[2023] FWC 3339
1
s.394—Unfair dismissal
Nichola Harrop
v
Workpower Incorporated
(U2023/7001)
DEPUTY PRESIDENT O’KEEFFE PERTH, 13 DECEMBER 2023
Application for relief from unfair dismissal – Applicant’s dismissal not harsh, unjust or
unreasonable – application dismissed.
[1] On 31 July 2023, Nichola Harrop (the Applicant) made an application to the Fair Work
Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy,
alleging that she had been unfairly dismissed from her employment with Workpower
Incorporated (Respondent). I find that the Applicant’s dismissal was not harsh, unjust or
unreasonable and my reasons for this decision are set out below.
Background
[2] The Applicant was employed by the Respondent as a disability support worker. On 20
April 2023 the Applicant was scheduled to support Mr Nic Lori (Mr Lori), a client of the
Respondent. The Applicant collected Mr Lori and drove to a car park on Riverside Drive in
central Perth, as she was intending to take Mr Lori bike riding. The Applicant and Mr Lori
arrived at the car park at approximately 9.30am.
[3] What then occurred is disputed between the parties. The Applicant says that Mr Lori
caused damage to her car by head-butting the tailgate while in a state of agitation. The
Respondent does not accept that the damage to the Applicant’s car was caused by Mr Lori.
What is not in dispute is that the Applicant drove Mr Lori to the Respondent’s office in
Cannington, having advised the Respondent’s management of her version of events, and arrived
at around 10.30am. Sometime after their arrival at the Respondent’s office, Mr Lori became
agitated and struck his head on an office wall. I note that both parties accept that this is a
behaviour that has been exhibited by Mr Lori on multiple occasions. The Applicant’s manager,
Mr Ayman Qwaider (Mr Qwaider) managed to calm Mr Lori down and took him for a drive.
[4] While Mr Qwaider and Mr Lori were out of the office, the Applicant filled in two
incident reports about Mr Lori’s behaviour, one for the incident with her car and the other for
the incident with the wall. On 21 April 2023 the Respondent asked the Applicant to file a police
report and lodge a claim with her insurer with respect to the damage. The Applicant completed
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 3339
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both of these tasks on 22 April 2023. The Respondent subsequently asked the Applicant to
complete an insurance claim form for its own insurance brokers and the Applicant completed
this form.
[5] On 10 May 2023 the Respondent advised that its investigation into the alleged incident
of damage to her car was inconclusive, but that it was seeking more information from its
insurance broker to try to determine the cause of the damage. On 30 June 2023 the Respondent
wrote to the Applicant advising that it had formed the view, based on two independent
assessments of the damage, that she had fabricated the details of how the damage had occurred.
The Applicant was then stood down with pay and asked to respond to specific concerns as
detailed by the Respondent. The Applicant made a response and was advised that the
Respondent was considering terminating her employment. The Respondent sought a further
response from the Applicant but having received that response, proceeded to terminate her
employment.
Permission to appear
[6] The Applicant was represented by the United Workers Union. As the Applicant is a
member of the United Workers Union and the United Workers Union is a registered
organisation, then under s 596(4)(b)(i) of the Fair Work Act leave to be represented was not
required.
[7] The Respondent sought leave to be represented by a paid agent. The Applicant did not
object to the Respondent being represented. In addressing s596(2)(a) of the FW Act the
Respondent noted in its submissions that the key issue in the matter involved a dispute about
the facts concerning damage to a motor vehicle. It submitted that expert evidence was likely to
be led by both the Applicant and Respondent and that dealing with such evidence and cross-
examining expert witnesses introduces complexity beyond a simple factual contest and may
involve considering legal principles concerning expert evidence. The Respondent also made
submissions with respect to s596(2)(c) of the FW Act. It noted that the Applicant was
represented by an Industrial Officer of the United Workers Union, a large industrial
organisation with staff who are experienced in conducting cases in the Commission, while the
Respondent’s staff do not have similar training or experience.
[8] To allow representation, I only need to find one of the circumstances in s596(2) of the
FW Act to be applicable. 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
represented by an experienced advocate. As such, permission for the Respondent to be
represented was granted.
Witnesses
[9] The Applicant gave evidence on her own behalf.
[10] Mr David Sim, Ms Natalie Katsaros, Ms Maura Lori and Ms Lee Broomhall gave
evidence on behalf of the Respondent.
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Submissions
[11] The Applicant filed submissions in the Commission on 22 October 2023. The
Respondent filed submissions in the Commission on 3 November 2023.
Has the Applicant been dismissed?
[12] A threshold issue to determine is whether the Applicant has been dismissed from their
employment.
[13] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the
Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because
of conduct, or a course of conduct, engaged in by the Respondent.
[14] Section 386(2) of the FW Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant.
[15] There was no dispute and I find that the Applicant’s employment with the Respondent
was terminated at the initiative of the Respondent.
[16] I am therefore satisfied that the Applicant has been dismissed within the meaning of
s.385 of the FW Act.
Initial matters
[17] 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?
[18] Section 394(2) requires an application to be made within 21 days after the dismissal
took effect.
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[19] It is not disputed and I find that the Applicant was dismissed from her employment on
18 July 2023 and made the application on 31 July 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?
[20] 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
(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.
[21] It was not in dispute and I find that the Applicant was an employee.
Minimum employment period
[22] It was not in dispute and I find that the Respondent is not a small business employer as
defined in the FW Act and the minimum employment period is therefore 6 months.
[23] It was not in dispute and I find that the Applicant commenced her employment with the
Respondent on 4 July 2013 and was dismissed on 18 July 2023, a period in excess of 6 months.
[24] 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.
Applicant’s annual rate of earnings
[25] It was not in dispute and I find that, at the time of dismissal, the sum of the Applicant’s
annual rate of earnings was $69,436.64. There were no additional items or benefits as
contemplated by regulation 3.05 of the Fair Work Regulations 2009 to be considered. As such,
the Applicant’s total earnings were below the high-income threshold of $167,500.
[26] 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?
[27] Section 388 of the FW Act provides that a person’s dismissal was consistent with the
Small Business Fair Dismissal Code if:
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(a) immediately before the time of the dismissal or at the time the person was given
notice of the dismissal (whichever happened first), the person’s employer was a
small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to
the dismissal.
[28] As mentioned above, I find that the Respondent was not a small business employer
within the meaning of s.23 of the FW Act at the relevant time, and I am therefore satisfied that
the Small Business Fair Dismissal Code does not apply.
Was the dismissal a case of genuine redundancy?
[29] 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.
[30] It was not in dispute, and I find that the Applicant’s dismissal was not due to the
Respondent no longer requiring the Applicant’s job to be performed by anyone because of
changes in the operational requirements of the Respondent’s enterprise. I am therefore satisfied
that the dismissal was not a case of genuine redundancy.
[31] Having considered each of the initial matters, I am required to consider the merits of the
Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
[32] 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
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(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.
[33] I am required to consider each of these criteria, to the extent they are relevant to the
factual circumstances before me.1
[34] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[35] 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
[36] 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
Submissions and Evidence
[37] The Applicant submitted that there was no valid reason for the dismissal related to the
Applicant’s capacity or conduct because she had not fabricated the details of the damage to her
car and, as such, had not engaged in any misconduct. It was further submitted that there was
no direct evidence to refute the Applicant’s claim as there were no eyewitnesses. The Applicant
noted the findings of the Federal Court in Edwards v Justice Giudice7, referenced above, where
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 Edwards v Justice Giudice [1999] 94 FCR 561 [6]–[7].
https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
[2023] FWC 3339
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the Court found to determine if there is a valid reason for termination, the Commission must
decide, on the balance of probabilities, whether the alleged conduct actually occurred.
[38] The Applicant further submitted that in cases where the misconduct alleged to have
occurred is regarded as serious misconduct, the Commission should be mindful of the principle
outlined in Briginshaw v Briginshaw, which is summarised 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”.8
[39] The Respondent submitted that there was a valid reason for the dismissal related to the
Applicant’s conduct because she had made a false claim about the damage to her vehicle. The
Respondent’s submission was that it had undertaken a comprehensive investigation and relied
on expert advice to draw its conclusion that the damage to the Applicant’s car had not been
caused by Mr Lori. In support of this expert evidence regarding the probable cause of the
damage, the Respondent noted that despite the level of damage to the vehicle, Mr Lori was, on
the Applicant’s own account, uninjured, calm and appeared to be smiling. The Respondent
further submitted that Mr Lori’s mother advised that Mr Lori had never caused damage to the
extent alleged to have been done to the Applicant’s car by his head-butting, and that Mr Lori
had previously head-butted a vehicle, not caused significant damage to that vehicle but suffered
visible injuries in the course of causing that minor damage.
[40] The Respondent also submitted that there were elements of the Applicant’s account of
the incident that were not credible, including the time the incident occurred, the amount of time
taken to complete all of the activities detailed in that account and some of the claims made
regarding factual issues involved. Finally, it was the Respondent’s submission that the
misconduct, specifically making a false claim, had been repeated on a number of occasions and
was aggravated by the vulnerability of the client, who is mainly non-verbal and thus unable to
defend himself or present his version of events.
[41] Prior to her witness statement being admitted, the Applicant corrected it in respect of
two issues, being the time at which she arrived at the offices of the Respondent and to explain
that the toilets at the park were closed and thus unable to be used. In response to questioning
by her advocate, the Applicant also explained and corrected an error that appeared on the
Respondent’s Safety Incident and Investigation Report form for the alleged head-butting of her
car that she had submitted into evidence. Specifically, she noted that the time of incident shown
on the form was incorrect and should have read “9.30am” rather than “10.13am” which was a
correction she stated she had previously asked the Respondent to make.
[42] In her evidence, both written, verbal and under cross-examination, the Applicant
remained steadfast in her assertion that the damage to her car had been caused by Mr Lori. In
response to questioning by her advocate she stated that there had been previous instances of Mr
8 Briginshaw v Briginshaw [1938] 60 CLR 336 [362]‒[363].
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Lori head-butting objects but not subsequently showing any visible signs of injury. Under
cross-examination the Applicant confirmed that after the alleged incident Mr Lori did not show
any signs of injury and was smiling and calm. She further confirmed that a previous incident
where Mr Lori had head-butted her car, in September 2022, resulted in a smaller dent than had
been caused by the alleged incident.
[43] During cross-examination, the Respondent raised a number of challenges to the
Applicant’s claimed time frames for the events leading up to the alleged incident and her travel
to the Respondent’s offices. Without detailing all of the issues canvassed, the Applicant was
able to provide responses to all of those questions. The Respondent also questioned the
Applicant with respect to what it considered to be inconsistencies in her various statements, but
the Applicant maintained that her account was accurate.
[44] The Respondent put to the Applicant that the damage to her car had been caused by
either someone reversing into her, or by her reversing into someone or something. The
Applicant rejected this proposition and stated that there were no other cars around in the carpark
where the alleged incident took place and that had she damaged her car herself she would have
taken responsibility for doing so and made a claim on her own insurance. The Respondent
questioned the Applicant regarding the number of other vehicles present in the carpark, drawing
to her attention the evidence supplied by the City of Perth of the parking ticket purchases made
in the carpark at the relevant times on the day. The Applicant pointed out that the ticket machine
for the particular area where she had parked only had two entries in that time and again rejected
the Respondent’s contention that there were other cars in the area of the carpark where she was
parked.
[45] In response to the Respondent’s direct challenge that she had not seen Mr Lori strike
her car, the Applicant rejected that notion and stated that she had seen Mr Lori strike her vehicle
twice. She further rejected the accusation that the claims she made to the Respondent were
false. I put to the Applicant that the extent of the damage to her car and the lack of any sign of
injury to Mr Lori made it difficult to accept that Mr Lori had inflicted the damage, but the
Applicant continued to maintain that Mr Lori had indeed inflicted the damage.
[46] In addition to her own evidence, the Applicant submitted a report on the damage to her
prepared by Mr Robert Davey (Mr Davey). Mr Davey was not called to give evidence in
support of this report. In essence, the report is a commentary on the damage report prepared
for the Respondent by Allianz Insurance. Mr Davey’s findings are, in summary, that the
damage to the Applicant’s vehicle is such that it does not support the proposition that it was
caused by the spare wheel of a four-wheel drive vehicle, although he does not rule out the
damage having been caused by some vehicle part. Mr Davey states that it is “impossible to
positively exclude” a headbutt as the cause of damage without determining the force required
to inflict the damage and the type of injury to be expected and notes that the minor dents share
a likeness with a human nose.
[47] The evidence of Ms Natalie Katsaros (Ms Katsaros) for the Respondent was, in the main,
regarding her role in investigating the Applicant’s claim that Mr Lori had damaged her vehicle.
As part of her investigations, she had cause to correspond with Mr David Sim (Mr Sim), who
is the usual vehicle repairer used by the Respondent, about the damage to the Applicant’s
vehicle. Ms Katsaros’ evidence included a copy of the email she sent to Mr Sim and his reply.
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In Mr Sim’s reply to Ms Katsaros, his assessment of the damage based on the photos sent to
him was as follows:
“The dent is too sharp for a head-butt and it is on the strongest part of the tail gate. I
would also say the customer that head-butted it would have a nasty lump on his head
and most likely a hell of a head-ache. I would say they have backed into something or
someone had driven into it.”
[48] Given this assessment and other concerns she had, Ms Katsaros’ evidence was that she
informed Ms Harrop that the investigation was inconclusive and that she was seeking further
information. Such further information was provided by the Respondent’s insurer, Allianz, in a
report prepared by Mr Paul Lipari which was tendered into evidence. In that report, Mr Lipari
states, in part, as follows:
“Due to the damage on the corner area of the tailgate which is a strengthened area on
the tailgate the damage caused by a head butting the tailgate does not appear consistent.
I have also advised the insured that the 2 small dents do not match a person head butting
the tailgate. I have advised the insured the damage appears more consistent with a 4WD
with a spare wheel tyre on the back of the vehicle has revered (sic) into her vehicle
causing the damage as there is no damage to the lower tailgate or rear bumper area.”
[49] Under cross-examination, Ms Katsaros confirmed that Mr Lori had not been sent for
medical assessment on 20 April 2023 as the Respondent had contacted his mother and given
that he showed no visible signs of injury, such as cuts, bruising or swelling, his mother had
advised that such assessment was not necessary.
[50] The evidence of Ms Lee Broomhall (Ms Broomhall) for the Respondent dealt in the
main with the process of considering the claim by the Applicant that the damage to her car was
caused by Mr Lori and the process behind the decision to terminate the Applicant. In her
witness statement, Ms Broomhall stated that she had formed the view that it was implausible
that the damage to the Applicant’s vehicle had been caused by Mr Lori and, as a result, it
necessarily followed that the Applicant had engaged in misconduct by falsely claiming on
numerous occasions that Mr Lori had caused the damage. It was Ms Broomhall’s further
evidence that given Mr Lori is a vulnerable person who cannot speak for himself, such
misconduct was also exploitative.
[51] As part of her evidence, Ms Broomhall provided a photo of Mr Lori, taken at the
Respondent’s office after the alleged incident, which shows no signs of injury or trauma to his
face or head.
[52] Under cross-examination, Ms Broomhall confirmed that her decision to terminate the
Applicant had been made based on viewing photographs on the damage to the Applicant’s car,
the report from Allianz prepared by Mr Lipari, the email from Mr Sim, advice she had been
given that Mr Lori’s mother had confirmed that on the day after the alleged incident he
continued to show no sign of pain and also on the photograph referred to in paragraph 51 above.
Ms Broomhall also confirmed that her reference to “sustained pattern of deceit” referred to the
Applicant maintaining her position that Mr Lori has caused the damage to her car on 20 April
2023.
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[53] The evidence of Mr Sim for the Respondent was that he was familiar with the model
and make of the Applicant’s car and had repaired between 30 to 40 of them in the past 12 years.
It was his evidence that the section of the tailgate where the damage occurred was reinforced
by the folding of the metal and in his estimation, this increased the strength of the metal tenfold.
In his evidence he stated his opinion that the damage to the Applicant’s vehicle was very severe
and would have required a great deal of force from a large, solid object. His further opinion
was that it was not possible for a person to inflict the level of damage seen on the Applicant’s
vehicle with a head-butt because the force required is “tremendous”.
[54] Mr Sim’s further evidence was that it was likely that the spare wheel cover of a large
four-wheel drive vehicle had caused the damage given the location of the damage and the lack
of damage to other areas of the car.
[55] Under cross-examination, Mr Sim conceded that he had not operated as an insurance
assessor since approximately 2007 and that his primary expertise was in repairing vehicles. He
also conceded that the business relationship with the Respondent was of some importance to
him. He conceded that he had no first-hand knowledge of what had actually caused the damage
and also that, with respect to his statements about potential injuries suffered by a person
inflicting the damage on the Applicant’s car, he had no medical credentials, and those
statements were just his general opinion.
[56] Mr Sim further conceded that he had not performed any measurements on a vehicle of
the same make and model as the Applicant’s, nor on any four-wheel drive vehicle to determine
the precise heights of the tailgate and spare wheel respectively. I questioned Mr Sim about the
actual damage to the Applicant’s car, specifically, the shape and location of the dents. He
concurred with my suggestion that the damage had been most probably caused by the relevant
section of the vehicle being struck from below, or possibly at the same height as the damage,
but it was not likely that the damage could have been inflicted from above.
[57] In re-examination, Mr Sim was asked why he had offered the opinion that inflicting the
damage seen on the Applicant’s car would have caused significant injury. Mr Sim responded
that if he was to repair the damage, it would require him to reverse the damage and move the
metal back into its proper place. It was his evidence that significant force with bars and
hammers would be required to achieve this. Mr Sim was also questioned about how he would
have determined the relevant heights given that he had not performed any measurement. Mr
Sim’s response was that it was based on his experience with the various types of vehicles under
consideration.
[58] The evidence of Ms Maura Lori (Ms Lori) was that Mr Lori was prone to cuts and
bruises if he head-butted objects with some force. Her evidence included a photo of Mr Lori
taken in October 2023 that showed very visible signs of injury after Mr Lori had head-butted a
car but not caused any discernible damage. It was Ms Lori’s further evidence that, having
viewed the damage to the Applicant’s vehicle, she had never seen Mr Lori cause that amount
of damage to any object and she believed that Mr Lori would have had visible and serious signs
of injury if indeed he had caused that damage. Ms Lori stated that Mr Lori had shown no signs
of injury when he arrived home on 20 April 2023.
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[59] Under cross-examination, Ms Lori conceded that her statement that Mr Lori hit his head
on something once a fortnight was simply an average and there were times when it may happen
more often. It was her evidence that Mr Lori would always suffer some visible injury if he
head-butted something save for those instances where he placed his hand in front of his head
prior to head-butting in which case his hand cushioned the blow. The Applicant pointed out to
Ms Lori that Mr Lori had head-butted a wall and also a table in the office of the Respondent on
20 April 2023 but shown no signs of injury, suggesting her statement was incorrect. Ms Lori
suggested that Mr Lori may have used his hand to protect his head but the Applicant noted that
there was no evidence to that effect before the FWC. Nevertheless, Ms Lori maintained her
position.
[60] The Applicant questioned Ms Lori about Mr Lori’s routine prior to engaging in a head-
butt, which included certain visible actions. Ms Lori conceded that the Applicant’s evidence
about Mr Lori’s behaviour immediately prior to the alleged incident indicated the sorts of
behaviours in which Mr Lori would engage prior to a head-butt.
[61] In re-examination, Ms Lori gave evidence that she did not notice any significant issues
with Mr Lori’s behaviour on 20 April 2023 other than stating that he was “a bit agitated”. She
further confirmed, upon being shown a photo of the damage to the Applicant’s vehicle, that she
had never seen Mr Lori inflict that level of damage and would have expected visible signs of
injury had he caused the damage shown.
[62] In closing submissions, the Applicant noted again that the only direct evidence regarding
the damage to the Applicant’s car was that provided by the Applicant herself. Further, the
Applicant submitted that the action alleged to have been taken by Mr Lori was an action that
all parties concede is part of his regular behaviour. The Applicant submitted that the timing of
events as explained by the Applicant was plausible, when her corrections were taken into
account. It was submitted that the parties also conceded that Mr Lori had also engaged in that
behaviour in the Respondent’s office on 20 April 2023 and that when viewed as a whole, the
only part of the Applicant’s version of events that is disputed is the approximately twenty
minutes between 9.30am and 9.50am on 20 April 2023.
[63] It was the Applicant’s further submission that the Respondent was not relying on any
direct evidence but rather on theories and conjecture. The theory of Mr Sim was submitted to
be the theory of a person who was not qualified to provide evidence. In terms of the
Respondent’s reliance on Mr Lori not being injured, it was submitted that the opinion of Ms
Lori based on a photograph and her own non-medically qualified opinion that Mr Lori was
uninjured was inadequate evidence on which to rely. It was further submitted that in the absence
of medical examination, it was not possible to determine that Mr Lori was uninjured on 20 April
2023.
[64] In summary, the Applicant submitted that in all of the circumstances, including the lack
of direct contrary evidence about what happened in the carpark, the lack of medical evidence
about the extent of Mr Lori’s injuries, and the acknowledged behaviours of Mr Lori, that the
Applicant’s version of the events is plausible, and that the Applicant was telling the truth.
[65] In its closing submissions, the Respondent took the position that the damage to the
Applicant’s car simply could not have been caused by Mr Lori and thus it followed that the
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Applicant had made a repeated false claim against the Respondent. It was submitted that the
damage caused by Mr Lori to the wall in the Respondent’s office was confined to a dent, rather
than the more serious damage alluded to during the hearing, based on the Applicant’s own
report. That damage was not equivalent to the serious damage caused to the Applicant’s car,
which the Respondent submitted ordinary experience would allow a person to conclude could
not have been caused by a person’s head-butt. In addition, the Respondent noted that the
damage appeared to have come from below or direct on rather than from above.
[66] The Respondent further submitted that, after allegedly causing this damage, Mr Lori
was uninjured and smiling, and Ms Lori further confirmed that he had shown no signs of injury.
With respect to the cause of the damage, the Respondent submitted that Mr Sim was a credible
expert witness and that his evidence was that it is implausible that the damage was caused by a
human head. The Respondent further noted that Ms Lori’s evidence about the injuries sustained
by Mr Lori in October 2023 when head-butting a vehicle were unchallenged.
[67] In terms of the Applicant’s evidence, the Respondent submitted that there were many
inconsistencies in that evidence, that some of the amendments made were made very late in the
process and other claims were implausible. Further, the Respondent claimed that under cross-
examination the Applicant was unwilling to concede on points where it was reasonably obvious
that a concession should be made, such as the issue of whether she had her car in view at all
times while in the carpark.
[68] In response perhaps to a sequence of events that I had hypothesized during the hearing
might provide an alternative explanation for the damage – namely that the Applicant’s car had
been damaged by another vehicle but that she had not noticed the damage until Mr Lori
allegedly struck his head on the car - the Respondent submitted that this explanation was
implausible. The Respondent submitted that given the Applicant’s proximity to Mr Lori at all
times, it would have been virtually impossible for her not to have noticed the damage prior to
Mr Lori allegedly head-butting the car. Further, the Respondent noted that the Applicant had
not advanced the “honest mistake” defence.
Consideration
[69] In determining this issue, I find that there are two threshold issues. Firstly, was the
damage caused by Mr Lori and secondly, if not, does that necessarily mean that the Applicant
has deliberately misled the Respondent, given that this is the misconduct for which she was
dismissed. While I accept that the Respondent, for reasons that are set out below, had reason
to believe that the Applicant had been dishonest, the Respondent’s mere belief is insufficient.
The FWC must be satisfied that the misconduct actually occurred.
[70] In the first instance, I should say that I do not have any concerns regarding the timing
of the events as set out by the Applicant, nor do I have any concerns regarding her amendments
to her statements. I found the Applicant to be a credible witness and her explanations of
inconsistencies were, in the main, plausible. As such, I accept that the events between her
collecting Mr Lori and taking him to the Respondent’s office on 20 April 2023 could have
occurred in the way that the Applicant has submitted. However, the fundamental issue is
whether or not the damage to the Applicant’s vehicle was caused by Mr Lori. I find that on
balance of probabilities that the damage to the Applicant’s vehicle was not caused by Mr Lori.
[2023] FWC 3339
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[71] While I note the Applicant’s concerns about the evidence given by Mr Sim, I found that
Mr Sim was a very credible and honest witness who gave truthful answers regarding his
assessment of the damage, and I was not persuaded to devalue his evidence on the bases
submitted by the Applicant. Further, his assessment that the damage could not have been
caused by a human head was supported by the insurance assessment provided by Mr Lipari of
Allianz. I note that as part of his evidence Mr Sim agreed that the damage to the vehicle was
caused by a force acting from either below or on the same level as the damage, rather than from
above it, as would have been the case with a head-butt. Further, I am persuaded by Mr Sim’s
assessment that the shape of the dents is not consistent with a head-butt as the creases are too
small.
[72] As such, I am persuaded that the force required to cause the damage, and the nature of
the damage seen on the Applicant’s car could not have been caused by Mr Lori. I am not
persuaded by the implication contained in the report of Mr Davey that those dents were nose
shaped and as such possibly caused by a nose. To suggest that a human nose composed of
cartilage could withstand the force required to inflict the level of damage seen on the
Applicant’s vehicle is simply not credible.
[73] The statement of Mr Davey submitted by the Applicant to rebut the findings of Mr Lipari
was very circumspect in its conclusions and sought to imply that absent specialist opinion by a
medical practitioner and a metallurgist, it would not be possible to conclude that the damage
could not have been caused by a head-butt. While it may be the case that it is impossible –
absent the evidence proposed by Mr Davey - to completely rule out the damage being caused
by a human head, the FWC is required to make an assessment based on balance of probabilities
rather than an extensive forensic review to eliminate all potential possibilities.
[74] The Respondent in its closing submissions suggested that simply applying “common
experience” to the question of whether the damage could have been caused by a head-butt
would lead to the conclusion that it could not. I found this proposition to be persuasive.
However, there is of course a second variable that can be added into that consideration. The
evidence, in the form of a photo of Mr Lori taken less than an hour after the alleged incident,
shows no visible signs of injury. The evidence of the Applicant, the Respondent’s officers and
Ms Lori is that Mr Lori had no signs of injury. If the question is then posed: could a human
head inflict that level of damage and display no visible signs of trauma by way of cuts, bruises
or swelling, then I find that the answer based on common experience and on the balance of
probabilities must be no.
[75] While I note that the Applicant sought to imply that as there had been no medical
assessment of Mr Lori on the day then it is not possible to rule out that he did indeed suffer an
injury, I did not find this line of argument persuasive. It was common ground between the
parties that Mr Lori showed no signs or symptoms of injury in the Respondent’s office. There
is no suggestion from Ms Lori or otherwise that Mr Lori subsequently developed symptoms or
signs of injury. There is evidence however that Mr Lori showed visible signs of injury after
head-butting a car in October 2023. As such, I find on balance of probabilities that Mr Lori did
not sustain an injury of the kind that would have been inevitable if he had caused the damage
to the Applicant’s car.
[2023] FWC 3339
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[76] The unchallenged evidence from Mr Sim was that the fold of the boot increases the
strength of the metal considerably to the point where, as he noted in cross-examination, it would
require a sledgehammer to inflict the level of damage observed. While this assertion may
contain some element of hyperbole, I find that there would be a significant level of force
required to inflict the level damage to the Applicant’s vehicle and such force could not have
been applied by a human head, particularly one that subsequently showed no sign of injury. In
summary, I find that the damage to the Applicant’s vehicle was caused by a mechanism other
than Mr Lori.
[77] Having decided that Mr Lori did not cause the damage, I need to then turn to what this
means for the Applicant. Clearly, if she knew that he did not cause the damage and yet persisted
with her claim, she is guilty of fraudulent conduct such that the Respondent was justified in
terminating her. On the other hand, if it was an honest mistake and the Applicant genuinely
believed that Mr Lori had caused the damage, has she engaged in misconduct by reporting it
and persisting with her position. This is only a relevant question if indeed the Applicant was
mistaken. Even then, I believe there is a further question that needs to be considered,
specifically, is it reasonable to accept that the Applicant could have been mistaken.
[78] In looking at this possibility, which I note was not advanced by the Applicant herself, I
am mindful that in closing submissions, it was addressed by the Respondent. The Respondent’s
position was that if the damage been in place before the Applicant and Mr Lori returned to the
Applicant’s car, it would not have been possible for the Applicant to have failed to notice the
damage, given her proximity to Mr Lori at the relevant times. Assessing this proposition and
again looking at the balance of probabilities, I find that the Respondent’s submission has merit.
[79] I should also comment on what could perhaps be regarded as a final potential
explanation. If it is the case that the damage was done other than by Mr Lori, and the Applicant
had returned to her vehicle with Mr Lori but not noticed the damage, and Mr Lori had then
head-butted the car at the site of the damage, does this mean the Applicant could have
mistakenly assumed Mr Lori did the damage. I cannot conclude that this is the case. Turning
again to the proposition advanced by the Respondent about common experience, and given the
level of damage to the vehicle, I find that the Applicant should have, if these were indeed the
circumstances, applied her lived experience to conclude that, at the very least, it was highly
unlikely that the uninjured Mr Lori who stood in front of her – soon to be smiling – could have
caused that level of damage. To put it simply, I do not find that it was reasonable for the
Applicant to assume the damage done to her car had been done by Mr Lori, even if she had
witnessed him head-butting her car in the location of the damage.
[80] In summary, I find that the damage to the Applicant’s car was not caused by Mr Lori,
and it was not reasonable for her to continue to insist that it was in the face of the insurance
assessment by Allianz and the opinion of Mr Sim. In so insisting, I find that the Applicant has
gone beyond what a reasonable person would regard as being an appropriate level of advocacy
for her claim. In persisting with her position as she did, the Applicant has clearly created an
impression in the mind of the Respondent that she was acting fraudulently. I find that this was
a reasonable position for the Respondent to take, albeit that my conclusion to that effect still
falls short of a conclusion that the Applicant has acted fraudulently. I find that on balance of
probability I must conclude that the Applicant has acted in such a way as to be consistent with
persisting with an attempt to convince her employer of something that was not correct, and in
[2023] FWC 3339
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circumstances where she ought to have known it was not correct. As a consequence, I find that
the Respondent had a valid reason for termination.
Was the Applicant notified of the valid reason?
[81] 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).9
[82] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made to terminate their employment,10 and in
explicit11 and plain and clear terms.12
Submissions
[83] The Applicant submitted that she was not advised in sufficiently clear terms of the
reason for dismissal. It was the Applicant’s submission that the letters provided to her dated
30 June 2023, 5 July 2023 and 18 July 2023 did not clearly articulate the reason for dismissal
or the specific allegations related to conduct.
[84] The Respondent submitted that the Applicant was both notified of the valid reason and
provided with an opportunity to respond.
Evidence
[85] Under cross-examination, the Applicant conceded that while she did not agree with the
reason for her termination, she had been aware of the reason.
[86] The letters referred to in the Applicant’s submissions were all in evidence before the
FWC. In examining those letters, I find that the Applicant was made aware of the reasons for
her termination. In the letter dated 30 June 2023 the Respondent states, amongst a number of
other things, as follows:
“It is our reasonable opinion, and the independent opinion of others with others, that the
damage was simply not caused by the client. In our opinion, a reasonable person would
conclude, on the evidence presented, that it is implausible to suggest that a person would
not show some form of physical injury as a result of the forceful impact required to cause
the damage.”
The letter further states:
“…it is our view that your allegation is not substantiated. Two independent impartial
assessments support this conclusion. What this means is, it is possible that statements
9 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
10 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
11 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
12 Ibid.
[2023] FWC 3339
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made by you in relation to the incident may have been fabricated for you to obtain
personal benefit.”
In addition to the statements above, the letter makes it clear that the matter is serious, a potential
breach of contractual obligations, represents potential serious misconduct and if substantiated,
those allegations represent breaches of a requirement to act with integrity, honesty and
transparency and may result in termination.
[87] The letter dated 5 July 2023 states, amongst other things, the following:
“… my preliminary view is that it would be reasonable to make the following findings:
The damage to your vehicle was not caused by the NDIS participant…
You were aware that Nick did not cause the damage.
If Workpower ultimately confirms these findings, the effect is that Workpower will have
concluded that you made a false report about a participant, which could represent a
serious breach of Workpower’s values and the NDIS Code of Conduct. The proposed
outcome would be the termination of your employment.”
[88] The letter dated 18 July 2023 states, amongst other things, as follows:
“…we found it inconceivable that the incident in question occurred as you stated.”
“Therefore, we concluded that you falsely claimed that a client caused substantial
damage to your vehicle during a support session on 20 April 2023. You repeated this
claim several times, including during Workpower’s investigations, in your written
incident report, and in an initial claim on Workpower’s insurance.”
Findings
[89] While it may be the case that the precise language has changed over the course of the
three letters, I find that the basic premise and the central issue of misrepresentation remains
clear. The language is not unnecessarily complex or vague and I find that a reasonable person
would understand what was intended to be conveyed. I further note that the Applicant herself
conceded that she knew why she was being terminated. As such, I find that the Applicant was
notified of the reason for dismissal prior to her dismissal, and in explicit, plain and clear terms.
Was the Applicant given an opportunity to respond to any valid reason related to their
capacity or conduct?
[90] An employee protected from unfair dismissal should be provided with an opportunity
to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity
to respond is to be provided before a decision is taken to terminate the employee’s
employment.13
13 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton
SDP, Cribb C, 11 May 2000), [75].
[2023] FWC 3339
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[91] The opportunity to respond does not require formality and this factor is to be applied in
a common sense way to ensure the employee is treated fairly.14 Where the employee is aware
of the precise nature of the employer’s concern about his or her conduct or performance and
has a full opportunity to respond to this concern, this is enough to satisfy the requirements.15
Submissions
[92] The Applicant submitted that she was not afforded a genuine opportunity to respond
because the Respondent had determined that she would be dismissed prior to engaging in the
process of seeking and considering a response. She claimed that there was evidence of a
presumption of termination based on the following statement in the letter dated 30 June 2023:
“I am however obliged to inform you that these matters represent serious misconduct and
unless compelling evidence to the contrary is received, your employment contract may
be terminated without notice.”
[93] The Respondent submitted that the Applicant did have an opportunity to respond to any
valid reason related to the Applicant’s capacity in the meetings that it conducted with her and
via the written responses she submitted to the Respondent’s items of correspondence. The
Respondent further submitted that the statement set out above in the letter of 30 June 2023 was
not evidence of pre-judgment but rather was appropriate to ensure that the Applicant was aware
both of the allegations against her and also the potential implications so that she could prepare
a considered response.
Findings
[94] I am not persuaded that the Respondent, in warning the Applicant at an early stage that
the allegations against her were of sufficient severity to warrant dismissal if proven, could be
said to have pre-judged the matter. I find that the early warning was an appropriate way to
demonstrate to the Applicant that the matter was serious, which would then allow her to seek
advice and prepare a comprehensive response. Further, it would appear to me that in any
circumstances where termination is a possibility, it is to the advantage of the employee to be
made aware of this at the earliest opportunity. As such, I find that the Applicant was given a
proper opportunity to respond to the allegations against her.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person
present to assist at discussions relating to the dismissal?
[95] 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.
[96] There is no positive obligation on an employer to offer an employee the opportunity to
have a support person:
14 RMIT v Asher (2010) 194 IR 1, 14-15.
15 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[2023] FWC 3339
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“This factor will only be a relevant consideration when an employee asks to have a
support person present in a discussion relating to dismissal and the employer
unreasonably refuses. It does not impose a positive obligation on employers to offer an
employee the opportunity to have a support person present when they are considering
dismissing them.”16
[97] It is not in dispute that the Applicant was provided with, and exercised, the right to have
a support person with her during the relevant meetings with the Respondent. As such this matter
is neutral in my overall consideration.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[98] 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?
Submissions
[99] The Applicant submitted that the size of the Respondent’s enterprise was such that it
ought to have provided a procedurally fair process, including providing sufficient particulars
for the Applicant to make a response to the allegations against her.
[100] The Respondent did not make any direct submissions on this issue.
Findings
[101] As I found above, the Applicant was provided with a sufficient level of detail regarding
the allegations against her. As such, this matter is neutral in my overall considerations.
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?
Submissions
[102] The Applicant’s submission on this issue were included in its submissions on the impact
of the size of the Respondent’s enterprise as set out above.
[103] The Respondent made no direct submissions on this issue.
Findings
[104] For the reasons set out in paragraph 104 above, I regard this matter as being neutral in
my overall considerations.
16 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[2023] FWC 3339
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What other matters are relevant?
[105] Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant. Neither party made submissions on other relevant matters and
I am not aware of any other matters that are relevant in this case.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or
unreasonable?
[106] I have made findings in relation to each matter specified in section 387 as relevant.
[107] I must consider and give due weight to each as a fundamental element in determining
whether the termination was harsh, unjust or unreasonable.17
[108] Having considered each of the matters specified in section 387 of the FW Act, I am
satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because:
(a) the Respondent had a valid reason for dismissal; and
(b) the Applicant was notified of that reason; and
(c) the Applicant given an opportunity to respond to that reason; and
(d) there was no refusal to allow a support person; and
(e) there was no impact on the process of termination due to the size of the
Respondent’s enterprise or an absence of human resources expertise.
Conclusion
[109] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not
satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW
Act. The Applicant’s application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
E Womersley for the Applicant.
J Theodorsen for the Respondent.
17 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].
TE FAIR WORLE SOMECCION
[2023] FWC 3339
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Hearing details:
2023.
Perth (via Microsoft Teams):
November 20.
Printed by authority of the Commonwealth Government Printer
PR769394
