[2018] FWC 12

The attached document replaces the document previously issued with the above code on 2 January 2018.

The Print ID code is amended to PR599162

Associate to Commissioner Wilson

Dated 19 March 2018

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Adam Blyth
v
JBS Australia Pty Ltd
(U2017/8047)

Application for an unfair dismissal remedy.

[1] Adam Blyth was employed by JBS Australia Pty Ltd from 15 November 2003 until 17 July 2017 when he was dismissed summarily for reasons of misconduct.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Blyth’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] The matter proceeded before me by way of a hearing, with me being satisfied that such was appropriate to do so, and neither party objecting to the conduct of the proceedings in that manner.

[4] Mr Blyth was represented by Kristen Rogers, National Industrial Officer of the Australasian Meat Industry Employees Union. JBS Australia was represented by Jessica Light, solicitor, of Meridian Lawyers following a grant of permission by me for the Respondent to be represented by a lawyer. In granting permission for representation of the Respondent by a lawyer I had regard to the provisions of s.596(2) of the Act, and was persuaded that such representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a)), and that it would be unfair not to do so, taking into account the Applicant’s representation by a legally qualified employee of his union (s.596(2)(c)).

[5] For the reasons set out below, I have found that Mr Blyth was not unfairly dismissed and that his application for unfair dismissal must be dismissed.

BACKGROUND

[6] Until 17 July 2017, Adam Blyth worked at JBS Australia’s meat processing plant at Brooklyn, Victoria, working in Boning Room 3 as a bandsaw operator, trainer and assessor. At the time of his dismissal Mr Blyth had been employed by JBS Australia for over 13 years.

[7] The incident on which Mr Blyth’s dismissal rests is a single event which took place on Tuesday, 27 June 2017. In brief, Mr Blyth stepped forward and used a particular bandsaw without first attaching his safety lanyard to the machine. He proceeded to cut a neck from one lamb forequarter and after having been seen doing this and queried about it, watched another employee, Kham Cung Chuntai, perform a cut to a second forequarter, which had been obtained by Mr Blyth.

[8] Many of the essential facts in this matter are agreed between the parties and set out within a Statement of Agreed Facts. The dispute between the parties turns on the question of whether or not it was fair in all the circumstances to dismiss Mr Blyth as a consequence of the safety breach.

LEGISLATION

[9] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows;

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.

CONSIDERATION

[10] Determination of whether Mr Blyth’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[11] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way; 1

“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

•  a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 2

•  a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 3

•  it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 4

•  the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 5 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

•  the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 6” (original references)

[12] I will deal with each of the criteria within s.387 in turn.

(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)

[13] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship;

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 7

[14] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 8 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.9 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.10 In considering applications before it of this sort, the Commission does not “stand in the shoes” of the former employer and determine what it would have done in the circumstances.11

[15] At the relevant time, about 2:27 PM on Tuesday, 27 June 2017, Mr Blyth was near a BladeStop bandsaw being used by Mr Chuntai.

[16] In its submissions, JBS Australia notes the following about the BladeStop bandsaw;

“A blade stop bandsaw is a saw with in-built safety mechanisms which mechanically stop the blade when the saw senses that a person has come into contact with the blade within 0.009 seconds of the contact. The effect of the stoppage is that the machine will cause a cut or laceration where amputation of a limb would otherwise be the likely outcome. A waist strap sensor is fitted to the blade stop bandsaw. This waist strap includes pads which sit against the skin of a person’s waist and the machine uses this sensor to determine when contact has been made by a saw operator’s skin and the blade of the machine.” 12

[17] The following facts are agreed between the parties;

•  at about 2:27 PM, Mr Blyth carried a forequarter to the bandsaw being operated by Mr Chuntai and made a single cut to sever a neck from forequarter;

•  in doing so, Mr Blyth had used the BladeStop bandsaw being operated by Mr Chuntai without having attached the safety lanyard; and

•  Mr Chuntai remained tethered to the BladeStop bandsaw while Mr Blyth took the action he did. 13

[18] JBS Australia put forward that since part of Mr Blyth’s job was to be a trainer of others he ought to have been aware that his conduct “constituted a breach of the Respondent’s Cardinal Rules Policy, Work, Health and Safety Policy and Training Policy and that breaching these policies by failing to be tethered to a blade stop bandsaw as required constitutes serious misconduct warranting summary dismissal”. 14

[19] Pauline Rhodes, JBS Australia’s human resources manager, was the person who recommended Mr Blyth’s dismissal; with her giving the following evidence about her decision;

“15. I am aware that a failure to use the safety lanyard is a breach of the Cardinal Rules. Specifically, the Cardinal Rules state that an employee must not remove or bypass any guards, limit switch or safety devices. If an employee does remove or bypass this equipment, they will, subject to rules of procedural fairness, face disciplinary action up to and including summary dismissal.

16. Adam admitted to using the bandsaw without the safety lanyard. Although Adam alleges that the line was running too fast, based on the information obtained during the investigation, I did not find this was the case.

17. Adam breached the Cardinal rule policy, the WH&S policy and the Training Policy. Adam held a position of leadership in that he was a recognised bandsaw trainer. It was up to him to lead by example. In my view, Adam should fully understands the safety requirements and dangers associated with the misuse of a bandsaw. Adam should also understand the Company's culture change with continually moving to provide a safer work place.” 15

[20] So far as is relevant, the content of each of these policies is as follows;

•  Cardinal Rules 16

•  The rules are set out in a summary as the following;

“JBS Australia is committed to preventing the most critical incidents in our industry. No compromise or shortcuts will be tolerated.

Any and all employees regardless of their title or position discovered in violation of any of the following Corporate Cardinal Safety Rules will, subject to rules of procedural fairness, face disciplinary action up to and including summary dismissal.

1. Failure to isolate using lock out and tag out procedures.

2. Failure to follow confined space entry requirements.

3. Operating mobile plant without authorization and / or training.

4. Removing or bypassing guards, limit switches, or safety devices.

5. Failure to wear torso protection (Mesh or Kevlar) where required.

6. Failure to wear electrical safety personal protective equipment (PPE) on authorized live work, or failure to use electrical safety related work practices where required.

7. Allowing or instructing another employee to perform any of the above acts.”

•  The content of the Cardinal Rules document takes these matters further with the detail referring to the potential for disciplinary action if lockout procedures are not followed and if guards or safety devices are knowingly removed or bypassed.

•  Workplace Health and Safety Policy – after providing a statement of the company’s commitment to ensuring healthy and safe work places for all employees, contractors and visitors and to complying with Work Health and Safety legislative requirements applicable at its various sites, the policy provides for obligations on employees to comply with instructions and direction about workplace health and safety matters, including by following task descriptions and procedural statements. 17

•  The JBS Australia Training Policy comprehensively sets out the company’s training objectives and the framework by which that training is delivered, with the expectation that training and assessment is delivered by staff with the necessary skills through different methodologies and the expectation that employees follow task descriptions. 18

[21] The evidence generally is that Mr Blyth was trained in the use of the BladeStop bandsaw, including its safe operation.

[22] Mr Blyth’s work with JBS Australia required him to train others. In the course of those duties he was expected to be able to show others how to perform work and to be able to do so in accordance with relevant policies and procedures. Others would look to him as a model of sorts. For example, Mr Chuntai said that Mr Blyth had assisted him throughout his time on the BladeStop bandsaw and that when he performs training and demonstrations Mr Blyth stands next to the operator. Mr Blyth would show him how to make cuts and how to position the meat better, after which he would have his own turn. 19 Mr Chuntai’s oral evidence also suggested that Mr Blyth was something of a mentor, saying that Mr Blyth was “our teacher and so we would know what he wants” with reference to him holding the lamb forequarter and approaching the bandsaw.20

[23] Overall, the evidence on the subject of Mr Blyth’s training about the work in the boning room and his performance in accordance with relevant task descriptions and safety procedures and obligations allows a finding that he was both aware of his obligations in respect of safety in the boning room and that he had been trained in the performance of his duties.

[24] Mr Blyth describes his duties in the following ways in his witness statement;

“7. There are three (3) different saw types in Boning Room 3 and I am skilled in using, and training others to use, all of them. Three types are:

a. Front breaking circular saw, generally used for preliminary cuts on carcasses for further processing.

b. 600 model bandsaw, generally used for racks and loins.

c. Bladestop bandsaw, generally used for forequarters and shanks.

8. Work performed on both the breaking circular saw and the 600 model bandsaw is paid at tally rates. This is indicative of the high level of skill required to use those machines.

9. Work performed on the bladestop bandsaw is lower paid; it is paid at just an hourly rate.

10. All types of saws have safety guards and a Foot Controlled Stop Kick Switch.

11. The bladestop bandsaw, which is the smallest of the saws, also has sensors and a lanyard attachment that connects the operator to the machine. If the lanyard is disconnected unexpectedly or the sensor is tripped by operator contact with the blade, the bandsaw blade stops.

12. When working as a Bandsaw Operator, I generally work on the 600s. As described above, the 600s do not have the sensor or lanyard features that the bladestop bandsaws have.

13. When working as a Bandsaw Assessor, I stand nearby a worker while they operate the saw and closely observe their competencies.

14. Working as a Bandsaw Trainer generally involves showing workers how to hold product, cut product, what to look for, where the best placement of hands and body is, etc. Training can be scheduled and can be on an ‘as needs’ basis.

15. Scheduled training generally occurs when new starters are being inducted and trained for the first time or existing workers are looking at achieving a further competency. Training starts in the training office with a colour-blindness test and then an induction including information about the types of saws, blades, emergency stops and safety. The practical component of the training occurs on the job. That is, trainees are located in the processing area and perform training tasks on product.

16. ‘As needs’ training occurs when a problem or inefficiency is identified, and can be remedied through a training demonstration and repeated as needed. That was certainly a large part of my role – to identify problems and quickly address them. My attention to detail and ability to train quickly is why I was such a successful Bandsaw Trainer.” 21

[25] The boning room in which Mr Blyth was working on 27 June 2017 comprised over 100 workers. Mr Blyth puts the number at between 150 to 160, and Mr Chapman, the JBS Australia boning room foreperson, puts the number on an average day at between 120 and 130. 22 Mr Chapman notes that the employees in question undertake work associated with all aspects of lamb “further processing”. The speed of the boning room is variable and whether it was too high on the day in question is a matter in dispute between the parties;

“7. One of my job roles is to manage the speed of the room. The speed of the room is determined by a computer. At the time of Adam's dismissal, the speed was determined by choosing a number from 0 to 600 on the computer screen. This is determined considering factors including but not limited to the products being produced, size of available carcases, manning in the room and skill level of workers in key positions.

8. At a speed of 500 the room has the capacity to process about 9.5 carcasses per minute. This is the average speed the room is set at most days. To determine what speed the room is set at and whether the speed is higher or lower than average I will think about the manning of the room, the size of the carcasses and their quality. If the carcasses are dirty, there might be a need to slow the room down.” 23

[26] Mr Chapman further states that a record is not kept of the speed of the room on any given date. On the day in question Mr Chapman had set the speed of the room at about 500, which he puts forward was an average speed. 24

[27] While several of the Applicant’s witnesses each put forward that the speed of the room was a problem for them on that day, the relevant Respondent witnesses disagreed with that view; 25

•  Mr Blyth’s evidence was that there had been problems with speed in Boning Room 3 for a while; that the main problem was that the speed was simply too high at times for the placement of people or the number of people in the room and that the subject had been raised at various levels including on the floor, in consultative committee meetings and with the Plant Manager, Mark Kelly. 26 Pertaining to 27 June, a co-worker had approached Mr Blyth about Rebecca Edmonds, who was working on the front shoulder saw; she was upset and was reported to be unhappy with the pace of the room being too fast and not feeling comfortable. The same co-worker had advised him that Rebecca was struggling to keep up and was feeling under pressure.27 He queried the situation with Ms Edmonds and he says with Mr Chapman;

“46. I left my saw and approached Rebecca to see how she was doing.

a. I said words to the effect of, “what’s up Rebecca?”

She said words to the effect of, “I don’t have time to cut the necks off and Aaron doesn’t have any labour available” and “can you cut the necks off down the back of the room?”

I said words to the effect of, “just do what you can”.

47. I saw that Sam observed my conversation with Rebecca. Rebecca was clearly struggling and had a build-up of work around her.

48. I left Rebecca to return to my saw.

49. As I walked past Sam, I said words to the effect of “she’s under the pump”.

a. Sam responded by saying words to the effect that “she’s only got a couple of necks off”.

I said words to the effect of, “the speed is too fast and she can’t keep up”.

I said words to the effect of, “I don’t want her to cut herself – it’s too much”.

I believe that I mentioned the cut team positioning during the previous week when Jason Debrincat had asked me to give Rebecca a hand to take off every second forequarter as it was too fast and to give her a hand due to the speed so that she could concentrate just on the square cut shoulders.

Sam said words to the effect of, “I only need a couple of necks off”.

I think I said words to the effect of, “then why don’t you do it?”

Sam responded by saying words to the effect of “why don’t you go and cut these off” and referred to two forequarters which were coming down the belt.” 28

•  On the day in question Ms Edmonds was also working as a BladeStop bandsaw operator. Her evidence is that at the start of the day the staffing was fine and the crew were keeping up fairly well but that changed after the second break of the day and that the speed of the room did not slow down, even though there had been changes in personnel, including the second saw person being moved. Ms Edmonds recalls being worried about the speed and getting the work done without being injured. 29 Her witness statement in this regard is broadly consistent with the statement she gave to Ms Moore in the course of the investigation on 11 July 2017.30

•  Mr Chuntai thought the speed of the line in the afternoon was very high and that there were not enough people on the saws to keep up. 31

•  Mr Wilson noticed on 27 June 2017 that Ms Edmonds was struggling to keep up with the work and that she “was clearly under the pump”. He says that he approached Mr Chapman saying “that the chain was too fast for Rebecca and that she needed assistance”. 32 This statement is generally consistent with the one made on or around 6 July 2017.33

•  Mr Chapman’s statement to the investigator, Ms Moore, recollects Ms Edmonds having raised with him the speed of the room and him having told her the room was set at the same speed as it normally was. 34

[28] In the afternoon of 27 June 2017, Mr Chuntai was working as a BladeStop bandsaw operator along with other operators. The configuration of the boning room line is that the BladeStop bandsaw operators are towards the end of the line; product is mechanically moved towards them, which the operators are then responsible for cutting and moving on, either by placing saleable product on one line or disposing of waste on another. Mr Chuntai’s evidence, which is consistent with that of other witnesses, was that shortly before the incident in question Mr Blyth had stopped his machine and moved elsewhere and that Mr Chuntai was then left alone to cut the shanks and shoulder racks and that he consequently felt stressed. His evidence is that he called for help because he needed another person in the area and that Mr Blyth responded by coming up to him holding some meat, asking him to step aside and then performing the cut. 35

[29] Although JBS Australia contest the proposition put forward by Mr Blyth that the speed of the line in question was set too high on 27 June 2017, the evidence on the subject of the working of the line leads to the conclusion, on the balance of probabilities, that employees in question toward the end of the line were experiencing difficulty keeping up with the amount of product coming through. It is reasonable to find that both Mr Blyth and Mr Chuntai were responding to the pressure they were experiencing when, firstly, Mr Chuntai called for assistance, and then when Mr Blyth responded by performing one cut.

[30] Beyond the essential facts about the circumstances leading to Mr Blyth’s dismissal, set out in the abovementioned Statement of Agreed Facts, there are several matters which are the subject of controversy. They include whether Mr Blyth was responding to a direction from Mr Chapman to assist Ms Edmonds when he committed the safety breach and whether or not the area in which Mr Blyth and Mr Chuntai were working was marked out with yellow safety markings, with it then being recognisable as a safety exclusion zone.

[31] In respect of the first matter, of whether Mr Blyth had been directed to assist Ms Edmonds, Mr Blyth puts forward that after speaking with Ms Edmonds he walked past Mr Chapman saying words to the effect of “she’s under the pump” and that after an interaction between the two about whether or not the speed of the line was too fast and that Ms Edmonds could not keep up, the dialogue with Mr Chapman proceeded as recorded above, to the effect that Mr Blyth should “go and cut these off”, referring to two forequarters which were coming down the belt. 36 Mr Blyth elevates this exchange to a direction: “The task that Sam directed me to perform was to cut the necks off two forequarters. That is the work of seconds.”37 (underlining added)

[32] Mr Chapman concedes that there was a discussion between the two, but not one that had him directing or even asking Mr Blyth that he should perform some cuts himself;

“19. Shortly after this happened, I saw Adam approach Rebecca. I could see them speaking but I could not hear what they were saying. Adam then approached me and I recall words to the following effect:

Adam: "I'll cut the necks off for you"

Me: "I don't want you to do them, I want Rebecca to do them because I need them done in front of the boners"

Adam: "The room is too fast for her to do them"

Me: "I only need 6 and have told Rebecca to do it whenever she has a chance"

20. Adam then leaned over me to grab a shoulder. I thought he was going to take it back to his saw.

21. Adam however walked over to Chuntai, stepped across the yellow safety line and into Chuntai's workspace. While Chuntai was standing at his saw about to put through a piece of product, Adam leaned over him and with one hand cut the neck off. He was not tethered to the machine at the time and Chuntai was standing in front of the saw. I thought this was extremely unsafe.

22. Adam walked back over to me to get another shoulder and I said to him words to the effect of:

Me: "Adam you can't cut on someone else's blade stop"

23. Adam did not respond to me. He just picked up another shoulder and went back to Chuntai's work area and this time asked him to cut the neck off for him.” 38

[33] In respect of the markings around the bandsaw, the Respondent’s case is that the area around the machine is marked out with yellow safety lines, the purpose of which is to indicate to employees that the area may not be entered unless they have been correctly tethered to the machine in question. Both Mr Blyth and Mr Chuntai contest whether that is actually the case. Mr Chuntai’s evidence on the matter is the most cogent, to the effect that initially there had been yellow restriction lines around the bandsaw but that they are worn and cannot be seen now. Despite the contest between the parties on this subject, there is no physical evidence before the Commission on the subject, such as a photograph.

[34] The proposition that Mr Chapman somehow asked or directed Mr Blyth to perform the work that he did when the safety breach occurred might justify what Mr Blyth did, however the evidence that all have given on the subject does not readily lead to the proposition that Mr Blyth was somehow acting unsafely because of a direction. That would plainly be a construction entirely contrary to the overall evidence. The highest that Mr Blyth’s proposition can rise is that he thought Mr Chapman was asking or directing that he help out, which he did, but it can hardly be tantamount to some sort of authorisation or direction for working contrary to safety policy.

[35] In some respects the question of whether or not the bandsaw has a clearly marked restriction zone is not directly relevant to the issues that need to be determined in this matter. That is because Mr Blyth readily admits that he entered the area proximate to the bandsaw and, against policy, proceeded to undertake work at the bandsaw.

[36] Mr Blyth’s explanation about why he did not proceed to tether himself to the bandsaw with his lanyard includes those matters already set out above about the types of work he performed and the differences between machines. Further; 39

•  In relation to the situation generally;

“17. When training someone on a bladestop bandsaw as I regularly do, the trainer is not attached by the lanyard. Only the trainee is attached, simply because there is only one strap.

18. It is often the case that the trainer provides an example and asks the trainee to replicate it. When that occurs, the trainer has used the equipment in close proximity to the trainee and without the lanyard attached.

19. The practical method of training was taught to me many years ago and still occurs on site.”

•  In relation to the circumstances on 27 June 2017;

“60. I carried a forequarter down to the saw and asked Chuntai to step back for a second, to step aside.

61. With Chuntai out of the way, I carefully placed the forequarter on the saw and cut the neck off in a safe way and carried it back up to the boner.

62. I did not attach the lanyard sensor before making the cut.

63. I made the cut safely and with my hands and body well out of the way.

64. To set up on the free bladestop bandsaw would have taken five minutes – to get the strap, touch, take gloves off, put back on, turn on saw, perform the cuts, turn saw off and replace the gloves and equipment for two necks.

65. I just did not think that the time was available.

66. I saw that Sam was watching me.

67. He said words to the effect of “Adam, you shouldn’t have cut that – you’re not attached”.

68. I immediately agreed and felt that it was a fair cop.

69. I had done the wrong thing.

70. It was a split second lapse. There was no thought involved – just a desire to help and an impulse to obey the direction as quickly as possible.”

[37] Mr Blyth put forward evidence about what he regarded as a practical method of training; that when showing a trainee how to perform a cut, the trainer would not be tethered. Mr Chapman, who did his training at Bordertown and then worked elsewhere before moving to Brooklyn, responded with this evidence;

“It is extremely important to following safety procedures when using a band saw. The injuries that these machines cause are not small injuries, if you are injured it is likely to be an amputation of a limb. The first thing I was told when I was training to use these machines is that the number one rule is to make sure you are tethered to the machine.” 40

[38] The evidence in respect of what Mr Blyth puts forward as a “practical method of training” is not strong or compellingly established. In effect, he puts forward that training means showing the trainee what it is that should be done through a demonstration with possible repetition as needed and that in the course of the demonstration the trainer is not attached by a lanyard. If this practice is actually occurring in the field then it is an extremely foolish activity and one that is entirely counterintuitive. It would make no sense whatsoever for a policy to be in place that required employees to be tethered to the machine for the purposes of failsafe safety, but not when they are performing a training activity. That is not to say that such workaround is not actually occurring or that it was not occurring in the course of Mr Blyth’s employment. Possibly the practice is occurring and that Mr Blyth was correct in the evidence that he put to the Commission. There is of course his evidence on the subject as well as short evidence from Mr Chuntai. Mr Blyth’s evidence on the subject includes that set out above which distinguishes the safety procedures to be followed in respect of the different types of machines. What he has to say about the differences appears plausible, albeit that the local practice, if there is one, amounts to an extremely hazardous action that needs to be stopped.

[39] Consideration of s.387(a) requires the Commission to take account of whether or not Mr Blyth was honest in the course of the investigation that was undertaken into his conduct. Despite the differences between the parties about the way the investigation was conducted and indeed the responses Mr Blyth gave, including on matters in which there is a significant contest, I accept that Mr Blyth was generally honest with JBS Australia during its investigation.

[40] The criticisms made by JBS Australia against Mr Blyth are largely connected with his demeanour shortly after 3 PM on 27 June 2017, when he had been called to the human resource office to provide a statement. JBS Australia put forward firstly in respect of an attempted interview on the afternoon of 27 June 2017 that Mr Blyth was not especially cooperative and refused to give a statement. After an exchange in which Mr Blyth indicated he wanted Mr Wilson present as a support person, Ms Moore records the following interactions on the subject and, ultimately the inability to take a statement from Mr Blyth on that day;

“9. The HR administrator went and radioed Sam. Whilst we were waiting Adam said words to the effect:

Adam: "This is bullshit I'm not waiting around for this - it's close to my home time. I'm leaving."

Me: "We need to take a statement."

Adam: "I don't care."

10. Adam then walked out of the HR office.

11. I then went and spoke to Pauline Rhodes (Pauline), the HR Manager and said words to the effect of:

Me: "Adam refused to give me a statement and left to go home."

Pauline: "What do you mean?."

Me: "He asked for Shane Wilson to be his support person and I couldn't find him so he just walked out."

Pauline: "I'll send Ryan an email, explain what happened and ask Ryan to take a statement from Adam before he starts work."” 41

[41] Against this construct, Mr Blyth says that he wanted a union delegate present and that when one was not available he said “listen, I’m going home” because of the time, which was then about 3:20 PM, which was his knockoff time. 42 It is noted that prior to this attempted interview there had been an exchange between him and Mr Chapman, with Mr Chapman saying words to the effect of “you shouldn’t have cut that – you’re not attached”, with Mr Blyth agreeing and feeling “that it was a fair cop”.43

[42] I accept that Mr Blyth’s conduct after that first attempted interview was sufficiently cooperative and that no particular criticism should be attached to the exchange with Ms Moore in relation to the interview meeting which did not go ahead. In this regard I take into account that after 27 June 2017 Mr Blyth attended a meeting with Ryan Hodkinson, a human resources officer, on 3 July 2017 in which he provided a prepared statement about the incident on 27 June 2017, and that he provided further information on 7 July 2017 after being asked to provide clarification about his 3 July 2017 responses. In his 3 July 2017 statement Mr Blyth puts forward a number of things about the incident, including that;

“10. I carried a forequarter down to the saw and asked Chuntai to step aside for a second, I careful placed a forequarter on the saw and cut off a neck in a safe way and carried it back up to the boner.

11. Sam said 'you are not attached to the saw, you shouldn't have cut that neck off’. So the second forequarter I carried down to Chuntai and got him to cut it. This was at 2:35pm.” 44

[43] He also puts forward the following defence for the circumstances;

“21. If I had done the wrong thing why wasn't I sent to HR immediately at 2:30pm I was then told to go to another saw to cut shoulders with Rebecca for another 20 minutes, that saw required me to have the strap attached to myself. As I'm a bandsaw operator and trainer for the last 7 or 8 years I understand safety around bandsaw's and did not think that it was unsafe to cut a neck off for Sam i.e. boner and ease pressure off Rebecca.

22. When training people on the bandsaw on how to hold product, cut product, explaining that when you are taking product off the belt to be aware of where the blade is and to be confident on a bandsaw I.E when training trainers.

23. In the past they were attached to a blade stop, if they had done something wrong or different then what I had explained you would step them aside and you would show them again and again then they would resume back on the saw. When training people are above the team, they are attached to the machine, the trainer only hops on to explain and show again that's how you train a new trainee, there are not two straps on a blade stop.

24. Let's talk about Safety, why was it that Sam can leave the room unattended for 25 to 30 minutes with Aaron not being there when I have done something so unsafe or so wrong.

25. The real issue is Sam doesn't like me because I am a union delegate and I stand up for myself and fellow work colleagues, he left the boning room to organise my downfall instead of looking after the boning room which I did knowing that Aaron had gone home.

26. Would we be having this conversation if I had cut a neck off on a 600 bandsaw that doesn't require a strap? I don't think so.” 45

[44] At the conclusion of the meeting on 3 July 2017, Mr Blyth was stood down pending the further investigation of the matter. 46 The next day, on 4 July 2017, Mr Blyth was asked to provide clarification about a number of matters, and in particular;

“1. The task description for Blade Stop Bandsaw clearly states "step 4: fit the waist strap firmly around waist with the pads against your stomach" as stated in the employee hand book under Training Policy "Employees are required to read (or have read to them); understand and adhere to all directions detailed in any task description and procedural statement issued to them" Why have you failed to fit the waist strap while using a blade stop band saw as stated in your Task Description which is a breach of the Training Policy?

…

3. As a Trainer and Bandsaw Operator you would be aware of bandsaw work area boundaries. Why have you entered another employee's work area whilst he was operating a bandsaw?” 47

[45] Mr Blyth’s response to those and the other questions asked in the letter of 4 July 2017 was provided through his union representative, Jarrod Jones, with Mr Blyth directly addressing the foregoing questions as follows;

“1. For the reasons outlined above, the room was fast paced and I was trying to alleviate the stress on others. When asked to make the cut, I simply did so.

I was not operating the saw for any length of time; I made a quick cut to sever the neck from the forequarter. My hands were well out of the way and I made the cut safely.

…

3. Before I entered that work area, I asked that the sawman step back and out of the way.

In my training role, I am often in safe proximity to others while the equipment is being used.” 48

[46] Consideration of all the evidence on these matters leads directly to a finding that Mr Blyth acted contrary to his training and the company’s policies and that he was foolish in doing so. However, balanced against those findings must also be the finding that his actions were the result of a split second poor decision which came about because of the circumstances of the room at the time. Those circumstances included the perception, whether properly founded or not, on the part of Mr Blyth, Mr Chuntai and Ms Edmonds, if not others, that the speed of the room that afternoon was set too high. I accept that when Mr Blyth took the actions that he did he thought he was acting in accordance with not only the “practical method of training” to which he has referred, but also that he thought he was doing the right thing.

[47] After investigating the circumstances of Mr Blyth’s conduct and his responses to its questions, as well as his record as an employee, JBS Australia took the decision to dismiss Mr Blyth. Ms Rhodes made a recommendation to that effect to her superior, Wayne Murraylee, the company’s regional human resources manager, who endorsed the recommendation. The correspondence provided by Ms Rhodes to Mr Blyth informing him that he was dismissed set out the following background to the decision;

“On the 7th July 2017 you have provided the Company with your response letter. The company has taken into consideration your letter of response, and our findings are as follows.

• You have acknowledged you failed to attach the waist strap safety device to the Blade Stop Bandsaw before performing a cut on the machine

• You have stated "I am regretful that I made the cut without attaching the lanyard. This is not something that I would do again (apart from when training and assisting other workers or when operating the 600s)"

• You have explained your failure to wear the required PPE by stating:

"The room was fast paced and I was trying to alleviate the stress on others"

"When I cut the forequarter, I was in the direct presence of a worker wearing the lanyard - they can stop the machine as quickly as I would be able to had I been wearing it"

"The 600s do not have a waist band or lanyard system; the worker is not connected to the machine. As such, I am skilled and experienced in working safely on bandsaws without the inbuilt safety features of other bandsaws."

"The task that Sam directed me to perform was to cut the necks off two forequarters. That is the work of seconds. To set up on the free bandsaw would have taken five minutes to get the strap, touch, take gloves off, put back on, turn on saw, perform the cuts, turn saw off and replace the gloves and equipment for two necks."

The company has also taken into consideration your employment record, including your Training history and relevant training received by others under your training/guidance. We note that the following matters have been considered during the investigation:

During your employment with JBS, you have been provided adequate training and signed off on relevant Task Descriptions.

On the 7^th August 2015, you have signed that you received the 2015 JBS Australia employee handbook which includes the Standard Terms and Conditions of Employment and JBS Policies and Procedures.

The company has also taken into consideration your employment record. We note that the following matters have been considered during the investigation:

Foreman Activity Report - 11.09.2015

Failing to Adhere to Standard Terms and Condition - Not wearing safety glasses

First Written Warning - 23.07.2016 - Breaching Discrimination, Harassment, Bullying and Victimisation policy

Written Counselling - 21.03.2017 - Breaching Food Safety and Quality Assurance Policy

We have taken into consideration your response and in your current role as Lamb Sawman find your behaviour in operating the bladestop bandsaw in Boning Room 3 without wearing the waist strap is completely unacceptable on a number of levels, both as an employee and as a Trainer responsible for setting the right leadership example. The Company has an expectation that under your leadership you have an important responsibility and accountability to ensure employees are trained to operate all bandsaws in the correct and safe manner as outlined in the Task Descriptions. It is inconceivable that you would bypass the process nor lead by example on this occasion.

Our investigation has concluded that your actions were in direct breach of the Workplace Health and Safety Policy, Cardinal Rules Policy and Training Policy. Furthermore, your actions are classed as Misconduct under the Standard Terms and Conditions of your Employment.

After considering all of the information available to us the evidence does show that you have been made fully aware of Company Policies through your employment with JBS. JBS no longer has trust and confidence in your ability to be able to follow Company Policies including your obligations to comply with your Standard Terms and Conditions of Employment, and JBS Policies and Procedures, including the JBS Workplace Health and Safety Policy, Cardinal Rules Policy and Training Policy.

Taking into consideration your employment history the Company has concluded, given the seriousness of your conduct, in particular engaging in Misconduct in breaching the Standard Terms and Conditions of Employment by breaching the Workplace Health and Safety Policy, Cardinal Rules Policy and Training Policy to terminate your employment effectively immediately.” 49

[48] After reviewing all of the evidence in the matter, the circumstances of the incident and Mr Blyth’s explanations for how and why it occurred, I am satisfied that there was a valid reason for Mr Blyth’s dismissal being the reasons set out in the ultimate paragraph extract above.

(b) whether the person was notified of that reason

[49] The evidence supports a finding that Mr Blyth was notified of the reasons for his dismissal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[50] Mr Blyth was given an opportunity to respond to the reason held by JBS Australia for his dismissal and his explanations were taken into account by the company.

(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

[51] There was no refusal by JBS Australia for Mr Blyth to have a support person in any discussions that were had about the future of his employment. Accordingly this factor is a neutral consideration in my decision.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[52] Mr Blyth was not dismissed because of unsatisfactory performance and so this factor is also a neutral consideration in my decision.

(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

[53] JBS Australia’s Employer Response Form indicates that at the time Mr Blyth was dismissed it employed 1000 people. There is no evidence before the Commission that its size impacted on the procedures it followed in effecting Mr Blyth’s dismissal.

(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

[54] The evidence in this matter includes that JBS Australia had access to and did access dedicated human resource management specialists or expertise in making its decision to dismiss Mr Blyth.

(h) any other matters that the FWC considers relevant

[55] Mr Blyth asks that the Commission take into account numerous other matters as being relevant to determination of whether or not his dismissal was harsh, unjust or unreasonable. 50 Those factors, set out within his outline of submissions, range through his length of employment; his personal and financial circumstances and the difficulties he has experienced in obtaining further employment; what is regarded to be a minor disciplinary record; the impact of the distribution of work within the boning room and its speed on the day in question; the lack of clarity about the role of Mr Chapman and other new personnel within the room; and what the applicant regards to be a flawed investigation into the circumstances of the matter. Mr Blyth also argues that the incident itself, being a split second lapse on his part, together with the contrition shown by him and his willingness to accept a disciplinary alternative to dismissal are factors that should be taken into account by the Commission. He also argues that the Respondent has exaggerated the seriousness of the matter and that it cannot be said that there was a loss of trust and confidence by JBS Australia in him as an employee.

[56] Finally, Mr Blyth submits that his dismissal was engineered through a dislike by Mr Chapman of his union activities and his propensity to stand up for himself and colleagues.

[57] In considering the question of whether there are any relevant matters to be taken into account in assessing whether Mr Blyth’s dismissal was unfair, notwithstanding my finding there was a valid reason for his dismissal, I note the following general considerations, and take into account the Commission’s approach in such matters dealing with breaches of safety obligations.

[58] It is well accepted that the Commission’s task in assessing whether a dismissal is harsh, unjust or unreasonable is to objectively balance the whole of the facts and circumstances of a matter and form an overall view. While each consideration stands on its own, the concept harsh, unjust or unreasonable will overlap in many cases;

“Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 51

[59] Whether a matter falls in any of these categories can only be determined by examining what the employee did as part of their employment and the reasons or lack of reasons for terminating their employment. 52 The matters are not to be disposed of by imposing a disjunction between procedure and substance and it is important that matters not be answered by looking only to the first issue and not the second.53 Precise formulations of matters such as “harshness” are to be avoided;

“We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct.” 54

[60] The question of whether there was a valid reason for termination is not determinative of an application, but is merely one factor to which the Commission must have regard. In performing this role care must be taken to ensure that a consideration of whether there was a “valid reason” for a termination does not result in a failure to consider the other issues required within s.387. 55

[61] The findings made by me in this matter are that Mr Blyth committed a single safety breach when he carried a forequarter to the bandsaw being operated by Mr Chuntai and made a single cut to sever a neck from the forequarter, and that in doing so he used the bandsaw being operated by Mr Chuntai without having attached the safety lanyard. Such action was unquestionably dangerous and foolish and leads directly to the finding made by me that consequently there was a valid reason for Mr Blyth’s dismissal, taking into account his conduct and its effect on the safety and welfare of other employees.

[62] In Parmalat Food Products Pty Ltd v Wililo 56 (Parmalat), the Full Bench was called upon to consider the harshness of a former employee’s dismissal notwithstanding that he had engaged in an unsafe act by placing his arms, head and shoulders underneath an unstable and elevated load. The employee’s behaviour was considered by his former employer to have been grossly negligent and dangerous and that he could have been severely injured or killed, with such being serious enough to warrant termination of his employment. The employee involved had been employed for about two years, between May 2008 and May 2010.

[63] At first instance the length of the applicant’s employment and his disciplinary history was taken into account, as were several other factors including a failure to show him CCTV footage. The decision at first instance also took into account that while the former employer had a commendable focus on safety, it did not have anything akin to a zero tolerance policy. The finding was made at first instance that while the applicant’s actions amounted to serious misconduct they were not wilful or negligent, but rather the result of carelessness and a failure to properly appreciate the consequences. On balance, at first instance the decision was made that the termination of the applicant’s employment was harsh and consequently unfair.

[64] Upon appeal the Full Bench granted permission to appeal after considering the implications the matter held for an employer’s safety obligations;

“[18] In our view this case raises important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

[19] In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity. The application of the unfair dismissal provisions to this case is a matter of general importance and in our view clearly attracts the public interest. We therefore grant permission to appeal.” 57

[65] The Full Bench overturned the decision at first instance, finding that there were insufficient mitigating factors to sustain a finding of unfair dismissal and in doing so elaborated on the consideration to be undertaken when matters of mitigation are put forward under s.387(h);

“[24] We do not consider that the decision discloses a clear line of reasoning leading to the decision reached. The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. We do not believe that any of the circumstances involved in this matter amount to such factors.

[25] It is not clear to us that in referring to other considerations under s 387(h) the Commissioner was suggesting that these were mitigating factors. If they were so considered we believe she fell into error. The service and disciplinary record of Mr Wililo was not a mitigating factor as his service was short and his disciplinary record was poor. The failure to show Mr Wililo the CCTV footage was not a matter of significance. It was largely inconclusive and could not have altered the conclusion that Mr Wililo had an adequate opportunity to respond to the allegations against him.

[26] Mr Wililo’s conduct was found to be serious misconduct. It involved deliberate acts. We consider that characterising the actions as carelessness does not derogate from the seriousness of his action or the possible consequences. Further we do not believe that there was a sufficient basis to find that the employer could not apply its safety standards because of alleged actions in relation to other safety breaches. If it was entitled to take the action in this case the need to enforce its safety rules suggests that the resultant termination is not harsh.” 58

[66] In finality the Full Bench expressed considerable difficulty with the proposition that a person dismissed for serious safety breaches may be unfairly dismissed;

“[28] As we have indicated the Commissioner does not say, in terms, that these matters were mitigating factors. It may be that the finding of harshness was based on other grounds not immediately apparent from her reasons, such as the failure of the employer to establish that Mr Wililo placed his head and torso under a forklift load (as distinct from his arm and hand) and the consequent failure of the employer to establish dishonesty to the Commissioner’s satisfaction.

[29] Added to this difficulty in discerning the true reasons for her ultimate finding we consider it somewhat anomalous that an employee found guilty of serious misconduct for breaching safety rules, and hence dismissed for a valid reason, after due process, could be considered to be harshly terminated in the absence of discernable and significant mitigating factors. These concerns involve matters of principle and the overall reasonableness of the decision.

[30] In these circumstances we find that the Commissioner’s decision is attended by error. The errors are of the House v R kind. In our view the Commissioner’s discretion miscarried, the appeal should be allowed and the decision quashed.

[31] We consider that we have the materials available to us to determine the matter and refer to our consideration of the matters above and the overall circumstances as summarised in the Commissioner’s decision and the evidence led by the parties in the matter.

[32] In our view there was a valid reason for termination and the situation would be more serious if the witness accounts of Mr Wililo’s actions are accepted. In any event his conduct amounted to serious misconduct.

[33] We consider that Mr Wililo was given an adequate opportunity to respond to the allegations against him.

[34] In our view there are no mitigating factors that should have led to a lesser penalty than dismissal being adopted. Mr Wililo was employed only for a short time and has since found other employment. It is not for the Tribunal to place itself in the shoes of the employer and determine what it would have done in the circumstances. We must consider whether the employer’s action in terminating Mr Wililo’s employment was harsh, unjust or unreasonable in the circumstances. We find that it was not.” 59

[67] In Harbour City Ferries Pty Ltd v Toms 60 (Harbour City Ferries), the Full Bench was required to consider an appeal against the reinstatement of a former employee who returned a positive drug and alcohol test against the appellant’s code of conduct requiring a zero tolerance level for drugs and alcohol. The relevant factual base for the Full Bench included these matters;

“[10] At 9:30 pm on the evening of 24 July 2013 Mr Toms smoked a marijuana cigarette to assist him with pain in his shoulder. On 25 July 2013 Mr Toms was telephoned by Harbour City and asked to replace a Master who was on sick leave. At that time Mr Toms was on holiday relief during which period he replaced other Masters who were on planned leave. He did not refuse the shift on the basis of any drug or alcohol intake. On 25 July, when Mr Toms was Master of the Marjorie Jackson, an accident occurred. Following the accident Mr Toms did not immediately reveal that he might have evidence of drug use in his system.

[11] The test administered on behalf of Harbour City was positive. There is no evidence however that Mr Toms was impaired by drug consumption. Harbour City's enquiry found that Mr Toms lost control of the vessel as a result of an error of judgement in manoeuvring the vessel and excessive speed in approaching and berthing.” 61

[68] The decision at first instance found that there had been a breach by Mr Toms of Harbour City Ferries’ drug and alcohol policy. The original decision found that while that breach led to there being a valid reason for his dismissal, other factors caused the dismissal to be unfair.

[69] The Harbour City Ferries Full Bench considered the facts before them in the light of the earlier Full Bench decision in Parmalat, concluding that the earlier decision is not an authority for the proposition that the public interest is automatically attracted to any appeal involving workplace occupational health and safety issues and that such must be a case-by-case consideration. Harbour City Ferries also noted that Parmalat commented on applications in which there was not only a valid reason for termination of employment for serious misconduct but also that there had been compliance with the requirements for procedural fairness, finding with regard to its decision to grant permission to appeal;

“[17] We have had regard to the facts of this application. The application is concerned with serious misconduct which was a valid reason for the termination of Mr Toms’ employment. The serious misconduct was the breach of an important policy by an employee at the most senior level of employment at Harbour City in a situation where there was compliance with procedural fairness.” 62

[70] Harbour City Ferries considered in detail the factors that might mitigate against a finding that Mr Toms had not been unfairly dismissed, including that he had over 17 years’ service with the company; that his marijuana use arose from the need to sedate a painful shoulder; that three previous drug tests had all been negative and that there was no link between the drug test and the accident that occurred. The Full Bench also took account of the fact that Mr Toms had failed to immediately inform his employer of the potential for a positive finding. In upholding the appeal and quashing the original decision for reinstatement, the Full Bench found;

“[27] The lack of any impairment arising from drug use, the absence of a link between drug use and the accident and the absence of substantial damage to the Marjorie Jackson are not factors relevant to the ground of misconduct identified as non-compliance with the Policy. The fact is that Harbour City required its policy complied with without discussion or variation. As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor. It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment. It does not need to have a discussion with any relevant insurer, litigant or passenger’s legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have to have the discussion.

[28] The mitigating factors referred to and relied on by Deputy President Lawrence are not mitigating factors that address the core issue, which was the serious misconduct which led to the dismissal of Mr Toms. The core issue, the valid reason for termination of Mr Tom’s employment was his deliberate disobedience, as a senior employee, of a significant policy. The Deputy President does not address Mr Tom’s failure to comply with the Policy. The only mitigating factor relevant to this issue was the use of marijuana as pain relief. Consequent upon that explanation is the decision to accept a shift while aware of the likelihood of being in breach of the Policy.” 63 (emphasis in original)

[71] A later consideration of the Full Bench’s decision by the Full Federal Court upheld the substance this of reasoning. 64 It was held by the Full Court that the matters listed by the member at first instance did not provide a reason to intervene against the application and enforcement of the respondent’s drug and alcohol policy. Further, it was found that the complaint that the Full Bench had fallen into jurisdictional error by failing to address the gravity of the applicant’s conduct by disregarding “the lack of any impairment” and “the absence of any link with the accident” was without foundation, with the Full Court holding that;

“… The FWC is entitled to approach its task by focusing on considerations it considers to be relevant (while also complying with s 387). Here, its view (after identifying what it perceived to be the error in the Deputy President’s approach) was that the core question — the deliberate disobedience of a significant policy (one central to the safety of the public and the public’s confidence in the safety of ferry travel) was not touched by a lack of evidence of impairment, or by a lack of evidence of causal relationship between the event and the cannabis, or by the other considerations that were said to weigh in the balance in favour of the applicant.” 65

[72] Potentially assisting with defining the question of what may be significant mitigating factors within the sense used in Parmalat and Harbour City Ferries is the decision ultimately made by the Full Bench in the matter of Metecno v Cameron 66 (Metecno) in which a finding of unfair dismissal with a consequential order of compensation in lieu of reinstatement was upheld by the Full Bench. In the decision at first instance it was held that despite findings of misconduct on the part of the former employee for reason of breaches of health and safety, with those matters accumulating to there being a valid reason for termination, the dismissal was harsh because the person concerned was summarily dismissed after 35 years of service in the same business and the dismissal took place up to 2 months after the relevant facts first came to the attention of the employer. The Full Bench recites the relevant facts of the matter as follows;

“[7] The Respondent was employed with the employer and its predecessor companies from 1977-2001 at which time he changed his status to that of a contractor. His status reverted to that of employee in 2006.

[8] The employment of the Respondent was terminated on and with effect from 7 February 2013. The termination followed two incidents in the preceding three months:

• On 27 November 2012, the Respondent directed two employees from the factory to attend a worksite with some contractors to dismantle a cold store. During the operation one of them was injured. The incident raised issues in respect of the Respondent’s responsibility for the unauthorised nature of the work concerned and his failure to ensure that the work was carried out safely.

• In early January 2013, a contractor who had not undergone an induction was discovered onsite in the factory. The incident raised issues concerning the Respondent’s knowledge of and responsibility for the presence of the contractor who had not been inducted.

[9] The November incident was investigated by the Appellant in late 2012, with the Appellant’s National OHS Manager completing a Hazard Incident Investigation Report, which he provided to the Appellant’s General Manager, Mr G Marsdon prior to Christmas 2012. There was no suggestion of disciplinary action against the Respondent at the time of the Christmas shut-down.

[10] On his first day back after Christmas shut-down, Mr Marsdon, received a call from the State Manager, who informed him that the Respondent had engaged a contractor who had been onsite without any induction process. Mr Harris had directed the contractor to leave the site. By that time, Mr Marsdon had “more or less come to the conclusion that [the Respondent’s] mistakes around the [pull-down job] had amounted to misconduct sufficiently serious to justify dismissal”. The advice about the contractor issue in January 2013 caused Mr Marsdon to seek advice as to how to proceed and he arranged to meet with the Respondent.” 67 (references omitted)

[73] It was accepted before the Full Bench that there were no procedural defects in the decision to dismiss the employee in question. The former employer’s argument to the Full Bench took issue with the finding that the termination was harsh notwithstanding there being findings of serious misconduct which provide a valid reason for termination. In finality the Full Bench in Metecno dismissed the appeal and upheld the original decision making these relevant findings;

“[33] The determination of an application under s.394 of the Act requires the finding of facts on the evidence and the application of the law to the facts in the particular circumstances of each matter. The fact that there is one common factual matter between matters, even an important one - such as a finding that actions by an applicant constitute serious misconduct which supports a finding of a valid reason for termination - does not make a decision made after considering and balancing matters within s.387 of the Act in the particular circumstances of a matter inconsistent with the decision in another matter where, notwithstanding some common considerations, the circumstances are not, in all respects comparable.

[34] In the circumstances of the matter before her, Commissioner Deegan found that there were mitigating factors which made the manner of the termination of the employment without notice, as occurred, harsh. These were that the Respondent was summarily dismissed after 35 years of service in the same business, on the basis of facts known to the employer by mid-December 2012, with the Appellant allowing the Respondent to continue working in his position for a further two months. Such a finding of mitigating circumstances was properly made based on the evidence as to the Respondent’s service, the reason for the termination and the Respondent being allowed to continue work until his employment was summarily terminated. The Respondent continued in his job, notwithstanding Mr Marsdon having reached a conclusion as to “the seeming reckless disregard for any safe practices” by the Respondent in relation to the November 2012 incident before Christmas in 2012.

[35] The Commissioner was entitled, within her discretion, to weigh up her finding as to those mitigating circumstances amongst the other findings she made in relation to matters of s.387 of the Act. The finding of Commissioner Deegan in relation to the mitigating circumstances and her ultimate conclusion that the termination was harsh, made after weighing that consideration against findings in relation to other matters arising from s.387 of the Act, including her findings as to valid reason, do not reflect error, let alone significant error.

[36] The matter before Commissioner Deegan was not of the same nature as those considered in Parmalat. In that appeal, the Full Bench could not readily discern findings by the Commissioner at first instance as to mitigating circumstances and did not believe that any of the circumstances involved in the matter it was considering amounted to significant mitigating factors.” 68 (references omitted)

[74] Relevantly Metecno confirmed that findings could be made about mitigating circumstances that would lead to a dismissal being unfair, notwithstanding there being a valid reason, provided those matters amounted to significant mitigating factors.

[75] Each of the cases referred to involved different dimensions of risk of injury. Whereas Parmalat involved questions of the safety of the single person committing the safety breach, Harbour City Ferries involved not only the safety of the employee concerned, but also of the public, as well as potential damage to property. Metecno involved the safety of workers other than the one who committed the safety breach.

[76] I turn to consider the matters put forward by Mr Blyth.

[77] I do not consider it necessary to consider further in this respect the matters put forward by Mr Blyth about what are said to be inadequacies on the part of JBS Australia in relation to its investigation of the circumstances. Firstly, the investigation can be seen to have progressed sufficiently fairly and without detriment to Mr Blyth. While the investigation can be critiqued and observations put forward about how it could have been improved, that is far from saying that the investigation was flawed. Secondly, and more importantly, the key facts about the event and the safety breach itself have been agreed by Mr Blyth almost from the very start of the investigation.

[78] Further, it is unnecessary to consider in greater detail the arguments put forward by Mr Blyth about there being uncertainty on his part and on the part of others about Mr Chapman’s role in the boning room. If there was such an uncertainty, and overall the evidence does not particularly support the contention, it is most unlikely that any such uncertainty had any real contribution to the circumstances on the day.

[79] The argument that Mr Blyth was dismissed because he was a union delegate and stood up for himself and colleagues was put forward in his first response to the investigation. This was an assertion easily made, for which no evidence of any substance was provided. The allegation does not require further consideration.

[80] Of all the other factors put forward, I consider three to require consideration in detail; the length of Mr Blyth’s employment; his prior disciplinary record; and the explanations of his actions being a “split second impulse” and the “practical method of training”.

[81] The remainder are either not supported in the evidence as being relevant to Mr Blyth’s conduct or are features of what may be regarded as normal employment (for example, his knowledge of the site and its operations; his multi-skilling and good relationships) or what could be regarded as the normal consequences of dismissal (for example the dismissal’s financial and familial impact; his difficulty in obtaining employment following a misconduct related dismissal).

[82] Submissions put to the Commission about the impact of the dismissal upon Mr Blyth are somewhat general and, respectfully, not especially exceptional or unexpected. Plainly for most people the loss of employment will result in a significant financial burden, especially if the employment they have lost is well paid, as is the case with Mr Blyth. It is also unexceptional that the change in financial circumstances will inevitably have a significant impact upon one’s family circumstances and the stressors that might exist within any family at any given time. It is also not entirely unexpected that a person who has been dismissed from a semiskilled position, such as this, for reasons of misconduct may struggle to obtain further employment. Those factors in and of themselves are capable of prediction and ordinarily do not make an otherwise fair dismissal unfair. Mr Blyth is neither at an age where further employment becomes overwhelmingly unlikely; or is in a geographic location where severe unemployment would militate against obtaining further employment or would require relocation in order to secure employment.

Length of employment

[83] The length of Mr Blyth’s employment with JBS Australia was 13 years and 8 months. That length is an important factor which could weigh in favour of an unfair dismissal finding. However, set against that proposition is the fact that, because of his length of service and his skills, he became a trainer and assessor. Allied with that fact must be the expectation that he would work in accordance with standards about the best ways of performing work, which must logically include all known safety obligations. The question is whether the length of Mr Blyth’s employment may offset the finding of there being a valid reason for his termination in circumstances in which, by not following procedure, he endangered himself and potentially Mr Chuntai.

[84] It is to be noted that Mr Wililo in Parmalat was employed for about two years. The deliberate acts on his part had the potential to directly injure only himself. The potential characterisation of those actions as carelessness did not derogate from the seriousness of his actions or their possible consequences, and did not rise to being a significant mitigating factor.

[85] While Mr Toms in Harbour City Ferries had been employed for over 17 years, with the Full Bench regarding him as a senior employee with a very high level of responsibility, those factors, together with the absence of any damage to the vessel he was in charge of, were insufficient to rise to the level of them being a significant mitigating factor.

[86] The employee involved in Metecno, Mr Cameron, had been employed by the company and its predecessors for over 35 years. That factor, together with the facts leading to his dismissal being known to the employer for two months prior to it acting upon them, were sufficient to be seen as significant mitigating factors, despite it being accepted that the applicant had not fulfilled his safety responsibilities which led to injuries to a worker.

[87] While I regard Mr Blyth’s length of employment to be a factor generally in his favour, that status must be reduced to some extent because of his relative seniority as a trainer and assessor. There is to be no presumption that a person with the service length of Mr Blyth is immune from dismissal because of serious and obvious breach of safety obligations. His length of service might carry the day for lesser transgressions, but it does not in this case. Similarly, a length of service such as in Metecno could ultimately be a decisive factor in an applicant’s favour. In any event, those considerations are mere speculations on my part, with the requirement for each case to be considered in accordance with its full circumstances.

[88] Overall I do not regard Mr Blyth’s length of employment to be a significant mitigating factor to the finding that there was a valid reason for his dismissal, either on its own or in tandem with other matters.

Prior disciplinary record

[89] In relation to Mr Blyth’s employment history with JBS Australia it is to be noted that the investigation report prepared by Ms Moore refers to 5 counselling or disciplinary matters. It also refutes a contention made by Mr Blyth that he had to that point never received a written warning by recording that one had been issued in July 2016. After Ms Rhodes made her recommendation of termination of employment to Mr Murraylee, he responded by accepting the recommendation, noting however that;

“Adams employment record has generally been good up to 2016. I note that in the last 18 months, that we have had occasion to formally counsel Adam and provide him with a Written Warning for breaching 2 policies incorporated in his Standard Terms and Conditions of Employment”. 69

[90] The letter of termination provided by Ms Rhodes to Mr Blyth on 17 July 2017 took into account three matters from Mr Blyth’s employment history as follows;

•  Foreman Activity Report - 11.09.2015 Failing to Adhere to Standard Terms and Condition - Not wearing safety glasses;

•  First Written Warning - 23.07.2016 - Breaching Discrimination, Harassment, Bullying and Victimisation policy; and

•  Written Counselling - 21.03.2017 - Breaching Food Safety and Quality Assurance Policy. 70

[91] Mr Blyth contests whether he was given an opportunity to respond during the course of the investigation to respond to these matters being taken into account by JBS Australia. He puts forward that the company mentioned those matters for the first time in its termination letter and had not referred to them previously.

[92] In relation to the first of the matters he broadly concedes the incident while providing an explanation for having taken off his safety glasses. 71

[93] In relation to the second of the matters, that is the issuance of a first written warning, he concedes that the warning was issued but points out an apparent error as to the date it was issued and asserts that it was not correct in its detail, that he contested the matter with human resources and refused to sign the warning. In this regard Mr Blyth relates that he believes the warning relates to an incident that actually occurred on Friday, 22 July 2016 “when there was a breakdown in the room. The room was quiet and, unfortunately, I still had my earplugs in and so was unaware that my voice was louder than normal. I complained to Jason Debrincat about the situation and it was overheard”. 72

[94] Thirdly, Mr Blyth says that he cannot recall the written counselling given in March 2017, saying that it “could have been something as minor as a small amount of meat on my gumboots after washing up. That has happened before – you can wash your gumboots spotless, then pick up some meat while walking away from the washing area and get written up for it”. 73

[95] Mr Blyth’s disciplinary record with JBS Australia has the blemishes to which Mr Murraylee refers. In the ordinary context those blemishes would not be seen as overwhelmingly against Mr Blyth, but in this context the fact that they exist cannot be seen as Mr Blyth having an exemplary employment record with the Respondent. At best it can be said that his employment history was somewhat satisfactory, but not compellingly so. Accordingly consideration of Mr Blyth’s disciplinary record does not resolve as being a significant mitigating factor to the finding that there was a valid reason for his dismissal, either on its own or in tandem with other matters.

Whether a “split second impulse” or the “practical method of training”.

[96] Mr Blyth argues that what he did amounted to a “split second lapse”, being in response to what he perceived as a direction from Mr Chapman, with no thought involved, merely a desire to help and an impulse to obey as quickly as possible.

[97] On the other hand, he argues that what happened is part of a long standing practice.

[98] Mr Blyth’s argument to the Commission in that regard is that the practice of stepping up to and using the bandsaw without being tethered was something that he would do when working as a trainer and showing a trainee how to perform a particular task. This is referred to within his witness statement as being a “practical method of training” taught to him years ago and which still occurs on the site. Mr Blyth’s first statement to JBS Australia about what happened on 27 June 2017 was given just under a week later on 3 July 2017, with him putting forward the explanation about the circumstances quoted above, to the effect that the trainer is not tethered, while the trainee is. 74 Mr Blyth maintained that explanation in the further response he gave to the company through his union on 7 July 2017. In that response, Mr Blyth maintained the view that “when training someone on a band saw as I regularly do, the trainer is not attached. Only the trainee is because there is only one strap” and that this “is not something that I would do again (apart from when training and assisting other workers or when operating the 600s).75

[99] The construct put forward by Mr Blyth in this regard is broadly consistent with the observations of Mr Chuntai, who said in his witness statement that he did not think there was any danger when Mr Blyth entered his workspace to use the saw since he would do that when training. 76 Mr Chuntai, however, did not give this explanation in the brief verbal response he gave to the investigators on 28 June 2017.77 Ms Edmonds’ statement to the investigators about the situation does not refer to the “training” practice, nor does her witness statement to the Commission.

[100] JBS Australia strongly resists the contention that there is a practical method of training in the boning room contrary to the stated policies or task descriptions. Mr Chapman’s witness statement on the subject of training and use of the bandsaw machines includes reference to the need to follow safety procedures when using a bandsaw, and that “the number one rule is to make sure you are tethered to the machine”. In his oral evidence, Mr Chapman put forward that the rule that applies when training others is that the trainer should demonstrate a cut while tethered to the machine. In overall context though, Mr Chapman did not give evidence that demonstration of cuts without being tethered to the machine was something that never occurred or that, if seen, was always taken up as a disciplinary issue by JBS Australia.

[101] In considering the evidence on the subject, I am satisfied that the actions taken by Mr Blyth to enter Mr Chuntai’s work zone were likely consistent with a local practice, notwithstanding that such local practice would be not only extremely foolish, but inconsistent with company policy and training. In the absence of cogent evidence from the Respondent’s witnesses to the effect either that this was a practice that never occurred or that active measures were taken to stamp it out if and when it was seen, I am unable to be satisfied that the construct put forward by Mr Blyth about there being a practical method of training did not occur.

[102] To some extent the arguments put forward by Mr Blyth that his actions can be explained either through his actions being the product of a “split second impulse” or the “practical method of training” amount to a logical inconsistency. If there is a “practical method of training” which leads employees to step around the stated policies and task instructions of JBS Australia, whether condoned or not by the Respondent, there is hardly any need to argue that the Applicant’s actions were the product of a “split second impulse”. That is, if the standard practice is to do what he did for reason of the “practical method of training”, it becomes irrelevant to consider that the same actions were the product of the circumstances on the day, including the speed of the room and the “split second impulse” needed to resolve the particular problem that arose at the precise time that it did.

[103] On the other hand the evidence leans towards the actions of Mr Blyth in fact being the product of wanting to help out in the face of the problems being experienced by Mr Chuntai and others. Those problems, however, were problems of pressure and workflow and not of emergency. While the temptation to act may have been there, there was no compulsion to do so. Broadly speaking, while the “split second impulse” submission may explain why the particular circumstance came about as it did, it does not militate against the finding that there was a valid reason for his dismissal either on its own or in tandem with other matters.

[104] The evidence about there being a “practical method of training” in the manner explained by Mr Blyth is at best equivocal and the evidence there is does not completely resolve the contention he puts forward. While that is the case, and despite the protestations of the Respondent and its witnesses about the practice being inconsistent with its policies and training, the evidence does rise to the level of being capable of acceptance by me, at least in the sense of accepting that Mr Blyth and perhaps others believed that this was the method they could follow. That is not to say that the evidence shows the Respondent knew the practice was in place or that it condoned what amounted to a contravention of its policies.

[105] Despite accepting that Mr Blyth’s belief may have been as he puts forward, the “practical method of training” explanation does not become a significant mitigating factor. The explanation given by Mr Blyth about his conduct is simply so counterintuitive to safe practice as well as the stated policies and task instructions of JBS Australia that ultimately the explanation cannot be accepted as a mitigating factor.

[106] The product of the evidence on this particular matter is that Mr Chuntai was tethered to the BladeStop bandsaw in question, which was in accordance with proper practice. He sought assistance from Mr Blyth who stepped forward to give it. During the process Mr Chuntai remained tethered to the machine and Mr Blyth did not seek to either untether Mr Chuntai or to tether himself. His explanation about that situation is ultimately that it would have been too time-consuming to do so, as well as it being contrary to the “practical method of training”.

[107] The fact that Mr Blyth was not tethered to the bandsaw when he used it meant the risk of injury if something went wrong was very high, if not extreme. Had he slipped or mishandled the forequarter in question it would be reasonably foreseeable that the bandsaw could not possibly stop in time and he would be very severely injured if not killed. It is reasonably foreseeable in such a situation that Mr Chuntai could not possibly react in sufficient time to stop the machine because of anything associated with Mr Blyth in order to avoid or limit injury to him. It is also reasonably foreseeable that in the event that there was injury to Mr Blyth that Mr Chuntai could somehow be drawn into the situation and become injured himself, psychologically at least, if not physically.

[108] Ultimately the problem with the “practical method of training” explanation in consideration for whether it is a significant mitigating factor is that the adoption of the submission on the part of the Applicant would effectively lead to a muting of the personally held general duties employees have under occupational health and safety legislation requiring them to take reasonable care for their own health and safety while at work and that of other persons with whom they work, as well as to follow their employer’s requirements and not interfere with or misuse plant and equipment. The problem with acting as he did is that Mr Blyth had no regard for his safety or others. The argument that the cut was made safely and with his hands and body well out of the way is no different from an argument that the drive to the service station and back was uneventful, despite not wearing a seat-belt.

[109] I do not find the “practical method of training” explanation put forward by Mr Blyth to be a significant mitigating factor to the finding that there was a valid reason for his dismissal, either on its own or in tandem with other matters.

[110] In considering these matters, and the Applicant’s contentions about their mitigating impact, I have also taken into account the evidence of Mr Murraylee, who endorsed Ms Rhodes’ dismissal recommendation.

[111] After noting the length of employment and Mr Blyth’s employment record, Mr Murraylee records that his decision included;

“17. Having regard to:

a. the severity of injury a bandsaw can cause (serious injury through amputation, permanent nerve, muscle & tendon damage)

b. the investment the business has made in Safety, and in particular Blade Stop technology over the past few years ($60K each x around 45 =some $2.5m+), correct training systems including some 100 hrs per person before someone is deemed competent in the correct use of a Blade Stop Bandsaw.

c. Adams knowledge, experience and training.

d. and the recent plant history in taking the decision to terminate our Shift Manager for unsafely operating a Bandsaw, of which Adam was clearly aware.” 78

[112] I am satisfied that such was a proper and reasonable analysis to make.

[113] As a result of the foregoing analysis I do not consider that there are any relevant matters which would cause me to make a finding that, notwithstanding their being a valid reason for Mr Blyth’s dismissal, that he was otherwise unfairly dismissed.

[114] As a result, it is my finding in this matter that Mr Blyth was not unfairly dismissed. Consequently, his application for unfair dismissal is dismissed and an order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Ms K Rogers, Australasian Meat Industry Employees’ Union, for the Applicant.

Ms J Light, solicitor, Meridian Lawyers, for the Respondent.

Hearing details:

2017.

Melbourne:

October 23, 24, 25.

Printed by authority of the Commonwealth Government Printer

<PR599162>

 1   Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

 2   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 3   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 4   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 5   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 6   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 7   Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373.

 8   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

 9   Budd v Dampier Salt Ltd (2007) 166 IR 407 at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

 10   Streeter v Telstra Corp Ltd (2008) 170 IR 1.

 11   Miller v University of New South Wales [2003] FCAFC 180, (2003) 127 IR 432 [64]; Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166, (2011) 207 IR 243 [34].

 12   Exhibit R21, Respondent’s Outline of Submissions, [5].

 13   Exhibit ASOF-1, Statement of Agreed Facts, [10]–[11]; further agreed fact, email 14 December 2017.

 14   Exhibit R21 [7].

 15   Exhibit R19, Statutory Declaration of Pauline Rhodes, [15]-[17].

 16   Exhibit R20, Statutory Declaration of Paige Moore, Attachment PDM–1.

 17   Ibid Attachment PDM-2.

 18   Exhibit R19 Attachment PMR-3.

 19   Exhibit A4, Witness Statement of Kham Cung Chuntai, [3]–[5].

 20   Hearing Audio, 24 October 2017, at 11:07 AM.

 21   Exhibit A1, Witness Statement of Adam Blyth, [7]-[16].

 22   See Exhibit A1 [27]; Exhibit R16, Witness Statement of Samuel Chapman, [6].

 23   Exhibit R16 [7]-[8].

 24   Ibid [9], [14].

 25   See Exhibit R16 [16]; Exhibit 18, Statutory Declaration of James Turner, [16].

 26   Exhibit A1 [24]–[26].

 27   Ibid [39]–[40].

 28   Ibid [46]-[49].

 29   Exhibit A5, Witness Statement of Rebecca Edmonds, [10], [15].

 30   Exhibit R20 Attachment PDM–9.

 31   Exhibit A4 [7].

 32   Exhibit A6, Witness Statement of Shane Wilson, [16].

 33   Exhibit A6 Attachment SW-1.

 34   Exhibit R20 Attachment PDM–3.

 35   Exhibit A4 [11]–[15].

 36   Exhibit A1 [49].

 37   Ibid [56].

 38   Exhibit R16 [19]-[23].

 39   Exhibit A1 [17]-[19], [60]-[69].

 40   Exhibit R16 [12].

 41   Exhibit R20 [9]-[11].

 42   Exhibit A1 [91]–[102].

 43   Ibid [67]–[68].

 44   Exhibit R14, Witness Statement of Ryan Hodkinson, Attachment RSH-3.

 45   Ibid.

 46   Ibid [17].

 47   Exhibit R20 Attachment PDM-8.

 48   Exhibit R19 Attachment PMR-7.

 49   Exhibit R19 Attachment PMR-11.

 50   Exhibit A7, Outline of Submissions for the Applicant, [77].

 51   Byrne & Frew v Australian Airlines (1995) 185 CLR 410, p.465, per McHugh and Gummow JJ.

 52   Blackadder v Ramsey Butchering Services Pty Ltd, (2005) 221 CLR 539, 139 IR 338, [12], per McHugh J.

 53   Byrne & Frew v Australian Airlines (1995) 185 CLR 410, p.466.

 54   Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 [28], cited with approval in Byrne & Frew v Australian Airlines, p.467.

 55   Australia Meat Holdings Pty Ltd v McLauchlan, (1998) 84 IR 1, p.10.

 56   Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166, (2011) 207 IR 243.

 57   Ibid [18]-[19].

 58   Ibid [24]-[26].

 59   Ibid [28]-[34].

 60   [2014] FWCFB 6249.

 61   Ibid [10]-[11].

 62   Ibid [17].

 63   Ibid [27]-[28].

 64   Toms v Harbour City Ferries Pty Ltd and Another [2015] FCAFC 35, (2015) 248 IR 101.

 65   Ibid [108].

 66   [2014] FWCFB 1207.

 67   Ibid [7]-[10].

 68   Ibid [33]-[36].

 69   Exhibit R19 Attachment PMR–10.

 70   Ibid Attachment PMR-11.

 71   Exhibit A1 [134].

 72   Ibid [135].

 73   Ibid [136].

 74   Exhibit R20 Attachment PDM-7, [22]–[ 23].

 75   Exhibit R19 Attachment PMR-7.

 76   Exhibit A4 [14].

 77   Exhibit R20 [14].

 78   Exhibit R13 Attachment WLM-6.