Opal Packaging Australia Pty Ltd v Mr Pece Calovski - [2025] FWCFB 16

1 

 

Fair Work Act 2009  

s.604 - Appeal of decisions 

Opal Packaging Australia Pty Ltd 

v 

Pece Calovski 
(C2024/4878) 

VICE PRESIDENT GIBIAN 

DEPUTY PRESIDENT DEAN 

DEPUTY PRESIDENT WRIGHT 

SYDNEY, 30 JANUARY 2025 

Appeal against decision [2024] FWC 1717 of Commissioner Matheson at Sydney on 28 June 
2024 in matter number U2023/10560 - Application for an unfair dismissal remedy – 
Employee reinstated with backpay – Employee involved in forklift accident – Whether 
Commissioner erred in not being satisfied the employee was at fault – Whether finding made 
without evidence – Whether Commissioner required employer to disproved speculative theory 
Application of principle in Briginshaw v Briginshaw – Commissioner’s approach orthodox – 
Necessary for decision-maker to feel actual persuasion of the facts in issue – No arguable 
error in factual findings – Not in the public interest for the Full Bench to revisit detailed 
factual findings made at first instance – Permission to appeal refused. 

 

Introduction and outcome 

 

[1] Pece Calovski is an experienced forklift operator. He has worked as a forklift operator 

for 25 years, most recently for Opal Packaging Australia Pty Ltd (Opal Packaging) performing 

work at its facility in Revesby in New South Wales.  

 

[2] On 27 June 2023, he was assigned to drive what is known as a grab forklift. The forklift 

has a loaded weight of over 11 tonnes. When he was maneuvering the forklift intending to park 

near a boiler, Mr Calovski said he applied the brake but it went all the way to the floor and had 

no resistance. Mr Calovksi was able to steer away from the boiler. However, the forklift collided 

with an orange and blue drum causing it to bend around a bollard. The forklift continued 

travelling forward through a pedestrian zone before colliding with other items of plant and 

equipment, including the gas feed line to the boiler. The forklift eventually made contact with 

a roller door and fire safety door and came to a stop.  

 

[3] Mr Calovski was subsequently dismissed as a result of the incident. The reasons given 

for his dismissal were that he failed to operate the grab forklift in a safe manner causing 

extensive damage and creating a safety incident that could have resulted in injury and loss of 

life and that he failed to accept any responsibility for the incident.  

 

[2025] FWCFB 16 

DECISION 


AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc1717.pdf


[2025] FWCFB 16 

 

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[4] Mr Calovski applied to the Fair Work Commission (the Commission) under s 394 of 

the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was 

heard by Commissioner Matheson. In a decision issued on 28 Jun 2024, the Commissioner 

found that Mr Calovski’s dismissal was unfair and ordered that he be reinstated, that continuity 

of his employment be maintained and that an order be made with respect to remuneration lost 

as a result of the dismissal.1 In short, the Commissioner was not satisfied that the incident 

occurred as a result of Mr Calovski operating the forklift in an unsafe manner so as to provide 

a valid reason for dismissal and, taking into account the other matters in s 387 of the Act, found 

that the dismissal was harsh and unreasonable.  

 

[5] Opal Packaging has sought permission to appeal, and to appeal, the decision of the 

Commission under s 604(1) of the Act. The grounds advanced by Opal Packaging allege that 

the Commissioner erred by finding that she could not be satisfied that between two contending 

theories about what caused the incident, namely, whether it was error on the part of Mr Calovski 

or whether the brake pedal went soft as he claimed. Opal Packaging further alleged that the 

Commissioner erred by reversing the onus of proof and misapplying the principles in 

Briginshaw v Briginshaw.  

 

[6] For the reasons that follow, we have decided to refuse permission to appeal.  

 

Factual background 

 

[7] Mr Calovski was employed by Opal Packaging from 10 December 2020 until his 

dismissal on 19 October 2023.2 Opal Packaging manufactures cardboard boxes. Mr Calovski 

was initially employed as a machine operator then moved into the role of corrugator floater on 

13 October 2021.3 In his role of corrugator floater, Mr Calovski was required to perform various 

tasks including driving forklifts and working on a cardboard stacker.4 Mr Calovski’s usual 

starting time was 6.50am. As a floater he could be required to work in different areas of the 

business.5  

 

[8] As we have recorded, on 27 June 2023, Mr Calovski was using a grab forklift to 

transport reels of paper so the machine operators could run the paper through the machine to 

create cardboard. A grab forklift is different to a regular forklift in that, rather than having flat 

tines that can be loaded and unloaded, the grab of a grab forklift has a semi-circular shape which 

is typically used to pick up cylindrical reels of paper. The unloaded weight of the forklift is 

11.33 tonnes which is significantly heavier than a standard forklift.6 

 

[9] As Mr Calovski was rotating a clamp on the grab forklift, a red metal plate fell from the 

clamp to the ground. Mr Calovski turned off the grab forklift and inspected the metal plate with 

Mr Adam Williams, a ‘floater’ and an elected Health and Safety Representative. Mr Calovski 

and Mr Williams agreed that they should notify the supervisor that the plate had fallen off the 

forklift and that Adapt-A-Lift (the company contracted by Opal Packaging to service its 

forklifts) should be contacted to fix the forklift.7  

 

[10] Mr Calovski got back in the forklift, reversed the forklift for approximately one or two 

metres to put the ‘butt reel’ (referring to what is left over from a full reel of paper which can be 

used for another job) down safely and out of the way and then went to park the forklift near a 

boiler. Mr Calovski said that as he was driving, he pushed down on the brake approximately 








[2025] FWCFB 16 

 

3 

two metres away from where he had intended to park but it went all the way to the floor and 

had no resistance.8 

 

[11] The forklift continued to move forward. Mr Calovski said that he was aware that the 

boiler was on his left and that the forklift was going to hit something, so he intentionally steered 

the forklift as straight as possible to ensure he went between the boiler and starch kitchen to 

minimise damage. As he steered the forklift straight, it collided with an orange and blue cylinder 

causing it to bend around a yellow bollard. The forklift then continued straight before eventually 

colliding with the roller door, among other items of plant and equipment (including the gas feed 

line to the boiler which led to the release of gas), and stopping.9 

 

[12] The time between Mr Calovski pressing on the brakes to when the forklift collided with 

the roller door was estimated to be a few seconds. He estimated the distance between where the 

forklift was initially parked when the plate fell off the clamp to the roller door to be 15 to 20 

metres and he estimated the distance between where he pressed the brakes to the roller door to 

be eight to 10 metres.10 Mr Calovski said that he did not press the accelerator. He said the 

forklift continued but decreased in speed, particularly after colliding with plant and equipment. 

He was not driving anywhere near full speed.11 Mr Williams said Mr Calovski was driving less 

than 10km an hour and that he was not driving fast or erratically.12 

 

[13] After the incident, Mr Calovski underwent a drug and alcohol test which returned a 

negative result. He returned to work the next day after first going to hospital to treat a minor 

injury to his shoulder.13 Mr Calovski has operated forklifts and grab forklifts for approximately 

25 years. He indicated that this was the first occasion in his career that he had ever been involved 

in a forklift accident.14 

 

[14] There are three grab forklifts at the site where Mr Calovski worked, one of which was 

out of operation and had not been used for approximately four to six months prior to the time 

of the incident. This forklift stopped working while Mr Calovski was in the middle of driving 

it. The grab forklift involved in the incident had been used on the day, afternoon and night shift 

five days per week for the entire period the other forklift had been out of service.15 

 

[15] Mr Calovski returned to work on 28 June 2023, the day following the incident. That 

day, he attended a meeting with his union representative, Mr Ahmet Sayan, a Corrugator 

Operator and Mr Alastair Conway, the Day Shift Manager at approximately 10.30am and 

explained his version of events.16 

 

[16] Mr Conway called Adapt-A-Lift on the day of the incident. Adapt-A-Lift was the 

company that leases and services the forklifts used by Opal Packaging. Mr Conway was aware 

when he called Adapt-A-Lift that Mr Calovski was attributing the incident to the forklift’s 

brakes. When Mr Conway called Adapt-A-Lift he explained that the forklift had been involved 

in a significant incident and needed to be inspected but could not recall whether he advised the 

person on the phone that the brakes had allegedly failed.17 After the inspection, the Service 

Technician, Mr Tom Paraskevopoulos said that there was nothing wrong with the brakes.18 

 

[17] The service history and the manual of the forklift was in evidence in the proceedings 

before the Commissioner. The history showed that a 4000 hour service which was due to be 

carried out on 2 February 2023 was delayed until 9 March 2023.19 








[2025] FWCFB 16 

 

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[18] Mr Todd Brennan is an employee of Forkpro Australia Pty Ltd and was engaged by 

Opal Packaging to give expert evidence during the proceedings about the service history of the 

forklift and other matters. Mr Brennan said that the 4000 hour service entails service of the 

brakes and prior to this service (according to the Forklift Manual) technicians must “Perform 

the 8-hour, 250-hour, 500-hour, 1000-hour and 2000-hour checks…” all of which entail a 

service of the brakes.20 Mr Brennan said that even if the brakes had not been serviced in the 12 

months prior to the accident, with the forklift’s type of braking system, if the brakes failed he 

would not expect a ‘soft pedal’.21 In reviewing the Adapt-A-Lift service history provided, Mr 

Brennan said that it was not possible to state whether it was deficient or not but said that there 

appeared to be some anomalies in the Service History in that certain parts or lubricants required 

by the schedule set out in the periodic maintenance table in the Manual are not listed in the 

Service History maintenance table in the Manual are not listed in the Service History.22 

 

[19] The forklift manual referred to small amounts of water in the brake system causing  

reduced braking performance.23 Mr Paraskevopoulos confirmed during cross examination that 

he did not test to see if the brakes were contaminated by water, only conducted a visual 

inspection and did not think that taking a sample to confirm whether there was water in the fluid 

was required.24 During cross-examination, Mr Brennan was asked about the presence of water 

in the braking system causing soft pedal and agreed that this was possible.25 Mr Brennan also 

agreed that if the list of items that must be done as a part of a 4000 hour service were not 

performed this would increase the risk of brake failure.26 Mr Brennan gave evidence that if 

water is introduced to the system the indicator light on the forklift’s dash would be on but agreed 

that this statement would be dependent on the make and model of the forklift and that he had 

not seen the particular forklift the subject of the incident.27 

 

[20] Mr Derek Sporl was Opal Packaging’s Health and Safety Business Partner at the time 

of the incident and led Opal Packaging’s investigation into the incident.28 Mr Conway 

interviewed the employees involved in or within the immediate vicinity of the incident 

including Mr Calovski, Mr Williams, Mr Rajiv Deo, a grab driver, and Mr Feng Li, a machine 

operator and provided Mr Sporl with copies of the records of those interviews.29  

 

[21] Mr Sporl’s investigation report noted that the forklift was tested after the incident to 

determine stopping distance at full speed and the distance was approximately 7 metres. The 

distance between the impacted bollard and fire safety door is 9 metres. Mr Sporl believed the 

forklift would have been travelling at full speed at the time it hit the bollard and that the impact 

to the I-beam indicates that it was not a slow and progressive stop. Mr Sporl said even if there 

was a total brake failure or the forklift cut out, the forklift would decelerate at the same speed 

as if it were powered and, in these circumstances, he believed that if the forklift’s brakes failed 

it would not have travelled far enough and with enough velocity to hit the I-beam and impact it 

to the degree that it did.30 Mr Sporl concluded that it was more likely than not that the brakes 

had not failed and that the accelerator may have been used by Mr Calovski instead of the brake, 

resulting in the incident.31 Mr Sporl said even if the accelerator was not used by Mr Calovski 

instead of the brake, based on the findings of the post-inspection assessment of the forklift’s 

brakes he considered it was very unlikely that the forklift’s brakes had failed as Mr Calovski 

had claimed.32 

 








[2025] FWCFB 16 

 

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[22] Mr Calovski gave evidence that after the incident he was directed not to work on the 

grab forklift but continued to work on the cardboard stacker, including working the same shifts 

and regular overtime, until he was suspended from duties on 11 October 2023.33 

 

[23] On 4 July 2023 a meeting was held between Mr Calovski, Mr Sayan, Mr Conway and 

Michael Kenny, Quality Assurance Manager. During the meeting, Mr Conway said that he 

thought that the incident involving the forklift on 27 June 2023 had been an accident and that 

he did not consider Mr Calovski had intentionally caused it.34 

 

[24] On 18 July 2023, Inspector Emma Afeaki and Corey Myers of SafeWork NSW attended 

Opal Packaging to conduct an inspection in relation to the incident.35 On 20 July 2023, 

Safework NSW sought information from Adapt-A-Lift about its inspection of the forklift on 27 

June 2023 which Adapt-A-Lift responded to on 25 July 2023.36 On 26 July 2023 Ms Afeaki 

emailed the investigation team attaching the SafeWork Inspection Report which included a 

notation that the Adapt-A-Lift report stated that no fault was found with the forklift or its brake 

system.37 

 

[25] Mr Ibrahim-Elgarhy instructed Opal Packaging’s General Manager Health and Safety 

to prepare a Government Information Public Access (GIPA) application to obtain a copy of the 

Adapt-A-Lift materials referred to in the SafeWork Inspection Report.38 

 

[26] On 3 October 2023 a further meeting was held between Mr Calovski, Mr Sayan, Mr 

Conway and Mat Wilmore, Opal Packaging’s Workplace Relations Specialist. At this meeting 

Mr Calovski was provided with a letter containing allegations of misconduct in relation to the 

forklift incident and was requested to attend a meeting on 5 October 2023.39 The letter stated 

that Opal Packaging had received reports from Adapt-A-Lift  and SafeWork NSW regarding 

the incident and that the reports ‘confirm that there was not fault in the braking system on the 

grab forklift’.40 

 

[27] The meeting scheduled was postponed until 10 October 2023 at the request of Mr Sayan 

as Mr Calovski did not have the forklift’s service records. In the meeting of 10 October 2023, 

Mr Calovski provided his initial written response to the allegations. Mr Sayan said that the 

serial number on the service records provided did not match the serial number of the forklift 

provided to SafeWork. Mr Conway obtained the correct service records and provided these to 

Mr Sayan on 11 October 2023.41 

 

[28] On 11 October 2023 another meeting was held between Mr Calovski, Mr Sayan, Mr 

Wilmore and Mr Ahmad Ibrahim-Elgarhy, Site Manager.42 The following morning Mr Sayan 

requested a copy of the service manual for the forklift and a copy of Opal Packaging’s Incident 

Report.43 On 13 October 2023 another meeting took place between Mr Calovski, Mr Sayan, Mr 

Wilmore and Mr Ibrahim-Elgarhy in which Mr Calovski responded further to the allegations.44 

 

[29] On 18 October 2023 another meeting took place between Mr Calovski, Mr Sayan, Mr 

Ibrahim-Elgarhy and ‘Sveto’.45 On 19 October 2023 a meeting took place between Mr Calovski, 

Mr Sayan, Mr Wilmore and Mr Ibrahim-Elgarhy in which Mr Calovski was provided with a 

letter notifying him of the termination of his employment (Letter of Termination).46 

 

[30] The Letter of Termination, signed by Mr Ibrahim-Elgarhy, relevantly said: 








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The reason for the termination of your employment is misconduct. Specifically: 

 

1. On 27 June 2023, you failed to operate the grab forklift in a safe manner. This caused 

extensive damage and created a safety incident that could have resulted in injury and loss 

of life. 

2. Despite being informed that the reports from the forklift manufacturer, Adapt-ALift, found 

that the braking system for the grab forklift was in perfect working order, you have had not 

been willing to accept any responsibility for the incident despite being given the opportunity 

to do so.47 

[31] Mr Calovski’s employment was terminated with immediate effect on 19 October 2023 

and Mr Calovski was paid in lieu of notice.48 

 

[32] Mr Ibrahim-Elgarhy said the delay between the date of the incident and the date of Mr 

Calovski’s termination of employment was due to the delay between the incident and SafeWork 

NSW’s site visit and the time it took Opal Packaging to receive the materials it requested in 

response to the GIPA application.49 

 

[33] Mr Ibrahim-Elgarhy was the ultimate decision maker in relation to Mr Calovski’s 

dismissal.50 Mr Ibrahim-Elgarhy believed it was more likely that Mr Calovski accidentally hit 

the accelerator on the forklift, rather than the brake.51 Mr Ibrahim-Elgarhy said Mr Calovski 

was adamant that the brakes were defective and that this caused the incident however he 

considered that all of the objective evidence pointed to Mr Calovski being untruthful in 

providing this explanation.52 Mr Ibrahim-Elgarhy was disappointed that Mr Calovski did not 

accept responsibility and if Mr Calovski had told Mr Ibrahim-Elgarhy what Mr Ibrahim-

Elgarhy believed to be the correct version of events there may have been an alternative option 

to dismissal.53 Mr Ibrahim-Elgarhy accepted that Mr Calovski did not have a history of 

dishonesty and that there were no issues with Mr Calovski’s performance between the period 

of the incident and Mr Calovski’s suspension on 11 October 2023.54 

 

The Commissioner’s Decision 

 

[34] In considering whether there was a valid reason for dismissal under s.387(a) of the Act, 

the Commissioner noted Opal Packaging’s submissions that it has work health and safety 

obligations, there are serious risks associated with contraventions of these obligations, forklift 

driving is considered high-risk, Mr Calovski was driving the forklift involved in the incident, 

his ‘actions were inherently dangerous’ and in putting forward that the brakes failed Mr 

Calovski lied and this showed his untrustworthiness. Opal Packaging alleged this constituted 

serious misconduct. Opal Packaging contended that either the inherent dangerousness of Mr 

Calovski’s actions or the fact that he lied about the brakes not working provided a valid reason 

for dismissal.55 

 

[35] The Commissioner recorded that she was satisfied that the forklift incident resulted in 

extensive damage, that it was of a serious nature and that it may have resulted in injury and loss 

of life.56 

 

[36] The Commissioner noted that Opal Packaging did not suggest that the incident itself 

was a deliberate act and that Mr Ibrahim-Elgarhy believed the incident was an accident. The 








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Commissioner accepted that Mr Calovski did not deliberately drive a forklift in a manner that 

was unsafe.57 The Commissioner accepted that conduct that causes serious and imminent risk 

to the health and safety of a person may constitute a valid reason for dismissal even if not wilful 

or deliberate.58 The Commissioner said that if it was established that the incident was Mr 

Calovski’s fault and he lied about it, she would be satisfied that this constitutes serious 

misconduct on the part of Mr Calovski.59  

 

[37] The Commissioner found that while it is not possible to determine the precise speed at 

which the forklift was travelling, she accepted that it would have been possible for the forklift 

to reach its maximum speed of 10km before it made contact with the first object, being the blue 

and orange drum that wrapped around the bollard.60 The Commissioner was satisfied there is 

no evidence of the forklift actually braking and that Mr Calovski said the brakes went soft. This 

raises the question of whether the brake was either not applied or whether braking failed.61 

 

[38] After considering all of the evidence, the Commissioner found that the total distance 

travelled by the forklift was at least 19 metres.62 The Commissioner was not persuaded that the 

evidence established that 7 metres is the precise distance within which the forklift should have 

stopped before hitting the roller door.63 The Commissioner accepted that hitting various objects 

should have slowed the trajectory of the forklift down to some degree.64 The Commissioner 

was not satisfied, based on the evidence before the Commission, that the moving forklift 

weighing in excess of 11 tonnes should have slowed enough between the bollard and roller door 

to stop or cause lesser damage in the event of brake failure.65 

 

[39] The Commissioner acknowledged that the forklift was returned to operation the same 

night of the incident and the absence of any issues with the forklift since the incident, at face 

value, weighs in favour of Opal Packaging’s theory that the cause of the incident was operator 

error.66 

 

[40] The Commissioner considered the evidence of Mr Paraskevopoulos and Mr Rod Harris, 

National Operations Manager of Adapt-A-Lift in relation to whether it was possible that soft 

pedal occurred, and the brakes could have worked again because they had not heated 

sufficiently. The Commissioner observed that their evidence did not directly address the 

possibility of contamination.67  

 

[41] The Commissioner noted that during cross-examination, Mr Brennan accepted that if 

the brake system was contaminated by water, this could create soft pedal when water turned 

into a gas. However, when the system cooled down, the gas could return to a liquid form and if 

the brake is applied again it would appear to work normally. If Mr Paraskevopoulos tested for 

contamination, he could have identified whether the oil was contaminated with water. If there 

was a time between when the crash occurred and when the technician inspected the forklift, it 

could have sufficiently cooled so when he went to test the forklift it would be working normally 

again.68 Mr Brennan assessed the likelihood of water being in the brake system and then turning 

into gas and then back into water occurring as being in the 2 to 3 out of 10 range. The 

Commissioner concluded that while a 2 or 3 out of 10 does not indicate a high degree of 

likelihood, this scenario is more than a remote possibility and it should not be considered in 

isolation from other relevant factors when identifying the likely cause of the incident on the 

balance of probabilities.69 

 








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[42] The Commissioner noted that the report written by Mr Brennan states that if low brake 

fluid levels or water is introduced to the system, the likelihood of soft pedal or non-existent 

pedal pressure is high. The Commissioner noted that Mr Paraskevopoulos confirmed during 

cross examination that he did not test to see if the brakes were contaminated by water and only 

conducted a visual inspection and accepted that a visual inspection may be able to detect if 

brake fluid levels were low.70 The Commissioner accepted that it was unlikely that the brake 

fluids were low but said she was satisfied that water contamination is also a cause of soft pedal 

and no testing of the brake fluids was undertaken to rule out contamination.71 The 

Commissioner said that she was unable to draw a conclusion that if contamination occurred the 

indicator light would have been on or that Mr Calovski would have seen it.72 

 

[43] The Commissioner said that she could not be satisfied as to whether Adapt-A-Lift, in 

servicing the forklift, carried out all of the elements of a service as prescribed by the Forklift 

Manual. The Commissioner said there was evidence of anomalies, including evidence 

suggesting that the brake fluids may not have been changed in accordance with the Forklift 

Manual and this would likely increase the likelihood of brake failure.73 The Commissioner 

noted that there were three grab forklifts provided by Adapt-A-Lift to Opal Packaging and at 

the time of the incident one of these was out of service as it had stopped working while Mr 

Calovski was driving it. This indicates that the grab forklifts, despite being serviced by Adapt-

A-Lift, are not immune to unexpected breakdown and the fact that the forklift involved in the 

incident did not have any reported brake issues prior to the incident does not mean issues could 

not have arisen.74 

 

[44] The Commissioner found that Opal Packaging had established the following factors that 

weighed in favour of a finding on the balance of probabilities that the accident was Mr 

Calovski’s fault: 

 

(a) the incident occurred while Mr Calovski was driving the forklift; 

(b) there is no evidence of effective braking; 

(c) the brakes worked when Adapt-A-Lift tested them post incident; 

(d) Adapt-A-Lift did not find any faults with the forklift’s brakes (although it did 

not test for water contamination); 

(e) the forklift was returned to service the night of the incident and no issues arose 

with the forklift’s brakes once this happened.75 

 

[45] The Commissioner found that Opal Packaging had not established that: 

 

(a) the forklift should have stopped or slowed so as to cause lesser damage if the 

brakes failed;  

(b) the failure of Mr Calovski to engage the handbrake or actions otherwise taken 

were a valid reason for dismissal if the brakes did in fact fail.76 

 

[46] The Commissioner found that the evidence established that: 

 

(a) Mr Calovski had 25 years’ experience driving forklifts; 

(b) Mr Calovski was not under the influence of drugs or alcohol or otherwise 

observed to be impaired or driving erratically prior to the incident; 








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(c) there had been increased reliance on the forklift the subject of the incident in 

circumstances where one of the three grab forklifts was out of service; 

(d) the servicing of the forklift had been delayed from February to March as a result 

of the increased reliance on the forklift; 

(e) the forklift travelled approximately 10 metres between where it was parked and 

where it hit the first object and would have been able to reach its full speed of 

10 kilometres per hour across that distance; 

(f) upon hitting the first object there was no evidence of braking but rather, the 

forklift travelled a further 9 metres, hitting multiple other objects along the way, 

into a pedestrian zone and roller door without stopping in circumstances where 

the forklift should brake within 2 metres if the operator applies a working brake;  

(g) the forklift weighs in excess of 11 tonnes and Mr Brennan’s evidence was that 

if the brakes were not used and Mr Calovski was travelling at 10km per hour the 

forklift would be able to travel well beyond 6 metres; 

(h) no precise measurements were taken of any of the distances that the forklift 

travelled during the course of the investigation and the Commissioner was not 

satisfied that a forklift, weighing in excess of 11 tonnes, would have slowed to 

a stop before hitting the roller door in circumstances of brake failure, despite 

hitting objects along the way;  

(i) Opal Packaging called Adapt-A-Lift to inspect the forklift post accident and it 

was that entity that reported that it had found no issues with the forklift; 

(j) Opal Packaging interviewed Mr Calovski to get his full account of events after 

Adapt A-Lift had inspected the forklift; 

(k) the Adapt-A-Lift representative was not told that Mr Calovski had alleged soft 

pedal and did not test for water contamination, which creates a high risk of soft 

pedal if it occurs; 

(l) Mr Calovski has been consistent in his account that the brake went soft; 

(m) while the service history states a 4000-hour service was completed on 9 March 

2023, there are anomalies in the forklift’s service history including evidence 

suggesting that: 

• no brake oil has been charged for, with the Manual requiring use of a 

certain product for the brake oil change; 

• while wet brake drive axle oil is required to be changed in five separate 

chambers of the wet brake system, requiring 25 litres in total, only 12 

litres of HP GEAR OIL 80W/90 $L (PER LITRE) is shown in the 

forklift’s service history and this is a lower viscosity to the oils required 

in the left and right side wet brakes;  

(n) Mr Brennan acknowledged that there were numerous requirements he could not 

identify in the forklift history as being completed because they did not appear in 

the history and that if these had not been carried out, the cumulative effect would 

significantly increase the risk of brake failure, including a temporary failure;  

(o) the forklift’s history was only obtained on 10 October 2023 (after the wrong 

service history was provided by Adapt-A-Lift to Opal Packaging) and it does not 

appear that the anomalies identified by Mr Brennan in the service history were 

identified at that time or investigated;  

(p) it is possible that in the time between when the incident occurred and when the 

technician inspected the forklift, the system could have cooled down, the gas 








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10 

could have returned to a liquid state and if so the forklift would appear to work 

normally.77 

 

[47] The Commissioner expressed the view that the seriousness of the allegation warranted 

a more thorough investigation. In the opinion of the Commissioner, Opal Packaging should 

have obtained Mr Calovski’s account before the forklift was returned to service and, upon 

learning that soft pedal was alleged, it should have arranged for testing to conclusively rule out 

water contamination and given more careful consideration to the forklift’s service history.78 

 

[48] The Commissioner found that Mr Calovski has operated forklifts and grab forklifts for 

approximately 25 years and accepted Mr Calovski’s evidence that this incident was the first 

time in his career that he had ever had a forklift accident. In the Commissioner’s view, this 

reduced the likelihood of Mr Calovski making such a serious error, whether it be applying the 

accelerator instead of the brake or otherwise.79 

 

[49] The Commissioner noted that Mr Brennan and SafeWork NSW placed reliance on 

Adapt-A-Lift’s findings in arriving at their findings. The Commissioner observed that, in 

circumstances where a very serious and potentially life-threatening safety incident occurred, 

Mr Calovski had indicated that the incident was caused by braking failure and Adapt-A-Lift 

provided and serviced the forklift involved, it would have been prudent to engage an expert 

independent of Adapt-A-Lift to inspect the forklift.80 

 

[50] The Commissioner concluded that there were two possible explanations for the incident: 

 

(a) Mr Calovski failed to brake in time before hitting the first object and he panicked 

or went into a state of shock such that he did not brake at all or continued to 

accelerate causing the forklift to travel for a distance of 9 metres into the 

pedestrian zone and the roller door, hitting multiple objects along the way; or 

(b) Mr Calovski tried to apply the brake of a forklift that had been heavily used since 

its last service in March and had anomalies in its service history, the pedal went 

soft when he went to apply it and he was unable to brake effectively. In 

circumstances where he had the boiler to his left and starch room to his right, he 

steered the forklift down a pathway that would result in the forklift causing what 

he considered to be the least amount of damage.81 

 

[51] The Commissioner believed that the first theory was not more plausible than the second, 

given Mr Calovski’s 25 years’ experience as a forklift driver, that he was not under the influence 

of drugs, alcohol or otherwise observed to be impaired, that Mr Calovski’s account was 

consistent, and that Mr Calovski did not have a history of being untruthful during his 

employment.82 The Commissioner concluded that in all the circumstances and taking into 

account the flaws in the investigation, and the failure to undertake testing to rule out 

contamination, which creates a high risk of soft pedal, she was unable to be satisfied, on the 

balance of probabilities, about which of these two theories caused the incident.83 

 

[52] The Commissioner stated that the allegations made by Opal Packaging about Mr 

Calovski’s conduct are serious and it bears the onus of proving that the conduct on which it 

relied took place. The Commissioner observed that there needs to be sound evidence upon 

which a firm finding may be made, on the balance of probabilities, that Mr Calovski failed to 








[2025] FWCFB 16 

 

11 

operate the grab forklift in a safe manner, causing extensive damage and creating a safety 

incident that could have resulted in injury and loss of life; and that he lied or was dishonest 

about this. The Commissioner said that she was unable to determine the cause of the incident 

and could not be satisfied that Mr Calovski was dishonest or untruthful. Even if there was error 

on the part of Mr Calovski, the Commissioner could not be satisfied, based on the evidence 

before her and on the balance of probabilities, that Mr Calovski was dishonest or lied during 

the investigation and disciplinary process.84 For these reasons, the Commissioner found that 

there was no valid reason for the dismissal related to Mr Calovski’s conduct. 

 

[53] The Commissioner made findings as were relevant to her consideration of the factors in 

ss 387(b)-(h) and concluded that Mr Calovski’s dismissal was harsh and unreasonable because 

Opal Packaging had not established that there was a valid reason for the dismissal, the forklift’s 

service history records sought by Mr Sayan on behalf of Mr Calovski should have been 

provided sooner and Mr Calovski’s account of the cause of the incident (being soft pedal) 

should have been properly investigated and there were deficiencies in this regard.85  

 

[54] The Commissioner ordered Opal Packaging to reinstate Mr Calovski, maintain Mr 

Calovski’s continuity of employment and continuous service and pay to Mr Calovski the 

amount that he would have earned in the period between his dismissal and the date of his 

reinstatement less the notice paid on termination and income earned since the time of his 

dismissal. 

 

Grounds of Appeal 

 

[55] The grounds of appeal relied upon by Opal Packaging are as follows: 

 

Appeal Ground 1 

 

[56] The first ground of appeal is that the Commissioner erred by finding that she was unable 

to determine between two possible causes of the crash of the forklift being driven by the 

applicant, being either:  

 

(a) applicant error; or  

(b) soft pedal being a form of brake failure;  

 

in circumstances where:  

 

(a) there was no evidence of effective braking of the forklift;  
(b) there was no evidence of water contamination of the forklift brake;  
(c) the likelihood of water introduction to the system unnoticed is extremely low;  

(d) there was evidence that the forklift had been examined by a forklift 

maintenance company;  
(e) there was unchallenged evidence that the forklift was returned to service and 

no issue arose with the forklift’s brakes once this happened; and   
(f) there was unchallenged expert evidence that the chances of brake failure were 

1 out of 10 on a scale of 1 - 10 even if the brakes had not been serviced in the 

previous 12 months.  
 








[2025] FWCFB 16 

 

12 

[57] Opal Packaging contends that to the extent that the finding referred to in Ground 1 

involves an error of fact, the error of fact is a substantial one and one that was inconsistent with 

facts incontrovertibly established by the evidence. To the extent that the finding involved a 

conclusion made without evidence, the error was an error of law. As a result of making the 

finding set out at Ground 1, Opal Packaging submits that the Commissioner made consequential 

findings in favour of Mr Calovski as to the misconduct alleged against Mr Calovski in lying to 

the investigator and in failing to use the handbrake.  

 

Appeal Ground 2 

 

[58] The second ground of appeal is that the Commissioner misapplied the principles 

established in Briginshaw v Briginshaw by finding that she was unable to be satisfied, on the 

balance of probabilities, that the incident was caused by Mr Calovski’s error, as:  

 

(a) The Commissioner applied a standard of proof beyond that set out in Briginshaw 

v Briginshaw by finding that the unlikely scenario of “soft pedal” had to be ruled 

out in order to make a finding of employee error; and  

(b) The Commissioner took into account matters unrelated to the question of fact 

(that being whether the incident was caused by Mr Calovski’s error or not) by 

considering procedural effects as relevant to the factual determination, being 

“taking into account the flaws in the investigation, and the failure to undertake 

testing to rule out contamination”. 

 

Public Interest 

 

[59] The public interest issues raised by Opal Packaging in the notice of appeal to support its 

submission that permission to appeal should be granted are as follows: 

 

(a) It is a matter of public interest that employers are entitled to take disciplinary 

action against employees who act unsafely and/or who lie during investigations 

into safety incidents.  

(b) The decision has attracted media attention as an authority for the standard to 

which an employer must conduct its investigations. 

(c) The Full Bench therefore has an opportunity to provide clarity in this important 

area of law, which will be of particular interest to Australian employers.  

(d) The grounds upon which the applicant for leave appeals represent errors of the 

type identified in House v The King in that the Commissioner acted on a wrong 

principle, made a significant error of fact, and failed to take into account a 

significant material consideration. This is a manifestation of injustice.  

(e) The decision runs against the grain of other unfair dismissal decisions in the 

Commission which generally support the employer’s prerogative to dismiss 

employees for unsafe work practices based on sufficient investigations to satisfy 

the balance of probabilities.   

 

[60] In its submissions, Opal Packaging also said that it is in the public interest that the proper 

standard for determining an unfair dismissal case should be clarified and that, if the decision is 

left uncorrected, employers will be required to conclusively disprove speculative alternative 

theories about machinery failure in serious breaches of WHS legislation. It submits that 








[2025] FWCFB 16 

 

13 

establishing and enforcing safety rules is an important obligation, a breach of which can lead to 

serious consequences and that the inability of an employer to prove such a case sends a message 

to the workforce that safety breaches can occur with impunity. 

 

Submissions 

 

Opal Packaging  

 

[61] Opal Packaging submitted that the Commission was faced with a strong case in favour 

of operator failure being the cause of the incident, including because of the following matters:  

 

(a) there was no evidence of effective braking of the forklift; 

(b) there was no evidence of water contamination of the forklift brake;  

(c) there was no evidence of brake fluid leakage;   

(d) there was no evidence that the brake indicator light was on;  

(e) if Mr Calovski had taken his foot off the brake, the forklift would have slowed 

down to an almost complete stop. Further, that slowing of the forklift in such 

circumstances was accepted by Mr Calovski; 

(f) hitting various objects should have slowed the trajectory of the forklift down to 

some degree;  

(g) the likelihood of water introduction to the system unnoticed is extremely low;  

(h) there was evidence that the forklift had been examined by a forklift maintenance 

company who found no fault with the brake;  

(i) there was unchallenged evidence that the forklift was returned to service and no 

issue arose with the forklift’s brakes once this happened; 

(j) Mr Calovski gave evidence that he had driven a forklift on thousands of 

occasions, and he had never known the brakes to stop working and start working 

again afterwards;  

(k) there was unchallenged expert evidence from Mr Brennan that the chances of 

brake failure were 1 out of 10 on a scale of 1 to 10 of likelihood even if the 

brakes had not been serviced in the previous 12 months;  

(l) there was expert evidence by Mr Brennan that the damage could not have been 

caused by brake failure. The Commissioner rejected that evidence. The reason is 

not clear but appears to be that the forklift could have been travelling at 10 

kilometres per hour. That conditional finding is not a sufficient basis to reject the 

expert's conclusion.  

 

[62] Opal Packaging submits that, in dealing with the case, the Commissioner specifically 

referred to two matters being the flaws in the investigation and the failure to undertake testing 

of the brake fluid to rule out contamination. Opal Packaging noted that the Commissioner found 

that given the seriousness of the incident, Opal Packaging should have arranged for testing to 

conclusively rule out water contamination and have given more careful consideration to the 

forklift’s service history. Opal Packaging submitted that in formulating the test in that way, the 

Commissioner adopted a standard in excess of the standard of proof in civil cases and, in effect, 

adopted a position that Opal Packaging was required to conclusively rule out any inconsistent 

circumstantial cases, no matter how remote or unlikely. 

 








[2025] FWCFB 16 

 

14 

[63] Opal Packaging submits that the case put forward by Mr Calovski was a circumstantial 

one. In such a situation, the Commissioner was required to weigh up the evidence for both 

theories and determine whether the circumstantial evidence gave rise to a more probable 

inference, however, the Commissioner did not do so. Opal Packaging submits that an employer 

is required to prove an allegation of misconduct on the balance of probabilities. The employer 

is not required to conclusively rule out every competing allegation.  

 

[64] Opal Packaging submits that the Commissioner did not distinguish between the 

likelihood of water in brake fluid causing soft brakes with the likelihood of water being in the 

brake fluid. The fact that water in brake fluid will almost certainly cause soft brakes, does not 

elevate the likelihood of there being water in the brake fluid.  If it is accepted that the brakes 

did not fail, it follows that there was a valid reason for dismissal.  

 

[65] Opal Packaging submits that the Commissioner inverted the usual reasoning process 

from one based on determining the most likely scenario to one where Opal Packaging was 

effectively asked to conclusively disprove a speculative theory. It alleges that this led to the 

Commissioner making the following errors:  

 

(a) An error in relation to the process of reasoning; 

(b) To the extent that the finding made involved a finding of fact being that the 

evidence as to which of these two theories caused the incident was evenly 

balanced, it was a substantial error in that the entire decision relied upon that 

finding; and  

(c) To the extent that the error involved making a finding without evidence, being 

that there was no evidence as to the existence of water in the brakes, the error 

was one of law. 

 

Mr Calovski 

 

[66] Mr Calovski submits that, in unfair dismissal matters, appeals on a question of fact can 

only be made on the ground that the decision involved a “significant error of fact”. The 

threshold for grant of permission to appeal is higher in respect of unfair dismissal appeals than 

the threshold pertaining to appeals generally. The test modifies the House v The King principles 

and is described as “a stringent one”. 

 

[67] Mr Calovski submits that the factual error must vitiate the ultimate exercise of discretion 

to be characterised as ‘significant’. The Commissioner had the advantage of seeing and hearing 

the witnesses, evaluating their credibility and the overall ‘feeling’ of the case. Mr Calovski 

submits that the findings of fact made by a member at first instance should stand unless it can 

be shown that the member ‘has failed to use or has palpably misused [their] advantage’ or has 

acted on evidence which was ‘inconsistent with facts incontrovertibly established by the 

evidence’ or which was ‘glaringly improbable’ or ‘contrary to compelling inferences’. Mr 

Calovski submits that it is not enough that an appeal bench considers that, if they had been in 

the position of the member below, they might have taken a different course. It must appear that 

some error has been made in exercising the discretion. Further, the public interest test in s 

400(1) of the Act is not satisfied simply by the identification of error or a preference for a 

different result. 

 








[2025] FWCFB 16 

 

15 

[68] In relation to Appeal Ground 1, Mr Calovski submits that the twelve matters relied upon 

by Opal Packaging to assert that it had a strong case oversimplify or misstate the evidence 

before the Commission. The Commissioner dealt with each of these matters, amongst others, 

in granular detail. The Commissioner simply was unable to be satisfied that Opal had made out 

its evidentiary onus. 

 

[69] In relation to Appeal Ground 2, Mr Calovski submits that Opal Packaging’s argument 

that it was required to “disprove” Mr Calovski’s version of events is plainly wrong. The 

Commissioner simply found that Opal Packaging did not make out its evidentiary onus, as it 

failed to investigate whether “soft pedal” had occurred. This became problematic when the 

evidence of Mr Paraskevopolous and Mr Brennan revealed it was plausible. 

 

[70] Mr Calovski submits that as Opal Packaging alleged that he failed to apply the brakes, 

Opal Packaging bore the evidentiary onus to prove this allegation. The Commissioner was 

simply unable to be satisfied that the misconduct, as alleged by Opal Packaging, had occurred. 

Unsurprisingly, she was then critical of the investigation process. This was not, contrary to Opal 

Packaging’s submissions, a finding that required Opal Packaging to “disprove” Mr Calovski’s 

version of events.  

 

[71] Mr Calovski submits that there was no investigation of his account at all, in 

circumstances where Opal Packaging alleged that Mr Calovski lied and failed to apply the 

brakes. Those were serious allegations in respect of which Opal Packaging accepted the 

Briginshaw standard applied. Opal Packaging could have made these inquiries about whether 

the incident was caused by “soft pedal” before the dismissal occurred. It refused to do so. The 

Commissioner’s findings that Opal should have taken at least some step to consider Mr 

Calovski’s version of events was an entirely orthodox approach. 

 

Consideration 

 

[72] An appeal under s 604(1) of the Act is an appeal by way of rehearing and the 

Commission’s powers on appeal are only exercisable if there is error on the part of the primary 

decision maker.86 There is no right to appeal, and an appeal may only be made with the 

permission of the Commission.  

 

[73] This appeal is one to which s. 400 of the Act applies. Section 400 provides: 

 
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a 

decision made by the FWC under this Part unless the FWC considers that it is in the 

public interest to do so. 

 

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a 

matter arising under this Part can only, to the extent that it is an appeal on a question of 

fact, be made on the ground that the decision involved a significant error of fact. 

 

[74] In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall 

and Cowdroy JJ agreed) characterised the public interest test imposed by s 400 as “a stringent 

one”.87 The task of assessing whether the public interest test is met is a discretionary one 

involving a broad value judgment.88 The public interest might be attracted, for example, where 

a matter raises issues of importance and general application, where there is a diversity of 








[2025] FWCFB 16 

 

16 

decisions at first instance so that guidance from an appellate court is required, where the 

decision at first instance manifests an injustice or the result is counter intuitive, or because the 

legal principles applied appear disharmonious when compared with other recent decisions 

dealing with similar matters.89 It will rarely be appropriate to grant permission to appeal unless 

an arguable case of appealable error is demonstrated. This is so because an appeal cannot 

succeed in the absence of an appealable error.90 However, the fact that the member at first 

instance made an error is not necessarily a sufficient basis for the grant of permission to 

appeal.91  

 

[75] It is significant, in the present appeal, that the intention of s 400 of the Act is to constrain 

the potential for appeals to be brought with respect to decisions in unfair dismissal proceedings. 

In Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman [2024] FWCFB 364, the Full 

Bench recently described the statutory purpose lying behind the provision and its consequences 

in the following way:92 

 
The statutory purpose of restricting the avenue of appeal with respect to a decision in unfair 

dismissal proceedings, and constraining the grounds on which such an appeal can be made, is 

not difficult to discern. The apparent objective is to limit the time, costs and inconvenience 

associated with unfair dismissal proceedings. The object of Part 3-2 of the Act includes to 

establish procedures for dealing with unfair dismissal that are “quick, flexible and informal”, 

including that the procedures and remedies provided for ensure a “fair go all round” is accorded 

to both the employer and employee concerned.11 An unconstrained right of appeal, or a threshold 

for permission to appeal being granted which is too low, would hinder the achievement of the 

object of the Part. 

 

…  

 

It is not possible, or appropriate, to attempt to confine or fetter the broad discretionary 

assessment required to be made in each case as to whether it is in the public interest to grant 

permission to appeal. However, the statutory context to which we have referred does suggest 

that it will commonly not be in the public interest to grant permission to appeal where the 

grounds of appeal, in substance, seek to relitigate the factual findings made at first instance. 

There may, of course, be cases in which it can be demonstrated that something has gone 

seriously wrong in the decision-making at first instance which demands reconsideration of the 

evidentiary material and the factual findings on appeal. It will often not be in the public interest, 

though, for a Full Bench of the Commission to engage in a detailed analysis of the primary 

factual material simply because an appellant alleges that different conclusions should have been 

drawn from the evidence.  

 

[76] This is a matter in which those observations are pertinent. The Commissioner was faced 

with a complex and voluminous evidentiary case. The evidence included direct accounts given 

by a number of witnesses as to what occurred during and following the incident on 27 June 

2023, evidence concerning the service history of the particular forklift involved in the incident 

and expert evidence in relation to the operation and maintenance of that type of forklift more 

generally. A number of witnesses were called to give evidence and cross-examined and the 

Commissioner was called upon to make findings in relation to their evidence, including in 

relation to matters which required an assessment of the reliability and credibility of the evidence 

given. The Commissioner was invited to find that Mr Calovski was dishonest in the account of 

the incident which he provided to his employer and in the proceedings before the Commission. 

In considering those submissions, the Commissioner had the advantage of assessing the 






https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb364.pdf


[2025] FWCFB 16 

 

17 

demeanour of the witnesses. In considering the question of permission to appeal, it is relevant 

that the factual findings made at first instance that are likely to have been influenced by the 

decision-maker having directly seen and heard the evidence should be set aside only where they 

are “glaringly improbable”.93  

 

[77] The grounds of appeal do not, in our opinion, raise issues of importance or general 

application to the jurisdiction of the Commission under Part 3-2 of the Act or the manner in 

which the Commission should approach the determination of questions of fact raised in unfair 

dismissal proceedings. The decision of the Commissioner contains a careful and thorough 

consideration of all the evidence put forward in the proceedings. The factual findings made by 

the Commissioner and her decision to award an unfair dismissal remedy demonstrate an 

orthodox approach to the fact-finding task and the determination of whether an unfair dismissal 

remedy should be awarded. We have set out in some detail the Commissioner’s reasons and the 

basis upon which Opal Packaging seeks permission to appeal. The grounds of appeal are, in 

substance, little more than an attempt to have the Full Bench reconsider factual findings made 

by the Commissioner in circumstances in which those findings were made by a member of the 

Commission who had the considerable benefit of directly seeing and hearing the evidence 

given. In our opinion and having regard to the statutory context to which we have referred, it is 

not in the public interest for permission to be granted to revisit the factual findings made by the 

Commissioner in this matter.  

 

[78] In any event, we are not satisfied that the grounds of appeal advanced by Opal Packaging 

demonstrate an arguable case of appealable error which might lead us to consider that it is in 

the public interest to grant permission to appeal.  

 

Appeal Ground 1 

 

[79] Appeal ground 1 is that the Commissioner erred by finding that she was unable to 

determine between two possible causes of the accident involving the forklift being driven by 

Mr Calovski. Opal Packaging contends that this finding was inconsistent with facts 

incontrovertibly established by the evidence or alternatively involved a conclusion made 

without evidence. In support of this appeal ground, Opal Packaging relies on there being 

insufficient evidence to support Mr Calovski’s version of events that soft pedal occurred. 

Further, Opal Packaging contends that the evidence it relied upon with respect to the extent of 

the damage and actions which would have slowed down the forklift supported its case that the 

incident could not have been caused by brake failure. 

 

[80] In relation to evidence about soft pedal, Opal Packaging submits that there was no 

evidence of effective braking, of water contamination or of brake fluid leakage, the likelihood 

of water introduction to the system unnoticed is extremely low, the forklift was examined by a 

forklift maintenance company then returned to service and there was unchallenged expert 

evidence that the chances of brake failure were 1 out of 10 even if the brakes had not been 

serviced in the previous 12 months. In relation to the extent of the damage and actions which 

would have slowed down the forklift, Opal Packaging submits that hitting various objects 

should have slowed the trajectory of the forklift down to some degree, there was expert evidence 

by Mr Brennan that the damage could not have been caused by brake failure and that Mr 

Calovski accepted that, if he had taken his foot off the brake,94 the forklift would have slowed 

down to an almost complete stop. 








[2025] FWCFB 16 

 

18 

 

[81] The Commissioner accepted that the incident occurred while Mr Calovski was driving 

the forklift, there was no evidence of effective braking, the brakes worked when Adapt-A-Lift 

tested them post incident, Adapt-A-Lift did not find any faults with the forklift’s brakes and the 

forklift was returned to service the night of the incident and no issues arose with the forklift’s 

brakes once this happened.95 The Commissioner found that these matters weighed in favour of 

a finding on the balance of probabilities that the accident was Mr Calovski’s fault.96 Further, 

the Commissioner accepted that hitting various objects should have slowed the trajectory of the 

forklift down to some degree97 and that it was unlikely that the brake fluids were low.98 As to 

whether the forklift would have slowed down to an almost complete stop if Mr Calovski had 

taken his foot off the brake, Mr Calovski’s evidence during cross-examination was that when a 

person takes their foot off the accelerator the forklift still rolls but would slow down. The brake 

must be pressed for the forklift to stop.99  

 

[82] As to there being no evidence of water contamination of the forklift brakes, the 

Commissioner noted that the forklift manual referred to small amounts of water in the brake 

system causing reduced braking performance,100 that Mr Paraskevopoulos confirmed during 

cross examination that he did not test to see if the brakes were contaminated by water and that 

if Mr Paraskevopoulos tested for contamination, he could have identified whether the oil was 

contaminated with water. The Commissioner was satisfied that water contamination is a cause 

of soft pedal and no testing of the brake fluids was undertaken to rule contamination out.101 In 

other words, being on notice that Mr Calovski said the brakes had failed and that water reduced 

brake performance, Opal Packaging could have undertaken testing to confirm that there was no 

water contamination of the forklift brakes but did not do so.  

 

[83] As to the likelihood of water introduction to the system unnoticed being extremely low, 

Mr Brennan expressed this opinion in his Expert Report based upon there being no indication 

from Mr Calovski that the indicator light was on.102 Mr Brennan clarified in cross examination 

that whether the indicator light on the dash would be lit if water is in the system would be 

dependent on the forklift make and model.103 Mr Brennan was taken to the forklift manual cited 

in his report which relevantly stated:104 

 
There's an indicator light on the display switch cluster for the brake oil.  See figure 24.  The red 

light is on when the key switch is in the start position on the power - or the power on/off is 

pressed and must go off when the engine is running.  

 

… 

 

If the light is on when the engine is running the brake fluid oil in the reservoir is too low. 
 

[84] Mr Brennan stated that he was not able to correctly answer a question which posited 

that the indicator light in the particular forklift would show that the brake fluid was too low but 

not necessarily whether it was contaminated with water.105 The Commissioner said that she was 

unable to draw a conclusion that if contamination occurred the indicator light would have been 

on or that Mr Calovski would have seen it.106 In our view this finding was available to the 

Commissioner on the evidence before her. 

 

[85] As to there being unchallenged expert evidence that the chances of brake failure were 1 

out of 10 on a scale of 1 to 10 even if the brakes had not been serviced in the previous 12 








[2025] FWCFB 16 

 

19 

months, we note that the opinion expressed in Mr Brennan’s Expert Report was in relation to 

brake failure occurring where the brakes had not been serviced in the 12 months prior to the 

accident.107 However, in a different section of the report, Mr Brennan recorded that if there was 

water contamination there was a high likelihood of brakes failing.108 During re-examination, 

Mr Brennan’s evidence was that the likelihood of water being in the brake system and then 

turning into gas and then back into water occurring as being in the 2 to 3 out of 10 range.109 

Further, during cross-examination, Mr Brennan acknowledged that there were numerous 

requirements he could not identify in the forklift history as being completed because they did 

not appear in the history and that if these had not been carried out, the cumulative effect would 

significantly increase the risk of brake failure, including a temporary failure.110 The 

Commissioner concluded that while a 2 or 3 out of 10 does not indicate a high degree of 

likelihood, this scenario is more than a remote possibility and it should not be considered in 

isolation from other relevant factors when identifying the likely cause of the incident on the 

balance of probabilities.111 In our view, this finding was available to the Commissioner on the 

evidence before her. 

 

[86] As to Mr Brennan’s expert evidence that the damage could not have been caused by 

brake failure, the Commissioner found that the total distance travelled by the forklift was 19 

metres. The Commissioner noted that the assumption made by Mr Brennan regarding total 

distance travelled was 10 to 12 metres from the commencement of forward travel to the final 

position of the broken door which was materially different to her finding especially considering 

her earlier finding that the forklift could have been travelling at its maximum speed of 10km 

per hour when it hit the orange and blue drum. As Mr Brennan’s report stated “[s]should these 

assumptions be materially different, this may in turn affect the content of the Report, and 

conclusions therein”, the Commissioner considered that Mr Brennan’s evidence about whether 

damage could have resulted in the event of brake failure could not be relied upon.112 In our view 

this finding was available to the Commissioner on the evidence before her. 

 

[87] For the reasons above, we do not agree that the facts asserted by Opal Packaging to be 

incontrovertible were so or that the Commissioner made conclusions without evidence. The 

Commissioner accepted that the evidence established some but not all of the facts advanced by 

Opal Packaging in appeal ground 1. Those findings were made by the Commissioner based on 

the evidence before her and we find no arguable error in her approach. The Commissioner had 

the benefit of directly seeing and hearing the evidence. The Commissioner took into account 

her findings in relation to these matters and had regard to the flaws in the investigation, Mr 

Calovski’s 25 years’ experience as a forklift driver, that he was not impaired, that Mr Calovski’s 

account was consistent, and that Mr Calovski did not have a history of being untruthful during 

his employment in concluding that it was not more plausible that the accident was caused by 

Mr Calovski rather than soft pedal113 and that she was unable to be satisfied, on the balance of 

probabilities, about which of these two theories caused the incident.114  

 

[88] The submission advanced by Opal Packaging was, in substance, that the possibility of 

soft pedal having been caused by water contamination was so low, particularly when the forklift 

was returned to service following the incident and apparently performed normally, that the 

Commissioner should have found that it was not the cause of the incident. Whilst the evidence 

indicated that the chances of water contaminating the brakes of the forklift was low, the reasons 

of the Commissioner demonstrate that it was more than a remote possibility and had not been 








[2025] FWCFB 16 

 

20 

excluded because appropriate testing was not undertaken. It was open on the evidence for the 

Commissioner to make that finding.  

 

[89] Opal Packaging’s submissions ignore that its alternative explanation of the incident 

would itself have constituted an extremely unlikely event. The Commissioner aptly described 

the alternative scenario of the incident involving Mr Calovski driving the forklift unsafely in 

the following manner:  

 
[315] While it is a combination of factors that make the explanation about soft pedal plausible 

and it appears that the incident happened within a matter of seconds, I consider it is no more 

likely that a forklift driver with 25 years’ experience and who was not under the influence of 

drugs, alcohol or otherwise observed to be impaired, could make a combination of errors that 

would see him:  

 

• apply the accelerator to move a forklift from its parked position toward the boiler for 

around 8 metres and then either brake late or accidentally accelerate into the first object, 

being the blue and orange drum; and 
 

• then fail to brake, continue to accelerate or accidentally accelerate such that the forklift 

travelled a further nine metres into a pedestrian zone, hitting multiple other objects along 

the way, in circumstances where the forklift should have stopped within 2 metres had a 

working brake been applied.  
 

[90] Furthermore, it is quite wrong for Opal Packaging to characterise Mr Calovski’s case as 

relying on circumstantial evidence. Opal Packaging’s submissions leave entirely out of the 

equation that Mr Calovksi gave direct evidence of what occurred in the incident on 27 June 

2023. Mr Calovksi gave the same account immediately after the incident, in the course of the 

investigation of the incident and in the proceedings before the Commissioner. It was 

appropriate, in the circumstance of this matter, for the Commissioner to consider whether there 

was a sufficient basis to reject the direct evidence given by Mr Calovski.115  

 

[91] Finally, in relation to the Commissioner’s findings about Mr Calovski failing to use the 

handbrake, the Commissioner noted that measures that should have been taken by Mr Calovski 

in the event of brake failure were not a feature of Opal Packaging’s investigation or the 

proceedings. On this basis, the Commissioner said she was not able to conclude that Mr 

Calovski’s failure to apply the handbrake would justify his dismissal. In our view this finding 

was available to the Commissioner on the evidence before her. 

 

[92] In our view, no arguable error arises with respect to the Commissioner’s finding that 

she was unable to determine between two possible causes of the crash of the forklift being 

driven by Mr Calovski and her consequential findings about the handbrake and Mr Calovski’s 

truthfulness. To put it another way, it was open to the Commissioner to conclude that she was 

not satisfied the incident had occurred because Mr Calovski had operated the forklift in an 

unsafe manner. We reject this ground of appeal. 

 

Appeal Ground 2 

 

[93] The second ground of appeal is that at the Commissioner misapplied the principles 

established in Briginshaw v Briginshaw. Opal Packaging contends that the Commissioner 

inverted the usual reasoning process from one based on determining the most likely scenario to 








[2025] FWCFB 16 

 

21 

one where Opal Packaging was effectively asked to conclusively disprove a speculative theory.  

Opal Packaging also submitted that the Commissioner erred in taking into account procedural 

errors as relevant to the factual determination. 

 

[94] Mr Calovski was terminated on the grounds of misconduct because it was alleged that 

he failed to operate the grab forklift in a safe manner and was not willing to accept any 

responsibility for the incident. Implicit in Opal Packaging’s reasons for termination is an 

allegation that Mr Calovski failed to apply the brakes. Opal Packaging accepted, in its 

submissions, that when an employer alleges misconduct, it must establish, on the balance of 

probabilities, that the misconduct occurred.  

 

[95] Opal Packaging further accepted that the principles explained in Briginshaw v 

Briginshaw (1938) 60 CLR 336 apply in a case such as the present, although it emphasised that 

the standard of proof never changes, and it is an error to apply a higher level of satisfaction in 

relation to findings of fact involved than the civil onus of the balance of probabilities.116 Where 

a fact must be proved, the application of the civil standard nonetheless requires that the fact 

finder feel actual persuasion of the occurrence of the fact in issue. In Lehrmann v Network Ten 

Pty Ltd (Trial Judgment) [2024] FCA 369, Lee J explained the reference to the “balance of 

probabilities” in the context of s 140(1) of the Evidence Act 1995 (Cth) as follows:117 

 
The concept used in subsection (1), being the “balance of probabilities”, is often misunderstood. 

It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of 

facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the 

whole of the evidence establishes a “reasonable satisfaction” on the preponderance of 

probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per 

Dixon J). The “facts proved must form a reasonable basis for a definite conclusion affirmatively 

drawn of the truth of which the tribunal of fact may reasonably be satisfied”: Jones v Dunkel 

(1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in 

Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, 

the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be 

found. 

 

Justice Hodgson put it differently, but to the same effect, by observing that when deciding facts, 

a civil tribunal of fact is dealing with two questions: “not just what are the probabilities on the 

limited material which the court has, but also whether that limited material is an appropriate 

basis on which to reach a reasonable decision”: see D H Hodgson, ‘The Scales of Justice: 

Probability and Proof in Legal Fact-finding’ (1995) 69 Australian Law Journal 731; Ho v 

Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (at 576 [14]–[16] per Hodgson JA, 

Beazley JA agreeing). 

 

Whatever way it is put, a “[m]ere mechanical comparison of probabilities independent of a 

reasonable satisfaction will not justify a finding of fact”: NOM v DPP [2012] VSCA 198; (2012) 

38 VR 618 (at 655 [124] per Redlich and Harper JJA and Curtain AJA); Brown v New South 

Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164 (at 176 [51] per 

Campbell JA, Bergin CJ in Eq and Sackville AJA agreeing). 

 

[96] There was no error in the Commissioner asking herself whether she was satisfied that 

the incident occurred as a result of Mr Calovski operating the forklift in an unsafe manner. To 

make that finding, it would have been necessary that the Commissioner feel an actual 

persuasion that the allegation of misconduct relied upon by Opal Packaging was established on 

the material before the Commission.  








[2025] FWCFB 16 

 

22 

 

[97] The reasons of Dixon J in Briginshaw v Briginshaw, emphasise that the seriousness of 

the allegation, the inherent unlikelihood of the alleged occurrence and the gravity of the 

consequences flowing from the finding in question are matters that properly bear upon whether 

the court is reasonably satisfied or feels actual persuasion that an event occurred.118 Although 

no different standard of proof is to be applied, the nature of the fact and the consequences of 

the finding being made are appropriate to be taken into account when assessing whether the 

decision-maker feels actual persuasion as to a fact. Lee J referred to the observations in GLJ v 

The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 

97 ALJR 857 that s 140 of the Evidence Act 1995 (Cth):119 

 
… reflects the position of the common law that the gravity of the fact sought to be proved is 

relevant to “the degree of persuasion of the mind according to the balance of probabilities”. By 

this approach, the common law, in accepting but one standard of proof in civil cases (the balance 

of probabilities), ensures that “the degree of satisfaction for which the civil standard of proof 

calls may vary according to the gravity of the fact to be proved”. 

 

[98] In our view, the Commissioner approached the determination of whether she was 

satisfied that Mr Calovski had operated the forklift in an unsafe manner consistently with these 

principles. The Commissioner understood that the allegations made by Opal Packaging about 

Mr Calovski’s conduct were serious. The Commissioner’s observation that there needs to be 

sound evidence upon which a firm finding may be made, on the balance of probabilities, that 

Mr Calovski failed to operate the grab forklift in a safe manner, causing extensive damage and 

creating a safety incident that could have resulted in injury and loss of life, and that he lied or 

was dishonest about this, is a correct statement of the applicable legal principles.  

 

[99] The primary basis of Opal Packaging’s submission that the Commissioner misapplied 

Briginshaw v Briginshaw is the observation she made that it should have conducted testing of 

the forklift following the incident that would have conclusively ruled out water contamination. 

The comment made by the Commissioner is as follows:  

 
[311] The seriousness of the incident, in my view, warranted a more thorough investigation. 

The Respondent should have obtained the Applicant’s account before the forklift was returned 

to service and, upon learning that soft pedal was alleged, it should have arranged for testing to 

conclusively rule out water contamination and given more careful consideration to the forklift’s 

service history. 

 

[100] Opal Packaging submits that this part of the decision demonstrates an approach that 

required it to rule out any competing allegation conclusively. That, it says, involves the 

imposition of an inappropriate standard of proof. The submission misreads the Commissioner’s 

decision. In our opinion, the Commissioner did no more than to observe that, had appropriate 

testing been conducted, whether contamination had occurred would have been known with 

certainty.  

 

[101] We do not believe that this aspect of the decision indicated the Commissioner imposed 

a standard of proof that required Opal Packaging to prove conclusively that there had not been 

water contamination. The Commissioner carefully weighed all aspects of the evidence to assess 

whether she was persuaded that Mr Calovski had operated the forklift in an unsafe manner as 

alleged. That included consideration of the likelihood of water contamination, the likelihood 








[2025] FWCFB 16 

 

23 

that Mr Calovski operated the forklift in the manner alleged and Mr Calovski’s direct evidence 

as to what occurred. In our view, the Commissioner’s reference to the omissions in the 

investigation of the incident at that point of the reasoning was no more than an 

acknowledgement that, had appropriate testing been conducted, the exercise of weighing other 

aspects of the evidence would have been unnecessary.   

 

[102] The Commissioner separately considered the failures that had occurred in the 

investigation as a relevant matter for the purposes of s 387(h) of the Act. The Commissioner 

considered that it was within the means of Opal Packaging to undertake an investigation into 

what was accepted to be a very serious safety incident and rule out the known causes of soft 

pedal and that the failure to do so was regrettable and weighed in favour of a finding that the 

dismissal was harsh.120 There was no dispute that flaws in the investigation of an allegation of 

misconduct could be relevant to whether a dismissal was harsh, unjust or unreasonable. There 

may be a question as to whether a flawed investigation might more appropriately be described 

as contributing to a finding that a dismissal was unreasonable or unjust rather than harsh. 

However, we do not believe there was any error in the Commissioner’s observations about there 

being flaws in the investigation. It might, in a particular case, be unreasonable or unjust to 

dismiss an employee on account of an incident of misconduct if the employer does so without 

conducting an appropriate investigation to determine whether the allegation of misconduct was 

properly founded. The Commissioner’s reasons put the matter no higher.  

 

[103] Finally, Opal Packaging submits that the Commissioner did not distinguish between the 

likelihood of water in brake fluid causing soft brakes with the likelihood of water being in the 

brake fluid. We do not accept that submission. Mr Brennan gave evidence about both of these 

matters which was referred to by the Commissioner. He said that if low brake fluid levels or 

water is introduced to the system the likelihood of soft pedal or non-existent pedal pressure is 

high. He also said that the likelihood of water being in the brake system and then turning into 

gas and then back into water occurring as being in the 2 to 3 out of 10 range. The Commissioner 

concluded that, while a 2 or 3 out of 10 does not indicate a high degree of likelihood, this 

scenario is more than a remote possibility and it should not be considered in isolation from 

other relevant factors when identifying the likely cause of the incident on the balance of 

probabilities. In our view, this finding was available on the evidence and does not indicate that 

she failed to distinguish between the likelihood of water in brake fluid causing soft brakes with 

the likelihood of water being in the brake fluid. 

 

[104] In our view, no arguable error arises with respect to the Commissioner’s application of 

the principles established in Briginshaw v Briginshaw and we reject this ground of appeal. 

 

Conclusion 

 

[105] Having found no errors in the Commissioner’s determination of the matter, we do not 

consider that the grant of permission to appeal would be in the public interest as the grounds of 

appeal have insufficient prospects of success. Further, the appeal does not raise any legal or 

factual issue of significance or general application, there is no relevant diversity of decisions at 

first instance, the legal principles applied by the Commissioner are not disharmonious when 

compared with other decisions, and we do not consider that the Commissioner’s decision is 

counter intuitive or manifests an injustice. In relation to the workplace safety issues raised by 

Opal Packaging as public interest considerations, we do not agree that the decision is 








[2025] FWCFB 16 

 

24 

inconsistent with other unfair dismissal decisions in the Commission where an employee has 

been dismissed for unsafe work practices, or that the decision suggests that an employer is 

required to conclusively disprove speculative alternative theories about machinery failure or 

sends a message to employees that safety breaches can occur with impunity. 

 

[106] For the reasons set out above, the Full Bench orders that permission to appeal is refused. 

The stay order made by Vice President Gibian lapses upon the determination of this appeal. 

 

 

 
 

VICE PRESIDENT 

 
Appearances: 
 

I Latham, counsel, instructed by Ai Group for the Appellant. 

J Martin, counsel, instructed by the AMWU for the Respondent. 

 
Hearing details: 
 

2024. 

 

Sydney (in-person): 

17 September 2024. 

 

Printed by authority of the Commonwealth Government Printer 

 

PR783797 

 

 

 
1 Calovski v Opal Packaging Australia Pty Ltd [2024] FWC 1717.  

2 Ibid at [6].  

3 Ibid at [70]. 

4 Ibid at [70]. 

5 Ibid at [106]. 

6 Ibid at [72]. 

7 Ibid at [106].  

8 Ibid at [106]. 

 


MISSION THE SEAL OF THE WORK CO




 

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[2025] FWCFB 16 

 

25 

 
9 Ibid at [106]. 

10 Ibid at [106.] 

11 Ibid at [107]. 

12 Ibid at [110]. 

13 Ibid at [109]. 

14 Ibid at [69]. 

15 Ibid at [72]. 

16 Ibid at [179]. 

17 Ibid at [125]. 

18 Ibid at [125]. 

19 Ibid, at [82]. 

20 Ibid. at [85]. 

21 Ibid, at [87]. 

22 Ibid, [102]. 

23 Ibid, [210]. 

24 Ibid at [212]. 

25 Ibid at [222]. 

26 Ibid at [103]. 

27 Ibid at [285]. 

28 Ibid at [138]. 

29 Ibid at [140]. 

30 Ibid at [145]. 

31 Ibid at [145]. 

32 Ibid at [151]. 

33 Ibid at [181]. 

34 Ibid at [182]. 

35 Ibid at [155]. 

36 Ibid at [159]-[160]. 

37 Ibid at [173]. 

38 Ibid at [175]. 

39 Ibid at [185]. 

40 Ibid at [6]. 

41 Ibid at [187]. 

42 Ibid at [189]. 

43 Ibid at [189]. 

44 Ibid at [190]. 

45 Ibid at [191]. 

46 Ibid at [191]. 

47 Ibid at [197]. 

48 Ibid at [6]. 

49 Ibid at [192]. 

50 Ibid at [193]. 

51 Ibid at [194]. 

52 Ibid at [195]. 

 








[2025] FWCFB 16 

 

26 

 
53 Ibid at [198]. 

54 Ibid at [198]. 

55 Ibid at [230]. 

56 Ibid at [234]. 

57 Ibid at [235]. 

58 Ibid at [237]. 

59 Ibid at [238]. 

60 Ibid at [252]. 

61 Ibid at [265]. 

62 Ibid at [255]. 

63 Ibid at [267]. 

64 Ibid at [268]. 

65 Ibid at [269]. 

66 Ibid at [270]. 

67 Ibid at [273]. 

68 Ibid at [274]. 

69 Ibid at [275]. 

70 Ibid at [281]-[282]. 

71 Ibid at [283]. 

72 Ibid at [286]. 

73 Ibid at [296]. 

74 Ibid at [297]. 

75 Ibid at [306]-[307]. 

76 Ibid at [308]. 

77 Ibid at [309]. 

78 Ibid at [311]. 

79 Ibid at [312]. 

80 Ibid at [313]. 

81 Ibid at [314]. 

82 Ibid at [316]. 

83 Ibid at [317]. 

84 Ibid at [319]. 

85 Ibid at [351]. 

86 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and 

Allied v AIRC (2000) 203 CLR 194, [17] per Gleeson CJ, Gaudron and Hayne JJ 

87 Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [43] (Buchanan J).  

88 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch 

(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty 

Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46] 

89 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27] 

90 Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481at [30] 

91 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, at [26]-[27]; (2010) 197 IR 266; Lawrence v Coal & 

Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed 

on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78); NSW Bar Association v Brett 

McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].  

 






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[2025] FWCFB 16 

 

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92 Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman [2024] FWCFB 364 at [37] and [40].  

93 Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ).  

94 This appears to be a typographical error and is intended to refer to accelerator. 

95 [2024] FWC 1717 at [306]-[307]. 

96 Ibid. 

97 Ibid at [268]. 

98 Ibid at [283]. 

99 Transcript PN281-PN282 in AB at 136. 

100 [2024] FWC 1717 at [210]. 

101 Ibid at [283]. 

102 Appeal Book (AB) at 1178. 

103 Transcript PN1477-PN1478 in AB at 238. 

104 Transcript PN1484-PN1486 in AB at 239. 

105 Transcript PN1488 in AB at 239. 

106 [2024] FWC 1717 at [286]. 

107 AB at 1175-1176. 

108 Ibid, at 1178. 

109 Transcript PN1584 in AB at 247. 

110 Transcript PN1507-1508 in AB at 241. 

111 [2024] FWC 1717 at [275]. 

112 Ibid, at [265]. 

113 Ibid at [316]. 

114 Ibid at [317]. 

115 Ibid at [319].  

116 By reference to Reifek v McElroy (1965) 112 CLR 517 at 521 -522 and Brinks Australia Pty Ltd re Brinks Australia Pty 

Ltd v Transport Workers' Union of Australia [2002] AIRC 1137 at [7].  

117 Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 at [98]-[100] (Lee J).  

118 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (Dixon J).  

119 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at 

[57] (Kiefel CJ, Gageler and Jagot JJ).  

120 [2024] FWC 1717 at [347]-[348].  






https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb364.pdf
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https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc1717.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc1717.pdf

Cases cited by this decision: