DECISION

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

Mr Travis Eva
v
Summit Innovations Pty Ltd
(U2016/3835)

Application for an unfair dismissal remedy; misconduct; whether valid reason; after acquired knowledge of further misconduct and whether account should be taken of that misconduct; whether a refusal to allow a support person; dismissal not unfair; application dismissed.

[1] Mr Travis Eva (Applicant) commenced employment with Summit Innovations Pty Ltd (Respondent) on 13 January 2010 as an installation technician. The Applicant was suspended on full pay pending further investigation on 23 December 2015 and was dismissed from his employment with the Respondent on 24 December 2015, effective immediately. 1 At the time of his dismissal, the Applicant was employed as a product delivery consultant.

[2] On 14 January 2016, the Applicant applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.

[3] Turning first to deal with the initial matters which must be decided before the merits of an application are considered. 2 These matters were not in dispute, and I find that:

• The application was made within the time prescribed in s.394(2) of the Act;



• The Applicant was, at the date of his dismissal, protected from unfair dismissal within the meaning of s.382 of the Act;



• The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and



• The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.

[4] For the reasons which follow, I have concluded that the Applicant’s dismissal was not unfair.

Background and factual findings

[5] The Applicant was employed by the Respondent from 13 January 2010 until 24 December 2015. The ownership of the Respondent changed in May 2013 when Mr Hilary Evans sold his interest to Mr Andre Pravaz, the Managing Director of the Respondent. 3 The Applicant had completed approximately four years and eleven months of service with the Respondent at the time of his dismissal. The Applicant’s employment was terminated by the Respondent on 24 December 2015, with immediate effect.4

[6] The Applicant was advised of his dismissal by letter dated 24 December 2015 (Termination Letter). 5 Although the dismissal was effective immediately, the Termination Letter makes clear that the Applicant would receive four weeks’ pay in lieu of notice.6 The Termination Letter was emailed to the Applicant following an email thread between the Applicant and Mr Kim Redstall, Director of Corporate Development and Strategy of the Respondent. The emails related to discussions held at two “meetings” on 23 December 2015 at approximately 11.30am and 3.00pm attended by the Applicant, Mr Redstall, and Mr Mark Francis, Operations Manager of the Respondent.

[7] The Termination Letter informed the Applicant that the Respondent was satisfied that the Applicant had more likely than not engaged in misconduct by allowing the company fuel card issued to him to be used for his personal benefit during a trip to Coffs Harbour on the weekend of 2 to 4 October 2015. 7

[8] The conduct said to constitute the reason for the Applicant’s dismissal is in dispute.

[9] The Applicant contends that the reason given for his dismissal is not a valid one as there is no evidence of any misconduct as distinct from perhaps an arguable error of judgement. 8 The Applicant says that the arguable error of judgement is to be determined by taking into account the following matters:

“ the fuel card alleged to have been misused had at all times in the past been used for purposes similar or the same as the use to which it was put by the employees in the race meeting trip;

• the card was used by Mr Power rather than the applicant; and



• there is no evidence of deliberate misappropriation of Company resources.” 9

[10] The Respondent’s case is that the dismissal of the Applicant was not harsh, unjust or unreasonable because inter alia there was a valid reason for the Applicant’s dismissal and the Respondent relies, in addition, on knowledge of further misconduct, acquired after the dismissal to justify the dismissal. 10

Motorpass cards and company vehicle

[11] The Applicant was issued a company vehicle (Hyundai iLoad van; Registration No. IEZ8GW) and a motorpass fuel card. For the most part, it is not in dispute that, for the majority of the Applicant’s employment, the Applicant did not own any other vehicle and therefore used the company vehicle for both work and private use. 11 The Applicant was not the only employee who did not own a personal vehicle.12

[12] Employees of the Respondent allocated a company vehicle were provided with a motorpass card which was allocated to the vehicle type detailed on the card. 13 The Respondent’s instructions to employees to whom a card was issued, was that the motorpass card was only to be used to purchase fuel for the vehicle in relation to which it was issued, and that the card could be given to anyone driving that vehicle.14

[13] Before motorpass cards were introduced by the Respondent, employees used a company issued credit card to purchase fuel. 15 After the introduction of the motorpass cards, employees were directed to use their company credit card in circumstances where the fuel station did not accept the motorpass card.16 An email sent by Ms Lynn Walsh, Office Manager, to employees on 4 February 2015, reminded employees of the requirement to advise the service station attendant the correct kilometre reading displayed on the vehicle’s odometer at the time of refuelling the vehicle.17 Ms Walsh’s evidence was that the purpose of requesting the odometer readings was to “prevent employees from abusing their entitlements and using their company vehicles and motorpass cards for excessive personal use.”18

[14] Ms Walsh’s evidence was that both the Applicant and Mr Sean Power often failed to provide the console operator with an odometer reading after refuelling their respective company vehicles. This is reflected by a blank reading on the motorpass statement, despite instructions and written email requests. 19

[15] It was put to Ms Walsh that post 4 February 2015, the Respondent did not follow up any failure to advise of odometer readings. 20 Ms Walsh’s evidence was that this was correct but “the decision to get the motorpass cards was to have the transparency but also we do this because, you know, you keep a pattern, you keep - people need to know they're being checked, they're in check and we're not running a kindergarten, so it's a case of it's a honesty policy.  We're there to work, we're there to do what we need to do and we use the tools whatever it may be to do the job.”21

[16] The Applicant’s evidence was that between 4 February 2015 and the date of his termination, this matter was never raised with him. 22

[17] I accept that the odometer issue was not raised with the Applicant. I also accept Ms Walsh’s explanation as to the reason for this, which in essence was that an instruction was given and the Respondent expected employees to act honestly and in accordance with the instruction.

[18] It seems clear that the Applicant, along with other employees, was given a clear written instruction on 4 February 2015 as to that which was required concerning the use of, and record keeping relating to, the motorpass card. 23 Despite the Applicant’s evidence that on some occasions he had forgotten to notify the petrol station attendant of the odometer reading,24 it also seems clear that on a number of occasions he “did not bother to” notify the attendant or to return to the attendant to notify the attendant of the odometer reading once realising the odometer reading had not been recorded.25

[19] In addition, the Applicant’s evidence that he had not been told of the importance of the requirement and consequently that he did not “feel it was important”,  26 is difficult to accept, and I do not accept that evidence, in light of the clear and unequivocal written reminder of the requirement given to him and others on 4 February 2015, which was as follows:

“Please be advised, it is a company requirement to provide an Odometer reading for each occasion you replenish your fuel. It seems this requirement was not communicated correctly.

Effective as of today, could you please advise the service station attendant the correct kilometre reading displayed on your odometer at the time of filling up” 27

[20] In the circumstances, I find that the Applicant deliberately disregarded the Respondent’s instruction to provide an odometer reading to the service attendant on each occasion the vehicle was refuelled. That there was no follow up by the Respondent is not a licence to the Applicant to ignore the Respondent’s instruction. That he could not be bothered or thought the instruction unimportant speaks to his attitude to his employer’s direction and underscores the deliberate nature of his conduct in this regard.

Credit cards

[21] Each employee who had the need for purchasing items to assist with a job was issued with a company credit card. The Respondent submits that the company credit cards were to be used for business purposes and consumables whilst travelling to and from jobs. 28 In the circumstances where an employee was engaged on a country job, or working in a remote location, the company credit card could be used to purchase meals, accommodation and other necessary incidentals.29 If an employee made a purchase on the company credit card, the employee was required to note down the job to which the expense related, so that it could later be charged to that project.30 Employees were required to provide a receipt and to list the details of the expense, including the purpose of the expense and the job number to which it related.31 If the respective column remained blank, it was deemed as a personal expense.32

Investigation into the conduct of the Applicant which led to his dismissal

[22] On 27 November 2015, Mr Redstall became aware of excessive data downloads on the Applicant’s company mobile phone during October 2015. 33 This issue triggered an “investigation” that ultimately led to the dismissal, the subject of this application.

[23] The Applicant’s evidence was that prior to the investigation which led to his dismissal, he raised a query with his manager, Mr Francis, in relation to payment of overtime after he had worked a long weekend involving lots of travel and which meant he had not been able to have a 10 hour break between shifts. 34 The query was raised on 15 December 2015.35 On 16 December 2015, the Applicant was advised by Mr Francis that he would seek advice in relation to his query. On 21 December 2015, the Applicant contacted Mr Francis seeking a response.36 On 22 December 2015, the Applicant received an email from Mr Francis advising the Applicant that he would be paid overtime and that in future, prior approval was necessary.37

[24] The implicit suggestion raised by this evidence that the investigation was motivated by the Applicant’s overtime query is rejected. I accept the evidence of Mr Redstall that he commenced an investigation into the Applicant’s company mobile phone and fuel records on 27 November 2015. 38 This was more than two weeks before the Applicant made his overtime enquiry.

[25] It is not in dispute that the Applicant did not own a personal mobile phone during his employment and so the company mobile phone issued to the Applicant was used by the Applicant for both company and private use.

[26] Mr Redstall gave evidence that he noticed that some of the excessive data usage occurred throughout rural and regional Victoria and New South Wales between 1 and 5 October 2015, and that the Applicant had not been requested to work in those areas as it was a long weekend. 39 Mr Redstall also discovered that the Applicant’s motorpass card had been used between 1 and 5 October to fuel a vehicle at several locations between Melbourne and Coffs Harbour, which he said was a significant distance away from any potential work.40

[27] During Mr Redstall’s investigation, he identified other issues during a period that the Applicant was on annual leave in late October 2015. The motorpass card issued to the Applicant appeared to have been used to purchase an amount of fuel in excess of the fuel tank capacity of the vehicle assigned to the Applicant and/or where the mileage of the Applicant’s vehicle at each refuelling did not increase. 41 The fuel card appeared to have been used to purchase fuel in Lake Eildon, Alexandra and Healesville.42

[28] Mr Redstall’s investigation also identified another incident in which the Applicant appeared to have used his motorpass card and company vehicle to travel to Sale and Golden Beach over the weekend of 29 and 30 August 2015. 43

[29] The incidents described above form the serious misconduct report (Report) which was compiled by Mr Redstall.

Serious Misconduct Report

[30] Mr Redstall commenced writing the Report containing his findings on 18 December 2015. 44 Mr Redstall’s evidence is that the Report was compiled and completed over the weekend of 19 and 20 December 2015.45

[31] During cross-examination, the Applicant put to Mr Redstall that the Report was compiled as a consequence of the query raised by the Applicant and that it was not just a “coincidence” that the Report was written three days after his query was raised. 46 The Applicant put to Mr Redstall that he was “upset” that the Applicant had raised some concern in relation to his pay.47

[32] Mr Redstall’s evidence is that he became aware of the Applicant’s query on or about 20 December 2015 and that he could not be “upset” about something that was not brought to his attention. 48 In any event, as I have earlier indicated, it is clear on the evidence that the investigation which resulted in the preparation of the Report commenced well before any overtime entitlement query was raised by the Applicant.
[33] The Report was then forwarded to Mr Pravaz and Mr Francis for their consideration on how to proceed with the matter. 49 A decision was made that the allegations should be put to the Applicant as they were of a serious nature.50

[34] Mr Redstall asked Mr Francis to organise the meeting with the Applicant for 23 December 2015. 51

[35] The Report details a number of issues summarised as follows:

unauthorised use of a motor vehicle;

• fraudulent misstating of mileage in an attempt to conceal the actual mileage undertaken (either that or the speed odometer has been tampered with); and



• providing a medical certificate under false pretences. 52

[36] The substance of the Report alleges that the Applicant had without authorisation or approval of management, used the company vehicle between 1 and 5 October 2015 to travel to Coffs Harbour, New South Wales. 53

[37] Mr Redstall based his findings on information gathered from the Applicant’s company mobile phone data records and fuel receipts. 54 The Report attaches an extract of the Telstra bill which suggests that the company mobile phone was used to make and receive calls in Coffs Harbour.55

[38] The Report also attaches a copy of the motorpass account detailing transactions for the period ending 8 October 2015. The transactions show a similar path of travel to that mapped in the mobile phone tracking. 56

[39] The Report alleges that the vehicle mileage had been falsely stated in an attempt to hide the distance the vehicle had been driven. It indicates that at 30 September 2015, the mileage was 205,000 and after driving to Coffs Harbour and back, the mileage was quoted at 205,560. 57

[40] It is not in dispute that the company vehicle was not driven by the Applicant to Coffs Harbour and that he travelled in a private vehicle to Coffs Harbour with Mr Power. Some of the amounts of fuel purchased using the Applicant’s motorpass card between 1 and 5 October 2015 exceeded the 75 litre fuel tank capacity for the Applicant’s company vehicle suggesting the motorpass card had been used to fuel a private vehicle. 58 It is now not in dispute that the private vehicle used to travel to Coffs Harbour and in relation to which fuel using the motorpass card issued to the Applicant was purchased, belonged to Mr Power’s father.

[41] The substance of the Report also alleges that the medical certificate provided by the Applicant for his absence on Monday, 5 October 2015 was obtained under false pretences. 59

[42] The Report refers to a period from 26 October 2015 to 3 November 2015, during which the Applicant was on annual leave. It alleges that the company vehicle was not supposed to be used for private use, but was being actively driven while the Applicant was on leave.

[43] The Report attaches an extract of the Telstra bill which suggests that the Applicant’s company mobile phone was used within the vicinity of Lake Eildon, Alexandra and Healesville. 60 The Report alleges that the Applicant’s company vehicle was refuelled three times within that area, however the mileage between the three refuels and the next refuel in Berwick only increased by 550kms, despite three tanks of fuel being used.

[44] The Report asserts that it is unquestionably an attempt to conceal fuel usage and mileage. 61

[45] The Report details an incident relating to a period between 28 August 2015 to 1 September 2015, also dealing with fuel purchases and vehicle use.

[46] The Report attaches an extract of the Telstra bill which suggests that the Applicant made calls using the company mobile phone from Golden Beach and Sale on Saturday, 29 and Sunday, 30 August 2015. 62

[47] The Report also attaches a copy of the motorpass account detailing transactions for the period ending 8 September 2015. The Report suggests that the transactions are consistent with the mileage that would have been accrued to travel to Golden Beach and return, as demonstrated by the mobile phone records.

[48] The Report suggests that the Applicant failed to record the mileage in an attempt to mask the actual mileage incurred, consistent with both incident one and two.

Unauthorised fuel purchases for private vehicle – Coffs Harbour

[49] The primary reason for the Applicant’s dismissal is the fuel purchases made during a non-work related trip to Coffs Harbour in New South Wales between 1 October 2015 and 5 October 2015.

[50] The motorpass card was used to refuel a private vehicle on a number of occasions between 1 October and 5 October 2015. The Respondent alleges that the Applicant incurred or allowed to be incurred, approximately $430.00 expenditure on fuel using the motorpass card issued to him without authorisation and contrary to directions, to pay for his private travel expenses. 63

[51] The table below illustrates the purchases: 64

[52] The Applicant’s evidence was that his friend and work colleague at the time, Mr Power, had asked him if he could act as Mr Power’s pit crew for a motor racing trip (Drift Challenge Australia) at Coffs Harbour in New South Wales as another friend of Mr Power had “backed out” at the last minute. 65 The Applicant agreed.

[53] The Applicant and Mr Power drove to Coffs Harbour using the vehicle belonging to Mr Power’s father (Nissan Pathfinder). The Nissan Pathfinder was also towing a race car. The Applicant and Mr Power left for Coffs Harbour late on Thursday, 1 October 2015 and returned in Melbourne early morning on Monday, 5 October 2015. The Applicant’s evidence is that he and Mr Power shared the driving to and from Coffs Harbour. 66

[54] The Applicant contends that he had his motorpass card with him in his wallet during the drive and that without his knowledge, Mr Power used the motorpass card to purchase fuel for the Nissan Pathfinder. 67

[55] Mr Power was briefly questioned on the issue on 24 December 2015 in a meeting with Mr Redstall and Mr Francis. Mr Power’s evidence is that he was not pressed on the issue any further after he advised the Respondent that he “didn’t want to make a comment without legal representation”. 68 The Applicant submits that, given that the Respondent was contemplating the most serious action against a fellow employee, it ought to have properly satisfied itself in relation to the question.69 This submission is hollow given Mr Power’s evidence was that he did not want to comment without representation and his evidence that prior to this meeting, he had told the Applicant that he would take responsibility, but plainly did not do so when the opportunity was presented.

[56] Mr Power resigned from the Respondent on 14 January 2016, which is the same day this application was lodged with the Commission.

[57] Mr Power’s evidence was that he purchased the fuel for the Nissan Pathfinder. 70 He also said that he paid for the fuel using either his own personal card or the Applicant’s motorpass card.71 Mr Power said that he might have informed the Applicant that he was using his motorpass card but was unsure if the Applicant heard him because when mentioned later it seemed as if the Applicant did not know.72 Mr Power’s evidence was that he had a verbal agreement on two occasions with the previous business owner, Mr Hilary Evans, that he could use Mr Evan’s trailer for his racing trips and that he was allowed to use the company credit card to pay for fuel without reimbursement.73

[58] Mr Power was questioned on cross-examination about the evident inconsistency in his assertion that he could use the company’s credit card for personal fuel purchases without reimbursement and his evidence that he used his personal credit card to pay for fuel during the Coffs Harbour trip, the transcript of which is extracted below:

“Right.  So despite having, you say, an agreement where the company is funding is your fuel costs for race events, you decided to buy some fuel with your personal card?---Yes.  Coffs Harbour was a fair way.  It would probably be safer if I put in as much money as I could to get up there.

Right.  So you wanted to limit the use of the card?---Yes, and not make it too unreasonable.

Why didn't you put - you say that your agreement with Mr Evans was to use the company credit card to pay for your fuel?---It was for whatever we used to buy fuel.  It wasn't specified as a credit card.

So why did you need Travis' Motorpass card for the Hyundai iLoad, if you had your own company credit card you could have used to pay for the fuel?---I guess that's what we were buying fuel with at the time.

But you gave evidence before that Motorpass cards are allocated to specific vehicles and they are not to be used to fill other vehicles?---Yes, but we use it to fill the loop-cutter and other things, so - - -

Why didn't - and then on the way back on 4 October and 5 October, where else did you refill the car apart from Pheasants Nest and Coles Express in Benalla?---I also couldn't tell you.  It's a 15-hour drive.  I didn't really take - - -

Again, you purchased fuel on your personal card, despite having an agreement, you say, where
you could use company resources to buy fuel?---Yes.  So I've sued (sic) it sparingly.

Right.  The reason you used it sparingly, wasn't it because you were hoping that you and Travis
wouldn't get caught?---I don't - I doubt it.  Why would I use it at all if we were like - - -

Well, you had an entitlement to use it for everything.  Why waste your own money?---Because
it says we can use it for reasonable use.  That's what I was trying to do.

So you are saying it now that you were using it because you are allowed to use company cards
for reasonable use, not because of any agreement you had with Hilary?---No, because of
both.” 74

[59] Mr Evan’s evidence was contrary to that of Mr Power. Mr Evans said that “he did not have an agreement with Sean Power in relation to his usage of the company credit card for personal expenses.” 75 He further indicated that he did not have any agreement with Sean Power that he could use his company credit card to pay for the petrol for his company vehicle and racing vehicle at any racing events.76 Mr Evans said that on very rare occasions, Mr Power asked him whether his company vehicle could be used in order to tow his racing car and that was agreed, but said that the fuel was paid for by Mr Power.77 I accept Mr Evan’s evidence. Moreover, on any view, there was no agreement that Mr Power could use a motorpass card assigned to another employee to purchase fuel for Mr Power’s private benefit. Even if I accept that Mr Power could not use his issued motorpass card because it was only able to be used to purchase a different fuel type, there is no credible explanation for not using his company issued credit card.

[60] Mr Power’s evidence is not credible and bears in my view, all the hallmarks of a fairytale. He had a company credit card, which he says he was authorised to use for private purposes including fuel for race events, yet when travelling to the Coffs Harbour race event, he did not use it. Instead he surreptitiously removed the Applicant’s motorpass card from the Applicant’s wallet 78and used it to purchase the fuel. But then, not wishing to be acting unreasonably, he used his personal credit card to purchase some fuel during the trip.79 To say that this evidence stretches even the bounds of credulity would be an understatement. Moreover, despite his evidence that he told the Applicant on 23 December 2015 that he would admit the motorpass card use, he did not do so. Instead, on 24 December 2015, when presented with an opportunity to clear the Applicant, he failed to do so.80

[61] The Applicant’s evidence that his motorpass card was used without his knowledge on each occasion of refuelling is also implausible and not credible. This is so because:

• the corroboration for the assertion relies solely on Mr Power as the Applicant cannot, on his own evidence, say (because he says he did not see and did not know) 81 that Mr Power took the motorpass card from the Applicant’s wallet. For reasons already given, I do not find Mr Power’s evidence to be credible;

• the vehicle was refuelled using the motorpass card on four separate occasions;



• according to the evidence given by the Applicant and Mr Power, the Applicant did not know how or when the motorpass card was taken from his wallet or returned to it. According to Mr Power, he took the card when it was first used in Bayswater and returned it after the last use in Benalla, and on each occasion the Applicant was not aware; 82



• the first stop for petrol was just around the corner or not too far away from the Applicant’s home, the Applicant was not likely asleep, his wallet was on the dashboard, he was sitting next to the Mr Power but did not see Mr Power take his wallet, remove the card and place the wallet back on the dashboard; 83



• the Applicant says that he did not notice that his motorpass card was not in his wallet for the entire trip, despite making other purchases, because it was not visible. 84 Yet while sitting next to Mr Power at the first petrol station stop, he did not notice Mr Power looking through the wallet to locate the motorpass card which apparently was not immediately visible;



• the Applicant was sharing the driving 85 but was unaware that the motorpass card was being used to purchase fuel;



• Mr Power says he alerted the Applicant that he was taking the motorpass card 86 but despite their close proximity apparently the Applicant did not hear him;



• the Applicant used his wallet on multiple occasions during the trip and but did not notice the motorpass card was missing; 87



• the Applicant did most of the driving on the return journey to Melbourne 88 but did not notice the motorpass card being used or returned to his wallet, or the means by which fuel purchased was paid;



• despite the Applicant’s conversation with Mr Power on 23 December 2015, about Mr Power’s use of the motorpass card, 89 the Applicant still does not know how or when Mr Power took the motorpass card or when it was returned; and



• after becoming aware that Mr Power used the motorpass card, the Applicant makes no mention of the crucial exculpatory evidence in his email to Mr Redstall. 90

[62] The Respondent submits that the Applicant was aware that the motorpass card was being used to purchase fuel for a private vehicle and that the motorpass card was used selectively in an effort to avoid detection. 91 I accept the first part of the submission on evidence and, I find that the Applicant used, or permitted Mr Power to use the motorpass card for a non-work related purpose for Mr Power’s benefit which was not authorised by the Respondent and which caused the Respondent to incur a considerable expenditure.

[63] The Applicant sent an email at 6.51am on Monday, 5 October 2015 informing the Respondent that he would not be attending work that day due to suspected food poisoning. 92 The Applicant submits that he had suspected food poisoning because he was feeling very ill in his stomach and believes it was from food purchased from the service station on his way home from Coffs Harbour.93

[64] The Applicant attended a doctor that day and obtained a medical certificate for his absence. 94 The Respondent alleges that the Applicant and Mr Power ought to have known that they were not going to make it back to Melbourne in time to start work given that they left Coffs Harbour between 5.30pm and 6.30pm, and the trip would have taken between 16 to 18 hours.95 Be that as it may I do not intend to look behind the medical certificate.

Catch up meeting/Meeting of 23 December 2015

[65] On 22 December 2015, the Applicant was informed that he was required to attend a meeting at the Respondent’s office on Wednesday, 23 December 2015. It is not in dispute that the Applicant was not informed of the nature or reason for the meeting. 96 The Applicant’s evidence was that he was “called in for what they described as a catch up meeting”.97 The Applicant submits that the Respondent wanted to “ambush” the Applicant by failing to advise him of the nature of the meeting and failing to tell the Applicant that he may want to discuss these serious issues with a representative, a union official or a delegate.98 No such obligation exists. Nevertheless, good practice would usually involve informing an employee of the purpose of the meeting, by for example, telling the Applicant that the meeting’s purpose was to discuss concerns the Respondent had about the Applicant’s use of the Respondent’s motorpass card. In this way, the Applicant would have given consideration to whether he wished to have a support person present during the meeting.

[66] Prior to the meeting on 23 December 2015, Mr Redstall gave Mr Maurelio Gomes, IT Systems Engineer, instructions to disable the Applicant’s IT systems. 99 The Applicant’s AD, Owncloud and Sage accounts were disabled.100 The Applicant submits that a decision to terminate him had already been made at that point in time.101 The Respondent submits that disabling the Applicant’s IT systems was the standard procedure in a scenario of this nature.102 I accept that during an investigation into serious allegations about employee conduct, it might sometimes be prudent to disable computer access for reasons which may include the preservation of material such as emails and internet histories, which might shed light on particular conduct. I do not accept that such action generally, or in this case, amounts to a prejudgement or a decision to proceed with a dismissal.

[67] The meeting commenced at 11.30am at the Respondent’s Melbourne office. The meeting was attended by Mr Redstall, Mr Francis and the Applicant. Mr Francis’ role in the meeting was to take notes. 103

[68] A copy of the Report was handed to the Applicant, 104 and the allegations were read out and put to the Applicant for his response. Mr Redstall explained the allegations and advised the Applicant that they were of a serious nature, and that, if proven, the Applicant’s employment may be terminated.105 The Applicant was informed that the Respondent had not yet made a decision and that the findings were dependent upon his responses to the allegations.106

[69] The notes taken by Mr Francis indicate that “Travis was noncommittal about using the Motorpass card for fuel purchases”, which was then clarified by Mr Redstall in cross examination suggesting that the Applicant’s responses were non-committal in relation to the Lake Eildon and Alexandra scenario. 107

[70] It is not in dispute that the Applicant admitted to being in Coffs Harbour on the relevant dates. 108 It is also not in dispute that both the Applicant and Mr Power drove to Coffs Harbour using the vehicle belonging to Mr Power’s father. The Applicant said he did not remember using the motorpass card during the Coffs Harbour trip evidence and indicated that he would “need to talk to Sean to see what he knew about it”.109 The notes taken by Mr Francis corroborate the same, noting that “…Sean may have used it”.110

[71] At the conclusion of the first meeting, the Applicant requested to make a few phone calls. 111 Mr Redstall gave the Applicant the opportunity to make those phone calls in a private office.112 The Applicant’s evidence is that, after speaking to his father he was advised that he should not respond any further, without some representation.113 The Applicant submits that he informed Mr Redstall that he was unable to attend the next meeting scheduled for 3.00pm that same day as he had not been given enough notice to organise any legal representation or even a witness.114 Mr Redstall denied this in cross-examination. The following passage of the transcript of Mr Redstall’s evidence makes clear his denial:

“He did tell you that.  He said to you, "I tried to get a support person, I can't get a support person.  Um.  Um."  You said to him, "We'll stand these proceedings down until 4 o'clock", didn't you?---No I did not.

You then called him back at 3 o'clock, didn't you?---Okay.  So what happened.  We - Travis asked for the ability to be able to retrieve his personal data from the laptop and from the phone.  In good faith, I agreed that the data from the phone could be backed up and his personal data from the laptop, including personal emails, could be recovered.  Now, there was then a series of events; we're trying to find a USB stick and Murphy's Law, there weren't any spare at the time and there was discussion about going to Officeworks, then we found one, and the back-up took place, et cetera.  But corresponding with that I made it extremely clear in very black and white terms to Travis that whilst we were affording him the opportunity to copy his data rather than us making a copy and sending it to him, that at no time and at no stage was he to delete any information from any device whatsoever.

Well that's all very nice but that's not the question I asked you.  The question I asked you was that Travis told you he was trying to get a support person and he wasn't able to?---He did not say to that - he did not say that to me at all.” 115

[72] Before the second meeting commenced, the Applicant was requested to return to the Respondent all company property in his possession. The Applicant returned his company vehicle, car keys, mobile phone, building security FOB, tools and stock (Applicant indicated he had none at home), company credit card and two motorpass cards. 116 The Respondent alleges that the property was requested to be returned because it had concerns that the Applicant would attempt to destroy company property if it remained in the Applicant’s possession.117

[73] Prior to returning the company mobile phone and the company laptop, the Applicant requested that his photos and personal data be backed up from the two devices. 118 Mr Redstall organised for this to occur on a supervised basis and gave evidence that he provided Mr Gomes, with clear instructions “…that at no time and at no stage was he to delete any information from any device whatsoever”.119 Mr Gomes also gave evidence that he was given instructions from Mr Redstall, that the Applicant was not to delete any company data and that he was “to keep an eye on him [the Applicant]”.120 Mr Francis’ evidence also correlates with that of Mr Redstall.121

[74] The Applicant was provided with access to the company laptop and company mobile phone as requested.

[75] The Respondent alleges that the Applicant was given instructions to copy his personal emails to a “personal” folder which was created in his mailbox and was directed not to copy the entire outlook pst file. 122 The Applicant’s evidence is that “he [Mr Gomes] never actually said to not copy the whole pst file, he didn't mention that at all, that was just on me”. It is not in dispute that the Applicant exported the entire email mailbox. The Applicant said that he had over five years’ of payslips and didn’t have the time to go through the emails and for convenience he thought it would be easier to grab the whole file.123 The Applicant’s evidence is that he rarely used the laptop for company use as it was not necessary for his day-to-day job and that he did not believe the emails contained sensitive, company related data, and that “…they were all backed up on Summit servers”.124

[76] Mr Gomes’ evidence was that he was remotely monitoring the Applicant while he was supposed to be transferring his personal emails to the specially created folder in outlook labelled “personal”. Mr Gomes said that the personal folder was empty and that the entire outlook mailbox was exported to a pst file instead. 125 Mr Gomes’ evidence was that it was his job to ensure that no files were deleted and that in relation to the company policy, no data was to leave the building without prior authorisation from a manager,126 and as a consequence Mr Gomes intercepted the transfer and deleted the pst file because the Applicant was not doing what he was asked to do.127

[77] It is not in dispute that the Applicant deleted the D drive partition on his company laptop. The Respondent alleges that the Applicant formatted and deleted all company related data on the secondary partition of his company laptop resulting in the deletion of large amounts of company related data. 128 The Applicant contends that that was where he kept all his personal files.129

[78] After the deletion of the partition, Mr Gomes’ evidence is that he downloaded Panda Recovery, a software program, for the purposes of recovering the deleted files. 130 As pointed out in the proceedings, once a file is recovered using the software program, it loses its attributes and the date the file was deleted is unknown.131 During the proceeding, the Respondent tendered photos of screen shots taken from the Applicant’s laptop for the purposes of illustrating the hard drives installed on the laptop, the number of items recovered using Panda Recovery, the list of items recovered and the like.

[79] Mr Gomes’ recovery returned 39,122 files. 132 Mr Gomes’ evidence is that the program used was only a trial version and therefore only three documents were recovered. The documents recovered an operating manual, a ghosting log and the ghosting BSB PC. The Applicant argues that the operating manual is an old document that could have been deleted at any time between 2009 and 2015.133 The Applicant submits that the manual has not been destroyed as the author of the manual would have a copy of it and it would be able to be located in various locations throughout the company as the same manual is still used to install the equipment.134

[80] The Applicant submits that the evidence presented at the proceedings in relation to this matter was anything but “convincing”. 135 The Applicant denied that he, at any time, attempted to destroy company documents and submits that Mr Gomes could not confirm when any of the documents on the Applicant’s laptop were deleted. The Applicant submits that this matter amounts to nothing more than a “red herring and should be discarded”.136 I tend to agree. The circumstances in which the Applicant sought to retrieve personal files would likely have been stressful. He choose a quick way of doing so and removed them from the laptop. It is not seriously suggested that the Respondent lost any particular important document, or that the Applicant, given his standing, had in his possession any document of particular importance or that his was the only copy of such a document.

[81] It is not in dispute that the Applicant performed a factory reset on the company mobile phone. The Respondent alleges that the Applicant, contrary to directions, factory reset the mobile phone thereby deleting any company records and information stored thereon. 137 No particular information or record was identified.

[82] The Applicant’s evidence is that he performed the factory reset “as it was much quicker than manually deleting everything”. 138 The Applicant maintains that he was never instructed not to reset the phone.139 As with the computer files, I do not consider this issue to be of any great moment.

[83] The second meeting commenced at 3.00pm. 140 The meeting was a short and informal one and Mr Francis continued taking notes.141 Mr Redstall’s evidence is that the meeting reconvened so that he could clarify a number of things with the Applicant in relation to the Coffs Harbour trip.142 The Applicant’s evidence is that he told Mr Redstall that he did not want to answer any more questions because he did not have a support person with him.143 Mr Redstall maintained that a support person had been offered to the Applicant but that “at no point did he make reference to not being able to get someone”.144 Which suggests that the Applicant was prepared to continue the meeting without a support person.

[84] On this issue, I prefer the evidence given by the Applicant. His evidence is corroborated by the notes taken by Mr Francis which note that “Travis said he didn’t want to discuss anything further until he has a support person with him.”

[85] The Applicant submitted that he informed Mr Redstall after the meeting that he was unsure whether he was going to be able to get a support person in time for the 10.00am meeting the next day given the short notice. 145

[86] As the Applicant no longer had access to the company vehicle, he was left to find his own way home. The Applicant’s evidence is that he asked whether the Respondent would be providing him with a way home as he had no notice that he would not have a work vehicle that night to drive home. 146 The Applicant said that he informed the Respondent that he was unsure whether he had enough funds to cover a taxi fare.147 The Respondent offered to cover some of the costs of the taxi fare to the nearest railway station.148 The Applicant submitted that Mr Redstall told him that the Respondent could legally walk him out the door with nothing.149 The Applicant arranged for someone to pick him up.150 The Applicant’s evidence was that he did not feel that this was a fair response as he was not given any prior notice to this situation.151 It was put to Mr Redstall that the Applicant was treated as if his employment had been terminated, to which Mr Redstall denied.152 Whether or not that is true need not be determined, I am however satisfied that the treatment was shabby notwithstanding the serious nature of the allegations.

[87] Later that afternoon, a copy of the Report was sent to the Applicant’s personal email address, 153 and the meeting was postponed until 10.00am the next day (24 December 2015) in order to give the Applicant the opportunity to respond to the allegations set out in the Report.154

[88] The Applicant contends that the notice given to attend the meeting was unreasonable in light of the seriousness of the matter and the time of year (Christmas Eve). 155 The Applicant submits that the Respondent should have postponed the meeting until early January in order to give the Applicant an opportunity to obtain representation.156 The Applicant further submits that the Respondent acted with undue and unnecessary haste in terminating the Applicant’s employment.157 The following extract from the transcript illustrates the Applicant’s contention:

“You wouldn't expect a person in a serious disciplinary matter to attend a meeting when they didn't have representation, would you?---They were given adequate opportunity between, shall we say, 1 pm on the Wednesday - - -

23 December?---Yes, correct.

Until?---Until 10 am the next day.

So the applicant was given 22 hours on Christmas Eve and the day before to try and organise some legal representation?---With respect, a support person, not legal representation.

I think either he was entitled to, wasn't he?---And the offer was made and given.  The fact that he couldn't organise a support person was not our problem.  He was given adequate opportunity.  He was told on numerous occasions, "You have every right and every opportunity, and we would encourage you to bring a support person to this meeting", and that was communicated to him on numerous occasions and an adequate amount of time between the conclusion of the 11.0 meeting which, as we've discussed, ran for probably an hour or so, so let's say that's 12.30 and then the 3 o'clock meeting and then to be at the office by 10 o'clock the next day.

You accept that Mr Eva was not told the purpose of the meeting on the 23rd?---I didn't arrange the meeting so I - - -

You have the evidence of Mr Francis.  You were sitting there when he gave his evidence.  You accept his evidence, don't you?  I mean, he's your witness?---If that's what Mr Francis said this morning, I accept his evidence.

The applicant was not told the purpose and the applicant was given less than 24 hours to try and organise a support person or legal representation.  Do you think that's reasonable?---Absolutely, under the serious circumstances.  I mean we had - basically, we had an issue of what appeared to be, at face value, theft and misuse of a company vehicle; theft of fuel and, potentially, misuse of the company vehicle, at face value.

You drafted the letter of termination and you sent that to the applicant at 12.04 on that date?---That's correct.

Why didn't you wait until after the Christmas break and organise another meeting on the day back?  That would have been reasonable, wouldn't it?---No, the 24th was a work day.  The company - all of the other staff in the company were working and it was a normal work day.  The banks were open - - -

I understand all of that.  What I want to put to you is that, as I understand the evidence, the company was closed from the end of the 24th - I assume halfway through the day on the 24th - so from the 24th it was closed down over the Christmas period.  Right?---For the majority of staff, yes.  There is an on-call tech.  I was the on-duty executive and et cetera.

But the business was effectively closed down for a period of time, wasn't it?---Depending on the definition of closed down, yes.

When did it reopen?---Without consulting a calendar - but probably 4 January or something.  Is that the first Monday back?

Why wasn't the meeting adjourned until 4 or 5 January to give the applicant a proper opportunity to get himself some representation and to come to a meeting and explain the matters that arose out of your report?---Because he was given adequate time between 3 pm or thereabouts on the 23rd and 10 am on the 24th.

I put it to you there would have been absolutely no prejudice to the company at all if they had given the applicant that opportunity over the Christmas break.  There was no harm to be done - - -?---Absolutely there was.  Absolutely there was.  The vehicle was being driven, the fuel was being used.

You'd suspended the applicant and you had the vehicle.  You had confiscated the vehicle and you had confiscated two fuel cards.  You confiscated his keys, you've got all that?---He was given adequate opportunity between 3 pm on the 23rd and 10 am on the 24th.” 158

[89] The Respondent’s evidence is that it was never suggested by the Applicant that the meeting on 24 December 2015 should be delayed to 4 or 5 January 2016 because that would be reasonable. The Respondent submits that it did not receive any request, written or oral, from the Applicant that the meeting be adjourned to some period beyond 24 December 2015. 159

[90] Putting to one side the second email said to have been sent by the Applicant at or about 2.02am on 24 December 2015, which Mr Redstall says he did not receive, 160it cannot be said that there was no request by the Applicant that the meeting on 24 December 2015 be deferred. The email from the Applicant to Mr Redstall sent at 2.00am on 24 December 2015,161 to which Mr Redstall responds at 12.04pm on 24 December 2015162contains the following:

“While my phone was being backed up again you brought me back into the board room and said you had pushed the 4pm meeting back and it would now be held at 10am the next morning.
I said I needed to make some phone calls but felt it would be unlikely that I would be able to organisation representation on such short notice.
After making my phone calls I came back to see you in the board room and informed you I was going to be unable to organise anyone to represent me at the 10am meeting and would not be attending.
You then said that you had already pushed it back a day and felt you were being reasonable.

….

You said you would email me a copy of your report and a list of summit contacts.
I told you I would be in touch about the meeting.
I grabbed my belongings and left the complex”

[91] Even if it might be said that the email is a self-serving account of the meeting on 23 December 2015, it should have been clear to Mr Redstall that the Applicant was telling him that:

a) he could not organise a support person to attend the meeting on 24 December 2015;

b) he would therefore not attend the meeting; and

c) he would be in touch with Mr Redstall about the meeting.

[92] Mr Redstall’s conduct in insisting on the meeting proceeding at 10.00am on 24 December 2015 is suggestive of wanting to clear the decks of this issue before Christmas and had the practical effect of denying the Applicant the opportunity to have a support person at the meeting scheduled for 10.00am on 24 December 2015.

Events taken place after the discussions held on 23 December 2015

[93] Later on 23 December 2015, Mr Power’s evidence was that the Applicant called and asked about the events that took place between 1 and 5 October 2015. Mr Power indicated that he apologised to the Applicant and told him that he would take full responsibility for the situation. 163

[94] Later that evening, the Applicant alleges that he sent Mr Redstall two emails. One of the emails was sent from the Applicant to Mr Redstall at 2.00am, referred to earlier, confirming his version of the previous day’s event. 164 The Applicant submits that he sent a second email at 2.02am to Mr Redstall indicating that he would be unable to attend the scheduled meeting on 24 December 2015 as he was unable to organise representation.165 Mr Redstall’s evidence is that he did not receive the second email and that it is likely that it “may have well gone to spam”.166 The Applicant contends that despite Mr Redstall’s denial of receiving the email, the evidence of Mr Francis makes clear that Mr Redstall was aware that the Applicant would be unable to attend, and that the Respondent was aware of the reasons for the Applicant’s non-attendance.167 This is made clear from the following:

“I'll put it to you, Travis sent an email to the company to say he couldn't get a support person.  That's correct, isn't it?---Yes.

Yes.  You were told that, were you?---Yes.

Yes?---Yes.

So there was an exchange of emails between Mr Redstall and the applicant in the night on the 23rd/24th December, where the applicant said exactly that, not able to attend.  Was there any discussion with you on the morning of 24 December with regards to that?---Yes, just to say that Travis wasn't attending, yes.” 168

[95] I need not determine this controversy as, in my view, it is clear from the email sent by the Applicant at 2.00am on 24 December 2015, that he would not be attending and would be in touch about the meeting,

[96] Mr Redstall emailed the Applicant his Termination Letter at 12.04pm on 24 December 2015. The Termination Letter and the email to which it is attached indicates that the Respondent is satisfied that the Applicant has more likely than not engaged in misconduct by allowing a company fuel card to be used for the Applicant’s personal benefit. 169

Use of vehicle and fuel for private purpose

[97] The Applicant maintains that both he and Mr Power regularly swapped vehicles and motorpass cards and says that they were of the understanding that they were entitled to use the fuel for personal purposes. 170 The Applicant says that at no time during his employment with the Respondent, was any question raised in relation to the use of the company fuel for private purposes.171 The Applicant says that technicians employed by the Respondent were entitled to use the motorpass card for personal use.172

[98] Whether or not the Applicant had that understanding or how he came to that understanding need not be determined. The conduct engaged in was in contravention of a clear direction given to him and others about how, when and for what purpose, the issued motorpass card was to be used. This is not a case where vehicles were swapped. Nor is it a case where the Applicant used the card for his private vehicle. The evidence discloses that as part of the arrangement for the trip to Coffs Harbour, Mr Power would cover all of the Applicant’s expenses. 173 The Applicant therefore, did not have any personal purpose on which expenditure was incurred. This is a case where the Applicant used his motorpass card or allowed it to be used, for the personal expenditure of Mr Power. On any view, such expenditure was not authorised.

[99] The Applicant’s father, Mr Gregory Eva, also gave evidence. He was a co-founder and co-owner of the Respondent and he continued his employment with the Respondent after the sale of the business for a further two years. 174 Mr Eva did not have a company vehicle provided175. Instead he received a weekly allowance in respect to the usage of his own vehicle.176 During his employment, Mr Eva was employed as the technical manager and his role required him to oversee the technical side of the business.177 Given his role within the business, Mr Eva was broadly aware of the terms and conditions of employment governing the technicians.178 His evidence was that employees who were out doing installations and technical work had a company vehicle.179 He also gave evidence that company vehicles were provided for business use but were used for personal purposes within reason.180

[100] Mr Eva said that he was not entirely sure about the requirements for reimbursement for personal fuel use, however he indicated that there was a “fair bit of give and take” 181. He gave the example of driving past Coles on the way home or picking up something over the weekend, and said that it was generally accepted.182 Mr Eva’s evidence was that if the company vehicle was to be taken away by an employee on holidays, it was “something that would have been negotiated with or asked”.183 During cross-examination, Mr Eva explained that the normal process was that employees would take the company vehicle allocated to them home or holidays, but later noticed that when employees went on holidays their cars were left at the office.184

[101] This is not a case about use of a company vehicle. Moreover, as already indicated, the Applicant did not have any personal purpose on which expenditure was incurred. Mr Eva’s evidence does not address any material fact in issue and was largely irrelevant.

Knowledge of further misconduct acquired after the dismissal

[102] Following the Applicant’s dismissal, the Respondent undertook a review of the Applicant’s credit card purchases for the previous twelve months. 185 The table below, which has been extracted from Mr Redstall’s witness statement, outlines that which the Respondent asserts are unauthorised and unnecessary purchases made by the Applicant in April 2015.186

[103] On 24 April 2015 at 11.30am, the Applicant purchased six lots of tie down ratchet heavy duty 50mm x 6m (2 tonnes lashing capacity) (tie downs) on the company credit card from Bunnings Warehouse in Bayswater. 187 The Applicant’s evidence is that he purchased the tie downs for company use and that they were bought to hold down ladders and equipment in cars.188 The Respondent suggests that the tie downs were bought for another reason, a personal one, in particular, to tie a car on a trailer. This point was illustrated during the proceedings:

“MR GALBRAITH:  Yes.  If you could just have a look at that, that's the item that you bought six of, at Bunnings that day?---Yes.

As I said before, that's a pretty, would you agree, quite a sizeable snap strap?---Yes, I do remember buying that.

So a strap like that would be useful to, say, tie a car down on a trailer?---No.  You could use it, yes.

And 36 metres would mean that you could secure a car, from a number of points, to a trailer?---You could do that, yes.” 189

[104] The Applicant’s timesheet indicated that he was working at the Derrimut Red Rooster from 9.00am to 4.30pm on 24 April 2015. Mr Power’s evidence was that he and the Applicant were performing pre-cable installations at Red Rooster in Derrimut. 190 Mr Power’s evidence was that he believes he sent the Applicant out to have a look at the KFC site in Bayswater for an upcoming job at some time that morning.191 Mr Power said that after the site visit, he believes he asked the Applicant to go and get some tools.192 Both the Applicant and Mr Power admitted that the heavy duty tie downs purchased by the Applicant at Bunnings in Bayswater at that time were not for the job at Red Rooster in Derrimut.193

[105] Mr Francis’ evidence was that from time to time, technicians/service technicians were required to go back after a principal job had been completed, 194 but the Respondent’s case is that the job at the KFC site in Bayswater was completed in the week ending 11 March 2015 and that there were no documents relating to works post 11 March 2015 as the job was completed.195

[106] The Respondent submits that it is clear that the Applicant left the site on 24 April 2015 for a non-work related reason and then submitted a false time sheet so he would be paid for a full day. 196

[107] The Respondent raised the issue of the Applicant driving all the way from Boronia (Applicant’s residence) to Derrimut, only to be sent back over an hour away to Bayswater, five minutes from the Applicant’s house instead of going to the local Bunnings located in Caroline Springs. 197 The Applicant contended that there would have been a reason for the travel but he had no recollection of the day.198

[108] Mr Power’s memory of the day also seems vague and he says that he uses the tie downs to strap down a cutting concrete loop machine so that it does not damage the rest of the vehicle. 199 The Respondent put to Mr Power that the tie downs would come in handy for tying a race car to a trailer, to which Mr Power indicated that two tonnes would not be enough “load rating”.200 On re-examination, Mr Power indicated that he would not trust that style of strap to put on the race car and that they (tie downs) were not something he would secure his race car with.201

[109] In relation to the second item in the above table, the Applicant indicated that it was purchased for personal use and must have been “done by mistake”. 202 The Applicant’s evidence was that he was unaware of this purchase until it was brought to his attention after his dismissal.203

[110] The Applicant’s evidence was that the other purchases from SuperCheap Auto were all things that had use in the company. 204 The Applicant’s evidence was that he often bought degreaser and brake and parts cleaner for company use and that is why he believes he missed it.205 The Applicant admitted on cross-examination however that he did not think he used any of the purchased products for work.206 Mr Redstall gives evidence that the Respondent had issues with a company vehicle some time last year and as a consequence, degreasers and cleaners were purchased.207

[111] During cross-examination, Mr Francis’ evidence was that he reviewed the credit card usage and approved the purchases. 208The Applicant maintains that, in any event, the reconciliation reimbursement form was signed off and approved by Mr Francis.209

[112] It is not in dispute that the Applicant has not reimbursed the Respondent for any of his personal purchases from April 2015 as identified above at paragraph [99], but agreed in correspondence to Mr Redstall dated 3 February 2016 that he did would reimburse the Respondent $88.51 for those purchases. 210

[113] The Applicant submits that he was a long-term employee of the Respondent and had no record of disciplinary action over that period of time. 211 The Applicant submits that a mistake in the reconciliation process of this nature could warrant a warning to an employee, cautioning the employee to take more care in the future; however, it submits that it “falls well short of the requisite serious and wilful nature to amount to a valid reason for termination”.212

[114] Although I accept on balance that the evidence points to the Applicant purchasing items using the company issued credit card, which were intended for personal rather than business consumption, I am not persuaded that the Respondent should be permitted to rely on them to establish a valid reason or to otherwise justify the dismissal.

[115] Facts that are in existence at the time of a dismissal, but which only come to light later, may in some circumstances, justify a dismissal or render an otherwise harsh, unjust or unreasonable dismissal not so. 213

[116] Whether reliance can be placed on matters which come to light after the dismissal will depend on the circumstances and if an employer has failed to take reasonable steps or made reasonable enquiries which would have brought the existence of facts to light before the dismissal, then this may weigh against such reliance. 214

[117] In the instance case, reconciliations prepared by the Applicant were signed off by Mr Francis. There is no evidence that the Applicant sought to hide the transactions. Moreover, some audit or spot checking could have, but does not appear to have, taken place which might have uncovered the nature of transactions. Furthermore, Mr Redstall could have, but did not instigate a wider inquiry once issues about the Applicant’s motorpass card use came to his attention. Only after the termination of the Applicant’s employment was it thought desirable to review past credit card transactions.

[118] In my view, some modest accounting diligency and reasonable inquiries would likely have brought these transactions to light before the dismissal. I therefore do not propose to take these matters into account.

Missing tools and equipment

[119] Mr Redstall’s evidence is that a review of the inventory of the tools and equipment in the Applicant’s company vehicle was undertaken by one of the Respondent’s technical staff, Mr Andrew Templeton. 215 Following an extensive audit of the tools and equipment in the Respondent’s warehouse and all the company vehicles across Victoria, Mr Redstall discovered a discrepancy between the tools the Applicant claimed to have purchased on behalf of the Respondent and those which remained in the Respondent’s possession.216 Upon Mr Redstall’s discovery, his evidence was that he called Mr Power and raised the issue with him. Mr Redstall’s evidence is that Mr Power indicated that the Applicant was in possession of at least one of the missing items, being a Ryobi tyre inflator.217 The Applicant’s evidence is that he owns a Ryobi trye inflator but it is not the one that Mr Power purchased with his credit card.218

[120] The Applicant submits that Mr Power did not give this evidence. The evidence was founded on Mr Redstall’s submission and was not supported by the Applicant or Mr Power. 219

[121] Mr Power was not examined on this particular issue, and the Applicant was not cross-examined on this particular issue.

[122] I am not satisfied that the evidence establishes that the Applicant is in possession of any tools or equipment belonging to the Respondent, save perhaps for the materials purchased by the Applicant for personal use and for which an unfulfilled promise of reimbursement has been made.

Complaint to Victoria Police

[123] Mr Redstall referred the Applicant’s theft, fraud and destruction of company records to Victoria Police. 220 The investigation is ongoing.221 The Applicant’s laptop has been quarantined as evidence, and documents and photographs said to demonstrate the Applicant’s deleted company data records have been provided to the police.222 It was put to Mr Redstall that the Applicant has not been charged to date, Mr Redstall agreed that as at the date of the hearing, Victoria Police have pressed no charges on the Applicant.223

Consideration and application of the statutory framework
Protection from Unfair Dismissal
[124] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.
[125] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal as follows:
“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:

(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[126] There is no dispute, and I am satisfied, that the Applicant was, on 14 January 2016, protected from unfair dismissal within the meaning of s.382.
Was the dismissal unfair?
[127] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out in s.385 of the Act existed. Section 385 provides:
“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[128] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act. As I have previously indicated, the Respondent is not a small business employer so the issue of compliance with the Small Business Fair Dismissal Code does not arise, and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.

Harsh, unjust or unreasonable
[129] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:
“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.”

[130] I am obliged to consider each of these matters in reaching my conclusion 224 and I do so below, having regard to the factual findings earlier made and taking into account the helpful submissions filed by the parties.225 
[131] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 226 by McHugh and Gummow JJ 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.” 227 

[132] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

Valid reason – s.387(a)

[133] There must have been a valid reason for the dismissal relating to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 228  The reason should be “sound, defensible or well-founded”229 and should not be “capricious, fanciful, spiteful or prejudiced”.230 Where conduct of the Applicant is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged, occurred.231 A mere suspicion of conduct does not amount to a valid reason.232

[1] The reason for the Applicant’s dismissal related to his conduct. The Termination Letter set out the reason for dismissal as follows:

“In light of the Applicant’s response, the Respondent is satisfied that the Applicant has more likely than not engaged in misconduct by allowing the company fuel card issued to the Applicant to be used for his own personal benefit during a trip to Coffs Harbour on the weekend of 2-4 October 2015. 233”

[2] The factual findings earlier made in these reasons, support a conclusion that the Applicant had engaged in the conduct alleged in the Termination Letter.

[3] As earlier indicated, I am satisfied that the Applicant used, or allowed to be used, his company motorpass card for personal purposes, principally for the benefit of Mr Power. This conduct was directly contrary to the written instruction issued on 4 February 2015 that a motorpass card may only be used to purchase fuel for the vehicle to which the motorpass card is assigned. The circumstances of the conduct and the amount of expenditure involved combine to aptly describe the conduct as misconduct.

[137] Therefore, in the circumstances I am satisfied that there was a valid reason for the Applicant’s dismissal relating to his conduct.

Notification of the valid reason – s.387(b)

[138] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 234 in explicit terms,235 and in plain and clear terms.236 In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport),237a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 238  

[139] There is no dispute, and I am satisfied that the Applicant was notified of the Respondent’s reasons for dismissing him. This notification occurred during the meeting of 23 December 2015 and was confirmed in correspondence subsequently sent to the Applicant by email on 24 December 2015 which also attached the Termination Letter.

Opportunity to respond – s.387(c)

[140] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. It seems to me clear on the evidence to which earlier reference has been made, that the Applicant was given a limited but not an adequate or fair opportunity to respond to the reasons for his dismissal. The Applicant was called to a meeting held on 23 December 2015 about which he was given no information. At the meeting, the Applicant was given a report comprising six pages and annexures comprising a further 19 pages.  239 He was asked a series of questions and then asked to respond. The investigation leading to the compilation of the Report commenced nearly four weeks earlier. The Report contained serious and multifaceted allegations. The Applicant did not have a support person with him. The meeting occurred two days before Christmas. On the face of some of the allegations, the Respondent was alleging criminal conduct, and it is unsurprising that the Applicant refused to say anything further until he had a support person.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[141] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the plain language of s.387(d) of the Act that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, this section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 240  It may well be appropriate, in some cases, to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.

[142] There is no dispute that the Applicant did not have a support person with him at either of the two meetings held on 23 December 2015.

[1] For the reasons given earlier, the Respondent’s conduct thereafter in insisting on proceeding with the meeting on 24 December 2015, given the circumstances of the allegations, the time of year and the Applicant’s protests that he would not be able to have a support person at the 10.00am meeting on 24 December 2015, amounted effectively to a refusal to allow the Applicant to have a support person at the meeting on 24 December 2015, noting however, that the meeting did not proceed and that the Applicant was dismissed shortly thereafter.

Warnings regarding unsatisfactory performance – s.387(e)
[144] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 241  For present purposes, the Applicant was dismissed for conduct and not performance, and therefore this consideration is not relevant.
Impact of the size of the Respondent on procedures followed – s.387(f)
[145] The Respondent is a medium sized employer. There is no evidence that the Respondent’s size, in and of itself, affected the procedure adopted in effecting the dismissal. In my view, the procedure adopted by the Respondent in the lead up and in effecting to the dismissal was sub-optimal, but this did not relate to its size.
Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
[146] The Respondent does not have a dedicated human resources function. Although the Applicant did not make any submission about this, it seems to me that the absence of human resourced advice is likely to have contributed to the sub optimal manner in which the dismissal was effected.
Other relevant matters – s.387(h)
[147] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant. I have also taken into account the following matters:

a) The Applicant’s disciplinary history. There is no evidence one way or the other on this point. I note that the Respondent submits that it was for the Applicant to lead evidence to establish a good disciplinary record. 242 The Applicant submits that he has a good record.243 If the Respondent suggests otherwise it had the opportunity to lead evidence and with respect, was in the best position to do so. I infer from the absence of evidence to the contrary, that the Applicant has an unblemished record.
b) The Applicant’s period of service. The period was almost five years. This is not an overly lengthy period but nor is it insignificant;
c) The Applicant’s work record. There is no suggestion that the Applicant was anything other than good at his job. His performance was not put in issue. It is the Applicant’s conduct which is at the heart of this case;
d) The proportionality of the response (dismissal) to the conduct in which the Applicant engaged. The conduct engaged in, was serious and the dismissal was not in my view, a disproportionate response;
e) The summary nature of the dismissal, noting that it occurred on the eve of Christmas but that the Applicant was paid in lieu of notice; and
f) The Applicant’s apparent disregard for the directions given to him and others about the recording of the odometer readings.

[148] Taking all of these matters into account and for the reasons given in this decision, I have come to the conclusion that the Applicant’s dismissal was not harsh, unjust or unreasonable. Whilst the dismissal appears to have been undertaken in a procedurally unfair way, as the evidence discloses, the Applicant does not provide a credible explanation for his conduct which is the foundation for the reason for dismissal. The conduct was both serious and deliberate, and an abuse of the trust his employer placed in him when it issued him with a motorpass card, and when it issued the written direction of 4 February 2015. The conduct was directly contrary to the written instruction given to all employees, including the Applicant that the motorpass card may only be used only to purchase fuel for the vehicle to which the card was assigned. The expenditure incurred by reason of the conduct, was significant.

[149] In all the circumstances therefore the dismissal was not unfair.

Conclusion

[150] The Applicant’s dismissal from employment with the Respondent was not unfair. The application for an unfair dismissal remedy is therefore dismissed. An order to that effect is separately issued in PR584253.

DEPUTY PRESIDENT

Appearances:

Mr M Addison, Solicitor for the Applicant.

Mr A Galbraith, Counsel for the Respondent.

Hearing details:

2016.

Melbourne.

May 12, 13, 19.

Final written submissions:

Applicant’s Final Submissions, 10 June 2016.

Respondent’s Final Submissions, 1 July 2016.

Applicant’s Final Submissions in Reply, 8 July 2016.

 1   Exhibit 18 at [33]; Exhibit 18 at Attachment KR-5.

 2   Section 396 of the Fair Work Act 2009.

 3   Exhibit 21 at [2].

 4   Exhibit 18 at Attachment KR-5.

 5   Ibid.

 6   Ibid.

 7   Ibid.

 8   Applicant’s Outline of Submissions dated 30 March 2016 at [17].

 9   Ibid.

 10   Respondent’s Final Submissions dated 1 July 2016 at [2].

 11   Transcript PN1592-1597.

 12   Transcript PN299.

 13   Exhibit 18 at [12]; Exhibit 18 at Attachment KR-1.

 14   Exhibit 18 at Attachment KR-1.

 15   Exhibit 15 at [8].

 16   Ibid at Attachment LW-1; Exhibit 18 at Attachment KR-1.

 17   Exhibit 15 at Attachment LW-2.

 18   Ibid at [10].

 19   Exhibit 15 at [11].

 20   Transcript PN2055.

 21   Ibid.

 22   Transcript PN308.

 23   Exhibit 15 at Attachment LW-2.

 24   Transcript PN309.

 25   Transcript PN526-528.

 26   Transcript PN529.

 27   Exhibit 15 at Attachment LW-2.

 28   Exhibit 15 at [16], Transcript PN1635.

 29   Exhibit 15 at [16].

 30   Ibid.

 31   Ibid at [17].

 32   Ibid.

 33   Exhibit 18 at [3].

 34   Exhibit 1 at [9] - [12], Applicant’s Final Submissions dated 10 June 2016 at [16].

 35   Ibid.

 36   Ibid.

 37   Ibid.

 38   Exhibit 18 at [8].

 39   Exhibit 18 at [4].

 40   Ibid at [6].

 41   Ibid at [9].

 42   Ibid.

 43   Ibid at [10].

 44   Ibid at [15].

 45   Transcript PN2671.

 46   Transcript PN2788.

 47   Transcript PN2782.

 48   Ibid.

 49   Exhibit 18 at [17].

 50   Ibid at [18].

 51   Transcript PN2819.

 52   Exhibit 18 at Attachment KR-2.

 53   Ibid.

 54   Ibid.

 55   Ibid.

 56   Ibid.

 57   Ibid.

 58   Exhibit 18 at [7].

 59   Exhibit 18 at Attachment KR-2.

 60   Ibid.

 61   Ibid.

 62   Ibid.

 63   Exhibit 18 at Attachment KR-5.

 64   Respondent’s Outline of Submissions dated 21 April 2016 at [18].

 65   Transcript PN593.

 66   Transcript PN632-PN633.

 67   Applicant’s Outline of Submissions dated 30 March 2016 at [6].

 68   Transcript PN971-PN975.

 69   Applicant’s Final Submissions dated 10 June 2016 at [36].

 70   Transcript PN1056.

 71   Transcript PN1057-PN1060, PN1068.

 72   Transcript PN1283, PN1296.

 73   Transcript PN979-980.

 74   Transcript PN1300-PN1309.

 75   Exhibit 21 at [6], Transcript PN3175-PN3177.

 76   Exhibit 21 at [7].

 77   Ibid at [8].

 78   Exhibit 9.

 79   Transcript PN1301.

 80   Exhibit 9 at [15].

 81   Transcript PN794.

 82   Transcript PN710, PN794, PN1069-PN1071.

 83   Transcript PN693-PN703.

 84   Transcript PN711.

 85   Transcript PN632-PN633.

 86   Transcript PN1283.

 87   Transcript PN653-PN659.

 88   Transcript PN627.

 89   Exhibit 1 at [30].

 90   Exhibit 18 at Attachment KR-3.

 91   Ibid at [30].

 92   Exhibit 18 at Attachment KR-2, document marked ‘c’, Transcript PN248.

 93   Transcript PN253-PN255.

 94   Transcript PN256-PN257.

 95   Transcript PN675-PN687.

 96   Transcript PN1731.

 97   Transcript PN109.

 98   Transcript PN1711 - PN1712.

 99   Transcript PN2831.

 100   Exhibit 18 at Attachment KR-4.

 101   Transcript PN2831-PN2832.

 102   Transcript PN2831.

 103   Transcript PN1740.

 104   Transcript PN772-PN773.

 105   Exhibit 18 at [23].

 106   Exhibit 18 at [23], Exhibit 1 at [17].

 107   Transcript PN3073.

 108   Exhibit 13 at Attachment MF-3.

 109   Exhibit 1 at [16].

 110   Exhibit 13 at Attachment MF-3.

 111   Exhibit 18 at [35].

 112   Ibid.

 113   Transcript PN130; Transcript PN738; PN766- PN767.

 114   Exhibit 1 at [19].

 115   Transcript PN2907-PN2909.

 116   Exhibit 13 at Attachment MF-3.

 117   Exhibit 18 at [34].

 118   Ibid at [35].

 119   Transcript PN29083; PN2597.

 120   Transcript PN2351; PN2233.

 121   Transcript PN1553-PN1554.

 122   Respondent’s Outline of Submissions dated 21 April 2016 at [45], Transcript PN2232.

 123   Transcript PN271.

 124   Transcript PN277.

 125   Transcript PN2489.

 126   Transcript PN2497.

 127   Transcript PN2486, PN2488, PN2507-PN2508.

 128   Respondent’s Outline of Submissions dated 21 April 2016 at [46].

 129   Transcript PN278.

 130   Transcript PN2263.

 131   Transcript PN2380-PN2381.

 132   Transcript PN2354.

 133   Transcript PN2379.

 134   Transcript PN2371-PN2378, PN2429.

 135   Applicant’s Final Submissions dated 10 June 2016 at [41].

 136   Ibid.

 137   Respondent’s Final Submissions dated 1 July 2016 at [74 c].

 138   Transcript PN127.

 139   Transcript PN128.

 140   Exhibit 13 at Attachment MF-4.

 141   Transcript PN132-PN133.

 142   Transcript PN2916.

 143   Transcript PN131.

 144   Transcript PN2918.

 145   Transcript PN134.

 146   Exhibit 1 at [21].

 147   Ibid at [28].

 148   Transcript PN2927-PN2930.

 149   Exhibit 1 at [28], Applicant’s Final Submissions dated 10 June 2016 at [27].

 150   Ibid.

 151   Exhibit 1 at [27].

 152   Transcript PN2933.

 153   Exhibit 18 at [40].

 154   Transcript PN2920.

 155   Transcript PN2973-PN2988.

 156   Transcript PN2986.

 157   Applicant’s Final Submissions dated 10 June 2016 at [13].

 158   Transcript PN2973- PN2988.

 159   Transcript PN3062.

 160   MFI1.

 161   Exhibit 18 at Attachment KR-3.

 162   Ibid.

 163   Exhibit 9 at [14], Transcript PN959-PN960.

 164   Exhibit 18 at Attachment KR-3.

 165   Exhibit 1 at [32], Applicant’s Final Submissions dated 10 June 2016 at [28].

 166   Transcript PN2621.

 167   Applicant’s Final Submissions dated 10 June 2016 at [28]- [29].

 168   Transcript PN1794-PN1797.

 169   Exhibit 18 at Attachments KR-3 and KR-5.

 170   Applicant’s Final Submissions dated 10 June 2016 at [39]; Transcript PN115.

 171   Applicant’s Outline of Submissions dated 30 March 2016 at [4].

 172   Transcript PN2751.

 173   Transcript PN595.

 174   Transcript PN1341, Outline of expected evidence of Mr Gregory Eva dated 29 April 2016 at [1].

 175   Transcript PN1400.

 176   Transcript PN1401.

 177   Transcript PN1342.

 178   Transcript PN1344.

 179   Transcript PN1354.

 180   Transcript PN1357.

 181   Transcript PN1359.

 182   Ibid.

 183   Ibid.

 184   Transcript PN1395.

 185   Exhibit 18 at [47].

 186   Exhibit 18 at [48].

 187   Ibid.

 188   Transcript PN147.

 189   Transcript PN417-PN420.

 190   Transcript PN1135.

 191   Transcript PN1137-PN1140.

 192   Transcript PN1148.

 193   Transcript PN417-PN427; PN1137-PN1171.

 194   Transcript PN1859.

 195   Transcript PN1548-1549, PN1876.

 196   Respondent’s Final Submissions dated 1 July 2016 at [52].

 197   Transcript PN422, PN1154-PN1156.

 198   Transcript PN423-PN425.

 199   Transcript PN1160.

 200   Transcript PN1170.

 201   Transcript PN1323-PN1324.

 202   Transcript PN147.

 203   Ibid.

 204   Transcript PN148.

 205   Ibid.

 206   Transcript PN468.

 207   Transcript PN1629.

 208   Transcript PN1598.

 209   Transcript PN1598-PN1633.

 210   Exhibit 20.

 211   Applicant’s Final Submissions dated 10 June 2016 at [46].

 212   Ibid at [45].

 213   Concut v Worrell (2000) 176 ALR 693; Australian Meat Holdings Pty Ltd v MxLachlan (1998) 84 IR 1 at 9.

 214   See for example Lane v Arrowcrest Group Pty Ltd (1990) 43 IR 210 at 238.

 215   Exhibit 18 at [51].

 216   Ibid at [53].

 217   Ibid at [58].

 218   Transcript PN193.

 219   Applicant’s Final Submissions in Reply dated 8 July 2016 at [10].

 220   Exhibit 18 at [58].

 221   Ibid.

 222   Ibid.

 223   Transcript PN3051.

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

 225   Applicant’s Outline of Submissions, 11 January 2016, Applicant’s Final Submissions, 26 February 2016; Respondent’s Outline of Submissions, 29 January 2016; Respondent’s supplementary Outline of Submissions, 19 February 2016 and Respondent’s Final Submissions, 2 March 2016.

 226   (1995) 185 CLR 410.

 227   Ibid at 465.

 228   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378.

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

 230   Ibid.

 231   King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213) at [23]–[26].

 232   Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 233   Exhibit 18 at Attachment KR-5.

 234   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 235   Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at 150–151.

 236   Previsic v Australian Quarantine Inspection Services Print Q3730.

 237   (2000) 98 IR 137.

 238   Ibid at 151.

 239   Exhibit 18 at Attachment KR-2.

 240   See also Fair Work Bill 2008 – Explanatory Memorandum at [1542].

 241   Annetta v Ansett Australia (2000) 98 IR 233 at 237.

 242   Respondent’s Final Submissions dated 1 July 2016 at [102].

 243   Applicant’s Outline of Submissions dated 30 March 2016 at [1], Applicant’s Final Submissions dated 10 June 2016 at [47].

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