DECISION

Fair Work Act 2009
Section 394 - Application for an unfair dismissal remedy

Nick Petz
v
Jamieson Sales and Service Pty Ltd
(U2020/6638)

Application for an unfair dismissal remedy – trade assistant – misconduct – valid reason – procedural fairness – summary dismissal – whether harsh – dismissal without notice harsh – compensation ordered – discount for misconduct

[1] On 14 May 2020 Nick Petz (Mr Petz or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (FW Act) claiming that his dismissal by Jamieson Sales and Service Pty Ltd (Jamieson or the Respondent employer) on 22 April 2020 was an unfair dismissal.

[2] Mr Petz was summarily dismissed. He seeks an order for compensation.

[3] Jamieson filed a response on 2 June 2020. It took no jurisdictional objection but opposes the claim on merit.

[4] The matter did not resolve by conciliation.

[5] By Notice sent on 30 June, I listed the matter for a directions hearing on 8 July 2020.

[6] I issued Directions on 10 July 2020.

[7] On 7 August 2020 the employer applied for the claim to be struck-out under section 399A of the FW Act on the ground of non-compliance.

[8] I heard the strike-out application on 13 August 2020. By Decision of 14 August 2020 I declined to exercise discretionary powers under section 399A. I concluded: 1

“Mr Petz has been non-complaint but not entirely non-responsive. He is self-represented. Certain protocols, such as the obligation to dial into hearings by the appointed time and not await calls, are unfamiliar. He has attended three hearings, failed to attend one and been responsive to some of the Commission’s contact but not all. A witness statement/submission that he was required to file by 4 August 2020 was filed, but six days late (10 August). In lodging that late statement/submission he submitted emails that sought to convey an impression that it was technology, not he, that caused the delay. Those emails appear doctored and, absent a plausible explanation, do no credit to his belated attempt to comply.

Considering these factors overall within the framework of a discretion that should be exercised with caution and based on the principle of a fair go all round I do not, on balance, consider it appropriate to exercise the discretion to summarily dismiss Mr Petz’s claim.”

[9] Mr Petz filed some material in advance of the hearing, on 10 August (late) and on 18 August. Jamieson filed its materials as directed (14 August).

[10] I heard the matter by determinative conference (in-person) on 20 August 2020. Both parties were self-represented. I heard evidence from:

•  Mr Petz (Applicant);

•  Mr Saddler (Operations Manager);

•  Mr Tai (Human Resources Manager);

•  Mr Coombs (Supervisor); and

•  Mr Smith (Contractor).

[11] I reserved my decision which I now deliver.

Facts

[12] I make findings of fact based upon oral and written evidence.

[13] There are some matters of factual dispute although not all disputed issues are determinative. Generally, the disputed facts relate to matters of detail around otherwise uncontested facts. To a limited extent, issues of credit are relevant.

[14] Mr Petz gave evidence confidently and without undue defensiveness. Aspects of his evidence raise inconsistency and I approach those aspects with some caution.

[15] Mr Saddler gave evidence directly and other than in one respect, with clarity. There was some ambiguity in his evidence as to the precise time he made the decision to dismiss.

[16] Mr Tai’s evidence was brief and consistent with the documentary record.

[17] Mr Coombs evidence was straightforward and reliable.

[18] Mr Smith’s evidence was direct but his recall of details of events that occurred months earlier was patchy. His evidence is broadly reliable but requires that note of caution.

[19] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence or surrounding circumstances, or where it was uncontested or inherently plausible.

Jamieson

[20] Jamieson is a privately owned business engaged in the sales, service and repair of heavy machinery and vehicles. It operates from an industrial site in Adelaide, South Australia. Multiple workshops are located on site.

[21] Safety signage is widespread around the site and its workshops.

[22] Jamieson employs approximately 34 persons. It is not a small business for the purposes of the FW Act. It also engages contractors.

[23] The work of its tradesmen, trades assistants and contractors generally involve working in and around machinery and moving vehicles and trailers. Commonly it engages persons performing mechanical work, welding, painting and driving (including forklifts).

Mr Petz’s employment

[24] Mr Petz commenced working with Jamieson on 4 June 2013. At the time of dismissal he had worked continuously for just over six years and ten months.

[25] As a trade assistant Mr Petz worked a variety of roles, performing multiple tasks as required. These included driving a forklift for which he has a relevant licence.

[26] In performing his duties Mr Petz used Jamieson’s equipment and machinery but, as a trades assistant, had his own tools. He kept those tools in his toolbox on site.

[27] He was employed under the Vehicle Repair, Services and Retail Award 2010.

[28] At relevant times, Mr Petz’s supervisor was Mr Coombs to whom he reported.

[29] Mr Petz is 45 years of age and married with four dependent children.

[30] Mr Petz’s employment record is not without incident. He says that he had received three warnings whilst employed. The third was a written warning in June 2019. Mr Petz disputes the merit of each of these warnings. Jamieson did not rely on the existence of these warnings in making its decision to dismiss. It regarded the warnings to be of an historical nature.

Events of 5 April 2020

[31] The 5 April 2020 was a Sunday. Jamieson’s business premises was, to the public, closed.

[32] Mr Petz decided he wished to change the brake pads on his private motor vehicle. He decided to do so from his place of work using his own tools.

[33] Jamieson permits, as a discretionary matter, employees to work on their private vehicles on site in their own time provided prior permission is secured in advance from a supervisor and provided a second employee or contractor is or has been arranged to be on site at the relevant time should a safety issue emerge.

[34] There is a factual dispute as to whether Mr Petz secured permission from Mr Coombs in the week prior. I deal with that issue later in this decision.

[35] That Sunday morning, Mr Petz believed that another person (Mr Manell) would be working on site. Aware of the rule that a second person needed to be on site, he rang Mr Manell before leaving home. Mr Manell confirmed he was on site. After purchasing brake pads, Mr Petz drove into the site. Mr Petz did not have credentials to open the gates but Mr Manell did. With Mr Manell being on site, the gates were already open and Mr Petz drove in.

[36] Mr Petz was on site for at least 45 minutes. He drove to a bay where he proceeded to change brake pads on his car. He parked his car next to (about two to three metres from) an open pit. He did not need to drive his car over the pit in order to work on it as he was not repairing the undercarriage.

[37] On arrival Mr Petz exchanged brief pleasantries with Mr Manell, who was working in a different bay not too far away.

[38] Unknown to Mr Petz, another contractor (Mr Smith) was working on site that day. Mr Smith was working in the paint workshop some distance away.

[39] Mr Petz decided to bring his second youngest child, a boy aged 11 years, with him.

[40] Mr Petz had not notified Jamieson of his intention to be accompanied by a minor. He did not mention this that morning to Mr Manell and (should I accept his version that he sought and obtained prior permission from Mr Coombs) he did not disclose to Mr Coombs that this was his intention.

[41] Whilst working on his car, Mr Petz took his son out of the car and allowed him to sit on the ground nearby, unrestrained.

[42] After some 45 minutes, having finished the replacement of brake pads, Mr Petz walked some 200 metres to a washbasin. He was accompanied there and back by his son.

[43] Whilst doing so he noticed Mr Smith was also on site.

[44] Upon returning to his car in the bay, Mr Petz noticed a forklift parked near an entry point to the bay. The forklift had not been there when Mr Petz had first arrived. Another person (possibly Mr Manell) had driven the forklift to that spot while Mr Petz was working on his car (apparently intending to bring the forklift into that bay). As the bay was currently occupied by Mr Petz, the forklift was left near the entrance to be brought into the bay once the bay was cleared.

[45] Upon returning to his car in the bay, Mr Petz decided to entertain his son by having his son sit in the forklift, show his son the controls and take a picture of his son doing so. This is what Mr Petz did. He lifted his son into the forklift while himself standing on the forklift step. He pointed out the controls and pedals. He then stepped back and took a photo whilst his son sat in the forklift.

[46] There is a dispute as to whether the forklift was operating idle at the time or was switched off. I deal with that issue later in this decision.

[47] There is also a dispute as to whether Mr Smith walked by at around this time and observed Mr Petz standing with his foot on the step with his son on the forklift seat and one arm around his son. Mr Smith says this is what occurred. He says he was “disgusted” with the behaviour but did not feel it his place to say anything at the time. Mr Petz denies that Mr Smith walked by. I deal with that issue later in this decision.

[48] At the time, Mr Petz thought nothing of having his son on the forklift and capturing a photo.

[49] He left the worksite.

[50] Upon returning home, at 3.37pm that day (5 April) Mr Petz uploaded to his private facebook page the photo of his son sitting in the forklift that morning alongside a caption: 2

“dads turn to home school. Today’s lesson learning to replace brake pads and driving forklift.”

[51] Mr Petz knew that a number of work colleagues were also ‘friends’ on his private facebook and would have access to the on-line post.

Investigation

[52] In the days that followed the events of 5 April 2020 came to the attention of Mr Saddler, Jamieson’s Operations Manager. This occurred in part from Mr Smith having relayed his observations to another employee, and in part from other employees having seen and then drawn the facebook post to Mr Saddler’s attention.

[53] Mr Saddler, concerned at the possible safety risks from what occurred, asked Mr Coombs what he (Mr Coombs) knew about the incident. Mr Coombs told Mr Saddler that he could not recall if he had granted permission for Mr Petz to work on his car that Sunday but said he certainly hadn’t approved a child being on site.

[54] Mr Saddler then informally approached Mr Petz (around Wednesday 8 April). He asked Mr Petz about having worked on his car the previous Sunday and about his son being present and the facebook post. Mr Petz said that yes it had occurred and said that he could not recall if he had permission from Mr Coombs but believed he had permission from Mr Manell.

[55] Mr Saddler remained concerned at the safety aspects of what happened and whether permission and been given. He considered Mr Petz’s response inadequate and inconsistent with what Mr Coombs had said. By week’s end, he decided a formal investigation was warranted.

[56] Over the following fortnight Mr Saddler conducted an investigation. He spoke again to Mr Coombs. He spoke to Mr Smith. He re-examined the facebook post. He consulted Mr Tai. He reported to his general manager.

[57] By 21 April 2020 Mr Saddler had completed his investigation. He had formed the view that Mr Petz had in all probability not obtained prior permission. He had ascertained that Mr Manell did not have authority to provide permission, believed Mr Manell had simply allowed access, that Mr Coombs did not recall if he had provided permission and that no-one had provided permission for a minor to be on site (even if permission to replace brake pads had been given). He also formed the view that having a child unrestrained on site was a high safety risk, that the consequences for the business should an accident to the child occur would be serious and that placing a child on a forklift was unauthorised and unsafe. He also formed the view that posting the photo of the child on the forklift to a site viewed by others was reckless and potentially damaging to Jamieson’s reputation.

[58] He discussed these views with his managers (including Mr Tai and his general manager) and these concerns were shared. Mr Saddler was authorised to take appropriate disciplinary action including dismissal if he thought this warranted..

[59] Mr Saddler considered the matter further and formed an in-principle view that the conduct, if not otherwise able to be explained, was serious misconduct and, as serious misconduct, justified summary dismissal.

[60] On the afternoon of 21 April 2020 Mr Saddler approached Mr Petz. He told Mr Petz that the investigation into the 5 April incident had finished and that Mr Petz was required to meet with him the next morning to further discuss the issue and that he had the right to bring a support person with him. Mr Petz asked of Mr Saddler either at this time, or on an earlier occasion, if he was going to be sacked for what occurred. Mr Saddler responded, either at this time or an earlier occasion, that the matter was going to be discussed further.

[61] That afternoon, Mr Saddler had not made a final decision on termination. However, in light of his in-principle view of serious misconduct, he asked Mr Tai (who was working from home due to COVID-19 protocols) to prepare a letter of termination. The letter was prepared on 21 April and sent to Mr Saddler. That day, it remained unsigned.

Dismissal

[62] Mr Petz met with Mr Saddler on 22 April 2020 in the late afternoon. Also present were Mr Coombs (brought along by Mr Petz as his support person) and a Mr Gilsmore (as a management support).

[63] The meeting was held in Mr Saddler’s office. 3

[64] Mr Saddler read from a Jamieson Employee Counselling form 4 which he had in part pre-populated. He stated, from his pre-populated notes, the findings of his investigation.

[65] Mr Saddler asked Mr Petz if he would like to respond. Mr Petz said that “it’s what occurred” and that he had no further response.

[66] Mr Saddler asked Mr Petz to sign the written form. Mr Petz declined. Mr Saddler wrote in the employee ‘comment box’ on the form “no response, it’s what occurred” and in the employee signature box “Nick has elected not to sign”. Mr Petz expressed no contrition or remorse and acknowledged no error. Mr Saddler told Mr Petz that even though he had the right not to sign, the document would record that and it would remain an official record.

[67] There was then a pause in the meeting whilst Mr Saddler left the room and printed off the completed Employee Counselling form and printed off the termination letter.

[68] During this pause, Mr Saddler signed the termination letter.

[69] There is a factual dispute as to whether Mr Saddler told Mr Petz immediately prior to the pause that he (Mr Petz) was summarily dismissed for serious misconduct or whether this was said by Mr Saddler immediately upon returning to the room with the printed documents. I deal with this issue later in this decision.

[70] Upon returning to the meeting, Mr Saddler handed Mr Petz the letter of termination. 5 The letter read in part:

“On Sunday, 5th April 2020 you were observed to attend the Jamieson premises, where you conducted work on your own vehicle using Jamieson plant and equipment. This activity was completed without prior verbal or written consent. You failed to notify your supervisor or any other member of management of your request to attend work outside of operational hours, and no consent was provided to you to utilise work plant, equipment and property for your own gain. In doing so, you put your own safety at risk.

Jamieson was notified that your adolescent son attended the worksite with you on this day. Your son was observed to be unsupervised at times. It was also observed that with your consent, knowledge and approval, your son was allowed to alight a forklift and drive it. A social media post posted by you on 5 April 2020 at 3:37pm quotes "Dads turn to home school. Today's lesson learning to replace brake pads and driving forklift". The quote accompanies a photograph of your son sitting on the Jamieson forklift. At the time of screen capture, this photograph had received 49 "likes". Jamieson upholds its responsibility to maintain a safe work environment, and uploading a photo such as this impacts this reputation in the wider community.

You unlawfully brought your son onto Jamieson premises outside of work hours where you allowed him to wander around without supervision as well as allowing him to access registered plant/equipment that a person needs to have received proper training and induction to drive and who holds the appropriate ticket and licence. The workshop has easily identifiable signage reminding workers to maintain safety standards. You ignored your obligations to maintain your safety and the safety of others and further, you placed your son in an unsafe environment. This directly contravenes the above-mentioned sections of the Work Health and Safety Act (SA) 2012. Jamieson considers your actions to be ill-considered, reckless and negligible and is tantamount to gross misconduct.

Given these facts, we have no alternative but to terminate your employment effective immediately.”

[71] Mr Petz was told that his entitlements would be his wages to that day and his accrued leave. Being a summary dismissal, he was not paid in lieu of notice.

[72] Mr Petz left work for the day. He was angry. He told Mr Saddler that he “would not be making it easy for us (Jamieson)” or words to this effect.

[73] Mr Saddler reported the day’s developments (including the post dismissal altercation) to Mr Tai by email sent that evening. 6 He noted that “following the decision to terminate, Nick’s demeanour understandably changed”.

[74] Mr Petz returned briefly the following morning (23 April) to collect his toolbox. As he walked towards the workshop Mr Petz turned in the direction of Mr Saddler (and another manager Mr Calvert) and said words to the effect “and thanks for nothing, you cunt” and then added “and by the way you better watch your back”. There is a difference in the evidence as to whether these words were directed to Mr Calvert (as Mr Saddler believed) or Mr Saddler (as Mr Petz says).

Post dismissal events

[75] Mr Petz remained extremely angry in the days and weeks that followed his dismissal.

[76] In those days and weeks he posted on the Jamieson facebook page comments designed to damage Jamieson’s reputation amongst its customers and suppliers including that “trailers don’t last long from this place” and that its products were “overpriced Chinese crap”. 7

[77] As a consequence, Jamieson disabled Mr Petz’s permissions to access its facebook page.

[78] Mr Petz also made posts critical of Jamieson on his personal facebook page. This included taking Jamieson’s corporate logo, placing it on his page alongside a statement “keep away from products made in China”.

[79] Amidst his anger, Mr Petz took steps to find alternate employment.

[80] In the days that followed the dismissal he secured five day’s work as a welder. However, after five days, and due to the economic impact of COVID-19 this work dried up.

[81] Mr Petz remained unemployed until mid-June 2020 (though he says he was told by Centrelink that he was ineligible for unemployment benefits due to liquid asset rules).

[82] In mid-June 2020 Mr Petz secured full time work as a tradesman with a local employer. He has remained continuously employed in that job since, though it is less remunerative than his work at Jamieson.

[83] Mr Petz commenced these proceedings on 14 May 2020.

Consideration

[84] No jurisdictional issues arise in determining this matter. Mr Petz was protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.

[85] The issue for determination is simply put: was Mr Petz’s dismissal “harsh, unjust or unreasonable” having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?

[86] I am under a duty to consider each of the criteria in section 387 of the FW Act, 8 and now do so. I take into account all of the evidence and submissions before me.

[87] Section 387 of the FW Act provides 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.”

Valid Reason (section 387(a))

[88] An employer must have a valid reason for the dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” 9 and should not be “capricious, fanciful, spiteful or prejudiced.”10

[89] In a conduct-based dismissal 11 the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it.12

[90] Where an employee is dismissed for misconduct, as in this case, an evidentiary onus rests on an employer to establish that on the balance of probabilities the misconduct occurred. 13

[91] It is also well settled that where, as in this case, an employer dismisses for serious misconduct, the standard of proof requires “a proper level of satisfaction” 14 that the conduct did in fact occur having regard to the seriousness of the allegations (the Briginshaw standard15). This requires more than mere satisfaction of it having been more likely than not that the conduct occurred. Rather, it requires a proper degree of satisfaction that the conduct did in fact occur.

[92] Jamieson advance four allegations of misconduct arising from the events of 5 April:

•  that Mr Petz failed to secure permission in advance to work on his private motor vehicle;

•  that Mr Petz failed to secure permission to bring his child onto the business premises whilst he worked on his private motor vehicle;

•  that Mr Petz acted recklessly and without due regard to safety when placing his child on the seat of a forklift; and

•  that Mr Petz acted recklessly and without due regard to the interests of his employer by posting a photograph on facebook of his child sitting in the forklift with an accompanying caption.

[93] I now consider whether these alleged breaches of duty occurred and, if so, whether they collectively or individually constitute a valid reason for dismissal.

Working on private motor vehicle without prior permission

[94] It is not asserted by Jamieson that an employee is breaking any rules by working from the business premises on their private motor vehicles or trailers in their private time. Mr Coombs indicated that this has occurred amongst employees previously, and not just by Mr Petz.

[95] What is required by Jamieson, however, is that permission be granted in advance if this is to occur and that it only occur where another person is also on site able to help manage any safety incident.

[96] In contacting Mr Manell that morning, Mr Petz sought to comply with the two-person requirement. Given that Mr Manell was present on site, Mr Petz did comply with that requirement.

[97] However, did Mr Petz secure permission in advance?

[98] The permission he claims he secured was from his supervisor, Mr Coombs. He claims that occurred earlier in the week, in an oral discussion.

[99] I am unable to conclude on the balance of probabilities that such a discussion occurred. In evidence Mr Coombs could not recall such a discussion. As a busy supervisor, he could not rule it out, but had no recollection of it occurring. His evidence was consistent with the position he expressed at least twice (once informally, once formally) during the investigation process to Mr Saddler.

[100] In contrast, Mr Petz’s evidence that he did seek Mr Coomb’s permission lacked the degree of exactitude to enable a positive finding to be made. Nor was it consistent with Mr Saddler’s evidence, which I accept, that during the investigation process Mr Petz said that he could not recall if he had secured prior permission from Mr Coombs.

[101] Mr Petz submitted, in the alternative, that he had permission from Mr Manell by virtue of the early Sunday morning phone call. I do not accept this submission. In making that call, Mr Petz was assessing whether Mr Manell was on site in order to comply with the two-person rule and to ensure he could get through the gates, not to secure permission. Mr Petz’s witness statement in reply indicates as much. 16

[102] Whilst the possibility remains that Mr Petz had secured permission in advance to work on his own motor vehicle, the evidence does not enable a positive finding to that effect.

[103] However, nor does the evidence enable a positive finding that permission had been refused. A failure to recall on the part of Mr Coombs is not evidence of refusal. Relevant to this issue is Mr Coombs evidence that had a request been made there would have been no reason to refuse it provided the two-person rule was adhered to. A request, if it had in fact been made, would have been consistent with the flexibility Jamieson provided to employees to work in their own time on their own vehicles.

[104] These considerations go to the seriousness of any breach of the permission requirement if indeed there had been no permission sought and granted. Permission would not have been refused; Mr Petz took active steps to comply with the two-person rule; and changing his vehicle’s brake pads on the Jamieson premises that Sunday morning was unexceptional conduct.

[105] I conclude that any failure by Mr Petz to have secured permission in advance to work on his private motor vehicle on 5 April 2020 was not, in the circumstances, serious misconduct or a valid reason for dismissal.

Bringing a child onto work premises

[106] The decision to bring his 11 year old son onto the work premises with him that Sunday morning was Mr Petz’s decision, and his alone.

[107] He had not sought prior permission to do so, and did not assert that he had.

[108] Had he sought such permission, it would have been refused. Jamieson makes no provision for entry of children of employees after hours. Permission is granted to employees and contractors, not minors.

[109] In bringing his son onto the work premises Mr Petz acted recklessly and outside the terms of any permission he was granted or considered he held to work on his private motor vehicle.

[110] Whether this breach was serious requires an assessment of relevant circumstances. Those are:

•  Mr Petz’s son was 11 years old. He was a child and not one of teenage years. A child of 11 years has limited capacity to maturely assess safety risks or control behaviour;

•  Mr Petz did not keep his son in the vehicle. He took him out of the vehicle and onto the site grounds;

•  Mr Petz’s son sat nearby Mr Petz, did not wander and came to no harm; and

•  Mr Petz and his son walked some few hundred metres across the site to clean up at the conclusion of the repair.

[111] Aside from the young age of the child, there are aggravating circumstances:

•  Mr Petz and his son were within two to three metres of an open pit (used to work on the undercarriage of vehicles) which carried an obvious risk of fall. The photograph posted shows a sign immediately adjacent ‘DANGER OPEN PIT’.

•  it is not plausible that Mr Petz had his undivided attention on his son at all times. Moving around a car and replacing brake pads requires attention to the vehicle in order to do the job; and

•  this was not for a momentary period of time. The repair lasted some 45 minutes.

[112] Taking these factors into account, I conclude that bringing his son onto the premises without permission was a serious error of judgment on Mr Petz’s part. Whilst he was concerned as a parent to make sure his child did not get into trouble or wander too far, it reflected an indifference to his employer’s safety policies and the risk and liability it carried should a safety incident with the child have occurred.

[113] Mr Petz sought to minimise the breach by pointing to the fact that Mr Manell also had his son with him that morning. I reject that submission. Mr Manell’s son is an adult tradesperson. Mr Manell’s son was working with Mr Manell on authorised work. Mr Manell’s son was known to Jamieson and had, in the past been directly engaged by Jamieson to do work. There is nothing in the circumstances of Mr Manell’s son working on site that day which explains, minimises or mitigates the breach by Mr Petz.

[114] It was a serious error of judgment and as such capable of forming part of a valid reason for dismissal.

Sitting his child in the forklift

[115] Mr Petz accepts that he sat his child on the nearby forklift, showed his son the steering wheel and the forklift controls and pedals and then stepped back from the child to take a photo.

[116] While I accept that Mr Petz had his arm around his child whist seating the child in the forklift and showing him the controls, he left the child fully unrestrained for a short period of time whilst he stepped back and took the photo.

[117] Was this a serious breach?

[118] Jamieson contend that this was a serious breach of safety aggravated by the fact, it says, that the forklift was idling at the time. There is a conflict of evidence between Mr Smith and Mr Petz as to whether the forklift was idling. Mr Petz says it was not. Mr Smith says that, as he walked past, he saw the incident and believed the forklift to be idling.

[119] I am not satisfied that Mr Smith’s recall is sufficiently reliable to make a positive finding to this effect. Whilst I accept that Mr Smith walked in the vicinity and saw the incident (although not noticed by Mr Petz) and although it is clear that the forklift had, at some period whilst Mr Petz was on site, been in operation (given it was moved to the bay entry) I do not make a positive finding that the forklift was idling at the time Mr Petz placed his son in it. It is possible, but the standard of proof does not enable a finding to be made to that effect.

[120] That notwithstanding, I conclude that placing his son in the forklift and then taking a photo whilst his son was unrestrained was a serious error of judgment. Mr Petz was familiar with forklifts and the dangers they present. To enter a forklift one has to step up into it. Mr Petz had himself done so to place his child in the seat. A child sitting in a forklift presents a risk of a fall from height.

[121] Placing the child in the forklift and then, even momentarily stepping back and taking a photo whilst the child was unrestrained, reflected an indifference to his employer’s safety policies and the risk and liability it carried should a safety incident with the child and the forklift have occurred.

[122] That failure is not minimised by the fact that the child, as the photo suggests, had his hands in his lap. Mr Petz’s failure was a failure to respect rules about persons who were allowed to use or sit in Jamieson’s forklifts and to not put his employer or his child at risk.

[123] Nor is the failure minimised by what Mr Petz suggested was the natural desire of a parent to give a young boy a slightly grown-up experience. Whatever natural desire a parent has in that regard, this was not a private venture, a private residence, private family equipment or a public playground. Whilst a parent has an obvious desire to entertain their child it must be conditioned by circumstance.

[124] Overall, putting his son into a forklift on the business premises was a serious error of judgment. It bore no relationship to the purpose for which Mr Petz entered the site (working on his car) and it presented a material safety risk. As such it was capable of forming part of a valid reason for dismissal.

Uploading of photo onto facebook

[125] Mr Petz accepted that he uploaded the photo of his son to his facebook site that afternoon alongside a caption he wrote:

“dads turn to home school. Today’s lesson learning to replace brake pads and driving forklift.”

[126] Jamieson submit that this conduct evidenced an indifference to Jamieson’s interests in that members of the public who were facebook friends could view the photo and caption, and in so doing think that Jamieson had acquiesced to Mr Petz’s son sitting in the forklift and having a lesson on “driving” it.

[127] There is some merit in this contention but it should not be overstated. Context matters. That includes:

•  the facebook site was Mr Petz’s private facebook page, not Jamiesons;

•  the caption was in the nature of a boast and an ordinary reader would not have literally thought the child was driving the forklift;

•  neither the caption nor the photo disclosed location or that the premises or property concerned Jamiesons; and

•  there is no evidence of actual damage to Jamieson’s interests or reputation from its publication.

[128] In these circumstances, whilst I consider that Mr Petz knew or ought to have reasonably known (had he thought about it) that it was wrong to have his son on the forklift and then advertise that fact to his facebook friends (which included some Jamieson employees), the error of judgment (the uploading) was at the lower end of the scale.

[129] Being at the lower end of the scale it did not warrant dismissal in its own right. However, the photo being consequential on that morning’s failures (bringing his child on site without permission and placing his child on the forklift whilst photographing the child unrestrained) it compounded those breaches and was a relevant consideration in the decision to dismiss.

Conclusion on valid reason

[130] There was a valid reason for dismissal.

[131] Whilst repairing his private motor vehicle on site on 5 April 2020 was not misconduct, the surrounding conduct that day by Mr Petz exhibited an indifference to his obligation to comply with safety rules and was inconsistent with his employer’s interests and obligations. Whilst some of the failures were more serious than others, the failures of duty (particularly bringing his child on site without permission and then putting him into a forklift) collectively were a valid reason for dismissal.

[132] This conclusion weighs against a finding of unfair dismissal.

Notification of the reason for dismissal (section 387(b))

[133] Mr Petz was notified of the reason for dismissal by Mr Saddler on 22 April 2020, both verbally and in writing.

[134] This conclusion weighs against a finding of unfair dismissal.

Opportunity to respond (section 387(c))

[135] The evidence before me is that Mr Petz was provided a clear and fair opportunity to respond to the allegations against him. The evidence also indicates that he knew the investigation had a disciplinary element to it and that dismissal could be a consequence (he himself having raised that concern with Mr Saddler).

[136] Mr Petz was given an opportunity to explain the events of 5 April 2020, informally and formally. He was provided a written summary of the investigation findings on 22 April 2020 and did not disagree with them. He acknowledged “it’s what occurred” or words to that effect. He was given an opportunity to sign the interview record but declined. His failure to sign detracted nought from the opportunity he was given to state his version or raise mitigating facts.

[137] I do not find that Mr Saddler had made a pre-determined decision. He had expressly done the contrary. He had formed an in-principle view following an investigation during which he had already spoken to Mr Petz. He had a termination letter prepared, consistent with his in-principle view, but had not signed it as he wanted to give himself space to make a firm decision once he had heard, for a final time, from Mr Petz. He was open to hearing what Mr Petz had to say on 22 April. What he heard was confirmation of the facts he outlined.

[138] In these circumstances, little turns on whether Mr Saddler made the decision and communicated it before leaving the 22 April meeting to print the termination letter or whether he did so only on his return to the meeting room. To the extent relevant, I prefer his primary evidence that he probably did so on his return once he printed off the termination letter and signed it.

[139] I conclude that Jamieson provided Mr Petz a reasonable opportunity to respond to the allegations against him. He was not denied procedural fairness.

[140] This conclusion weighs against a finding of unfair dismissal.

Opportunity for support person (section 387(d))

[141] Mr Petz was afforded the opportunity to attend the disciplinary meeting on 22 April 2020 with a support person and did so with Mr Coombs.

[142] I conclude that Jamieson did not unreasonably refuse Mr Petz a support person.

[143] This is a neutral consideration.

Warnings concerning performance (section 387(e))

[144] Although Mr Petz had received three warnings across his years of service, these were not material to the decision to dismiss. Mr Saddler regarded them of historical value only.

[145] Whilst the Commission’s role is to assess fairness objectively and not simply consider whether the employer came to a conclusion reasonably open to it, the evidence before me did not identify the circumstances in which those warnings were issued, other than Mr Petz’s evidence that he considered them unwarranted.

[146] Being unable to make any findings as to the circumstances of those warnings, I do not take the historical warnings into consideration in determining this matter.

[147] This is a neutral consideration.

Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))

[148] Jamieson is not a small business as defined by the FW Act but is a private business of small to medium scale. It has human resource capability (Mr Tai). Its size and internal capability do not constrain its capacity to fairly examine allegations of misconduct and make reasonable disciplinary decisions in a fair way.

[149] This is a neutral consideration.

Other matters (section 387(h))

Harsh – Mr Petz was approaching pro rata long service leave

[150] Mr Petz submits that his dismissal was harsh because had he worked another six weeks he would have qualified for pro rata long service leave under South Australian law (pro rata arises after seven years continuous service).

[151] Whilst this frustration explains in part Mr Petz’s anger with his dismissal (and its terms) and the reason for this litigation, it is not a basis on which to conclude that his dismissal was harsh.

[152] The time frame for qualification for pro rata long service leave is set by the parliament of South Australia, not by Jamieson.

[153] There is no evidence that Jamieson was in any way influenced by the forthcoming anniversary date of Mr Petz’s seventh year (4 June 2020). I accept Mr Saddler’s evidence that he, as a relatively new Operations Manager, was unaware of that fact. There is no evidence that Mr Saddler or any other member of the management group took that issue into account.

[154] Viewed objectively, without more, the approaching near anniversary of an employee’s pro rata entitlement cannot transform a dismissal for a valid reason into an unfair dismissal. 17 Whilst it is conceivable that an unscrupulous employer may rush an investigation to dismiss in advance of an anniversary date in order to avoid a pro rata obligation (and thereby act unfairly) that is not what occurred here. Apart from the fact that Mr Saddler did not know of the anniversary date, the investigation was not rushed. The investigation of the events of 5 April 2020 occupied at least a fortnight; that was more than sufficient time for Jamieson to get to the bottom of the matter in a fair way. It was not distracted by issues of pro rata rights.

Harsh – personal circumstances

[155] Mr Petz submits that his dismissal was harsh because it rendered him unemployed, made it difficult for him to get another job (especially given COVIOD-19 impacts) and put him and his family under financial pressure especially as he was, at that time, the primary breadwinner with four dependent children.

[156] These are real impacts, and I take them into account.

[157] In considering the significance of these factors I weigh them alongside the failures of duty as well as my overall findings concerning procedural fairness.

[158] Each of these considerations, whilst relevant, are not unique. They do not materially mitigate breaches of duty and the valid reason they constitute. They do not transform a dismissal for a valid reason into one that can be characterised, at law, as harsh. 18

Conclusion

[159] This matter concerns summary dismissal for serious misconduct.

[160] My role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal was harsh, unjust or unreasonable.

[161] The onus of proof to establish unfairness rests on Mr Petz.

[162] However, in matters of misconduct, the employer carries an evidentiary burden to establish that the misconduct which they allege did in fact occur. I have made findings of fact having regard to the evidentiary onus borne by the employer. Those findings have been based on the requisite standard of proof.

[163] The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd  19 as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. 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.”

[164] In reaching my conclusion, I adopt the approach set out by a Full Bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post: 20

“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

[165] I have found there were breaches of duty on 5 April 2020 and those breaches, some more serious than others, taken collectively, constituted a valid reason for dismissal.

[166] I have also found that Mr Petz was not denied procedural fairness before a decision to dismiss was made.

[167] The issue which remains is whether the sanction imposed was disproportionate to the misconduct in the context of the overall circumstances.

[168] I do not consider that dismissal for the failures on 5 April 2020 was disproportionate. Those failures were of Mr Petz’s making, were entirely avoidable and occurred over a period of hours. He decided to bring his child onto the work site without permission hours before he decided to put his child on the forklift and that occurred hours before he then decided to download the photo of his child on the forklift. This was a sequence of interrelated decisions that reflected poor judgment, not a singular moment of a rush of blood to the head.

[169] These decisions were cumulative errors of judgment. The errors did not involve misconduct in the performance of his duties as an employee but they were errors nonetheless that carried avoidable risk to his employer. Mr Petz did not adequately calibrate his private instincts as a father with his responsibilities to his employer. He mixed private and workplace interests and this clouded his judgment. His misjudgement originated from the fact that the purpose of visiting the site that Sunday morning was wholly private.

[170] Nor did Mr Petz consider that what he did was wrong. To his credit, during the investigation he did not dispute the facts, but inexplicably he did not accept wrongdoing on his part. He was not contrite, remorseful or apologetic. It was only in his closing statement at the hearing of this matter, four months later, that Mr Petz acknowledged that what he did on the day was “wrong”. 21 An inability to grasp his mistakes at the time or in the immediate aftermath is indicative of a lack of sensitivity to the duty, especially on safety matters, he owed and of the serious consequences for a business should its employees put themselves or others at risk.

[171] That lack of awareness and the belated nature of the recognition of error expressed only in the shadow of contested litigation also weighs against a finding that dismissal was a disproportionate sanction.

[172] It is not to the point whether the Commission or a different employer may have taken such a course or whether this employer could have taken a lesser course. 22 I have concluded that such a course was reasonably open on an objective assessment of the facts. It is not the Commission’s role to stand in the shoes of an employer to determine which of the reasonably available disciplinary courses it may or should have chosen if the course chosen was not harsh, unjust or unreasonable.23

[173] However, one matter remains.

[174] This was a summary dismissal. It was not a dismissal on notice. Whether conduct warranted summary dismissal is a relevant matter going to harshness under section 387(h) of the FW Act. 24

[175] It does not automatically follow that employee misconduct or failure of duty warrants summary dismissal. The proportionality of the summary nature of Mr Petz’s dismissal must be weighed against the gravity of his misconduct. 25 Summary dismissal is only available to an employer where the misconduct or failure of duty is of such a serious nature that it strikes so fundamentally at the heart of the employment relationship that the continuation of employment for any future period of time, no matter how brief, would be incompatible with the contract including the duties of trust and confidence.26

[176] Moreover, where an employer dismisses an employee on notice but not summarily the employer has one of two options; either it can require the employee to work out their notice or (alternatively) pay the employee and amount of notice in lieu.

[177] Whilst the errors of judgment by Mr Petz on Sunday 5 April 2020 were, in cumulative effect, serious, I consider that summary dismissal was not reasonably open. Whilst neglect of safety rules or a lack of safety awareness is serious in any workplace context, some conduct strikes more fundamentally at the employment relationship than others. It is only conduct that is serious misconduct that gives rise to summary dismissal.

[178] I do not consider that Mr Petz’s conduct so fundamentally struck at the heart of the employment relationship such that its continuation for any future period was untenable. He continued working in the following fortnight. He was not suspended with pay pending the investigation being completed even once the apparent facts emerged to Mr Saddler in the days that immediately followed. The private work he was doing that Sunday was not disallowed, he used his own tools and did not complete the work unsafely. Aware of the nearby risks, he required his child to be seated near him. The child apparently obeyed that instruction. For most of the time the child was seated on the forklift Mr Petz had his arm near or around the child. When Mr Petz left the vicinity of his car to clean-up he took his child with him, thus minimising risk.

[179] Considering the circumstances overall, the dismissal was not unfair but summary dismissal was. The dismissal is harsh on that ground, but that ground only. Mr Petz should have been dismissed on notice. In the circumstances, that would have been five weeks’ notice or payment in lieu.

Remedy

[180] I now turn to the question of remedy.

[181] Remedies available to the Commission under section 390 of the FW Act are reinstatement (in the same or other position) or (but only if reinstatement is inappropriate) compensation (within statutory limits).

[182] Whether to order a remedy is a discretionary matter.

[183] I consider it appropriate to order a remedy but only on the terms outlined below.

[184] I conclude that reinstatement is inappropriate. I have concluded that dismissal was not unfair; simply one of the terms under which dismissal occurred (its summary nature) made it harsh. In any event the post-dismissal conduct by Mr Petz has so fundamentally damaged the relationship that reinstatement, even were the dismissal unfair on broader grounds, would be inappropriate.

[185] The post dismissal conduct involved Mr Petz deliberately and in a calculated manner seeking to damage Jamieson’s interests as retribution for his dismissal. The conduct involved:

•  threatening managers and the company in the hours that followed dismissal. Even after having slept on the matter overnight, he repeated his warning of retribution the following day in even more uncouth terms;

•  posting on Jamieson’s facebook page opinions about Jamieson’ products and services that were intended to warn off existing and new customers from doing business with the company; and

•  transposing to his facebook page Jamieson’s logo and continuing to repeat his opinions about the company and its products.

[186] Such conduct went beyond an expression of angry disappointment in the heat of the moment. It occurred over weeks and was calculated. Having an external customer-facing element, it demonstrated a continuing lack of judgment on Mr Petz’s part. It was provocative and carried the risk of potential damage to the very business he is now seeking compensation from.

[187] I turn to the issue of compensation. Section 392 of the FW Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[188] I now consider each of the criteria in section 392 of the FW Act.

Viability: section 392(2)(a)

[189] There is no evidence before me to suggest that a compensation order will adversely affect the viability of Jamieson.

Length of service: section (section 392(2)(b))

[190] Had Mr Petz been dismissed on notice and not dismissed summarily he would have still fallen short (but only by the narrowest of margins of one week) of the pro rata anniversary date. He would have worked for six years and fifty-one weeks.

Remuneration that would have been received: section 392(2)(c)

[191] Having regard to Mr Petz’s age and years of service, dismissal on notice would have required Jamieson to provide five weeks’ notice or make a payment of five weeks in lieu. 27

Mitigating efforts: section 392(2)(d)

[192] Mr Petz moved swiftly to find alternate work. In the week that followed dismissal, he secured five day’s work as a welder. However, after five days, and due to the economic impact of COVID-19 this work dried up.

[193] Mr Petz remained unemployed for the next six weeks until mid-June 2020 (but was apparently ineligible for unemployment benefits). He then secured full time work as a tradesman with a local employer. He has remained continuously employed in that job since, though it is less remunerative than his work at Jamieson.

Remuneration earned: section 392(2)(e)

[194] I will discount the compensation order by the one week of earnings during what would have otherwise been a week of the notice period.

Income likely to be earned: section 392(2)(f)

[195] The period for which I will order compensation (the notice period) does not extend to a period of projected future work. I will make no deduction on this account.

Other matters: section 392(2)(g)

[196] There are no other matters or contingencies that need to be provided for.

Misconduct: section 392(3)

[197] I have found that Mr Petz materially contributed to the dismissal by serious errors of judgement including on safety issues that gave rise to dismissal for a valid reason, but which fell just short of conduct warranting summary dismissal.

[198] I consider a 20% reduction (one week) appropriate on account of this misconduct. I do not consider such a discount to be a double punishment (having found that the misconduct formed a valid reason for dismissal). A compensation order is not an order for payment of a sum of due under the FW Act or an award. Whilst the order I make bears a direct relationship to my conclusion that the absence of notice rendered the dismissal harsh, section 392(3) of the FW Act provides that the Commission “must” reduce the amount of compensation by an appropriate amount on account of contributory misconduct.

[199] I also consider it appropriate to apply a discount to the compensation order on account of Mr Petz’s deliberate and vengeful post-dismissal conduct designed to damage Jamieson’s reputation and interests. Being post dismissal conduct, I do not apply this discount specifically under section 392(3) of the FW Act. I do so in the exercise of the general discretion to order a sum of compensation that is appropriate in the circumstances.

[200] I consider a further 20% reduction (one week) on account of this conduct.

[201] In total, I will discount the compensation order by two weeks on account of pre and post dismissal misconduct.

Shock, Distress: section 392(4)

[202] Mr Petz was angry at having been reported by other contractors or employees for what they observed on Sunday morning 5 April 2020 and for what others observed on his facebook page late that day. He was not shocked by his dismissal but was angry about it and disagreed with it.

[203] Compensation allowable by the FW Act does not include a component for hurt feelings. The compensation order will make no provision for such matters.

Compensation cap: section 392(5)

[204] The amount of compensation I will order does not exceed the six-month compensation cap.

Conclusion on compensation

[205] The compensation order will be for an amount equivalent to five weeks in lieu of notice discounted by two weeks on account of pre and post dismissal misconduct and one week on account of the earnings in alternate work during this period.

[206] The amount of compensation payable by Jamieson that I consider appropriate will be two weeks’ pay.

Conclusion

[145] I find that Mr Nick Petz, a person protected from unfair dismissal, was dismissed by Jamieson Sales and Service Pty Ltd on 22 April 2020 and that his dismissal was harsh on the ground that he was dismissed summarily (without notice).

[207] The amount of compensation payable by Jamieson under section 392 of the FW Act will be two weeks’ pay (plus superannuation) at the ordinary gross weekly rate of pay applicable to Mr Petz at the date of dismissal.

[208] On the materials before me 28 this equates to $2,356.00 (gross) plus 9.5% superannuation. Jamieson is directed to recheck this calculation in light of this decision and within seven days of this decision advise the Commission and Mr Petz of the sum it calculates which equates to two weeks’ pay (gross) should its calculation differ from the above.

[209] Subject to any revised order consequential on the above, in conjunction with the publication of this decision I order 29 this amount be paid within fourteen (14) days of the date of this decision (by close of business 9 September 2020).

DEPUTY PRESIDENT

Appearances:

Mr N Petz, in his own right.
Mr N Saddler and Mr S Tai, for Jamieson Sales and Service Pty Ltd.

Hearing details:

2020,
Adelaide, by determinative conference,
20 August.

Printed by authority of the Commonwealth Government Printer

<PR722061>

 1   [2020] FWC4293 at [71] – [72]

 2   R5

 3   Mr Petz submitted that the office was too small to hold all present and comply with COVID-19 social distancing protocols. For the purposes of this decision, I need not determine if this was so. Mr Saddler’s evidence was that the floor meterage of his office was adequate

 4   R4

 5   R4

 6   R7

 7   R8

 8   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

 9   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 10   Ibid

 11   Except where the Small Business Fair Dismissal Code applies

 12   King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 at [24]

 13   Edwards v Guidice (1999) 94 FCR 561at [6]-[7]

 14   Budd v Dampier Salt Ltd (2007) 166 IR 407 at [14] - [16]

 15   Briginshaw v Briginshaw (1938) 60 CLR 336

 16   A2 third paragraph

 17   Graham v Walker Australia Pty Ltd t/as Tenneco [2017] FWC 5136 at [89]

 18   For example, Dawson v Qantas Airways Limited [2017] FWCFB 1712 at [48]

 19   [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

 20   [2013] FWCFB 6191

 21   Audio transcript 20 August 2020 12.51pm

 22   Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185 at [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

 23   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 68

 24   Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033 at [34]

 25   Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 4453 at [5]

 26   Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; Pastrycooks Employees, Biscuit Makers Employee & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) 35 IR at 70 and Laws v London Chronicle (Indicator Newspapers) Limited 1 WLR [1959] at 698 as cited in Trudi Puszka v Ryan Wilks Pty Ltd T/A Ryan Wilks Proprietary Limited [2019] FWC 1132 at [41] – [45]

 27   Clause 38 of the Vehicle Repair, Service and Retail Award 2010 and section 117 FW Act (NES)

 28   Jamieson F3 paragraph 1.5 wage or salary at the time of dismissal: $61,256 per annum

 29   PR722062