1
Fair Work Act 2009
s.394 – Application for unfair dismissal remedy
Paul Conicella
v
MSS Strategic Medical and Rescue Pty Ltd T/A MSS
(U2024/10687)
DEPUTY PRESIDENT DOBSON BRISBANE, 17 JANUARY 2025
Application for relief from unfair dismissal – speeding on a mine site in emergency – whether
an emergency existed – breaching standard operating procedures – whether breach of policy
permitted in emergent conditions – where site access removed by third party client – attempts
made to reinstate site access – serious misconduct
[1] Mr Paul Conicella (Mr Conicella) has made an application for an unfair dismissal
remedy under s.394 of the Fair Work Act 2009 (Cth) (Act). Mr Conicella was employed by
MSS Strategic Medical and Rescue Pty Ltd T/A MSS (MSS). MSS provide Medical, Rescue
and Security services in various industries including the mining industry in Australia. MSS
terminated Mr Conicella’s employment on 20 August 2024 on the grounds of frustration of
contract because its client BMA, withdrew Mr Conicella’s access from the site upon which he
was placed, and in the alternative, on the basis of serious misconduct as a consequence of Mr
Conicella speeding on a haul road at the Saraji Mine Site on 24 April 2024 whilst responding
to an emergency call, initially driving at 113km per hour in a 60km limited area, and later at
90km per hour in a 60km limited area. Mr Conicella denies that his actions constituted
misconduct at all and seeks reinstatement or in the alternative, compensation.
The hearing
[2] There being contested facts involved, the Commission is obliged by s.397 of the FW
Act to conduct a conference or hold a hearing. After considering the views of the parties, the
matter proceeded by hearing.
[3] At the hearing Mr Conicella was represented by Mr Chris Newman of the Mining and
Energy Union (MEU) and MSS was self-represented by Ms Sarah Coker, People and Culture
Manager, of MSS.
[4] Mr Conicella gave evidence on his own behalf.
[2025] FWC 169
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 169
2
[5] The following witnesses gave evidence on behalf of MSS:
• Mr Tony Ganzer, Operations Manager, East Coast MSS.
• Mr Casey Johnson, SEM Superintendent for BMA BHP Mitsubishi Alliance, (BMA
or Client).
[6] Both parties filed submissions and also made oral closing submissions following the
witness evidence and cross examination of all of the witnesses.
Has the Applicant been dismissed?
[7] A threshold issue to determine is whether the Applicant has been dismissed from their
employment. There was no dispute, and I find that the Applicant’s employment with the
Respondent terminated at the initiative of the Respondent.
[8] I am therefore satisfied that the Applicant has been dismissed within the meaning of
s.385 of the FW Act.
Initial matters
[9] There is no dispute and I am satisfied that the application was filed within the required
21 days.1
[10] There is no dispute and I am satisfied that Mr Conicella is protected from unfair
dismissal.2
[11] There is no dispute and I am satisfied that MSS is not a small business3 and that the
dismissal was not a case of genuine redundancy.4
[12] The Commission must now proceed to consider the merits of the application and decide
whether the dismissal was harsh, unjust or unreasonable, taking account of the matters in s.387
of the Act.5
[13] I acknowledge the submissions and evidence made by both parties in writing, pursuant
to my directions which are set out in the Digital Court Book. This evidence and other relevant
matters were further tested and explored at hearing. I don’t intend to detail them all here,
however they have all been considered and these are my findings.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[14] MSS submit there was a valid reason for dismissal related to capacity in that its client
had withdrawn Mr Conicella’s site access and therefore he was unable to fulfil the inherent
requirements of the job and he had declined to take up a different role that they offered him. In
the alternative, MSS submit there was a valid reason for dismissal based on Mr Conicella’s
conduct, being that he engaged in serious misconduct6 when he drove on a mine site at great
speed as set out in paragraph [1], which was inherently unsafe and was a serious breach of
policy/procedure.
[15] Mr Conicella was employed as an emergency response supervisor/team leader at the
Saraji mine site. Mr Conicella supervises 4 emergency response officers who are located on
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different parts of the mine site in addition to 1 paramedic emergency officer (PEO). On 24 April
2024, Mr Conicella responded to an emergency call at a site at the mine.
[16] At hearing, Mr Conicella conceded, and I accept that he was in the office prior to
proceeding to the emergency call and was unaware of the site conditions, although he was aware
of the protocols for other traffic in an emergency situation.
[17] At the hearing Mr Conicella gave evidence that the PEO was getting dressed and rather
than wait for her to finish, Mr Conicella elected to drive while she continued to do so. When
questioned, Mr Conicella conceded that he did not know if his passenger was wearing a seatbelt
while she was getting dressed. He also gave evidence that while he was driving, he used the
handheld radio whilst driving, and that he held that radio with one hand and had his other hand
on the steering wheel. He also gave evidence that he had not been trained to drive an emergency
vehicle in emergency conditions for some 20 years and it was normally the PEO’s job to drive
in such situations at this site. The training he received over 20 years ago was unclear and not
substantiated by any supporting evidence, and I am not at all satisfied that Mr Conicella was
trained to drive in emergency situations that include speeding on a high risk worksite. Mr
Conicella’s evidence was that he agreed he was driving at 113 km per hour in the 60 km speed
limited area due to there being an emergency which was a fire. He also gave evidence that he
was advised on the radio that there was no threat to life and the fire had been extinguished. His
evidence at hearing was that he then dropped his speed to 80-90 km per hour from then for the
rest of the trip. (I note in Mr Conicella’s written statement he stated that he slowed to 90 km
per hour and I find that it was 90km per hour not 80-90). When asked why he did not drop to
the 60 km speed limit, he said that he was concerned about a “risk of reignition”. He claimed
not to be able to remember how much longer he drove at the lower speed or how long it was
from when he was told that there was no risk to life and no fire, until he arrived at the site still
exceeding the speed limit by a significant amount. I find it hard to believe he didn’t have at
least some understanding as to how long it was but I believe it was for a period of time where
there was at least some ongoing risk to having a vehicle continue to drive at speed, in excess of
the speed limit by some 30 km per hour above the speed limit. Further, I am also satisfied that
there was no policy or direction to Mr Conicella that gave him authority to break the usual site
policy not to exceed the speed limit. I accept the evidence of Mr Johnson (the BMA
Superintendent on the site, that there was no grey area in breaching speed limits even in
circumstances of emergencies.”7 I find that it should have been clear to Mr Conicella that to do
so was not only unacceptable, it was very dangerous.
[18] When all of the circumstances of my findings are considered, where I am satisfied that
Mr Conicella had a passenger in the vehicle who was getting dressed at the time, whom he was
unaware as to whether she was wearing a seat belt, where he had one hand on a handheld radio
and one on the steering wheel, was untrained for driving in emergency conditions, on a site for
which I find that he was unclear on the conditions that evening, and despite being told there
was no threat to life and no fire and he continued to drive above the speed limit, I consider this
was conduct that was unacceptable for someone in his position. It was a situation where it
should have been obvious to a reasonable person that in all those circumstances, it was highly
dangerous. Even moreso in circumstances where, on the evidence given which I accept, there
had been a recent fatality on that site due to a vehicle driving over the site speed limit.
[19] It was submitted by MSS, which I accept, that MSS met with Mr Conicella on 8 August
2024 and advised him that BMA had withdrawn Mr Conicella’s access to site and that they had
made attempts to try and change that decision without success.8 I am satisfied that at that
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meeting, MSS offered Mr Conicella another role as a Security Guard for a different client,
which was also put in writing.9 Following that meeting, at Mr Conicella’s request, MSS again
contacted the client and challenged their revocation of Mr Conicella’s site access without
success.10 On 11 August 2024, Mr Conicella wrote back to MSS and declined the alternative
job offer.11
[20] I accept that it was BMAs decision to revoke
Mr Conicella’s access to the site.12 I also accept the evidence of Mr Ganzer that attempts were
made not to have Mr Conicella’s site access removed13 and an offer of an alternate job was
made and not accepted.14
[21] I conclude that there was a valid reason for Mr Conicella’s dismissal. It was that the
employment could not continue in circumstances where the client had revoked Mr Conicella’s
site access, despite MSS making attempts to change this situation, and further that Mr
Conicella’s conduct was so egregious in all the circumstances previously set out, that serious
misconduct arising from his actions in responding to the emergency on the evening of 24 April
2024, was substantiated.
[22] I note the Applicant’s referral to the decision of Kim Star v WorkPac Pty Ltd15 (Star).
I believe this matter is materially distinguishable from Star in that MSS made attempts to have
Mr Conicella’s site access reinstated and importantly, I have made findings that the conduct of
Mr Conicella was serious misconduct that warranted dismissal in and of itself.
Was the Applicant notified of the valid reason?
[23] 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).16
[24] 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,17 and in
explicit18 and plain and clear terms.19
[25] It was the evidence of Mr Ganzer, which I accept, that Mr Conicella was stood down on
the 26th of April 2024 and advised of the allegations against him.20 Mr Conicella was
subsequently issued a letter from MSS which again detailed the allegations and provided an
opportunity to respond to those allegations21 which he did on 30 April 2024.22 Further, MSS
then wrote again to Mr Conicella on 22 May 2024 advising the preliminary findings and
provided an opportunity for Mr Conicella to respond as to why his employment should not be
terminated.23 Mr Conicella responded on 28 May 2024.24 Following attempts to challenge the
revocation of site access25 and find an alternate job placement for Mr Conicella, MSS issued
Mr Conicella with a termination letter that took immediate effect.26
[26] I find that the Applicant was notified of the reason for his dismissal prior to the decision
to dismiss being made, and in explicit, plain and clear terms. In all the circumstances, I find
that Mr Conicella was notified of the reason for his dismissal.27
[27] In further consideration of those circumstances, I find that Mr Conicella was given an
opportunity to respond to the reasons for his dismissal prior to the decision to dismiss being
made.28
[2025] FWC 169
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[28] It was not in dispute and noting the presence of Mr Jeff Pearce of the MEU in at least
one meeting,29 I find that there was no unreasonable refusal of the Applicant to have a support
person present to assist at all relevant dismissal discussions.30
[29] MSS submitted and I accept that Mr Conicella had been the subject of previous
disciplinary action in the form of a record of counselling discussion held on 24 March 2024 for
an earlier incident regarding a failure to follow standard operating procedures.31 Whilst I accept
that this was not related to unsatisfactory performance, it was related to Mr Conicella’s conduct
and therefore, a matter I consider relevant to the dismissal.32
[30] There was no dispute and I find that MSS’s size did not impact the procedure followed
in effecting the dismissal.33
[31] Further, there was no dispute and I find that MSS employs dedicated human resources
staff and therefore, no impacts to procedures followed need be considered.34
What other matters are relevant?
[32] Mr Conicella submits that in circumstances where a valid reason for the termination is
found to exist, that the termination is still unfair as the decisions where harsh, unjust and
unreasonable.35 I reject this submission. The actions of Mr Conicella were very serious for the
reasons already outlined.
[33] Further, Mr Conicella also submits other factors that the Commission should consider
in favour of finding the dismissal was unfair include: his length of service of approximately 20
months, the reason Mr Conicella provided for speeding on the mine site was to reduce the time
it took to attend the scene of an emergency and the failure of MSS and BMA to provide clear
direction and a clear policy directing how emergency response employees drive when
responding to an emergency situation. I note that Mr Conicella was engaged as a casual for a
period of 7 months and engaged permanently for a period of 13 months.36 I do not consider 20
months of service to be a lengthy period of service, particularly in circumstances where he had
already been provided with a record of counselling for a previous breach of policy in the
preceding month. Further, for the reasons already outlined, I do not consider it reasonable to
drive at the speed Mr Conicella drove at, especially in circumstances where he had another
employee in the vehicle who was getting dressed as he drove, he was distracted with a hand
held radio on one hand and only had one hand on the steering wheel, he was advised there was
no threat to life and no fire and whilst he slowed down, he continued to speed at an unreasonably
excessive level. I am also satisfied that there was no policy that raised any possibility that it
was appropriate for Mr Conicella to ignore policies in an emergency situation. Further, and
importantly, I don’t accept that the situation continued to be an emergency situation once Mr
Conicella was advised that there was no threat to life and no fire. I do not accept that a
possibility of reignition amounted to an emergency situation (arguably, there is always such a
possibility) and therefore, even if there was a policy saying it was okay to speed in an
emergency, it would not have applied from that point onwards.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or
unreasonable?
[34] I have made findings in relation to each matter specified in section 387 as relevant.
[2025] FWC 169
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[35] I must consider and give due weight to each as a fundamental element in determining
whether the termination was harsh, unjust or unreasonable.37
[36] 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 for all the
reasons set out.
Remedy
[37] I note that even if I had found that the dismissal was unfair, when it comes to remedy, I
would have found that given MSS attempts to have Mr Conicella’s site access reinstated,38 and
the serious nature of Mr Conicella’s actions giving rise to a serious loss in confidence in him to
perform his role, I would have considered reinstatement inappropriate in all the circumstances.
[38] In respect of a financial remedy, I would have considered the following circumstances:
Mr Conicella held a second job which was in breach of his employment contract.39 At hearing,
Mr Conicella conceded he did not have written permission to engage in this second job at
Fenner Dunlop Pty Ltd (Fenner),40 as is set out in his employment contract,41 which he signed
on 24 August 2024.42 I am satisfied on the evidence before me that Mr Conicella continued to
work full time at Fenner Dunlop including during the period where he was stood down on full
pay by MSS. While Mr Conicella states in his evidence that he worked at Fenner for a period
of some 6-8 weeks post his employment with MSS ending,43 I am satisfied based on a review
of his payslips44 on which he was cross examined at hearing, that he actually worked for a
period of 10 weeks at Fenner from the time he was stood down on full pay. I note that Mr
Conicella obtained alternative employment from 9 November 2024, and therefore note that
there was a period of 2 weeks from the last payslip provided by Mr Conicella from Fenner until
he commenced his new position. I find it is probable that the employment with Fenner
continued until he commenced his new role and therefore even if I had found the dismissal was
unfair, I would not have made any order for financial remedy.
Conclusion
[39] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not
satisfied that Mr Conicella was unfairly dismissed within the meaning of section 385 of the FW
Act. Mr Conicella’s application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Chris Newman, Mining Energy Union for the Applicant.
Ms Sarah Coker, People and Culture Manager for the Respondent.
FAIR WORK NOI THE
[2025] FWC 169
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Hearing details:
Brisbane
In Person
23rd December 2024
Printed by authority of the Commonwealth Government Printer
PR783424
1 Fair Work Act 2009 (Cth) s.394(2).
2 Ibid s.382.
3 Ibid s.396(c).
4 Ibid s.396(d).
5 Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect
on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the
person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any
discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about
that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed
in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the
enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
6 Fair Work Regulations 2009 (Cth) r.1.07(2)(a), (b) and (e).
7 DCB p.502 at [8] and [9].
8 DCB pp.118-119 at [19]-[20].
9 DCB p 119 at [21].
10 Ibid at [22].
11 Ibid at [23].
12 DCB p.503 at [11]. See also DCB pp.118-119 and pp.500-501.
13 DCB pp.500-501
14 DCB p.119.
15 Kim Star v WorkPac Pty Ltd [2018] FWC 4991 (Star).
16 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
17 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
18 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
19 Ibid.
20 DCB pp.118.
21 Ibid; See also DCB pp.178-179.
22 Ibid; See also DCB pp. 180-182.
23 Ibid; See also DCB pp. 183-184.
24 Ibid; See also DCB pp. 185-186.
25 Ibid p.119 at [22].
26 Ibid p.119 at [24]-[25]; See also DCB pp. 196-197.
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr783424.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc4991.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm
[2025] FWC 169
8
27 Fair Work Act 2009 (Cth) s.387(b).
28 Ibid s.387(c).
29 DCB p.118 at [19]
30 Fair Work Act 2009 (Cth) s.387(d).
31 DCB p.119 at [26]; See also DCB pp. 198-199.
32 Fair Work Act 2009 (Cth) s.387(h).
33 Ibid s.387(f).
34 Ibid s.387(g).
35 DCB p.26; See also Makin v Glaxosmith Kline Australia Pty Ltd [2010] FWA 2211.
36 DCB p.113.
37 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].
38 DCB p.118-119 at [22].
39 DCB p.136 at [15.1].
40 DCB pp.87-89.
41 DCB p.136 at [15.1].
42 DCB p.139.
43 DCB p.32 at [35].
44 DCB pp.87-89.
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa2211.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
