissed from his employment 

on 6 April 2023 and made the application on 27 April 2023. I am therefore satisfied that the 

application was made within the period required in subsection 394(2). 

 

Was the Applicant protected from unfair dismissal at the time of dismissal? 

 

[17] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, 

at the time of being dismissed: 

 

(a) the person is an employee who has completed a period of employment with his or 

her employer of at least the minimum employment period; and 








[2023] FWC 2446 

 

4 

 

(b) one or more of the following apply: 

 

(i) a modern award covers the person; 

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

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if 

any) worked out in relation to the person in accordance with the regulations, 

is less than the high income threshold. 

 

Minimum employment period 

 

[18] It was not in dispute and I find that the Applicant was an employee who commenced his 

employment with the Respondent on 20 August 2020 and was dismissed on 6 April 2023, a 

period in excess of 6 months.   It was not in dispute and I find that the Respondent is not a small 

business employer within the meaning of s23 of the FW Act.  I am therefore satisfied that, at 

the time of dismissal, the Applicant was an employee who had completed a period of 

employment with the Respondent of at least the minimum employment period. 

 

Application of an enterprise agreement 

 

[19] It was not in dispute and I find that, at the time of dismissal, the CITIC Pacific Mining 

Operations Agreement 2018 applied to the Applicant’s employment.  I am therefore satisfied 

that, at the time of dismissal, the Applicant was a person protected from unfair dismissal. 

 

Was the dismissal consistent with the Small Business Fair Dismissal Code? 

 

[20] As set out above, I find that the Respondent was not a small business employer.  I am 

therefore satisfied that the Small Business Fair Dismissal Code does not apply. 

 

Was the dismissal a case of genuine redundancy? 

 

[21] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if: 

 

(a) the employer no longer required the person’s job to be performed by anyone because 

of changes in the operational requirements of the employer’s enterprise; and 

 

(b) the employer has complied with any obligation in a modern award or enterprise 

agreement that applied to the employment to consult about the redundancy. 

 

[22] It was not in dispute and I find that the Applicant’s dismissal was not a case of genuine 

redundancy. 

 

[23] Having considered each of the initial matters, I am required to consider the merits of the 

Applicant’s application. 

 

 

 

 








[2023] FWC 2446 

 

5 

Was the dismissal harsh, unjust or unreasonable? 

 

[24] Section 387 of the FW Act provides that, in considering whether it is satisfied that a 

dismissal was harsh, unjust or unreasonable, the Commission must take into account: 

 

(a) whether there was a valid reason for the dismissal related to the person’s capacity or 

conduct (including its effect on the safety and welfare of other employees); and 

 

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

 

(c) whether the person was given an opportunity to respond to any reason related to the 

capacity or conduct of the person; and 

 

(d) any unreasonable refusal by the employer to allow the person to have a support 

person present to assist at any discussions relating to dismissal; and 

 

(e) if the dismissal related to unsatisfactory performance by the person – whether the 

person had been warned about that unsatisfactory performance before the dismissal; 

and 

 

(f) the degree to which the size of the employer’s enterprise would be likely to impact 

on the procedures followed in effecting the dismissal; and 

 

(g) the degree to which the absence of dedicated human resource management 

specialists or expertise in the enterprise would be likely to impact on the procedures 

followed in effecting the dismissal; and 

 

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

 

[25] I am required to consider each of these criteria, to the extent they are relevant to the 

factual circumstances before me.1 

 

[26] I set out my consideration of each below.  

 

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct? 

 

[27] In order to be a valid reason, the reason for the dismissal should be “sound, defensible 

or well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 However, 

the Commission will not stand in the shoes of the employer and determine what the Commission 

would do if it was in the position of the employer.4 

 

[28] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied 

that the conduct occurred and justified termination.5 “The 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.”6  

 








[2023] FWC 2446 

 

6 

Submissions  

 

[29] The Applicant submitted that there was no valid reason for the dismissal related to his 

capacity or conduct because in the first instance, the Applicant was not guilty of the accusations 

made against him.   Additionally, it was submitted that the Respondent’s investigations were 

not conducted with sufficient diligence, resulting in the allegations against the Applicant being 

somewhat vague to the point where it was difficult for him to make a proper response.  The 

Applicant also submitted that some of the explanations provided by him to the Respondent were 

not properly investigated, and as such could not have been properly considered in the process 

of making a decision regarding his guilt.  

 

[30] Further, the Applicant submitted that the Respondent erred by seeking to place the onus 

on him to prove that he did not engage in the alleged activities, rather than discharging its own 

onus to prove to a reasonable standard that he did.  In summary, the Applicant submitted that 

the investigative process was flawed, the Applicant was not given a fair chance to answer the 

allegations against him and it was not open to the Respondent, based on the investigations it 

conducted, to find that he was guilty.  In support of these submissions, the Applicant drew my 

attention to a number of cases.   

 

[31] I was referred to the decision of a Full Bench of what was then the Australian Industrial 

Relations Commission (AIRC) in Department of Social Security v Uink (Uink) which cited the 

following remarks of Heerey J in Schaale v Hoechst Australia: 

 

“It would be harsh, unjust and unreasonable for an employer to dismiss an employee 

summarily in the ground of serious misconduct without taking reasonable steps to 

investigate those allegations and give the employee a fair chance of answering them…”7 

 

[32] I was further invited by the Applicant to consider the finding of another Full Bench of 

the AIRC in Rode v Burwood Mitsubishi, where it was held that: 

 

“… the reason for termination must be defensible or justifiable on an objective analysis 

of the relevant facts. It is not sufficient for an employer to simply show that he or she 

acted in the belief that the termination was for a valid reason.”8 

 

[33] Finally, the Applicant cited the principles from Briginshaw v Briginshaw as set out in 

Barber v Commonwealth as follows: 

 

“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.”9 

 

Given the serious nature of the allegations against the Applicant, it was submitted that a high 

standard of evidence was required to make a guilty finding. 

 

[34] The Respondent submitted that there was a valid reason for the dismissal related to the 

Applicant’s capacity or conduct because he was, based on its investigations, guilty of the 








[2023] FWC 2446 

 

7 

misconduct allegations against him.  Given the nature of that misconduct, it was the 

Respondent’s submission that it provided a valid reason for termination.   

 

[35] The Respondent further submitted that while there were some slight variations in the 

particulars of the allegations against the Applicant to be found over the course of the 

investigative process, these were not material to the central issues.  It further submitted that the 

FWC could, as per the principles from Uink as set out in Hijazi v Calvary Health Care ACT 

Ltd10, give some weight to the findings of the Respondent’s own investigations.  However, the 

Respondent conceded, citing Sydney Trains v Cahil11l, that the FWC needs to satisfy itself based 

on the evidence before it that the misconduct actually occurred.   

 

[36] Finally, the Respondent submitted that given the irreconcilable differences in the 

accounts of the various witnesses, the FWC would be likely to form a view that some witnesses 

may be untruthful.  In that vein, it was submitted that I should: 

 

(a) pay particular attention to inconsistencies and contradictions in the various 

accounts given by the witnesses; and 

(b) have particular regard to the objective evidence and contemporaneous 

documents, where they exist; and 

(c) consider the motivations of those who give evidence and the reasons they might 

have for giving false or incomplete evidence. 

 

Evidence 

 

[37] Whether or not the Applicant actually engaged in the alleged misconduct is clearly the 

single most relevant matter to be considered.  Nevertheless, I have also considered the standard 

of procedural fairness accorded to the Applicant as it may have some bearing on the overall 

fairness of the termination. 

 

[38] I will deal with the two allegations that gave rise to the Applicant’s termination in turn.  

The first allegation relates to conduct on the bus which travels between the worksite and the 

workers’ accommodation at some time during the period 28 December 2022 and 2 January 

2023 inclusive.  The evidence which is relevant to that issue is set out below. 

 

The bus incident 

 

The evidence of Ms Sarah Kimber 

 

[39] Ms Kimber gave a witness statement, to which was appended the Incident Witness 

Statement she submitted to the Respondent in March 2023 to make her complaint about the 

Applicant.  She described how, as a trainee on A crew shift, she was working with the 

employees from B crew shift, which included the Applicant, for a short time but would be 

returning to work with her regular shift within a week.   

 

[40] In her witness statement she described how she came to know who the Applicant was 

and referred to him by his nickname “Crooky”.  It was her evidence that the Applicant and a 

number of other male employees who sat with him at the back of the bus would regularly behave 

in an inappropriate manner.  When questioned on the nature of this behaviour, Ms Kimber gave 








[2023] FWC 2446 

 

8 

evidence that it involved the displaying of inappropriate imagery, such as genitalia and 

pornography, albeit that it was established under cross-examination that Ms Kimber used 

“indecent” and “pornographic” in a somewhat interchangeable fashion.  Nevertheless, it was 

her evidence that the material was not appropriate for the workplace.   

 

[41] In particular, she described an incident during the middle of the week comprised of the 

days Tuesday 27 December 2022 to Monday 2 January 2023, when she was sitting towards the 

back of the bus next to another employee, Ms Tamara Klimova.  Ms Kimber alleged that the 

Applicant had instigated a conversation about objects being inserted into women’s vaginas and 

transgender people whose sex reassignment surgery had suffered complications.  She further 

alleged that the conversation was accompanied by images of such things on mobile phones 

being passed around.  Ms Kimber’s evidence was that as part of this, the Applicant reached 

across her, brushing her shoulder in doing so, to pass a phone showing such an image to a 

person in front of her.  In the act of doing this, Ms Kimber says she was exposed to the image.  

She stated that this action of passing a phone showing an explicit image was repeated by the 

Applicant shortly afterwards and she was again exposed to the explicit image.   

 

[42] Ms Kimber’s evidence was that being exposed to the conversations and the images made 

her feel unsafe, embarrassed, humiliated and belittled in front of other employees.  However, 

as she had only been working for the Respondent for a few days, she did not feel confident in 

making a complaint and thought that given she was due to return to her own shift the following 

week, she should just “put up with it”. 

 

The evidence of the Applicant 

 

[43] The Applicant submitted two witness statements.  He denied the allegation about his 

behaviour in the bus.  His evidence was that he had never had explicit images on his phone at 

work and had never shown such images to anyone.  He denied ever engaging in sexually explicit 

discussions at work.  He denied having handed his phone around on the bus and said that he did 

not believe that anyone else had done so for the purpose of sharing explicit images.  It was the 

Applicant’s evidence that he had no interest in the sort of material alleged to have been passed 

around and that he and the people in his crew did not and would not engage in the alleged 

conversations. 

 

[44] In further evidence, he submitted a seating plan of the bus, based on the places where 

he believed people had sat on 1 January 2023, which was the day he calculated that Ms Kimber 

and Ms Klimova had been sitting together on the bus, based on the swipe card records which 

were appended to the witness statement of Mr Brynn Boyd.  He claimed that, given employees 

were required to wear seatbelts on the bus, it would have been very difficult for him to have 

leaned over and passed anything to a person seated two rows in front of him and at an angle.  

Further, as that day was Perth Cup Day, he would have been focused on betting on horse races. 

 

Witness evidence of Mr Cooper Flowers 

 

[45] Mr Flowers’ evidence was that he had been asked by the Respondent to provide a 

statement about the alleged bus incident.  While he did provide a statement, a copy of it was 

not provided to him. 

 








[2023] FWC 2446 

 

9 

[46] In terms of the alleged incident on the bus, Mr Flowers’ evidence was that he usually 

sat either next to the Applicant or in the row in front of him.  He claimed that he had never 

witnessed the Applicant display any lewd behaviour or disrespect towards female co-workers 

and that he had never seen him pass around pornographic material on his phone.  Mr Flowers 

claimed that the Applicant did not usually show anyone anything from his phone and that he 

usually only used his phone for betting. 

 

[47] He claimed to recall a day when Ms Kimber and Ms Klimova were seated “two to three” 

rows in front of himself and the Applicant.  His evidence was that there may have been some 

sharing of images on his own phone but nothing explicit or inappropriate.  Further, his evidence 

was that he had never been shown explicit images by anyone at work. 

 

[48] In his witness statement in reply, Mr Flowers denied ever having heard any 

conversations about the specific material complained about by Ms Kimber and had never seen 

images of such material at work at any time.  His evidence was that the particular allegations 

were quite specific such that he would have remembered if he had seen such images.  He also 

gave evidence that he did not recall Mr Crook passing his phone to anyone.   

 

[49] Under cross-examination, Mr Flowers rejected the notion, advanced the Respondent, 

that the Applicant was an informal leader of the group of employees who sat together at the 

back of the bus.  He did recall an occasion when Ms Kimber and Ms Klimova were on the bus 

within two or three rows of himself and the Applicant, and confirmed the Applicant had been 

sitting in the back row.  On further questioning by the Respondent he stated that he was unsure 

if Ms Kimber and Ms Klimova had been in the row in front of the Applicant.  Mr Flowers 

rejected the notion that he and the other male employees had been discussing or showing 

inappropriate material.  Under questioning by the Respondent Mr Flowers maintained that if 

the incident had happened he would have been aware of it and further, denied that he was 

confirming the Applicant’s story out of “loyalty to a mate” and a desire not to own up to his 

own misconduct. 

 

 

Witness evidence of Mr Jay Manu 

 

[50] It was Mr Manu’s evidence that he was not asked by the Respondent to provide a 

statement about the alleged bus incident.  He stated that he had been on the bus with the 

Applicant during the days when the alleged incident took place.  Mr Manu did not recall any 

conversations about transgender pornography or videos of such material. 

 

[51] Mr Manu recalled Ms Kimber and Ms Klimova being on the bus with himself and the 

Applicant, but his evidence was that there were no phones passed around on that occasion and 

no inappropriate conversation. 

 

[52] In his witness statement in response, Mr Manu denied ever having heard any 

conversations about the specific material complained about by Ms Kimber and had never seen 

images of such material at work.  His evidence was that the particular allegations were quite 

specific such that he would have remembered if he had seen such images or heard such talk.   

 








[2023] FWC 2446 

 

10 

[53] Under cross-examination, Mr Manu did not accept the notion, advanced by the 

Respondent, that the younger men in the group who sat together at the back of the bus would 

follow the lead of the Applicant.  He confirmed that the Applicant usually sat at the back of the 

bus.   

 

[54] Under questioning by the Respondent, Mr Manu only recalled one day when Ms Kimber 

and Ms Klimova had been on the bus.  It was his evidence in his first statement, and initially 

under cross-examination, that on this occasion they had been sitting five to six rows in front of 

the Applicant.  The Respondent explored with Mr Manu his second statement, which suggested 

that Ms Kimber and Ms Klimova had been two rows in front of the Applicant.  Mr Manu’s 

response was that his second statement had been, essentially, addressing the issue of whether 

he was aware of Ms Kimber and Ms Klimova sitting directly in front of the Applicant and his 

recollection was that they would have been at least two or three rows in front.  Although Mr 

Manu did not recall the Applicant speaking with Ms Kimber and Ms Klimova, he conceded that 

as he may have been wearing his noise-cancelling headphones, he may have missed any such 

conversation. 

 

Witness evidence of Ms Kim Paterson 

 

[55] It was Ms Paterson’s evidence that she was not asked to make a statement about the 

alleged bus incident.  In her statement, she said that she did not recall any commotion or 

anything remarkable taking place on the bus in the period between 28 December 2022 and 3 

January 2023, albeit that she usually sat at the front of the bus so could not see or hear 

everything that went on. 

 

[56] However, Ms Paterson stated that she had never heard the Applicant say anything 

inappropriate in the time she had worked with him and that she did not believe that the Applicant 

would have been involved with looking at explicit images as it was “not his way”.  She 

described the Applicant as a reserved person and said that the allegations against him were 

totally out of character.  She described his attitude towards female employees as being one of 

an “absolute gentleman”. 

 

[57] In her witness statement in response, Ms Paterson denied ever having heard any 

conversations about the specific material complained about by Ms Kimber and had never seen 

images of such material at work.  She also stated that she knew the particular material 

complained about was not the Applicant’s “cup of tea” as she had known him for long enough 

to judge.  Ms Paterson also said that she believed she would have remembered the incident 

given the nature of the particulars of the complaint. 

 

[58] Ms Paterson’s further evidence was that the Applicant would have had difficulty in 

passing a phone between seats if he had been sitting in the middle of the back row of seats on 

the bus, which was where she stated he normally sat.   

 

[59] Under cross-examination, Ms Paterson agreed the Applicant usually sat in the back row 

of the bus and confirmed that there would be some difficulty in passing something between 

seats.  She was asked if she could recall Ms Kimber and Ms Klimova being on the bus and her 

evidence was that she could not.  When questioned about the behaviour of the men at the back 

of the bus Ms Paterson acknowledged that one or two could be loud and she confirmed that 








[2023] FWC 2446 

 

11 

(Name Redacted) was one such person.  She also stated that given her experience of the 

Applicant she was shocked to hear of the allegations. 

 

Witness Evidence of Mr Piotr Rogala 

 

[60] It was Mr Rogala’s evidence that that he was not asked to make a statement about the 

alleged bus incident.  He stated that the Applicant was “not the type” to say anything bad about 

women and that the Applicant had never and would never show pornography to people at work.  

Mr Rogala did not recall the Applicant or anyone else passing a phone around the bus in the 

period between 28 December 2022 and 3 January 2023 and further stated that the Applicant did 

not usually pass his phone around. 

 

[61] Mr Rogala further stated that he did not recall sexually explicit videos or anything 

pornographic being passed around on the bus at any time.  In his witness statement in response, 

Mr Rogala denied ever having heard any conversations about the specific material complained 

about by Ms Kimber and had never seen images of such material at work.  It was Mr Rogala’s 

evidence that he did not think the Applicant would be involved in the activities which were the 

subject of the complaint as he had never heard the Applicant speak about or show anything 

vulgar or sexually explicit at work.   

 

[62] Under cross-examination, Mr Rogala accepted the notion that the Applicant was 

someone that other employees looked up to and someone whose lead could be followed.  His 

evidence was that he could vaguely recall Ms Klimova being on the bus once or twice but could 

not recall where she was sitting or if there was another woman with her.  He confirmed that the 

Applicant would normally sit at the back of the bus.  When questioned about whether he had 

heard any conversations between the Applicant and Ms Kimber and Ms Klimova, Mr Rogala’s 

evidence was that he had not, and could not recall a time when Ms Kimber and Ms Klimova 

had been sitting near the Applicant.  Mr Rogala rejected the Respondent’s suggestion that he 

was covering up for the Applicant because he would also be in trouble. 

 

 

 

Witness evidence of (Name Redacted) 

 

[63] It was the witness’s evidence that that he was not asked to make a statement about the 

alleged bus incident.  The witness did not recall seeing the complainant Ms Kimber on the bus 

during the period in question.  However, his evidence was that he regularly sat next to the 

Applicant on the bus and there had never been any pornography shown, or sexual harassment 

towards co-workers. 

 

[64] In his witness statement in response, the witness denied ever having heard any 

conversations about the specific material complained about by Ms Kimber and had never seen 

images of such material at work.  Additionally, he had never seen the Applicant pass his phone 

around on the bus.   

 

[65] In cross-examination, it was put to the witness that he had been absent on sick leave 

during the period 28 December 2022 to 2 January 2023 inclusive, being the period during which 

the bus incident had allegedly taken place.  The witness denied that he had been on sick leave 








[2023] FWC 2446 

 

12 

during this period despite being shown evidence to the contrary.  The witness did not agree to 

the suggestion put by the Respondent that the Applicant was a leader of the group of employees 

who congregated at the back of the bus.  He conceded that he was often loud but that it was in 

the context of banter with workmates.  He did not concede that the behaviour of the group was 

offensive. 

 

Witness evidence of Mr Gavin Pearmine 

 

[66] It was the evidence of Mr Pearmine that he had been approached by the Respondent to 

provide a statement about the alleged bus incident.  While he did provide a statement, a copy 

of it was not provided to him. 

 

[67] Mr Pearmine did not recall anything out of the ordinary occurring on the bus during the 

period in question.  His evidence was that he usually sat very close to the Applicant but could 

not remember the Applicant showing anyone anything on his mobile phone.  Mr Pearmine 

stated that at no time had he seen a phone with any porn or explicit images being passed around 

the work bus.  His evidence was that while there was banter and occasional coarse language on 

the bus, it was never dirty or degrading. 

 

[68] In his witness statement in response, Mr Pearmine denied ever having heard any 

conversations about the specific material complained about by Ms Kimber and had never seen 

images of such material at work.  He clarified the comment he had made in his Incident Witness 

Statement about a phone being passed around by saying it was not the Applicant unless it was 

to do with betting. 

 

Witness evidence of Ms Tamara Klimova 

 

[69] Ms Klimova recalled the period where she and Ms Kimber had shared the bus with the 

Applicant and a number of other employees.  She stated that the Applicant and the other men 

seated around him would have loud conversations but she generally tried to stay disengaged 

and so was not able to make any comment about the topics discussed. 

 

[70] Ms Klimova’s evidence was that she had seen pictures of women in their underwear 

shown on phones but could not recall who the phones belonged to.  She did recall an incident 

where she was sitting next to Ms Kimber and someone behind her passed a phone between them 

to someone in front of them.  However, she stated that she did not see what was on the phone 

or who passed it, as she believed that people were trying to make her uncomfortable and so she 

was using her headphones and trying to stay disengaged.  When I questioned her as to why her 

evidence was that she thought what was passed was pornography, she explained that her 

thinking was based on what she described as stupid jokes and unprofessional behaviour 

displayed by the men at the back of the bus at the time.  It was her further evidence that this 

kind of behaviour, including the showing of inappropriate images, was very common and 

occurred both during the time she was traveling on the bus with the Applicant and also later 

when she was traveling with her own crew. 

 

[71] Ms Klimova said that when she attended a meeting called by the Respondent to discuss 

the alleged incident, she told the Respondent that she believed that inappropriate pictures were 

being passed around based on the behaviour she observed at the time.  However, she had not 








[2023] FWC 2446 

 

13 

provided an Incident Witness Statement because she had not wanted to get involved.  I asked 

Ms Klimova directly as to why she did not want to get involved and her answer was that she 

did not want to be hated by the crew. 

 

Witness evidence of Mr Michael Reynolds 

 

[72] It was Mr Reynolds’ evidence that while he had not conducted the investigation himself, 

he was provided with the relevant documentation gathered by the investigators for the purpose 

of making a decision.  Those documents were appended to Mr Reynolds’ witness statement. 

 

[73] In his evidence, Mr Reynolds gave a summary of his thinking pertaining to the decision 

to dismiss the Applicant.  It was his view that the allegations against the Applicant had been 

substantiated, as the complainant had a witness who confirmed some of the behaviour and the 

statements from other witnesses had been “non-committal and seemed to be from (the 

Applicant’s) work buddies.”  Mr Reynolds did not think it significant that there had been a 

delay in Ms Kimber making her complaint as he regarded delays in making such complaints as 

not unusual. 

 

[74] Mr Reynolds stated that his first interaction with the Applicant was at a show cause 

meeting held in Perth on 6 April 2023.  Present at that meeting had been himself, Mr Peter 

Stillman from the Respondent’s HR department, the Applicant and his wife, and Mr Duffy of 

the AWU who attended via telephone.   

 

[75] At that meeting, Mr Reynolds’ evidence was that the Applicant had tried to defend 

himself against the allegations but had been told by Mr Stillman that the meeting was not about 

re-visiting the investigation.  Mr Reynolds described the meeting as then becoming “boisterous” 

such that he called a recess to confer with Mr Stillman.  Mr Reynolds stated that he had not 

heard anything from the Applicant in the meeting that had changed his mind and he decided to 

proceed with termination because of CITIC’s responsibility to keep employees safe and that it 

was “important to take a strong stance against this kind of inappropriate behaviour.”   

 

[76] Under cross-examination, Mr Michael Reynolds confirmed that he, along with Mr Peter 

Stillman and Mr Steven Reynolds had jointly made the decision to terminate the Applicant.  He 

conceded that he had taken into account the report that Ms Klimova had seen pornography but 

had not sought to clarify what she meant by pornography.  He conceded that the termination 

recommendation from Mr Steven Reynolds stated that there were two witnesses who saw 

pornography on the bus but that he did not seek to clarify or confirm this.  He further conceded 

that the witness statements that he dismissed as being from the Applicant’s “work buddies” 

were from people whose relationship with the Applicant was unknown to him. 

 

Witness evidence of Mr Steven Reynolds 

 

[77] Mr Reynolds’ evidence was that he had been involved in the second investigation 

meeting with the Applicant and his contemporaneous notes of that meeting formed part of his 

witness statement. 

 

[78] Mr Reynolds’ explained that in that meeting he had asked the Applicant about the 

complaints made by Ms Kimber and provided him with an opportunity to make a response.  Mr 








[2023] FWC 2446 

 

14 

Reynolds’ witness statement and accompanying notes both showed that the Applicant denied 

the allegations against him.  However, it was Mr Reynolds’ evidence that he did not believe 

that the Applicant had been truthful regarding the allegations and that he had formed the view 

that termination of employment was warranted.  I questioned Mr Reynolds regarding the basis 

for his view that the Applicant had not been truthful.  He explained that he had been concerned 

that the Applicant had changed his story after first making an emphatic denial.  This suggested 

to Mr Reynolds that the Applicant had perhaps not been truthful in the first instance.  Mr 

Reynolds also indicated that he was mindful of the demeanour of the complainant, the 

implication being that her level of discomfort was difficult to reconcile with a falsified 

allegation. 

 

[79] At the hearing, Mr Steven Reynolds tendered into evidence records from the 

Respondent’s payroll system that showed the attendances for the Applicant, Ms Kimber and 

(Name Redacted).  These records showed that (Name Redacted) was absent on sick leave during 

the period 28 December 2022 to 2 January 2023 inclusive. 

 

Witness evidence of Mr Brynn Boyd 

 

[80] Mr Boyd’s evidence was primarily about procedure.  His part in the overall process had 

been as the first point of contact for Ms Kimber’s complaint and he had also been present at the 

interview with Ms Kimber and Ms Klimova conducted by Mr Steven Reynolds.  His evidence 

was that during that meeting Mr Steven Reynolds had questioned Ms Kimber about the specifics 

of her complaint and then spoke “…briefly with Tamara at the end.”  Mr Boyd also gave 

evidence about the operation of the swipe card system in use by the Respondent and appended 

to his witness statement were records of swipe card times for various witnesses who gave 

evidence to the FWC in this matter.  Mr Boyd’s statement also had appended to it the details of 

rosters for Ms Kimber and the Applicant for the periods of time under consideration by the 

FWC.   

 

[81] Under cross-examination, Mr Boyd conceded that the Respondent had not checked the 

swipe card records at the time of the termination of the Applicant, even though he agreed that 

they would have been useful and could be used as an indicator of where people were sitting on 

the bus.  He also conceded that the process of interviewing Ms Kimber and Ms Klimova 

together when taking their statements could have potentially reduced the integrity of the 

evidence given by Ms Klimova.   

 

Witness evidence of Mr Jason Woolaston 

 

[82] As with Mr Boyd, Mr Woolaston’s evidence was primarily about procedure.  He had 

attended the meeting held with the Applicant, his AWU Representative and Mr Steven 

Reynolds, but had been a largely passive participant as Mr Steven Reynolds had run the 

meeting. His evidence included some information about the operation of the swipe card system 

used by the Respondent.   

 

[83] Under cross-examination Mr Woolaston conceded that the swipe card records were of 

some value in determining where people were sitting on the bus. 

 

Consideration 








[2023] FWC 2446 

 

15 

 

[84] The reason for termination given by the Respondent in the letter terminating the 

Applicant’s employment was “inappropriate conduct of a sexual nature towards new female 

trainees.”  In the course of the matter being heard by the FWC, it emerged that when considering 

the bus incident, the precise conduct was alleged to have been initiating conversations about 

objects being inserted into women’s vaginas and failed gender reassignment surgeries and 

procuring and sharing images of those things on a mobile phone. 

  

[85] When examining the statements of the various witnesses and reviewing their cross 

examination on this issue, I have found it necessary to be mindful that they are being asked to 

recall incidents some eight months prior, and that for many, the first time they were aware of 

the need to recall such incidents was at least five months after they occurred.  As such, some 

level of confusion and uncertainty is to be expected.   

 

[86] I requested from the Respondent the swipe card records for all of its employees and have 

taken the time to review those swipe card records in some detail.  Although it was suggested by 

Ms Kimber under cross-examination that it was not possible to determine where someone was 

sitting based on the swipe records, I do not agree with her assessment.  It is also the case that 

Mr Boyd and Mr Woolaston conceded that the swipe records were a useful tool in determining 

approximate locations on the bus and if the person was on the first or second bus.  While they 

are not foolproof, they do allow a reader to draw some conclusions with reasonable certainty.  

For example, if two employees are swiped within one second of each other, it is reasonable to 

conclude that they are seated in very close proximity rather than on different buses or at 

different ends of the bus.  I accept that there may be some occasions where, due to faulty cards 

or issues with the swipe reader the assumptions made may be flawed.  However, the witnesses 

who gave evidence on the swipe card process generally supported the proposition that the guard 

with the swipe reader would move from the front of the bus to the back each time and that 

swiping, absent any issues, usually took about a second.  From this and given a review of all 

the card data I am confident that, on balance of probability, I can make a reasonable assessment 

of where relevant people were sitting, if only in a relative sense.   

 

[87] I found this to be necessary as it is probable that, in making their recollections of that 

week, the various witnesses were in some cases likely to have been recalling different days.  

This unreliable recall impacted the evidence of witnesses for both the Applicant and the 

Respondent.  For example, (Name Redacted) was adamant that he had been on site during the 

relevant period, whereas the roster records and swipe card records make it clear that he was not.  

Ms Kimber recalled that she and Ms Klimova shared a bus with the Applicant on each of the 

days in the period 28 December 2022 to 2 January 2023 inclusive.  The swipe card records 

indicate that this is not the case, as on two of the days it is clear from those records that both 

Ms Kimber and Ms Klimova were on a different bus to the Applicant.   

 

[88] It is apparent that the complaint which resulted in the Applicant’s termination related to 

incidents that occurred on one particular day, when Ms Kimber and Ms Klimova were seated 

in close proximity to the Applicant.   Based on all of the evidence I find that the only day when 

this could have occurred is 1 January 2023.  On that day, the swipe card records suggest that 

Ms Kimber and Ms Klimova were seated directly in front of the Applicant and as such if the 

incidents such as the passing of the phone did occur, it would appear that this day was the only 








[2023] FWC 2446 

 

16 

potential day when they could have done so.  For completeness, I set out my analysis of the 

swipe card times for each of the relevant days. 

 

28 December 2022 

 

First swipe entry: 18:05:40 

Regular swipe entries approximately every second until 18:06:25, including Ms Kimber 

at 18:06:00 and Ms Klimova at 18:06:24. 

 

58 second period with no swipe entries. 

 

Next swipe entry 18:07:23 (Kim Paterson) followed by regular swipe entries 

approximately every second until 18:07:44, including the Applicant at 18:07:42, then a 

gap of 1 minute and 7 seconds and then some further swipe entries. 

 

Finding: Ms Paterson’s evidence was that she regularly sat at the front of the second 

bus.  As such, I find that Ms Kimber and Ms Klimova were on the first bus, and the 

Applicant was on the second bus.  I note there is 1 minute and 42 seconds, encompassing 

the 58 second period, plus 28 swipe entries between Ms Kimber and the Applicant. 

 

29 December 2022 

 

First swipe entry: 18:05:44 

Regular swipe entries approximately every second until 18:06:30, including Ms 

Klimova at 18:05:56 and Ms Kimber at 18:06:21. 

 

44 second period with no swipe entries. 

 

Next swipe entry 18:07:14 followed by Kim Paterson at 18:07:16 followed by regular 

swipe entries approximately every second until 18:07:43, including the Applicant at 

18:07:42, then a gap of 37 seconds and one further swipe entry. 

 

Finding: Again, I find that Ms Paterson was sitting at the front of the second bus and 

Ms Kimber and Ms Klimova were on the first bus.  The Applicant was on the second 

bus.  I note there is 1 minute and 21 seconds, encompassing the 44 second period, plus 

29 swipe entries between Ms Kimber and the Applicant. 

 

30 December 2022 

 

First swipe entry: 18:05:50 

Regular swipe entries approximately every second until 18:06:27. 

 

44 second period with no swipe entries. 

 

Next swipe entry 18:07:11 followed by Kim Paterson at 18:07:12 followed by regular 

swipe entries approximately every second until 18:07:37, including Ms Kimber at 

18:07:23, Ms Klimova at 18:07:30 and the Applicant at 18:07:35, then a gap of 1 minute 

and 55 seconds and one further swipe entry. 








[2023] FWC 2446 

 

17 

 

Finding: Again, I find that Ms Paterson was sitting at the front of the second bus, but 

Ms Kimber and Ms Klimova were also on the second bus.  However, there is a gap of 7 

seconds and 6 swipe entries between Ms Kimber and Ms Klimova, suggesting they were 

not sitting together.  The gap between Ms Kimber and the Applicant is 12 seconds and 

11 swipe entries, suggesting they were not seated in close proximity. 

 

31 December 2022 

 

There is no swipe out recorded for Ms Kimber on this day but there is a gap of only 5 

seconds and 5 swipe entries between Ms Klimova and the Applicant, suggesting they 

were in close proximity.  However, given that there were five swipe entries in the 5 

seconds between the swipe entries for Ms Klimova and the Applicant, I think it unlikely 

that Ms Kimber could have been closer to the Applicant than Ms Klimova if indeed she 

was on the bus at all. 

 

1 January 2023 

 

First swipe entry: 18:05:51 

Regular swipe entries approximately every second until 18:06:37. 

 

37 second period with no swipe entries. 

 

Next swipe entry 18:07:11 followed by regular swipe entries approximately every 

second until 18:07:48, including Ms Klimova at 18:07:44, Ms Kimber at 18:07:45 and 

the Applicant at 18:07:47, then a gap of 39 seconds and then some further swipe entries. 

 

Finding: I find that on this day both Ms Kimber and Ms Klimova are seated in very close 

proximity to the Applicant and in all likelihood in the row in from of him. 

 

 

 

2 January 2023 

 

First swipe entry: 17:38:38 

Second swipe entry: 18:04:15 

Third swipe entry: 18:04:16 

Fourth swipe entry: 18:05:34 

Regular swipe entries approximately every second until 18:06:19, including Ms 

Klimova at 18:06:15. 

 

33 second period with no swipe entries. 

 

Next two swipe entries at 18:06:52 followed Ms Paterson at 18:07:09 and then by 

regular swipe entries approximately every second until 18:07:38, including Ms Kimber 

at 18:07:23 and the Applicant at 18:07:35, then a gap of 34 seconds and two further 

swipe entries. 

 








[2023] FWC 2446 

 

18 

Finding: I find that on this day Ms Klimova was on the first bus and Ms Kimber and the 

Applicant were on the second bus.  As there is a gap of 12 seconds and 11 swipe entries 

between Ms Kimber and the Applicant, and there are a number of other people swiped 

within 3 seconds of the Applicant, I find that Ms Kimber was not in close proximity to 

the Applicant. 

 

[89] In reviewing in some detail the evidence given by the various witnesses, and cross-

referencing that evidence with the evidence of other witnesses, including the swipe records for 

the buses, I formed the following views: 

 

Witnesses for the Applicant 

 

The Applicant.  The Applicant was a credible witness who, in the main, gave clear 

answers to questions put to him under cross-examination and was not evasive about the 

main points in his evidence.  The Applicant made concessions about inconsistencies 

between his statements regarding various issues, but these concessions were in the main 

freely given and I was not persuaded that these points were such that they undermined 

the Applicant’s evidence overall.  There was one occasion where there was some delay 

in the Applicant conceding the point however, on reviewing his testimony I believe that 

this was more likely to be a case of the Applicant not fully understanding the nuance of 

the question12 - see transcript PN329 to PN382.   I am also mindful that while the 

Applicant’s answers did vary over the course of the investigation, the submission of 

statements to the FWC and the hearing, he was being asked to recall, with no prompts 

in most cases, events from several months prior.  Further, the information from the 

Respondent also changed over the duration of the matter and so it is unsurprising that 

the Applicant’s answers changed in response. 

 

Mr Cooper Flowers.  Mr Flowers gave his evidence with a calm demeanour and his 

answers to the questions put to him in cross-examination were, in the main, 

straightforward.  From the swipe card records he appears to be seated in very close 

proximity to the Applicant on all of the days in question save for 31 December 2022, 

where he was still reasonably close by.  As such, I find his evidence of his recollections 

of Ms Kimber and Ms Klimova are on balance of probabilities from 1 January 2023, 

notwithstanding the slight variation in his assessment of where they were sitting.  His 

witness statement and comments are broadly consistent with the written statement that 

he gave to the Respondent when requested to do so as part of its investigation in March 

2023.  Although the Respondent suggested that Mr Flowers was perhaps partially 

motivated by protecting himself in making his statement and giving his evidence, it may 

be noted that he has not been employed by the Respondent for several months and as 

such would not appear to be at any risk of repercussions.  I have placed some weight on 

Mr Flowers’ evidence. 

 

Mr Jay Manu.  Mr Manu gave his evidence in a straightforward manner.  He was not 

evasive and did not attempt to avoid questions.  The swipe card records show that he 

was in very close proximity to the Applicant on all of the days in question save for 1 

January 2023, where he was still reasonably close by.  However, his recollection of the 

one day where Ms Kimber and Ms Klimova were on the bus was a day when they were 

not seated directly in front of the Applicant and thus not likely to have been 1 January 








[2023] FWC 2446 

 

19 

2023.  Further, while he claimed that he had not seen any of the alleged images or heard 

any of the alleged conversations, he also conceded that he often wore noise-cancelling 

headphones and so may have been unaware of what was going on in any case.  I have 

not placed any weight on Mr Manu’s evidence. 

 

Ms Kim Paterson.  Ms Paterson was a credible witness who answered all of the questions 

put to her without evasion.  However, her evidence was, in the main, in the nature of a 

character reference for the Applicant.  I do not regard Ms Paterson’s testimony as 

capable of shedding light in relation to the alleged behaviour giving rise to the 

termination.  The swipe card records show, consistent with her own evidence, that Ms 

Paterson usually sat some distance away from the Applicant on the bus.   

 

Mr Piotr Rogala.  Mr Rogala answered the questions put to him in a calm and considered 

manner and did not appear to be evasive.  The swipe card records show him sitting in 

very close proximity to the Applicant on the days in question save for 30 December 

2022 where there was no record of Mr Rogala’s swipe time.  However, Mr Rogala’s 

recollection of Ms Kimber and Ms Klimova, as stated under cross examination, was 

very vague.   He recalled possibly seeing Ms Klimova “once or twice”, could not recall 

where she sat and did not recall if there was another woman sitting next to her.  As such, 

I have not placed any weight on his evidence as regards what may or may not have been 

said or displayed on I January 2023. 

 

(Name Redacted).  I accept the evidence tendered by Mr Steven Reynolds that indicates 

that this witness was not on site during the period in question.  Indeed, this is consistent 

with his own evidence where he states he cannot recall Ms Kimber ever being on the 

bus with him.  As a consequence, I have not given any weight to the evidence of this 

witness. 

 

Mr Gavin Pearmine.  Mr Pearmine was a somewhat erratic witness whose recall of 

events varied between quite precise and nonexistent.  I am not persuaded by the 

Respondent’s suggestion that Mr Pearmine was attempting to cover up what had 

occurred through his testimony.  Having reviewed Mr Pearmine’s evidence, I consider 

that his recall was genuinely poor, and have concluded he was clearly unused to giving 

evidence in a formal setting.  As such, I have not placed any weight on his evidence.   

 

I should note that it was the case that all of the above witnesses provided some degree 

of what were essentially character references for the Applicant.  As with Ms Paterson, I 

have not given any weight to those parts of their evidence. 

 

Witnesses for the Respondent 

 

Ms Sarah Kimber.  Ms Kimber was a reasonably credible witness who generally gave 

direct answers to the questions put to her.  However, there were two issues where I have 

difficulty in accepting her recollection, notwithstanding she was adamant it was 

accurate.  Firstly, there is her evidence in cross-examination regarding the initial 

interview she had with Mr Steven Reynolds and Mr Boyd.  Ms Kimber’s recollection 

of the sequence of that meeting was Ms Klimova being interviewed first, followed by 

herself.  She would not accept the proposition that she had been interviewed first while 








[2023] FWC 2446 

 

20 

Ms Klimova was in attendance.  In justifying her recall, Ms Kimber went as far as 

explaining that she had previously worked at the Department of Justice and as such was 

aware of the need for integrity of evidence and would not have allowed Ms Klimova to 

witness her interview prior to giving her own evidence. 

 

However, it was very clear from the written record of interview and verbal evidence of 

Mr Steven Reynolds and the verbal evidence of Mr Brynn Boyd that in fact, Ms Kimber 

had been interviewed with Ms Klimova present and Ms Klimova was then simply asked 

to confirm what Ms Kimber had said at the end of the meeting.  Indeed, Ms Ong for the 

Applicant pursued Mr Steven Reynolds at some length over this very issue during cross-

examination to make the point that, procedurally, he had erred significantly by allowing 

such a process.   

 

Secondly, Ms Kimber insisted that she had sat next to the Applicant on the bus on one 

of the afternoon journeys when the swipe card evidence indicates quite clearly that this 

did not happen.  There were other instances where Ms Kimber’s recollection was 

incorrect.  She insisted that she rode the bus every day with the Applicant, when the 

evidence clearly indicated that she did not.  Ms Kimber also insisted that the Applicant 

always rode the first bus, when the evidence is clear that he always rode the second bus.  

I do not categorise these instances as being as significant as the two outlined above but 

they contribute to my hesitation about the accuracy of Ms Kimber’s evidence.  While I 

certainly do not regard Ms Kimber as having been untruthful, I find that her recollection, 

although recounted in an emphatic manner, was not entirely reliable.  I outline this not 

to be critical of Ms Kimber because I am mindful that it was her first week at work and 

having been exposed to a large number of new faces and new procedures it may be 

expected that her recall of persons and procedures may not be completely accurate.   

 

Ms Tamara Klimova.  Ms Klimova gave clear answers despite not wanting to be 

involved in the matter due to her apprehension regarding how her involvement would 

be perceived by the crew.  Ms Klimova gave her evidence in a measured and credible 

fashion and was frank when asked if she was appearing as a witness to support Ms 

Kimber.  In answering, Ms Klimova stated that she was not there to support Ms Kimber 

or the Applicant, but rather simply to provide her recollections of what went on.  While 

I have concerns regarding the conduct of the meeting between Ms Kimber, Ms Klimova, 

Mr Steven Reynolds and Mr Boyd because I consider the procedure adopted had the 

potential to taint Ms Klimova’s evidence, I have noted that Ms Klimova did not confirm 

all of Ms Kimber’s allegations.  I am satisfied that Ms Klimova gave honest answers 

based on her genuine recall.   

 

Mr Michael Reynolds.  Mr Michael Reynolds’ evidence was chiefly about the process 

followed by the Respondent in terminating the Applicant.  He was a forthright witness 

who generally answered the questions put to him without any apparent evasion, even 

when those answers may have contributed to a concern about the validity of the process 

followed by the Respondent and the conclusions it had drawn.  I have no reason to doubt 

what Mr Michael Reynolds said in his evidence but even though he was one of the 

decision makers, I have noted he had no direct evidence to give about the actual alleged 

events themselves.   

 








[2023] FWC 2446 

 

21 

Mr Steven Reynolds.  Mr Steven Reynolds was generally a credible witness.  He 

answered questions in cross-examination that called the reliability of his investigation 

into question in a straightforward manner, even when that answer may have not reflected 

well upon him.  However, in the main his evidence was about the process of the 

investigation rather than the facts.  As such, it does not particularly assist in determining 

whether the alleged misconduct occurred.  Mr Steven Reynolds was undoubtedly 

convinced the Applicant was untruthful, but the logic underpinning this conclusion was 

not persuasive.  In Mr Steven Reynolds’ assessment, the fact that the Applicant had, 

when first confronted with the allegations, been somewhat vague and had changed parts 

of his story suggested he was untruthful.  Given the vagueness of the allegations 

themselves and the time that had elapsed since the alleged bus incident, I do not accept 

this assessment.  Mr Steven Reynolds’ other rationale for regarding the Applicant as 

untruthful amounted to a conviction that Ms Kimber would not raise a complaint if it 

were not true.   

 

Mr Jason Woolaston.  Mr Woolaston had no direct evidence regarding the alleged 

behaviours of the Applicant and was only peripherally involved in the investigation 

process.  Many of the questions put to him were about matters over which he either had 

no involvement or no control. On other matters he had no recall but I accept that his lack 

of recall was genuine given the time that had elapsed and the somewhat minor details 

about which has was questioned.  I do not find that there is anything in Mr Woolaston’s 

evidence that assists me. 

 

Mr Bryn Boyd.  Mr Boyd was a credible witness but again, his evidence was only about 

process.  As with Mr Woolaston, his involvement was peripheral and such evidence as 

he gave was mainly about what occurred in the meeting with himself, Mr Steven 

Reynolds, Ms Klimova and Ms Kimber, which was a meeting essentially run by Mr 

Steven Reynolds.  There is nothing in Mr Boyd’s evidence that assists me. 

 

[90] Were this decision to be only about whether or not an appropriate process was followed, 

it would have presented far less difficulty.  In my view the process used by the Respondent was 

deeply flawed and lacked rigour.  As admitted by Mr Steven Reynolds, his recommendation to 

terminate was only based on his joint interview with Ms Kimber and Ms Klimova, and his one 

interview with the Applicant.  While Ms Kimber’s evidence was broadly supported by Ms 

Klimova, I consider that Mr Steven Reynolds ought to have been more circumspect regarding 

Ms Klimova’s evidence, as it was in the form of general agreement with Ms Kimber’s 

allegations which had been made in front of her.  He also clearly did not know that when Ms 

Klimova referred to pornography in that discussion, she was not referring to the kinds of images 

alleged to have been shown but rather to photos of women in underwear and bikinis.  This 

evidence emerged later and as a result of Ms Klimova being asked to provide a witness 

statement for the FWC.  Further, Mr Steven Reynolds’ interview of the Applicant was, based 

on his notes, somewhat superficial in nature and he made his recommendation to terminate 

without investigating the evidence of other witnesses identified by the Applicant.  While Mr 

Steven Reynolds was not the ultimate decision maker, Mr Michael Reynolds conceded in 

response to my question during cross-examination that he had placed some weight on Mr Steven 

Reynolds’ recommendation when making the final decision regarding termination.    

 








[2023] FWC 2446 

 

22 

[91] I put a number of questions to Mr Michael Reynolds regarding various elements of the 

termination process about which I had concerns.  I asked him about the additional witnesses he 

caused to be interviewed regarding the alleged incident.  Three of these witnesses had no 

recollection or were not within the vicinity of the Applicant.   A further two supported the 

Applicant’s version of events.  However, while Mr Michael Reynolds discounted the two who 

supported the Applicant as simply being mates who were standing up for him, he conceded 

under cross-examination that he did not actually know whether the witnesses were indeed 

friends of the Applicant.  Given that this further witness evidence was in favour of the 

Applicant, I asked Mr Michael Reynolds why he had not sought to investigate further.  Mr 

Michael Reynolds could not recall.   

 

[92] I also questioned Mr Michael Reynolds also about the process of the “show cause” 

interview as its purpose seemed unclear.  At that interview, the Applicant sought to present 

evidence that he was not guilty of the allegations.  However, Mr Peter Stillman advised the 

Applicant that he was not permitted to present that evidence. Nevertheless, Mr Michael 

Reynolds in his witness statement said that his decision to terminate the Applicant had been 

based, at least in part, on the fact that the Applicant had not said anything in the “show cause” 

interview to suggest he was not guilty of the alleged behaviour.  I put to Mr Michael Reynolds 

that the Applicant had not said anything to call his guilt into question during the “show cause” 

meeting because he had been forbidden to do so by Mr Stillman. 

 

[93] Mr Reynolds responded that he thought that the investigation had been completed at the 

site by Mr Steven Reynolds and thus there was no reason to re-visit the allegations themselves, 

but he also conceded that he did not know if Mr Steven Reynolds, upon whose recommendation 

to terminate he was in part relying, had interviewed any potential witnesses.   

 

[94] In summary, I find that the process followed by the Respondent was deficient.  The 

initial complainant was interviewed in front of the other witness she named.  Then, based on 

assumed information about certain elements of the claim, for example that the complainant’s 

witness had seen pornography, the Respondent interviewed the Applicant and put some 

accusations to him which were somewhat imprecise.  When the Applicant offered up some 

witnesses to support his version of events, they were not interviewed.    Nor was there a review 

of other data, such as the swipe card records.  The site Employee Relations Manager proceeded 

instead to recommend termination and when the recommendation was received at the 

Respondent’s head office, the evidence suggests there was an assumption that a proper 

investigation had taken place at site.  While the Respondent sought some further evidence, some 

of which supported the Applicant and none of which corroborated the allegation, the 

Respondent nonetheless determined the Applicant had engaged in misconduct, as set out in the 

email of Peter Stillman dated 3 April 2023.  No further opportunity was given to the Applicant 

to respond, meaning that the only chance he had to address the actual allegations was in the one 

meeting on site with Mr Steven Reynolds, at which time he was presented with two allegations 

that had been raised for the first time in somewhat unclear terms on the previous day and 

included an incident dating back three months.  As a result, I am not satisfied the findings of 

the Respondent constituted a valid reason to terminate the Applicant’s employment. 

 

[95] As to whether the Applicant engaged in the alleged misconduct, the evidence that I have 

considered comes primarily from the Applicant, Mr Flowers, Ms Kimber and Ms Klimova.  

While I appreciate that the Respondent identified flaws and inconsistencies in the Applicant’s 








[2023] FWC 2446 

 

23 

evidence, on review there are flaws and inconsistencies in much of the evidence presented by 

both of the parties.   

 

[96] In conclusion, while I am persuaded, particularly by the evidence of Ms Klimova, that 

there was a culture of inappropriate activity on the work buses, I cannot be satisfied on balance 

of probabilities that the particular allegations against the Applicant have been made out. The 

Applicant’s denial has been consistently resolute and is supported by Mr Flowers.  While Ms 

Kimber is also resolute, contemporaneous records raise some issues with the accuracy of her 

recall.  Ms Klimova’s evidence is that she did not see the Applicant pass the phone, nor did she 

see what was on the phone.  In these circumstances, I find that I cannot be comfortable that the 

Applicant is indeed guilty of what is alleged.  I must add that I do not think that Ms Kimber is 

being untruthful, and I suspect she was exposed to some forms of inappropriate behaviour.  I 

am, however, not satisfied that the precise allegations as presented can be attributed to the 

Applicant based on such evidence as has been submitted to the FWC. 

 

[97] The second incident that led to the Applicant’s termination was alleged to have occurred 

in a light vehicle park-up area.  There were only two witnesses who could provide direct 

evidence of this alleged encounter, being the complainant Ms Kimber and the Applicant. 

 

The Light Vehicle Park-up Area Incident 

 

Witness evidence of Ms Sarah Kimber 

 

[98] In her evidence Ms Kimber stated that she had an interaction with the Applicant on or 

about 6 March 2023 near a light vehicle park-up area.  This incident occurred at the end of a 

night shift when she was walking to catch a bus back to camp.  Her evidence was that the 

Applicant was standing near a light vehicle park-up area, and a number of other men were in a 

seating area in close proximity.  She states that as she approached the area where the Applicant 

was standing, the Applicant looked her “up and down, sort of appraising my body” and said 

“Cooore look at that”.  The Applicant claimed that she again felt humiliated and belittled in 

front of a number of co-workers. 

 

Witness evidence of the Applicant 

 

[99] With respect to the incident near the light vehicle park-up area, the Applicant denied 

making the alleged comment and gave evidence that he had not had any interactions with Ms 

Kimber during the time period nominated.  His evidence was that at that time he had been acting 

in a supervisory role and as such, would not have been in the vicinity of the light vehicle park-

up area during the times that Ms Kimber would have been likely to be in that area. 

 

[100] In his witness statement in reply, he clarified this by noting that the allegations that had 

always been put him were, consistent with the wording of Ms Kimber’s initial Incident Witness 

Statement, that the alleged incident had happened at night.  He noted that in her witness 

statement, Ms Kimber was subsequently stating that the interaction took place at the end of a 

night shift and thus in the morning.   

 

[101] The Applicant conceded that on the basis of the allegation being about an interaction in 

the morning there could have been some period where both he and Ms Kimber were in the same 








[2023] FWC 2446 

 

24 

vicinity.  However, his evidence was that this was unlikely as at the time Ms Kimber was 

finishing her shift, he would have been in the pit or alternatively in the company of other 

supervisors who would have overheard what he was alleged to have said.  He continued to deny 

that he had had any interaction with Ms Kimber at the relevant time or said “Cooore look at 

that” to Ms Kimber or any other person.  He did however state that if at any point he had made 

such a comment it may have been to describe a vehicle in the light vehicle park-up area that 

had been badly parked. 

 

Witness evidence of Mr Michael Reynolds 

 

[102] Under cross-examination, Mr Michael Reynolds was asked if he had asked his 

investigators to try to determine who had been the other men present at the light vehicle park-

up area and he conceded that he had not. 

 

Witness evidence of Mr Bryn Boyd. 

 

[103] Mr Boyd in his evidence confirmed that the shift arrangements in place at the time meant 

that a supervisor on day shift would not usually interact with non-leadership employees on night 

shift in the evening, as they would leave the worksite prior to those employees arriving to 

commence their night shift.  He further noted that the Applicant was relieving in a supervisory 

role on day shift at the relevant time and so would have been able to interact with Ms Kimber 

at the end of her night shift.   

 

Witness evidence of Mr Jason Woolaston 

 

[104] Mr Woolaston’s evidence was that contrary to the Applicant’s initial assertion that he 

could not have interacted with Ms Kimber due to the shift patterns, this could have indeed 

happened if Ms Kimber had been completing a night shift and the Applicant had been relieving 

as a supervisor on day shift.  He further submitted that he had checked and confirmed that Ms 

Kimber was indeed on night shift on the day in question. 

 

[105] Under cross-examination, Mr Woolaston was asked about the confusion between 

whether the alleged incident occurred in the morning or at night.  He stated that he thought that 

when the allegations had been put to the Applicant there may have been some confusion over 

whether the alleged interaction was at night, being the end of a day shift, or in the morning, 

being the end of a night shift.  He had raised this with Mr Steven Reynolds after the meeting 

with the Applicant.  He also conceded that the Applicant had, as a result of this confusion, been 

given inaccurate information to which to respond. 

 

Consideration 

 

[106] Both Ms Kimber and the Applicant gave credible evidence on this matter.  Under cross 

examination, neither of them did or said anything to call their evidence into question.  The 

Applicant was challenged by the Respondent for the inconsistency of his evidence on this 

particular issue when considering his first and second statements.  The Applicant made ready 

concessions about those inconsistencies, albeit that he had already provided a credible 

explanation for them.  Ms Kimber was similarly straightforward during cross-examination.  She 








[2023] FWC 2446 

 

25 

also made a ready concession when her attention was drawn to flawed logic in one of her 

statements.   

 

[107] Deciding on whether this incident took place would have been aided by the Respondent 

conducting interviews with potential witnesses.  In her original hand-written statement of what 

happened, Ms Kimber stated that the Applicant had made his comment “to men nearby” 

indicating that there were potential witnesses.  Her witness statement for the FWC goes further 

and indicates that she “heard some of the men giggle”.  Despite this, Mr Steven Reynolds made 

no attempt to identify these potential witnesses and interview them.  I note that the complaint 

was made only 19 days after the alleged incident and so it should not have been difficult to 

determine who may have been in the vicinity. 

 

[108] Nevertheless, in the absence of evidence that may have supported either the Applicant 

or the Respondent it still falls to the FWC to make a determination of whether or not the alleged 

behaviour took place.  In the first instance, I find that the Applicant’s explanation of why his 

story changed is perfectly plausible.  I find that the wording of the initial allegation against him 

was, consistent with the “Investigation Interview Questions” document submitted into 

evidence, that the incident had taken place at night as opposed to in the morning.  On this basis, 

it is understandable that the Applicant initially claimed there would have been no crossover 

between himself and Ms Kimber: as confirmed by Mr Boyd, if the incident had occurred at 

night his claim would be correct.  When the correction was made via Ms Kimber’s witness 

statement, the Applicant quite properly changed his position and conceded that there may have 

been some period where his path may have crossed with Ms Kimber.  This is not inconsistency 

but rather an amendment based on needing to address a changed narrative and, in any case, the 

Applicant readily admitted under cross-examination that his original witness statement was in 

error in light of the new information. 

 

[109] Although making a determination on this particular incident was difficult, I cannot 

conclude on balance of probability that it did take place as alleged.  In making this finding, I 

have relied upon two main points.  Firstly, it was not contested that the Applicant was, at the 

time, acting in a leading hand position.  From this it emerges that it is likely, given the 

unchallenged evidence from the Applicant regarding the activities at the site, that at least some 

of the men who were the apparent witnesses would also have very likely been supervisors.  In 

considering that evidence I find on balance of probabilities that if these men overheard the 

comment, they would have taken some action.   

 

[110] Secondly, and again from the unchallenged evidence of the Applicant, in his leading 

hand role he would likely have already been at the pit by the time Ms Kimber was in the vicinity 

of the light vehicle park-up area.  The swipe records for that day record that the Applicant 

swiped in at 5:13:47am.  Ms Kimber swiped out at 6:06:35am.  This means that she was 

probably at the light vehicle park-up area at about 5:45:00am – some half an hour after the 

Applicant had swiped in.  The Applicant said in his unchallenged evidence that the Supervisors 

would not have allowed him to loiter around without engaging in productive work.  That would 

have involved taking a light vehicle to drive to the pit.  Ms Kimber conceded under cross-

examination that there were a number of vehicles at the light vehicle park-up area.  If this was 

indeed the case, I find that on balance of probabilities the Applicant was likely to have been at 

the pit rather than at the light vehicle park-up area waiting for a vehicle.  As a consequence, I 

cannot be satisfied that the Applicant made the alleged comment to Ms Kimber.  I do not wish 








[2023] FWC 2446 

 

26 

to suggest that Ms Kimber has fabricated her recollections and it may be, for example, that this 

was a case of mistaken identity in gloomy early morning light prior to sunrise.  However, I 

cannot safely conclude, even on balance of probabilities, that the Applicant was the guilty party. 

 

[111]  As I have found that the Applicant did not engage in either of the behaviours for which 

he was terminated, I find that there was no valid reason for termination related to the Applicant’s 

conduct. 

 

Was the Applicant notified of the valid reason? 

 

[112] Proper consideration of s.387(b) requires a finding to be made as to whether the 

applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid 

reason found to exist under s.387(a).13 

 

[113] As I am not satisfied that there was a valid reason related to dismissal, this factor is not 

relevant to the present circumstances.14 

 

Was the Applicant given an opportunity to respond to any valid reason related to their 

capacity or conduct? 

 

[114] As I have not found that there was a valid reason related to dismissal, this factor is not 

relevant to the present circumstances.15  However, I will make the observation that implicit in 

the notion of procedural fairness is that it is not sufficient to simply provide an opportunity to 

respond.  The response must be properly considered, and further investigations made if that 

consideration reveals potential flaws in process or suggests a line of defence not previously 

considered.  While in this case a response was allowed, I am not satisfied that it was properly 

considered. 

 

Did the Respondent unreasonably refuse to allow the Applicant to have a support person 

present to assist at discussions relating to the dismissal? 

 

[115] Where an employee protected from unfair dismissal has requested a support person be 

present to assist in discussions relating to the dismissal, an employer should not unreasonably 

refuse that person being present. 

 

[116] While the Applicant was not represented in the initial meeting with his supervisors, he 

was represented by his Union, the AWU, in his meeting with Mr Steven Reynolds and Mr 

Brynn Boyd and again in his meeting with Mr Michael Reynolds and Mr Peter Stillman.  As 

such, I find that this factor is not relevant. 

 

Was the Applicant warned about unsatisfactory performance before the dismissal? 

 

[117] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant 

to the present circumstances. 

 

To what degree would the size of the Respondent’s enterprise be likely to impact on the 

procedures followed in effecting the dismissal? 

 








[2023] FWC 2446 

 

27 

[118] Neither party submitted that the size of the Respondent’s enterprise was likely to impact 

on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s 

enterprise had no such impact. 

 

To what degree would the absence of dedicated human resource management specialists or 

expertise in the Respondent’s enterprise be likely to impact on the procedures followed in 

effecting the dismissal? 

 

[119] The Applicant submitted that the Respondent’s enterprise did not lack dedicated human 

resource management specialists or expertise.  The Respondent submitted that this 

consideration was not relevant to my considerations.  I find that there was no absence of 

expertise or resources such that the procedures followed would have been impacted. 

 

What other matters are relevant? 

 

[120] Section 387(h) requires the Commission to take into account any other matters that the 

Commission considers relevant.  

 

Submissions 

 

[121] The Applicant submitted that I should take into account a number of other factors.  

Firstly, that the evidence suggested the alleged behaviours would be out of character for the 

Applicant.  As set out above, I did not rely on those parts of the witness evidence that were 

essentially character references.   

 

[122] Secondly, the Applicant submitted that I should be mindful of the Respondent’s attempts 

to shift the burden of responsibility to the Applicant, essentially requiring him to prove that he 

was innocent rather than the Respondent taking responsibility to establish his guilt.  While I 

accept that there was some element of this, I think that my comments above and below on the 

quality of the Respondent’s investigation sufficiently deal with this matter. 

 

[123] Thirdly, it was submitted that I should take into account the poor quality of the 

investigation process.  I have provided my views as to the efficacy of the Respondent’s 

investigations above.  The fact that the Applicant’s termination was recommended based on 

such limited investigations is a serious flaw in the process.  I further find that such additional 

evidence as was sourced by the Respondent following this recommendation was not supportive 

of its finding of guilt.  In summary, I find that the lack of adequate rigour in the process followed 

by the Respondent contributes to the unjustness of the termination.   

 

[124] The fourth submission from the Respondent on this factor was in the nature of an 

unsubstantiated allegation against the Respondent’s management and I have accorded it no 

weight.   

 

[125] The fifth and final submission from the Respondent was in a similar vein to the fourth 

with the addition of some gratuitous advice about cultural change and again I have accorded it 

no weight. 

 

[126] The Respondent made no submission about other relevant matters. 








[2023] FWC 2446 

 

28 

 

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or 

unreasonable? 

 

[127] I have made findings in relation to each matter specified in section 387 as relevant. 

 

[128] I must consider and give due weight to each as a fundamental element in determining 

whether the termination was harsh, unjust or unreasonable.16 

 

[129] Having considered each of the matters specified in section 387 of the FW Act, I am 

satisfied that the dismissal of the Applicant was unjust in that there was no valid reason for 

termination and the conclusions reached by the Respondent were based on an inadequate 

investigative process. 

 

Conclusion 

 

[130] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of 

section 385 of the FW Act. 

 

 

 

Remedy 

 

[131] Being satisfied that the Applicant: 

 

• made an application for an order granting a remedy under section 394; 

• was a person protected from unfair dismissal; and 

• was unfairly dismissed within the meaning of section 385 of the FW Act, 

 

I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of 

compensation to the Applicant. 

 

[132] Under section 390(3) of the FW Act, I must not order the payment of compensation to 

the Applicant unless: 

 

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and 

 

(b) I consider an order for payment of compensation is appropriate in all the 

circumstances of the case. 

 

Is reinstatement of the Applicant inappropriate? 

 

Submissions 

 

[133] The Applicant submitted that reinstatement is appropriate in circumstances where the 

FWC finds that Applicant was dismissed without a valid reason. 

 








[2023] FWC 2446 

 

29 

[134] The Respondent submitted that it did not dispute that reinstatement was appropriate if 

the FWC found that there was no valid reason for termination. 

 

[135] Having regard to the submissions and given the absence of any apparent impediment to 

the Applicant returning to work for the Respondent, I consider that reinstatement is not 

inappropriate.   

 

Reinstatement – to what position should the Applicant be appointed? 

 

[136] Section 391(1) of the FW Act provides that an order for the Applicant’s reinstatement 

must be an order that the Applicant’s employer at the time of the dismissal reinstate the 

Applicant by: 

 

(a) reappointing the Applicant to the position in which the Applicant was employed 

immediately before the dismissal; or 

 

(b) appointing the Applicant to another position on terms and conditions no less favourable 

than those on which the Applicant was employed immediately before the dismissal. 

 

[137] Neither party sought to address the issue of the position to which the Applicant should 

be reappointed.  Given the size of the Respondent’s operation and the nature of the Applicant’s 

job prior to his dismissal, I am satisfied that it is open to me to make an order reappointing the 

Applicant within seven days of the date of this decision to the position in which the Applicant 

was employed immediately before the dismissal. 

 

Reinstatement - is it appropriate to make an order to maintain continuity? 

 

[138] Section 391(2) of the FW Act provides that, if the Commission makes an order for 

reinstatement and considers it appropriate to do so, the Commission may also make any order 

that the Commission considers appropriate to maintain the following: 

 

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

 

(b) the period of the Applicant’s continuous service with the employer or, if applicable, the 

associated entity. 

 

Submissions 

 

[139] The Applicant sought an order to maintain the continuity of his employment and period 

of continuous service with the employer.   

 

[140] The Respondent did not oppose such order if the FWC found there was no valid reason 

for dismissal. 

 

[141] In all the circumstances, I consider it appropriate to make an order to maintain the 

Applicant’s continuity of employment and period of continuous service with the employer. 

 

Reinstatement - is it appropriate to make an order to restore lost pay? 








[2023] FWC 2446 

 

30 

 

[142] Section 391(3) of the FW Act provides that, if the Commission makes an order for 

reinstatement and considers it appropriate to do so, the Commission may also make any order 

that the Commission considers appropriate to cause the employer to pay to the Applicant an 

amount for the remuneration lost, or likely to have been lost, by the Applicant because of the 

dismissal. 

 

[143] Section 391(4) of the FW Act provides that, in determining an amount for the purposes 

of such an order, the Commission must take into account: 

 

(a) the amount of any remuneration earned by the Applicant 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 Applicant 

during the period between the making of the order for reinstatement and the actual 

reinstatement. 

 

[144] An order to restore lost pay does not necessarily follow an order for reinstatement. The 

Commission may only make an order if it considers it appropriate to do so and only make an 

order that the Commission considers appropriate.17 Where an employee has engaged in 

misconduct, the Commission may refuse to make any order to restore lost pay.18 

 

Submissions 

 

[145] The Applicant sought an order to pay lost remuneration to the Applicant, minus the 

period of notice paid by the Respondent. 

 

[146] The Respondent did not oppose such an order if the FWC found there was no valid 

reason for dismissal. 

 

[147] I will seek submissions from the parties regarding the amount of remuneration lost by 

the Applicant from the date of his termination to the date of his reinstatement and issue a 

separate order specifying the amount payable as lost remuneration. 

 

Conclusion 

 

[148] An order will issue for the Applicant to be reinstated into his former position within 

seven days of the date of that order, with continuity of employment and period of continuous 

service to be maintained.  Once submissions on lost remuneration are received and considered, 

a separate order for payment of lost remuneration will issue. 

 








[2023] FWC 2446 

 

31 

 
 

DEPUTY PRESIDENT 

 
Appearances: 
E Ong for the Applicant. 

S Pack for the Respondent. 

 

 
Hearing details: 
2023. 

Perth. 

August 7, 8 and 23. 

 

Printed by authority of the Commonwealth Government Printer 

 

PR766461 

 
1 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, 

Lacy SDP, Simmonds C, 21 March 2002), [69]. 

2 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 

3 Ibid. 

4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. 

5 Edwards v Justice Giudice [1999] FCA 1836, [7]. 

6 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]. 

7 Department of Social Security v Uink 77 IR 244 [at 252]. 

8 Rode v Burwood Mitsubishi 1999 PR4471 [19]. 

9 Briginshaw v Briginshaw (1938) CLR 336; Barber v Commonwealth (2011) 212 IR 1 [93]. 

10 Hijazi v Calvary Health Care ACT Ltd [2021] FWC 13 [74]. 

11 Sydney Trains v Cahill 2021 FWCFB 1137 [38]. 

12 Transcript at paragraphs [PN329] to [PN382]. 

13 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55]. 

14 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), 

[41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49]. 

15 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), 

[41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49]. 

16 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon 

Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice 

[1999] FCA 1836, [6]–[7].  

17 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25]. 

18 See, eg, Regional Express Holdings Ltd v Richards [2010] FWAFB 8753, [29]. 


TE FAIR WORLE SOMECCION




 

https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb762.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb762.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr902108.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb8753.htm

Cases cited by this decision: