[2022] FWC 969
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Gordon Lattimer
v
Jadestone Energy (Australia) Pty Ltd
(U2021/6711)

DEPUTY PRESIDENT BINET

PERTH, 27 APRIL 2022

Application for an unfair dismissal remedy – application granted – Applicant reinstated with back pay.

[1] On 29 July 2021, Mr Gordon Lattimer (Mr Lattimer) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Jadestone Energy (Australia) Pty Ltd (Jadestone).

[2] On 11 August 2021, Jadestone filed a Form F3 - Employer’s Response to unfair dismissal application raising a jurisdictional objection to the Application. Jadestone asserted that Mr Lattimer abandoned his employment and was not dismissed. In the alternative Jadestone assert that his dismissal was not harsh, unjust or unreasonable.

[3] On 9 September 2021 and 19 October 2021, the matter was listed for conciliation before me and the parties participated in settlement negotiations. The parties exchanged draft written settlement agreements however ultimately a settlement agreement was never executed and the matter was set down for hearing.

[4] Taking into account the parties wishes and circumstances, it was determined that a Hearing rather than a Determinative Conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 20 January 2022 (Hearing).

[5] Directions for the filing of materials in advance of the Hearing were issued to the parties on 26 October 2021 and subsequently amended on 8 November 2021 (Directions).

Permission to be represented

[6] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.1

[7] Both parties sought permission to be represented at the Hearing.

[8] Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[9] At the hearing Mr Lattimer was represented by Mr Brenton Wilson, a solicitor employed by the Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU) and Jadestone was represented by Mr Justin Bourke QC.

Evidence

[10] The Directions required the parties to file their witness evidence in chief in advance of the Hearing.

[11] In accordance with the Directions Mr Lattimer filed a witness statement setting out his evidence in chief in advance of the Hearing.2 At the Hearing Mr Lattimer gave further oral evidence and was cross examined by Mr Bourke.

[12] In accordance with the Directions, Jadestone filed a witness statement setting out the evidence in chief of its witnesses Mr Keith Read (Mr Read) 3 and Ms Shayona Leahy (Ms Leahy)4. Mr Read is the Human Resource Manager of Jadestone. Ms Leahy is a HR Business Partner of Jadestone. On 7 January 2021, Jadestone filed supplementary witness statements for Mr Read5and Ms Leahy6. At the Hearing Mr Read and Ms Leahy gave further oral evidence and were cross examined by Mr Wilson.

[13] The parties jointly prepared and filed a Digital Court Book containing the evidence and submissions of the parties filed prior to the Hearing date (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1. Jadestone sought orders for the production of Mr Lattimer’s medical records. The orders were not granted but were served in draft form on Mr Lattimer’s doctor’s surgery by Jadestone’s representatives. The manner in which this occurred caused the surgery confusion and resulted in the surgery forwarding Mr Lattimer’s private health records to Chambers without such an order being made and without Mr Lattimer’s consent. Mr Lattimer subsequently consented to the consultation notes for a visit he made to the surgery on 28 June 2021 being admitted (Exhibit A2). A medical certificate not legible in the DCB was also provide in a more legible form, this was also admitted during the Hearing (Exhibit A1).

[14] Final written submissions were filed by Jadestone on 4 February 2022. Final written submissions were filed on behalf of Mr Lattimer on 25 February 2022.

[15] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties even if not expressly referred to in these reasons for decision.

Background

[16] Jadestone is the owner and operator of oil producing assets off the north-west coast of Australia including a floating production, storage and offtake facility known as the Montara Venture (Montara). 7

[17] Activities on the Montara are regulated by the National Offshore Petroleum Safety and Environmental Management Authority. The Safety Case established under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) for the Montara requires that minimum manning levels be maintained. Eighty percent of Jadestone’s production emanates from the Montara therefore disruption to operations on the Montara has serious commercial implications for Jadestone. 8

[18] As at February 2020 approximately 70% of the workforce engaged by Jadestone to operate the Montara were not Western Australian residents. 9

[19] When rostered on duty employees who reside interstate are typically flown to Perth from their point of hire at Jadestone’s expense. From Perth all employees are flown to Broome then onwards to Truscott and from Truscott offshore to the Montara.

[20] Mr Lattimer commenced employment with Jadestone on 4 November 2019 in the role of Production Operator on Montara on a fly in and fly out basis pursuant to a letter of engagement dated 27 September 2019 (Letter of Engagement). 10

[21] Mr Lattimer’s usual place of residence is located in Queensland. 11 This is recognised in his employment arrangements which provide that Jadestone will fund his transport from the nearest capital city to his home to the Montara Venture.12

[22] Annexed to the Letter of Engagement was a document described as Appendix A – Employment Terms and Conditions (together the Initial Employment Conditions). Appendix A largely mirrored the terms of an expired enterprise agreement. It is noted in Appendix A that the terms it contained would apply until Jadestone and its employees negotiated a new enterprise agreement.13

[23] Relevantly clause 13.1.1 of Appendix A provided that the roster cycle would be fifteen weeks consisting of:14

[24] The only variation to the roster pattern permitted by the Initial Employment Conditions was that the off duty periods may be varied from three and six weeks to four and five weeks respectively by agreement.15

[25] Since March 2020 restrictions on entry into Western Australia have applied. The nature of these restrictions have changed from time to time and the restrictions have often been imposed and removed suddenly with limited notice.

[26] The first such restriction was imposed on 24 March 2020 when the Western Australian Government issued a direction requiring interstate arrivals to self-isolate for 14 days. These border controls were applied to all road, air, rail and sea access points. The direction did not apply to persons performing an ‘Essential Service’, which included:16

“… persons who ordinarily live or work in Western Australia and travel interstate for work purposes for regular periods according to established work schedules (for example, FIFO workers).”

[27] On 30 March 2020 Jadestone sent a letter to its employees, including Mr Lattimer, directing them to immediately relocate to Western Australia and informing them that their rosters would be unilaterally altered to a pattern of four weeks on duty and four weeks off duty (30 March Letter). The letter indicated that family relocations would be permitted however employees would be responsible for the cost of flights and for arranging and paying for accommodation for their families. An extract of the letter is set out below:17

“The uncertainty of the COVID-19 outbreak continues to drive unprecedented restrictions imposed by governments across Australia. It is becoming increasingly difficult for all resource companies and Jadestone's Offshore Operations.

Our latest advice is that Western Australia is actively considering a ban on all movements into the state, including oil and gas workers, within the next 48 to 72 hours. While this has not yet been confirmed and we are still pushing for a different outcome, we have been advised to prepare for this action immediately.

Therefore, in order for Jadestone Energy Australia to maintain our operations, all Stag and Montara crew who reside interstate are required to relocate to Western Australia urgently.

Unfortunately, there is no alternative. If we don't have the necessary numbers to safely man the facility, we will effectively be shutting down our Australian operations.

Change

Description

Relocation

You would be required to temporarily relocate to Perth, Western Australia for the foreseeable future. You would need to arrive in Perth within 48 hours of the decision. Perth would become your base until the restriction is lifted and a return economy flight will be provided. No travel outside of WA would be permitted during this period.

Roster

To be compliant with COVID-19 travel advice, rosters will change to 4 weeks on and 4 weeks off to eliminate the frequency of travel.

Company Provided Accommodation

Jadestone will provide employees with a self-serviced apartment and a per diem payment of $60 per day to cover the cost of meals and incidentals. Further information will be provided to you in relation to accommodation in Perth. A timesheet will need to be submitted to claim the per diem allowance.

Family Relocation

Family relocation will be allowed provided employees comply with the following obligations:

● Flights are sourced and paid for by you;

● Accommodation is sourced and paid for by you;

● Accommodation complies with WA COVID-19 guidelines;

● Jadestone's duty of care only extends to you as the employee;

● You will be entitled to claim the agreed nightly rate for accommodation that otherwise would have been provided by Jadestone to you as an individual. Further details to follow.

Additional Uplift

No uplifts would be provided.”

[28] Mr Lattimer says that he did not agree to the contractual variation proposed by Jadestone. The CFMMEU disputed the changes with Jadestone on behalf of Mr Lattimer and other members. Between 30 and 31 March 2020 the CFMMEU exchanged a series of correspondence with Jadestone in relation to the issue. 18

[29] On 2 April 2020 Jadestone sent letters to its employees, including Mr Lattimer. In contrast to the 30 March Letter, which directed employees to relocate immediately and which unilaterally imposed a changed roster pattern, this letter provided as follows:19

“We now have clarity from the WA government that full border lockdowns will be imposed on Sunday night, with exemptions for resource industry Fly in Fly Out workers. However, a 14 day enforced Quarantine period will be required for those arriving into the State.

We have arrangements in place to accommodate this, including paid accommodation in serviced apartments in Perth, which are fully 'accredited' and set up to manage enforced quarantine. We will provide full details to those impacted as required.

…

If you chose to temporarily relocate to WA, to either avoid the additional time away from your family while in Quarantine, or simply for convenience, that is up to you of course. We will provide support on a case by case basis in that situation, so please contact HR if you intend doing so.

We are having to react quickly to circumstances beyond our control. Proposed changes to the roster will need to be implemented as quickly as practical once we have finished consulting with you and considering feedback. However, changes must be made, or it will result in major disruption to the operation.”

[30] On 3 April 2020 Jadestone arranged for two further teleconference calls with offshore personnel for the purpose of consulting in relation to proposed roster changes in light of the impacts of COVID-19.20

[31] On 4 April 2020 Jadestone sent letters to its employees, including Mr Lattimer, informing them that Jadestone had made a decision to implement a new roster cycle effective Tuesday 7 April 2020 (4 April Letter).21

[32] On 5 April 2020 at 11:59pm (AWST) the Western Australian Government issued a direction that persons must not enter Western Australia unless they were ‘exempt travellers’.

The definition of ‘exempt traveller’ included:22

“… a person who ordinarily travels from one State or territory to another State or territory for work purposes for regular periods according to established work schedules (FIFO worker), provided that the person will, at the expense of the person's employer, be subject to strict quarantine provisions and complete a mandatory 14 day period of isolation in a location agreed with me as the State Emergency Coordinator or someone authorised by me, immediately after entering Western Australia and before the person enters a workplace in Western Australia.”

[33] On 7 April 2020, as confirmed in the 4 April Letter, Jadestone implemented a new roster arrangement in response to the ongoing impacts of COVID-19 (COVID Roster).

[34] The COVID Roster comprised: 23

[35] The COVID Roster reduced the number of on duty hours per annum however base salaries remained unchanged. 24

[36] The COVID Roster arrangement remained in place until Mr Lattimer’s employment was terminated. 25

[37] Despite working as directed Mr Lattimer says he did not agree to the changes to his contractual arrangements. 26

[38] From 7 April 2020, as part of the COVID Roster, Jadestone implemented an arrangement to provide and pay for the necessary quarantine accommodation in Perth to ensure that its employees met the classification of ‘exempt traveller’ so as to be able to continue to gain access to Western Australia.27

[39] As part of the COVID Roster, from 7 April 2020 a daily living away from home allowance (LAFHA) of $65 per day was paid to employees who were undertaking fourteen days mandatory quarantine in Western Australia. Mr Read says that employees were advised that they could apply for reimbursement of any reasonable additional costs they incurred during their quarantine period.28

[40] Later in April 2020 Jadestone introduced an off-roster temporary accommodation allowance and a daily living away from home allowance for its employees who were ‘off-duty’ and who wished to remain in Western Australia rather than travel home between rosters. This consisted of an accommodation expense reimbursement of up to $135 per night net in addition to a LAFHA of $65 per day if employees remained in Western Australia during their six week period ‘off duty’ on leave. Employees who chose to do so were not required to undertake a period of quarantine and therefore had eight weeks in total off duty on leave before commencing their next four week period on duty on the Montara.29

[41] Initially only four of thirty employees elected to take up this option. The balance of interstate based employees continued to return to their home states between rostered periods of duty. 30

[42] In the week commencing 4 May 2020 Mr Lattimer flew to Melbourne to undertake a fourteen day quarantine period to enable him to commence a four week period rostered ‘on duty’ on the Montara in the week commencing 19 May 2020. From the week commencing 16 June 2020 he was rostered ‘off duty’. 31

[43] In the week commencing 28 July 2020 he flew to Western Australia to undertake a fourteen day quarantine period to ensure he was eligible to commence a period of four weeks ‘on duty’ on the Montara in the week commencing 11 August 2020.32

[44] Sudden changes in border arrangements due to COVID-19 during this period created significant challenges for Jadestone to ensure it could meet its mining manning obligations. On one occasion Jadestone was forced to hire a helicopter to transfer employees barred from entering Western Australia from Darwin directly to Truscott. Cost implications, weather conditions and border restrictions prevented this arrangement continuing. 33

[45] In late August Jadestone decided to make a further offer of financial support to each of its employees, including Mr Lattimer, in order to encourage each employee to consider a temporary or permanent relocation to Western Australia. This offer consisted of revised lump sum and per diem payments depending on whether the individual was relocating individually or with their family.34

[46] On 21 August 2020 Jadestone sent its employees, including Mr Lattimer a letter encouraging them to reconsider relocation. Relevantly the letter stated as follows:35

“The route via the Northern Territory/ Darwin direct to Montara by Helicopter is also not sustainable. This option is a stop gap which will not be available during cyclone season, commencing 1 November This is due to the possibility of personnel having to evacuate into WA before they have completed 14 days offshore. Bringing a 'dirty' crew, as it is deemed, into WA would breach State laws. Therefore, if you are not located in WA or able to fly into WA and undertake 14 days quarantine, by November lst, you will not be able to attend work.

Therefore, to ensure we can continue to get you to work, I once again ask you to consider relocation to WA, either temporarily or permanently. Currently the State is allowing entry (with quarantine) for workers and families who intend relocating to WA from Victoria or NSW. Also please note, there is no definitive time frame or "return" date for those temporally relocating, this can only be based on what government restrictions may be in place -at the time.

To support these initial relocations with the expectation the COVID-19 situation would pass in a few months, we put in place some short-term relocation arrangements. These currently include an ongoing expense per diem while in the 14-day quarantine period and an accommodation per diem, matching our nightly hotel quarantine arrangement, while in WA.

With the prolonged and indefinite nature of this situation, we realise we need to implement more sustainable and more appropriate support.”

[47] The financial support offered varied depending on whether the employee temporary or permanently relocated, and whether the employee relocated by themselves or with their family: 36

[48] On 24 August 2020 Jadestone hosted a virtual ‘townhall’ question and answer session with its employees employed on the Montara (August Townhall). Both Mr Read and Ms Leahy joined the August Townhall.37

[49] During the August Townhall an employee named Mr Lang asked Mr Read a question about what would happen if an employee was unable to travel to Montara because of Western Australian Government border restrictions.38

[50] Mr Read says that the conversation occurred as follows:39

“At one point during the Townhall Mr Gavin Lang said words to the effect of "if someone isn't in a position to relocate or cannot undergo quarantine in WA due to either residing in New South Wales or Victoria, what happens from November?".

In response I said words to the effect that advice was obtained was that Jadestone would not be in a position to stand down its employees as the facilities are still operating, and that if employees were not able to attend the workplace to carry out their duties the options become very limited with a likely result that the employment contract is terminated for frustration.”

[51] Mr Read says that he would not have said employees would be entitled to utilise accrued paid leave entitlements because he is aware that by virtue of clause 19 of the Enterprise Agreement employees do not accrue paid leave. 40

[52] In her witness statement Ms Leahy recalled the conversation in the following way:41

“During the Townhall, Mr Gavin Lang (Lang) asked a question. Lang said words to the effect of “If a person presents themselves for work but cannot get there what happens with their pay?"

Read responded to Lang saying words to the effect of "If employees are unable to get to work due to border restrictions they will need to apply for leave without pay, if employees cannot get to work they are unable to fulfil their employment contract therefore it will result in termination for frustration of contract. "

[53] Ms Leahy’s contemporaneous notes of the meeting record the conversation as follows:42

“If there is workplace standdown.

No stand down.

Unpaid leave until

Employment contract can’t be fulfilled.

Frustration of contract.”

[54] Mr Lattimer says that he does not recall attending the Townhall Meeting. 43

[55] In the week commencing 8 September 2020 Mr Lattimer commenced a period of six weeks rostered ‘off duty’ on leave.44

[56] On 23 September 2020 Ms Leahy sent Jadestone's employees, including Mr Lattimer, an email which invited non-Western Australian residents to: 45

[57] In the week commencing 20 October 2020 Mr Lattimer flew to Western Australia to undertake a fourteen day quarantine period so that he could commence a four week period rostered ‘on duty’ in the week commencing 3 November 2020.46

[58] On 10 November 2020 Jadestone advised its employees, including Mr Lattimer, that Jadestone would cover the cost to fly employees from a ‘very low risk’ third state location rather than a home state location if such employees elected to work around the Western Australian quarantine requirement. Jadestone informed employees that they would remain responsible for accommodation in, and flights into, their chosen third state location.47

[59] On 14 November 2020 at 12:01am (AWST) the Western Australian Government removed its existing hard border exemption system and replaced it with a new controlled interstate regime to allow for travel into Western Australia from interstate with conditions. Queensland was designated as ‘very low risk’, which meant that travel to Western Australia from Queensland was permitted, subject to conditions on arrival, including provision of a G2G PASS declaration, health screening and temperature checks, and a possible Perth Airport COVID-19 test.48

[60] In the week commencing 1 December 2020 Mr Lattimer commenced a six week period rostered ‘off duty’ on leave.49

[61] Effective 9 January 2021 at 12:01am (AWST) the Western Australian Government designated Queensland as a ‘medium risk’ jurisdiction. The medium risk classification meant that travel from Queensland was no longer permitted, unless an individual was an ‘exempt traveller’.50 This classification was limited to:51

[62] Applications for exemption pursuant the last of these categories were assessed on a case by case basis and required Jadestone to provide the relevant employee with a letter of support.

[63] ‘Exempt travellers’ were required to: 52

[64] Effective from 25 January 2021 at 12:01am (AWST) the Western Australian Government designated Queensland a ‘low risk’ jurisdiction, which meant that arrivals from Queensland were required to undergo health screenings upon arrival, self-quarantine for fourteen days in a “suitable premises”, and present for a COVID-19 test on day 11 of isolation.53

[65] In the week commencing 12 January 2021 Mr Lattimer flew to Darwin commence a fourteen day quarantine period.54

[66] Effective 1 February 2021 at 12.01am (AWST) the Western Australian Government designated Queensland as a ‘very low risk’ jurisdiction, which meant that travel to Western Australia from Queensland was permitted, subject to conditions on arrival, including provision of a G2G Pass declaration, health screening and temperature checks, and a possible Perth Airport COVID-19 test.55

[67] In the week commencing 26 January 2021 Mr Lattimer commenced a four week period ‘on duty’ on the Montara.56

[68] Later in February 2021, Jadestone advised its employees, including Mr Lattimer, that the LAFHA being provided to employees who were required to quarantine in Western Australia would be extended and provided to employees in ‘third state’ locations to assist with living costs, regardless of whether the relevant employee was required to quarantine. The purpose of this change was to make it easier for employees to ensure that they were able to enter into Western Australia as and when required in order to mobilise for the commencement of a swing, with this defraying some of the personal expenses if they elected to not quarantine in Western Australia and instead temporarily relocate to a third state location.57

[69] In the week commencing 23 February 2021 Mr Lattimer commenced a six week period ‘off duty’ on leave.58

[70] Effective 27 March 2021 at 12:01am (AWST) the Western Australian Government designated Queensland as a ‘low risk’ state, which meant that arrivals from Queensland were required to undergo a COVID-19 test upon arrival, self-quarantine for fourteen days in a “suitable premises”, and present for a COVID-19 test on day eleven of isolation. 59

[71] Effective 30 March 2021 at 12:01am (AWST) the Western Australian Government designated Queensland a ‘medium risk’ state. The medium risk classification meant that travel from Queensland was no longer permitted, unless an individual was an ‘exempt traveller’.60

[72] Exempt travellers were required to: 61

[73] On 30 March 2021, a Mr Iopplolo, an Operations Administrator of Jadestone, sent an email to Mr Lattimer, and a number of other employees, alerting them to the fact that Queensland had been reclassified as a medium risk state and asking which low risk state they intended to travel to enable them to perform their next rostered period ‘on duty’ due to commence on 19 April 2021. Jadestone followed up their 30 March 2021 email on 2 April 2021 asking that Mr Lattimer and two of his colleagues urgently confirm which low risk state they intended to relocate to.62 In the week commencing 13 April 2021 Mr Lattimer flew to Melbourne at his own expense to ensure that he could access Western Australia to perform his rostered shift. 63

[74] By April 2021 only four of seven of Jadestone’s employees who had elected to relocate to Western Australian remained in Western Australia. 64

[75] Effective 7 April 2021 at 12:01am (AWST) the Western Australian Government designated Queensland a ‘low risk’ jurisdiction, which meant that arrivals from Queensland were required to undergo health screenings upon arrival, self-quarantine for fourteen days in a ‘suitable premises’, and present for a COVID- 19 test on day eleven of isolation.65

[76] Effective 19 April 2021 at 12:01am (AWST) the Western Australian Government designated Queensland as a ‘very low risk’ jurisdiction, which meant that travel to Western Australia from Queensland was permitted, subject to conditions on arrival, including provision of a G2G Pass declaration, health screening and temperature checks, and a possible Perth Airport COVID-19 test. 66

[77] In the week commencing 20 April 2021 Mr Lattimer commenced a four week period ‘on duty’ on the Montara.67

[78] On 21 May 2021 the new enterprise agreement was approved (Enterprise Agreement). It commenced operation on 28 May 2021.68

[79] In the week commencing 25 May 2021 Mr Lattimer commenced a six week period ‘off duty’ on leave.69

[80] On 1 June 2021 Jadestone sent a letter to Mr Lattimer informing him that the Enterprise Agreement had been registered. As foreshadowed in his Initial Conditions of Employment Jadestone proposed that Appendix A be replaced in totality with the contents of the Enterprise Agreement. The letter requested that Mr Lattimer confirm his agreement to this variation. Mr Lattimer did so on 5 June 2021 (1 June Contract of Employment).70

[81] Relevantly clause 14 of the Enterprise Agreement provides that:71

“14. HOURS OF WORK AND TRAVEL

14.1 Duty Period on Attachment to the Buoy

14.1.1 The roster cycle period shall be fifteen weeks. The fifteen week roster cycle shall consist of three weeks rostered on the facility, followed by three weeks rostered off duty, followed by three weeks rostered on the facility and followed by six weeks rostered off duty.

14.1.2 Nothing in the above clause prohibits potential roster changes by mutual agreement with the employee/s impacted. Any changes mutually agreed by employees concerned (or affected) and the company must be in line with FW Act flexibility provisions.”

[82] On 18 May 2021 Mr Lattimer commenced a period rostered off duty and returned to his home in Queensland. 72

[83] On 26 June 2021 during a period rostered off duty on leave Mr Lattimer sustained an injury while collecting wood. The injury caused him substantial pain and he was unable to drive. He was unable to secure an appointment with a doctor until 9am Monday 28 June 2021. His wife drove him to the appointment. The examining doctor instructed him not to bend, twist or lift and to ‘change position keep moving’. The doctor certified him unfit for work from 28 June 2021 until 4 July 2021. 73

[84] Effective 27 June 2021 at 6:00pm (AWST) the Western Australian Government classified Queensland as a "low risk" jurisdiction the low risk classification meant that, from 6pm on 27 June 2021, all arrivals from Queensland were required to self- quarantine for 14 days and be tested for COVID-19 on arrival (within 48 hours) and on day 11. 74

[85] The consequence of this reclassification was that Mr Lattimer needed to leave Queensland and arrive in Western Australia or another location classified as ‘low risk’ by the Western Australian Government before midnight on 28 June 2021 in order to complete a fourteen day quarantine period before commencing his next rostered period ‘on duty’ on 13 July 2021. 75

[86] On 28 June 2021 at 7:47am Mr Grant Marschner an Operations Supervisor for Jadestone (Mr Marschner) sent an email to Mr Lattimer at his Jadestone email address asking if “HR” had contacted Mr Lattimer and whether he was presently located somewhere from where he would be permitted to travel to Western Australia in time to commence his next rostered period of work on 13 July 2021. Mr Lattimer says he does not receive emails sent to his work email address when he is not at work. 76

[87] Subsequently at 12:29 Mr Marschner sent the email to Mr Lattimer’s personal email address. Mr Lattimer replied within the hour indicating that he was in Queensland and had no contact from Jadestone’s human resource department (HR). Mr Marscher responded to say that he would let HR know Mr Lattimer was online. Mr Lattimer remained by his computer awaiting contact from Jadestone. 77

[88] At 3:55pm on 28 June 2021 Mr Stephen Brown, the Offshore Installation Manager (OIM) (Mr Brown), sent Mr Lattimer an email asking Mr Lattimer if he wanted the OIM to assist him in organising quarantine accommodation and flights to Perth that day to allow Mr Lattimer to mobilise ahead of the upcoming crew change. 78

[89] At 4:36pm on 28 June 2021 Mr Lattimer sent the OIM an email in response advising as follows: 79

“If you could assist that would be great. I have hurt my back and got a cert but as not working should be ok to go to the dreaded quarantine. I do not think I am fit to fly today, may need a couple of days.”

[90] Mr Lattimer provided a copy of his medical certificate to Mr Brown. 80 Mr Brown did not respond to Mr Lattimer’s email.81

[91] At 5:39pm on 28 June 2021 Mr Lattimer sent an email to Mr Marschner attaching a medical certificate explaining that he was not fit enough to travel that day but anticipated being so shortly and that he would appreciate assistance in making travel arrangements to travel as soon as he was fit to do so. Mr Lattimer also forwarded the medical certificate to the OIM. 82Mr Marschner did not respond to Mr Lattimer’s email.83

[92] At 12:05pm on 29 June 2021 Mr Lattimer sent Ms Suzanne Cashman of Jadestone (Ms Cashman) and copied in the Montara-OpsSuper Email, an email in which he said as follows: 84

“Hope you are fine and well away from the hotspots?

I am enquiring as to arrangements for myself and quarantine before travel to the Montara? My back is getting better and should be able to fly as soon as tomorrow hopefully.

Getting away to Perth for hotel quarantine, however tassie is still open to QLD I think but has a large risk, if there is a case it sets me back to zero and bigger delays.

If you could advise me of the company's plan on how I am going to be mobilised to the Montara

please?

Many thanks,

Gordon Lattimer”

[93] Ms Cashman did not respond to Mr Lattimer’s email. 85

[94] Effective 29 June 2021 at 3:00pm (AWST) the Western Australian Government designated Queensland as a ‘medium risk’ state. The medium risk classification meant that travel from Queensland was no longer permitted, unless an individual was an ‘exempt traveller’.86

[95] Exempt travellers were required to:87

[96] In order to qualify as an ‘exempt traveller’ Mr Lattimer was required to obtain a G2G Pass. Jadestone’s past practise was to provide employees with a letter of support confirming their eligibility to be classified as an ‘exempt traveller’.

[97] At 3:52pm on 2 July 2021, Mr Marschner responds to Mr Lattimer’s 29 June 2021 Email through the Montara-OpsSuper Account as follows: 88

“Hi Gordon,

Just checking how you are going as have not really heard much since I passed this over to HR, A lot going on out here at the moment..

Hope you are well.

Regards

Grant”

[98] Having not received a response to his email to Ms Cashman at 5:14pm on 2 July 2021 Mr Lattimer sent Ms Cashman the following email: 89

[99] At 5:38pm on 2 July 2021 Mr Lattimer sent Ms Cashman the following email: 90

[100] Eventually at 5:48pm on 2 July 2021 Ms Cashman replied to Mr Lattimer indicating that Ms Helen Roberts (Ms Roberts) would assist with his mobilisation. 91

[101] At 8:20pm on 2 July 2021 Mr Marschner sent Mr Lattimer an email telling him to get in a position where he could present for work as soon as possible. 92

[102] At 11:35am on 3 July 2021 Mr Lattimer sent Mr Marschner the following email: 93

“Hi Grant,

I sent hr details on Monday and had no further contact a part from your mail Friday about me so far, I injured myself on the Saturday struggled through Sunday and went to the doctors with the first appointment and doctor who advised I was not fit to fly and signed me off and put me on codine for the pain.

So unfortunately, I was unable to get to Perth before the hard border.

I have been searching through the restrictions and at the moment, I can get to; NT classified as low risk by WA.

Tassie,SA,Vic and WA are all out.

I have been keeping to see if the restrictions change and the announcements.

Any assistance and advice in this would be greatly appreciated, I am and have been making efforts to get to work, now I am getting fitter.

Thanks,

Gordon Lattimer”

[103] At 12:43 on 3 July 2021 Mr Marschner responded to Mr Lattimer's email telling him that:  94

“OK, good to hear you are feeling better.

As you had a certificate from a doc saying you had issues you will need to go through the fit for work procedure which Helen (copied in} can advise you. Or I can help if you cannot reach Helen on the weekend.”

[104] In the same email Mr Marschner indicated that he believed the only option available to Mr Lattimer to get to Western Australia was to travel to the Northern Territory and quarantine there for 14 days. 95

[105] At 1:56 on 3 July 2021 Mr Lattimer contacted Ms Roberts asking for her assistance: 96

“I have been advised by Grant that as I have had a doctors certificate for an injury I sustained that prevented me from traveling, I have to complete the return to work procedure with yourself .

Once completed I should be available to travel into quarantine or travel to low risk state.

Unfortunately due to being unable to fly the border has closed to WA. Is it possible to seek an exemption to travel into Perth and quarantine as an essential worker?

I am constantly checking for changes in the border restrictions as they are changing but slowly.

I appreciate your assistance with this,”

[106] At 2:29 on 3 July 2021 Mr Marschner responded to Mr Lattimer’s email to Ms Roberts explaining that she was travelling and unable to respond to him. In her absence Mr Marschner provided some information about the return to work from injury process. In the same email he revised his advice to Mr Lattimer to travel to Northern Territory advising him instead to seek approval to travel directly to Western Australia. 97

[107] Mr Lattimer promptly replied to the email a few minutes later explaining as follows: 98

“Hi Grant,

Thanks for the form, from what read into it I need my doc to sign off the certificate which I will have to wait until Monday and try for an appointment, with Helen away who else can I contact to see about trying to get an exemption for WA.

As mentioned I am keeping an eye on the states to see if they have changed their advise on borders.

Thanks,

Gordon Lattimer”

[108] Mr Lattimer was not provided with an alternative contact in HR. 99

[109] On 5 July 2021 in the absence of any further responses from Jadestone Mr Lattimer sent Mr Marschner the following email: 100

“Hi Grant,

How is the drilling campaign going well I hope, I will see the fruits of your labor when I get out.

I am assuming that at the moment I do not have exemption to enter WA. I know it will probably not make a difference but I have had my first vaccine the second due on16/08/2021.

I can get into NT and quarantine there in the hope that there is not another outbreak and it is returned to very low risk for WA. I would then be able to travel to Perth.

Please let me know the thoughts so if ok I can get it going.

Many thanks,

Gordon Lattimer”

[110] At 9:15am on 6 July 2021 Mr Lattimer sent a further email to Ms Roberts as follows: 101

“Good morning Helen,

Hope you are fine and well?

Further to my email to Grant yesterday about returning.

My doctor’s certificate has now closed and though not completely out of the woods definitely fit to travel. I am enquiring as to the possibility of a exception to enter WA to quarantine prior to offshore travel?

If an exception is not available I can still enter the NT which is a low risk state.

The daily weekly average number is 1 meaning that so long as there are no more cases it should revert back to a very low risk state within the 14 days allowing entry into Perth. This runs some risk if more cases I get stuck there or quarantine in Perth again.

Please give some advice and assistance so I can get back to work in as timely manor as possible.

Many thanks,

Gordon .”

[111] Ms Roberts did not reply to Mr Lattimer’s email.

[112] Mr Marschner did not reply to Mr Lattimer’s email to him until 3:02pm on 6 July 2021. Mr Marschner explained that he would not give advice to Mr Lattimer about where he should fly in order to reach Western Australia. 102 Mr Lattimer replied:103

“Hi Grant,

Thanks for the reply, will await the letter and go for direct to Perth.

If that fails I will make my way to Darwin to self quarantine until, in hope the restrictions

change soonest.”

[113] On his own initiative Mr Lattimer booked to fly to the Northern Territory and informed Mr Marschner on 7 July 2021 accordingly: 104

“Hi Grant,

Hope things are going well?

I have booked to fly to Darwin tomorrow, I have had no response from HR about an exception letter.

The situation in Queensland is not going to change soon, my best hope is going through Darwin.

I will keep a eye on the situation for any changes.

Thanks,

Gordon Lattimer”

[114] In order to qualify as an ‘exempt traveller’ Mr Lattimer was required to obtain a G2G Pass. After having requested a Letter of Support multiple times on 8 July 2021 Ms Roberts finally forwarded a letter of support to Mr Lattimer to accompany his G2G pass application. The letter provided had been modified from the versions previously provided in support of G2G pass applications. Rather than simply identifying the reasons for granting the exemption as previous letters had done, on this occasion the letter outlined the steps Jadestone had taken to avoid the need for interstate travel to occur. 105

[115] On 8 July 2021 at 3:08pm Mr Read sent Mr Lattimer a letter dated 8 July 2021 (8 July 2021 Letter). Relevantly the 8 July 2021 Letter stated that:106

“By choosing to stay in Queensland in the lead up to your current swing, should the Hard Border with Queensland persist, and or you are required to undertake 14 days quarantine on arrival into WA, either of which prevents you from making the 13th July crew change, you will not be able to undertake your rostered swing and therefore be in breach of your contractual employment obligations to Jadestone.

As previously communicated to you and all our offshore employees, a situation whereby you are not ready, willing and able to perform your assigned work swing would place your continued employment with Jadestone in jeopardy. A failure to attend and undertake your assigned work enables Jadestone to exercise its contractual right to terminate your employment due to a frustration of our employment contract.

Any termination so actioned would be in accordance with clause 11 Termination of Employment, as outlined within the Jadestone Energy Montara Venture Enterprise Agreement 2021.”

[116] Mr Lattimer responded to Mr Read’s letter at 5:06pm as follows: 107

“Hello Keith,

I was unfortunately unable to fly at that time due to being injured and signed off by a doctor as unfit to fly, that is the only reason I did not travel on the advice of a qualifiied medical practitioner. I am currently in Darwin as the border will open sooner than that of Queensland. I am also available for a direct flight from Darwin to the Montara as this has been done on previous occasions.

I have done this under my own vocation so as to make myself available for work.

I have applied for a g2g pass with the letter sent today and been rejected.

I am available and could fly to the Montara tomorrow if necessary from Darwin.

As mentioned I was injured and unable to travel due to medical advice, this was communication to HR and I have had very little response to numerous emails sent.

Please let me know how to proceed to the Montara.”

[117] Mr Read did not reply to Mr Lattimer’s email. 108

[118] On 9 July 2021 the Australian Workers' Union (AWU) sent Jadestone a letter dated 9 July 2021 on behalf of both the AWU and CFMMEU collectively known as the Offshore Alliance (Alliance). The letter disputes Jadestone’s assertion that the Allience’s members were not ready willing and able to work and asks that Jadestone consider alternative duties for the affected employees or consider granting them leave until they are able to re-join the facility.109

[119] On 10 July 2021 Mr Lattimer sent Mr Marschner, an email initiating a dispute in pursuant with clause 27.1 of the Enterprise Agreement in relation to the threatened termination of his employment. In his email Mr Lattimer stated that:110

“I wish to advise that I am in dispute with Jadestone regarding their decision to issue me a written warning to terminate my employment with Jadestone as a consequence of my inability to mobilise to Western Australia as a result of a decision by the WA Government to restrict my entry into Western Australia.

I am seeking the Company withdraw their threat to terminate my employment. I am also seeking Jadestone commence discussions with my representative (the Australian Workers Union) about the WA Border restrictions and the impact such restrictions have on the ability for employees to mobilise to the facility.

This Dispute is lodged pursuant to Clause 27.1 of the Jadestone Energy Montara Venture Enterprise Agreement 2021 (the Agreement). I am also seeking a time for me to discuss this either today or tomorrow. I am contactable on my mobile number 0429670079. If you can please advise what time you will call me so I can ensure I will be available at the designated time.

I am also seeking to ensure that the status quo arrangements relating to my employment are maintained whilst I am in dispute with the Company.”

[120] Clause 27 of the Enterprise Agreement provides as follows:111

“27. ISSUE RESOLUTION PROCEDURE

The Parties commit to making every endeavour to settle issues raised by employees concerning their employment in a timely fashion by frank and open discussion and direct cooperative negotiation using the following process:

27.1 The employee will raise and discuss the issue with his or her immediate supervisor whilst on the facility. The employee may have his or her nominated representative present in any discussion on the issue at his or her choice. As discussions will be initially held on the facility, the representative must also be present on board.

27.2 If agreement is not reached at this level, the supervisor will refer the issue to the Offshore Installation Manager (OIM) then on the facility.

27.3 If the issue remains unresolved, the employee concerned may request the OIM to inform the Operations Manager of the issue and the discussions that have taken place with a view to it being resolved at this level.

27.4 The Company undertakes to recognise the representatives of the employee in their role of assisting in the settlement of the issue.

27.5 Whilst the above process is being followed the status quo will be preserved and employees will continue to perform their normal duties, subject to safe working practice and without prejudicing the rights of the employee or the Company.

27.6 Should the issue still not be resolved after discussions between the Company and the employee (and his or her representative), either the Company or the employee may refer the issue to the Fair Work Commission for mediation or conciliation and if necessary, arbitration. The Fair Work Commission will have the power to interpret and determine any dispute that arises during the life of this Agreement. This includes exercising the procedural powers in relation to hearings, compulsory attendance, witnesses, evidence and submissions which are necessary to make the arbitration effective. Such determinations are agreed as final and binding on the parties.”

[121] On 11 July 2021 Mr Lattimer sent Mr Marschner the following email: 112

“Hello Grant,

Hope things are going well with there drilling?

The border restrictions from NT to WA go to very low risk as of midday tomorrow.

I will be able to enter without quarantine as of the 21st of July. I will apply for pre-approval for the G2G pass for that date, can you advise should I apply for travel via Perth or Trusscott airfield.

Thanks,

Gordon Lattimer”

[122] On 12 July 2021 Mr Lattimer’s G2G pass was approved and he was able to enter Western Australia. 113 He sent Mr Maschner the following email:114

“Hello Grant,

I have been checking the situation with WA and the border has been declared very low risk. I now have a G2G pass for the21st of July.

If you could advise the itinerary for travel when available please.

Many thanks,

Gordon Lattimer”

[123] On 13 July 2021 Jadestone sent Mr Lattimer a letter with the subject line “Re: Termination for frustration of employment contract” informing him that his employment had been terminated effective immediately.115

“Further to our letter of 8th July 2021, you have failed to make yourself available to mobilise to the facility on 13th July 2021 in accordance with your contractual employment obligations.

The Company has carefully considered all information concerning this matter, particularly the events leading up to your decision to not mobilise for work:

● On June 27, the Western Australian Government advised that Queensland had been moved to a "low risk" jurisdiction meaning anyone arriving into Western Australia from Queensland would need to quarantine or self-isolate for 14 days.

● On the morning of June 28, you were contacted by the Montara OIM and requested to mobilise immediately. There were numerous flight options available that day and the following day for you to travel to Western Australia.

● On the afternoon of June 29, Queensland was then moved to "medium" risk by the Western Australian Government meaning people from Queensland could only travel to Western Australia with a special exemption and would need to undertake 14 days quarantine on arrival.

You therefore had ample opportunity to freely travel to Western Australia, including being specifically requested to do so by the company prior to Queensland being moved to "medium risk" by the Western Australian Government, in order to undertake quarantine and ensure you would be able to mobilise for your roster.”

[124] Mr Lattimer's salary at the time of termination was $239,853.116

[125] On 26 August 2021 the Western Australian Government announced that Queensland would be classified as a "low risk" jurisdiction, which meant that arrivals from Queensland were required to undergo health screenings upon arrival, self-quarantine for 14 days in a “suitable premises”, and present for a COVID-19 test on day 12 of isolation.117

[126] On 22 October 2021 the Western Australian Government removed its existing hard border exemption system and replaced it with a new controlled interstate regime to allow for travel into Western Australia from interstate with conditions. Queensland was designated as a "very low risk", which meant that travel to Western Australia from Queensland was permitted, subject to conditions, including provision of a G2G PASS declaration, health screening and temperature checks, and a possible Perth Airport COVID-19 test.118

[127] After 22 October 2021 and until the Hearing, Queensland remained classified as ‘very low risk’. Border restrictions between Western Australia and the rest of Australia were lifted completely on 3 March 2022.

[128] Mr Lattimer submits it would be appropriate for the FWC to order his reinstatement and continuity of service and to make an order for back pay.

Is Mr Lattimer protected from unfair dismissal?

[129] An order for reinstatement or compensation may only be issued if Mr Lattimer was unfairly dismissed and Mr Lattimer was protected from unfair dismissal at the time of his dismissal.

[130] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

[131] For the purposes of Part 3-2 of the FW Act an employer means a national system employer and an employee means the employee of a national system employer. It is not disputed that Jadestone is a national system employer and therefore Mr Lattimer is a national system employee.

[132] If the employer is not a small business, the ‘minimum employment period’ is six months ending at the earlier of the following times:119

[133] There is no dispute, and I am satisfied, that Jadestone is not a small business employer for the purposes of section 383 of the FW Act.

[134] Mr Lattimer commenced employment with Jadestone on 4 November 2019. 120 Mr Lattimer’s employment with Jadestone came to an end on 13 July 2021.121 I am therefore satisfied that, at the time of dismissal, Mr Lattimer was an employee who had completed a period of employment of at least the minimum employment period.

[135] There is no dispute, and I am satisfied, that the Enterprise Agreement applied to Mr Lattimer’s employment at the time of his dismissal.122 Consequently, I am satisfied that Mr Lattimer was protected from unfair dismissal.

Was Mr Lattimer unfairly dismissed?

[136] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

Was Mr Lattimer’s dismissal a case of genuine redundancy?

[137] Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

a. the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
b. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[138] It was not in dispute, and I find, that Mr Lattimer’s dismissal was not due to Jadestone no longer requiring his job to be performed by anyone because of changes in Jadestone’s operational requirements.

[139] I am therefore satisfied that the dismissal was not a case of genuine redundancy.

Was Mr Lattimer’s dismissal consistent with the SBFD Code?

[140] Section 388 of the FW Act provides that a person’s dismissal is consistent with the SBFD Code if:

[141] It was not in dispute, and I find, that Jadestone was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of fourteen employees.

[142] As Jadestone is not a small business employer within the meaning of the FW Act, I am therefore satisfied that the SBFD Code does not apply to Mr Lattimer’s dismissal.

Was Mr Lattimer dismissed?

[143] Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.

[144] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[145] Neither party asserts that Mr Lattimer resigned from his employment.

[146] Mr Lattimer asserts that he was dismissed by Jadestone. Jadestone deny dismissing Mr Lattimer.

[147] In the Termination Letter, Jadestone indicated that they believed that Mr Lattimer’s contract was frustrated. 123 In submissions filed in accordance with the Directions prior to the Hearing, Jadestone submitted that Mr Lattimer’s contract was frustrated or in the alternative that he abandoned his employment.124 Jadestone abandoned its jurisdictional objection that the contract was frustrated at the Hearing. For completeness I note that I am not satisfied that on the factual circumstances of the case an argument of frustration of contract could have been made out.

[148] At the Hearing and in its Closing Submissions Jadestone submitted that Mr Lattimer abandoned his employment by placing himself in a situation where he may not be able, and was not able, to meet a fundamental obligation of his contract, namely being ready, willing and able to start work as scheduled. 125

[149] The concept of abandonment in the employment context was considered in detail by the Full Bench of the FWC in Abandonment of Employment126. The Full Bench relevantly stated as follows (citations omitted): 127

“[21] Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.”

[150] Abandonment of employment may arise where an employee is absent from the workplace without consent or notification and there is no reasonable excuse for their absence. However, such absence must be such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it.128

[151] An employer may accept the employee's repudiation in order to bring the contract of employment to an end, or elect to keep the contract afoot. Until the repudiation is accepted, the employment contract will remain on foot. Once the repudiation is accepted, the employment contract will come to an end.129

[152] Although it is the action of the employer which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations. As such, abandonment cannot constitute a dismissal on the employer’s initiative for the purposes of section 386 of the FW Act.130

Unilateral Variation to Contractual Arrangements

[153] Mr Lattimer was recruited and engaged on a fly in fly out basis as a resident of Queensland.131

[154] It never was, and never has been, a condition of his employment that he reside in Western Australia, although by way of the 30 March Letter Jadestone attempted to unilaterally change his contractual terms of engagement to make it so.132

[155] Mr Lattimer’s Initial Employment Conditions provided for a fifteen week roster cycle consisting of three weeks rostered ‘on duty’ on the Montara, three weeks rostered ‘off duty’ on leave, three weeks rostered ‘on duty’ on the Montara and six weeks rostered ‘off duty’ on leave. This contract provided for the ‘on duty’ periods to be varied to 4 and 5 weeks but only by agreement.133

[156] On 7 April 2020 Jadestone sought to unilaterally amend his Initial Employment Conditions to impose the COVID Roster. 134

[157] The COVID Roster comprised:135

[158] There is no evidence before me that Jadestone formally sought Mr Lattimer’s agreement to this variation to his contractual arrangements. Notwithstanding that they did so for subsequent variations to his contractual arrangements. In fact Mr Lattimer’s evidence is that he and his union expressly expressed their opposition to these changes.

[159] Jadestone renegotiated the terms of Mr Lattimer’s engagement in 2021 after the COVID-19 pandemic emerged. These negotiations cumulated with the parties entering into a new Enterprise Agreement and a new common law contract on 1 June 2021 incorporating the terms of the Enterprise Agreement. 136

[160] The terms of engagement secured by the 1 June Contract of Employment and set out in the Enterprise Agreement at clause 14 provide that Mr Lattimer will work a roster of three weeks rostered ‘on duty’ on the Montara, three weeks rostered ‘off duty’ on leave, three weeks rostered ‘on duty’ on the Montara and 6 weeks rostered ‘off duty’ on leave. The Enterprise Agreement provides that the roster may only be changed by agreement. 137

[161] Jadestone were presumably aware that they could not alter Mr Lattimer’s terms of employment without his consent and therefore sought written confirmation of his agreement to vary his contract by removing Appendix A and replacing it with the terms and conditions contained in the Enterprise Agreement.138

[162] Jadestone did not take the opportunity to agree to terms of engagement with Mr Lattimer which would have required his residency in Western Australia notwithstanding that the risk of restrictions on interstate travel had become a possibility from March 2020. Nor did Jadestone take the opportunity to confirm Mr Lattimer’s agreement to an alternative roster cycle such as the COVID Roster.

[163] Jadestone say that the COVID Roster is a “significantly more beneficial roster” because employees are rostered ‘on duty’ for less days per year than the roster enshrined in the Enterprise Agreement (and in their common law contracts) with no reduction in their per annum renumeration. I do not accept that a change in roster pattern can necessarily be entirely compensated by paying the same renumeration. The COVID Roster provides for longer continuous periods ‘on duty’ and when combined with a quarantine period longer continuous periods away from home. Long periods isolated from family and friends can have adverse consequences for employees and those who rely on them which are not necessarily compensatable by cash.

[164] I note that no variation has been made to the Enterprise Agreement as at the date of the Hearing notwithstanding that the COVID Roster has remained in place. 139

Reasonableness of request to relocate

[165] Initially Jadestone demanded that employees relocate to Western Australia. Jadestone offered to provide accommodation for employees and a LAFHA allowance of $60 per day to cover the cost of meals and all incidentals. Employees were told that they would be responsible for sourcing and paying for airfares and accommodation for their families. Unsurprisingly this direction was resisted by employees.140

[166] After unsuccessfully directing employees to relocate to Western Australia from 7 April 2020 Jadestone agreed to pay a LAFHA allowance of $65 per day to interstate based employees while they completed a 14 day quarantine period prior to commencing their rostered period on duty. Later in April 2020 Jadestone agreed to also pay the $65 per day LAFHA to employees who chose to remain in Western Australia between swings. These employees were also offered an accommodation allowance of up to $135 per night.141

[167] Given the dislocation of being away from their families and friends for extended periods of time, the costs of living away from home and the inflated Perth living and rental prices it is unsurprising that very few employees took up this offer.

[168] In August 2020 Jadestone again asked employees to relocate to Western Australia. Jadestone indicated that it would be unable to confirm how long any temporary relocations would need to remain in place or how long the financial incentives would be offered. This lack of certainty would no doubt have made the decision to relocate more difficult for employees particularly those with families and/or other commitments outside of Western Australia.142

[169] Jadestone eventually increased the financial and non financial support it was prepared to offer employees to relocate on either a temporary or permanent basis. The revised offer included airfares for family members, four weeks accommodation for family members, a lump sum payment of between $3000 and $15,000 plus some social support. Jadestone was clear that all other costs would be at the employee’s expense. It would appear likely that for most employees this package would still result in the employee being out of pocket financially. No doubt employees considering the request to relocate also took into account difficulties in finding schooling for their children, housing for their families and employment for their working spouses. 143

[170] There is no evidence before me that Jadestone engaged with individual employees to seek to renegotiate the terms of their contractual arrangements to agree terms which would secure relocation by consent.

Consequences of border restriction preventing an employee commencing their roster

[171] The question of what would happen if an employee was unable to travel to the Montara because of Western Australian Government border restrictions was canvassed at the August Townhall. Mr Lattimer says he did not attend the August Townhall and there is no evidence before me that he did.

[172] On the evidence before me I believe it most probable that Mr Read indicated to the employees, that did attend, that employees who are unable to get to work due to border restrictions would be placed on unpaid leave at least initially however, if the situation persisted at some unspecified time in the future their contracts may be terminated. I express no view as to if or when that might be a legally available option. Given the existence of clause 14.1.11 in the Enterprise Agreement this unspecified period arguably might be expected to be longer than in cases of contract frustration where such a condition did not exist.

Alleged renunciation of contract

[173] Notwithstanding Jadestone’s unilateral change to his roster and the implications this would have had for his personal commitments and responsibilities outside of the workplace Mr Lattimer complied with the altered roster pattern. Notwithstanding the personal and financial cost to Mr Lattimer in relocating to Western Australia or another State or Territory two weeks prior to his ‘on duty’ period each ‘on duty’ period, Mr Lattimer did so on multiple occasions between May 2020 and May 2021.

[174] On 18 May 2021 Mr Lattimer commenced a period rostered off duty and returned to his home in Queensland. 144

[175] On Saturday 26 June 2021 during a period rostered off duty on leave Mr Lattimer sustained an injury while collecting wood. The injury caused him substantial pain and he was unable to drive. He secured the first available appointment with his doctor at 9am Monday 28 June 2021. The examining doctor instructed him not to bend, twist or lift and to ‘change position keep moving’. The doctor certified him unfit for work from 28 June 2021 until 4 July 2021. 145

[176] The same day Mr Lattimer informed both Mr Brown, the Offshore Installation Manager and Mr Marschner the Operations Supervisor that he was injured but that as soon he was fit to fly he would do so even if he remained unfit to work. He provided both men with a copy of his medical certificate. 146 This is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it.

[177] At the Hearing Jadestone sought to argue that Mr Lattimer renunciated his contract because:

[178] Mr Brown, Mr Marschner nor anyone else at Jadestone indicated to Mr Lattimer on 28 June 2021 or prior to his dismissal that Jadestone challenged the legitimacy of Mr Lattimer’s medical certification. Nor did anyone at Jadestone indicate to Mr Lattimer on 28 June or prior to his dismissal that Jadestone needed medical evidence specifically stating that he was not fit to fly to Western Australia. In fact neither man responded to his email.

[179] Jadestone did not seek to call Mr Lattimer’s treating doctor. Instead they attempted to engaged in a last minute last ditch fishing expedition via applications for excessively broad production orders to discredit the existence and severity of Mr Lattimer’s injury.

[180] The consultation notes eventually admitted by consent reveal that Mr Lattimer’s doctor was aware that he was a fly in fly out worker and specifically state he should ensure that he frequently change posture and keep moving. Neither readily achieved on a five hour flight from Queensland to Western Australia. I am satisfied that the medical certificate contemplated him being unfit for work which including travelling by air. The same notes reveal that he was referred to a ‘specialist’ for a ‘follow up appointment’ being a physio. The notes also reveal that he was specifically prescribed codeine four times daily. 147

[181] Given the pressures on the hospital system at the relevant time and the increased risk of contracting covid in an emergency department and that Mr Lattimer secured the first appointment on Monday morning I do not accept that any adverse inference about the severity of his injury should be drawn from him not seeking treatment on Sunday.

[182] Mr Lattimer replied within the hour to Mr Marschner’s email to his personal email address on 28 June 2021 indicating that he was in Queensland and had no contact from Jadestone’s HR 148. Mr Marscher responded to say that he would let HR know Mr Lattimer was online. Mr Lattimer remained by his computer awaiting contact from Jadestone.149

[183] Less than 30 minutes after Mr Brown sent Mr Lattimer an email asking Mr Lattimer if he wanted Mr Brown to assist him in organising quarantine accommodation and flights to Perth that day Mr Lattimer responded advising as follows: 150

“If you could assist that would be great. I have hurt my back and got a cert but as not working should be ok to go to the dreaded quarantine. I do not think I am fit to fly today, may need a couple of days.”

[184] The same day Mr Lattimer sent an email to Mr Marschner attaching a medical certificate explaining that he was not fit enough to travel that day but anticipated being so shortly and that he would appreciate assistance in making travel arrangements to travel as soon as he was fit to do so. This is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it. Notwithstanding Jadestone’s evidence that Mr Lattimer’s availability was critical to its operations neither Mr Brown nor Mr Marschner responded to Mr Lattimer’s email. 151

[185] In the absence of a response from either Mr Brown or Mr Marschner the following day Mr Lattimer sent Ms Cashman an email seeking her assistance to arrange his mobilisation. Ms Cashman did not respond to Mr Lattimer’s email. 152

[186] Having not received a response to his email to her on 29 June 2021 Mr Lattimer sent her two further emails on 2 July 2021 again seeking to organise his mobilisation. 153 This is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it. Eventually at 5:48pm on 2 July 2021 Ms Cashman replied to Mr Lattimer indicating that Ms Roberts would assist with his mobilisation.154

[187] On 3 July 2021 Mr Lattimer sent Mr Marschner another email seeking assistance to mobilise. 155

[188] At 12:43 on 3 July 2021 Mr Marschner responded to Mr Lattimer's email telling him that he would need to contact Ms Roberts to complete Jadestone’s return to work procedure because of his injury.  156 Within the hour Mr Lattimer contacted Ms Roberts asking for her assistance to complete the return to work from injury process and to obtain a Letter of Support to obtain a G2G Pass.157 This is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it.

[189] Mr Marschner responded to Mr Lattimer’s email to Ms Roberts explaining that she was travelling and unable to respond to him. In her absence Mr Marschner provided some information about the return to work from injury process. In the same email he revised his advice to Mr Lattimer to travel to Northern Territory advising him instead to seek approval to travel directly to Western Australia. 158

[190] Mr Lattimer promptly replied to the email a few minutes later explaining as follows: 159

“Hi Grant,

Thanks for the form, from what read into it I need my doc to sign off the certificate which I will have to wait until Monday and try for an appointment, with Helen away who else can I contact to see about trying to get an exemption for WA.

As mentioned I am keeping an eye on the states to see if they have changed their advise on borders.

Thanks,

Gordon Lattimer”

[191] Mr Lattimer was not provided with an alternative contact in HR. 160

[192] On 5 July 2021 in the absence of any further responses from Jadestone Mr Lattimer sent Mr Marschner the following email: 161

“Hi Grant,

How is the drilling campaign going well I hope, I will see the fruits of your labor when I get out.

I am assuming that at the moment I do not have exemption to enter WA. I know it will probably not make a difference but I have had my first vaccine the second due on16/08/2021.

I can get into NT and quarantine there in the hope that there is not another outbreak and it is returned to very low risk for WA. I would then be able to travel to Perth.

Please let me know the thoughts so if ok I can get it going. Many thanks,

Gordon Lattimer”

[193] At 9:15am on 6 July 2021 Mr Lattimer sent a further email to Ms Roberts as follows: 162

“Good morning Helen,

Hope you are fine and well?

Further to my email to Grant yesterday about returning.

My doctor’s certificate has now closed and though not completely out of the woods definitely fit to travel. I am enquiring as to the possibility of a exception to enter WA to quarantine prior to offshore travel?

If an exception is not available I can still enter the NT which is a low risk state.

The daily weekly average number is 1 meaning that so long as there are no more cases it should revert back to a very low risk state within the 14 days allowing entry into Perth. This runs some risk if more cases I get stuck there or quarantine in Perth again.

Please give some advice and assistance so I can get back to work in as timely manor as possible.

Many thanks,

Gordon .”

[194] Ms Roberts did not reply to Mr Lattimer’s email.

[195] Mr Marschner did not reply to Mr Lattimer’s email to him until 3:02pm on 6 July 2021. Mr Marschner explained that he would not give advice to Mr Lattimer about where he should fly in order to reach Western Australia. 163 Mr Lattimer replied:164

“Hi Grant,

Thanks for the reply, will await the letter and go for direct to Perth.

If that fails I will make my way to Darwin to self quarantine until, in hope the restrictions

change soonest.”

[196] On his own initiative Mr Lattimer booked to fly to the Northern Territory and informed Mr Marschner on 7 July 2021 accordingly. 165 This is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it.

[197] Without hours of receiving the 8 July 2021 Letter166 in which Mr Read indicated that Jadestone were intending to treat Mr Lattimer’s inability to mobilise as a frustration of contract Mr Lattimer responded as follows: 167

“Hello Keith,

I was unfortunately unable to fly at that time due to being injured and signed off by a doctor as unfit to fly, that is the only reason I did not travel on the advice of a ,qualifiied medical practitioner. I am currently in Darwin as the border will open sooner than that of Queensland. I am also available for a direct flight from Darwin to the Montara as this has been done on previous occasions.

I have done this under my own vocation so as to make myself available for work.

I have applied for a g2g pass with the letter sent today and been rejected.

I am available and could fly to the Montara tomorrow it necessary from Darwin.

As mentioned I was injured and unable to travel due to medical advice, this was communication to HR and I have had very little response to numerous emails sent.

Please let me know how to proceed to the Montara.”

[198] This is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it. Notwithstanding Jadestone’s evidence that Mr Lattimer’s availability to mobilise was critical to its operations Mr Read did not reply to Mr Lattimer’s email. 168

[199] On 10 July 2021 Mr Lattimer sent Mr Marschner, an email initiating a dispute in pursuant with clause 27.1 of the Enterprise Agreement in relation to the threatened termination of his employment. The dispute resolution procedure set out in clause 27 of the Enterprise Agreement provides at clause 27.5 that:169

“27.5 Whilst the above process is being followed the status quo will be preserved and employees will continue to perform their normal duties, subject to safe working practice and without prejudicing the rights of the employee or the Company.”

[200] Initiating a dispute which he believed would preserve his employment by virtue of status quo obligations is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it.

[201] On 11 July 2021 Mr Lattimer sent Mr Marschner the following email: 170

“Hello Grant,

Hope things are going well with there drilling?

The border restrictions from NT to WA go to very low risk as of midday tomorrow.

I will be able to enter without quarantine as of the 21st of July. I will apply for pre-approval for the G2G pass for that date, can you advise should I apply for travel via Perth or Trusscott airfield.

Thanks,

Gordon Lattimer”

[202] On 12 July 2021 Mr Lattimer’s G2G pass was approved and he was able to enter Western Australia. 171 He sent Mr Maschner the following email:172

“Hello Grant,

I have been checking the situation with WA and the border has been declared very low risk. I now have a G2G pass for the21st of July.

If you could advise the itinerary for travel when available please.

Many thanks,

Gordon Lattimer”

[203] This is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it.

[204] Given Mr Brown’s invitation to assist in making travel arrangements and the evidence that Jadestone typically organised mobilisation arrangements such as accommodation and flights I do not accept Jadestone’s submission that Mr Lattimer’s subsequent (and repeated) requests for assistance in mobilisation indicate a lack of effort on Mr Lattimer’s part to mobilise.

Jadestone’s Circumstances

[205] While sympathetic to the pressures on Jadestone to ensure adequate staffing, its circumstances are not uncommon or unique. Many businesses require minimum staffing of qualified and/or experienced personnel to operate safely and/or effectively. For almost all fly in and fly out operations the unavailability of incoming employees impacts on those scheduled to fly out. It is expensive for most businesses to secure replacement labour at short notice. Particularly during the COVID Pandemic when international and state border restrictions have severely impacted on the available local labour pool. Arguably a smaller business would be even more adversely impacted by staff absences than one of the size and resources of Jadestone.

[206] Employees who are engaged on a fly in fly out basis and their employers agree to that employment on the basis that those employees are able to return home to their houses, families and friends when not rostered on duty. The renumeration of those employees reflects those arrangements.

[207] Notwithstanding he did not formally agree to a change in roster and to relocate during off duty periods, Mr Lattimer did so to accommodate Jadestone’s circumstances.

[208] Up until 27 June 2021, during Mr Lattimer’s off duty period, Queensland was classified as “very low risk” by the Government of Western Australia which would allow for all travellers from Queensland to obtain a “G2G” pass and freely enter Western Australia without the need to quarantine or self-isolate. Mr Lattimer had therefore placed himself in a ‘very low risk’ state.

[209] If Jadestone wished to employ only local labour they could have chosen to offer Mr Lattimer and his colleagues renumeration packages dependent upon local residency which were sufficiently lucrative to cause Mr Lattimer and his colleagues to relocate. The financial incentives which Jadestone offered were clearly insufficient to do so.

[210] The circumstances of an employer must be balanced against the needs and rights of employees. Employees who are genuinely unwell should be able to seek medical treatment appropriate for their condition. Such employees should not be compelled to work or travel to work when they are not fit to do so. Employees who are certified unfit for work should be able to utilise accrued personal leave without the risk of dismissal. An employer must be aware of these fundamental needs and rights of its employees, particularly a sophisticated, large employer such as Jadestone

Conclusion

[211] There is nothing about Mr Lattimer’s conduct which suggests that he intended to renunciate his employment contract as a whole or his fundamental obligations under it when he did not commence work on 13 July 2021. To the contrary he appeared to take multiple proactive steps to ensure he could attend his shift as rostered and inform his employer that he wished to continue in employment.

[212] There is no evidence of a pattern of conduct of failing to attend his roster shifts. In fact the evidence is to the contrary. On multiple occasions Mr Lattimer relocated two weeks in advance of the start of his rostered shift to ensure that he was able to work when rostered to do so.

[213] Based on the terms of the Enterprise Agreement and his prior experiences of Jadestone accommodating other employees unable to mobilise it was reasonable for him to presume that if he couldn’t get to Western Australia as a consequence of border restrictions he would have the option to take unpaid leave for some period of time before his employment would be at risk.

[214] I am not satisfied that Mr Lattimer abandoned his employment.

[215] The concept of termination at the initiative of the employer was considered and helpfully summarised by Deputy President Asbury in Sharpe v MCG Group Pty Ltd173 as follows:

“[23] By virtue of s.385(a) of the Act, an employee will be entitled to bring an application for relief in respect of an unfair dismissal, only in circumstances where the employee has been dismissed. Section 386(1) provides that a person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[24] In O’Meara v Stanley Works Pty Ltd (O’Meara), a Full Bench of the Australian Industrial Relations Commission (AIRC) considered cases dealing with the concept of termination at the initiative of the employer, with particular emphasis on the decision of the Full Court of the Federal court in Mohazab v Dick Smith Electronics (Mohazab). A number of principles can be distilled from passages of Mohazab emphasised by the Full Bench in O’Meara. Essentially, termination at the initiative of the employer involves as an important feature, that the act of the employer results directly or consequentially in the termination of the employment, so that the employee does not voluntarily leave the employee relationship. That is, had the employer not taken

the action, the employee would have remained in the employment relationship.

[25] The term “initiate” should not be given a narrow meaning. Even where an employee does some act which is the first in a chain of circumstances that leads to termination, the focus should be on the step or steps that effectively terminated the employment, or the critical action or actions.

…

[28] The Full Bench in ABB Engineering went on to stress the need for an objective analysis of the employer’s conduct in cases where that conduct is said to have been the principal contributing factor in the termination of employment. The Full Bench in O’Meara said that these cases require that there be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of doing so, in order that there be a termination of employment at the initiative of the employer.”

[216] Jadestone asserts that it was the Mr Lattimer’s conduct in not being immediately available to travel that caused the employment relationship to end. This assertion is unsustainable in circumstances where Mr Read gave evidence that, in other instances where employees were unable to travel and make their roster, Jadestone accommodated their circumstances. In Mr Lattimer’s case Jadestone chose not to try to accommodate him notwithstanding his medical certification and his efforts to mobilise. Instead Jadestone inexplicably and in direct conflict with the provisions of the Enterprise Agreement decided to treat Mr Lattimer differently and terminate his employment.

[217] I find, that Mr Lattimer’s employment with Jadestone was terminated at the initiative of Jadestone.

[218] I am therefore satisfied that Mr Lattimer has been dismissed within the meaning of section 385 of the FW Act.

Was the Application made within the period required?

[219] Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.

[220] Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.

[221] It is not disputed, and I find, that Mr Lattimer was dismissed from his employment on 13 July 2021 and made the Application on 29 July 2021. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.

Was the dismissal harsh, unjust or unreasonable?

[222] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 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.”174

[223] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

[224] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.175

Was there a valid reason for the dismissal related to Mr Lattimer’s capacity or conduct?

[225] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”176 and should not be “capricious, fanciful, spiteful or prejudiced.”177 However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.178

[226] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.179 The question of whether the alleged conduct took place and what it involved is to be determined by the FWC on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.180

[227] The Termination Letter identifies the reason for termination as follows:181

“RE: Termination for Frustration of Employment Contract

Dear Gordon,

Further to our letter of 8th July 2021, you have failed to make yourself available to mobilise to the facility on 13th July 2021 in accordance with your contractual employment obligations.

The Company has carefully considered all information concerning this matter, particularly the events leading up to your decision to not mobilise for work:

● On June 27, the Western Australian Government advised that Queensland had been moved to a "low risk" jurisdiction meaning anyone arriving into Western Australia from Queensland would need to quarantine or self-isolate for 14 days.

● On the morning of June 28, you were contacted by the Montara OIM and requested to mobilise immediately. There were numerous flight options available that day and the following day for you to travel to Western Australia.

● On the afternoon of June 29, Queensland was then moved to "medium" risk by the Western Australian Government meaning people from Queensland could only travel to Western Australia with a special exemption and would need to undertake 14 days quarantine on arrival.

You therefore had ample opportunity to freely travel to Western Australia, including being specifically requested to do so by the company prior to Queensland being moved to "medium risk" by the Western Australian Government, in order to undertake quarantine and ensure you would be able to mobilise for your roster.”

[228] Mr Lattimer was not rostered to mobilise or to commence work on 13 July 2021 in accordance with his contract and the Enterprise Agreement. He was rostered according to a roster unilaterally imposed by Jadestone.

[229] The consequence of the reclassification of Queensland by the Western Australian State Government was that Mr Lattimer needed to leave Queensland and arrive in Western Australia or another location classified as ‘low risk’ by the Western Australian Government before midnight on 28 June 2021 in order to complete a fourteen day quarantine period before commencing his next rostered period of duty. Mr Lattimer did not have “…ample opportunity to freely travel to Western Australia.”

[230] Up until 27 June 2021, during Mr Lattimer’s off duty period, Queensland was classified as “very low risk” by the Government of Western Australia which would allow for all travellers from Queensland to obtain a “G2G” pass and freely enter Western Australia without the need to quarantine or self-isolate. Mr Lattimer had therefore ensured up until 27 June 2021 that he was located in a ‘very low risk’ state while off duty.

[231] Mr Lattimer indicated that he intended to mobilise as soon as he was fit to travel. 182

[232] Mr Lattimer did not fail to make himself ‘available’. He suffered an injury during a rostered period off duty on leave which required treatment and in relation to which he held a valid medical certificate which certified him unfit until 4 July 2022. 183

[233] Of his own initiative Mr Lattimer repeatedly communicated with his employer his health status during a period of which he was rostered off duty on leave so as to minimise the impact of his health on business operations. 184

[234] Jadestone did not question the authenticity of his medical condition or his medical certificate prior to his dismissal. Jadestone did not request that he separately provide evidence that he was not fit to travel or quarantine.

[235] On his own initiative Mr Lattimer sought to obtain a permit to travel. On multiple occasions he requested the relevant supporting information from Jadestone to ensure that his application had the greatest possibility of success. 185

[236] Contrary to Jadestone’s evidence that Mr Lattimer’s attendance at work was critical to its operations Jadestone made his attendance at work more difficult by failing to respond to his emails seeking assistance to mobilise, delaying issuing a letter of support and reframing the letter in the way it did.  186

[237] On his own initiative and expense Mr Lattimer booked to fly to the Northern Territory to try to position himself to be able to mobilise to Montara on time. 187

[238] There is no evidence of a prior pattern of conduct on the part of Mr Lattimer of failing to attend his roster shifts. In fact the evidence is to the contrary. On multiple occasions Mr Lattimer relocated two weeks in advance of the start of his rostered shift, notwithstanding the personal costs of doing so, to ensure that he was able to work when rostered to do so.

[239] Based on the terms of the Enterprise Agreement and his prior experiences it was not unreasonable for Mr Lattimer to presume that if he couldn’t get to Western Australia because of border restrictions he would have the option to take unpaid leave and would be assisted by his employer to join the Montara mid roster.

[240] On 10 July 2021 Mr Lattimer sent Mr Marschner, an email initiating a dispute pursuant to clause 27 of the Enterprise Agreement in relation to the threatened termination of his employment.188 Notwithstanding the existence of a status quo provision in the dispute resolution procedure and its assertion that Mr Lattimer’s availability to perform his roster was critical to its operations Jadestone proceeded with his dismissal.

[241] Ultimately I find that Mr Lattimer was dismissed because he refused to relocate to Perth for an indefinite period so that he would not be prevented from mobilising due to sudden changes in border classification. I am not satisfied that this is a valid reason for his dismissal in the circumstances including that:

[242] While it was operationally inconvenient that Mr Lattimer was unable to commence his shift as rostered I am not satisfied that it is a valid reason for his dismissal.

Was Mr Lattimer notified of the valid reason?

[243] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,189 and in explicit,190 plain and clear terms.191

[244] The proposed reasons for the decision to terminate Mr Lattimer’s employment were communicated to him in the 8 July 2021 Letter.192

[245] The 8 July 2021 Letter identified the proposed reason for dismissal as a breach of contractual obligations.193 The Termination Letter identifies the reason for dismissal as “termination for frustration of employment contract”.194

[246] In the submissions filed in advance of the Hearing Jadestone identified the reason for dismissal as frustration of contract or in the alternative abandonment of contract. At the Hearing Jadestone abandoned the argument that the contract had been frustrated in favour of an argument that it had been abandoned. 195

[247] Breach of contract, frustration of contract and abandonment of contract are very different legal concepts. Not identifying the ground upon which Jadestone dismissed Mr Lattimer until after his dismissal denied him the opportunity to properly respond to the reasons for his dismissal.

[248] I find that Mr Lattimer was not notified of the reasons for his dismissal before the decision was made to terminate his employment,196 in explicit,197 plain and clear terms.198

Was Mr Lattimer given an opportunity to respond to any valid reason related to his capacity or conduct?

[249] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.199

[250] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.200 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance, and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.201

[251] Mr Lattimer was not invited to respond to the reasons for his dismissal.

[252] The 8 July 2021 Letter did not invite a response, although it elicited one from the union and Mr Lattimer. It is not clear on the evidence before me whether the union did so specifically on behalf of Mr Lattimer.

[253] Mr Lattimer independently lodged a dispute notification pursuant to clause 27 of the Agreement.202 Jadestone did not provide him with this opportunity. It was a right which existed by virtue of the Enterprise Agreement. The dispute notification merely notified of the existence of a dispute. Jadestone did not seek further details of the dispute such that the dispute resolution process might have been characterised as having provided an opportunity for Mr Lattimer to respond to the reasons for his dismissal.

[254] On 13 July 2021 Jadestone sent Mr Lattimer the Termination Letter without further discussions with him informing him that his employment had been terminated effective immediately.

[255] I find that Mr Lattimer was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss him being made rather he created one himself.

Did Jadestone unreasonably refuse to allow Mr Lattimer to have a support person present to assist at discussions relating to the dismissal?

[256] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[257] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”203

[258] No discussions were held with Mr Lattimer in relation to his dismissal, therefore no opportunity arose for him to request that a support person be present or for that request to be denied.

[259] I have therefore treated this as a neutral factor.

Was Mr Lattimer warned about unsatisfactory performance before the dismissal?

[260] As the dismissal did not relate to unsatisfactory performance, I have treated this as a neutral factor.

To what degree would the size of Jadestone’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[261] Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.204

[262] Jadestone is a large business with the financial resources and sophistication such that its size provides no explanation for its failure to observe procedural fairness.

[263] Having found that Jadeston’s size was not likely to impact on the procedures it followed in effecting the dismissal I have therefore treated this as a neutral factor.

To what degree would the absence of dedicated human resource management specialists or expertise in Jadestone’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[264] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”205

[265] Jadestone’s enterprise did not lack dedicated human resource management specialists and expertise. In these circumstances the failure to observe procedural fairness is inexplicable.

[266] Having found that Jadestone did not lack dedicated human resource management specialists and expertise I have treated this as neutral factor.

What other matters are relevant?

[267] Section 387(h) requires the FWC to take into account any other matters that the FWC considers relevant.

[268] Mr Lattimer submits that the following matters are relevant considerations:

[269] Both clauses of the Enterprise Agreement are incorporated into Mr Lattimer’s employment contract.

[270] Clause 14.1.11 of the Enterprise Agreement specifically contemplates circumstances in which an employee fails to attend for duty:206

“14.1.11 Should an employee without reasonable excuse fail to report for duty or report for duty unfit for work, they will be suspended without pay until they can either:

▪ Rejoin the facility on a scheduled flight;

▪ Be engaged on alternate useful work at the Company's option; or

▪ Have the period of suspension approved by the Company, in whole or part, as an approved absence, with or without pay.”

[271] Jadestone submit that clause 14.1.11 “has no part to play” in the FWC’s considerations. Jadestone don’t articulate why. Jadestone go on to submit that clause 14.1.11 does not override the right to dismiss in the event an employee fails to report to duty. Rather they say it confirms that the minimum disciplinary consequence is suspension and emphasises the seriousness of failing to report to duty.

[272] The FWC has no power to enforce this provision of the Agreement or to impose penalties for its breach. However, the existence of the clause is highly relevant to these proceedings. It demonstrates that the parties had turned their minds to the possibility of an employee failing to commence a rostered period of work and that they had agreed a mechanism to deal with such an incident other than by dismissal.

[273] The existence of the clause suggests that the parties contemplated something other than dismissal as a consequence for an employee failing to attend for duty. In fact the clause contemplates Jadestone granting paid leave for such absences. While the clause would not necessarily act as a bar to prevent a contract ever being frustrated the clause must have some work to do. The approval of the Enterprise Agreement and the consequential contractual variation to include it in Mr Lattimer’s contract all occurred in the course of the COVID-19 pandemic when the parties were aware that absences from work as a consequence of covid disruptions was a real possibility. Arguably the clause decreases the seriousness of a failure to report to duty than might otherwise be the case without such a clause.

[274] Jadestone submit that the dispute resolution procedure was not properly activated by Mr Lattimer because clause 27.2 of the Enterprise Agreement states that “The employee will raise and discuss the matter with his or her immediate supervisor whilst on the facility” and that therefore a dispute can not be activated while an employee is not on the facility. Furthermore, Jadestone submit that the dispute raised by Mr Lattimer did not fall with the scope of clause 27 of the Enterprise Agreement.

[275] The Full Bench, in Princess Linen Services Pty Ltd v United Workers’ Union207 at [15] and [16] of its decision explained the principles of interpretation of enterprise agreements as follows:

“The most succinct expression of the correct approach is that articulated by the Federal Court Full Court in WorkPac Pty Ltd v Skene as follows (citations omitted):

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose…”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”

The Full Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).”

[276] The principles of interpretation applicable to enterprise agreements are well-settled. The terms are to be given their plain and ordinary meaning, read within the instrument as a whole and in light of the instrument’s industrial context and purpose, and against the legislative background against which the instrument was made and is to operate. It is justifiable to read the agreement to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. A Court or Tribunal will not adopt a narrow or pedantic approach to the interpretation of enterprise agreements.208

[277] It is not strictly necessary for me to reach a concluded view as to whether Mr Lattimer validly initiated a dispute. However, I am inclined to the view that it is unlikely that the parties intended such a strict application of the language used in clause 27 such that an employee would have to travel to the facility in order to commence the process of resolving a dispute relevant to their return to the facility.

[278] Mr Lattimer described his dispute in the following way: 209

“I wish to advise that I am in dispute with Jadestone regarding their decision to issue me a written warning to terminate my employment with Jadestone as a consequence of my inability to mobilise to Western Australia as a result of a decision by the WA Government to restrict my entry into Western

Australia.

I am seeking the Company withdraw their threat to terminate my employment. I am also seeking Jadestone commence discussions with my representative (the Australian Workers Union) about the WA Border restrictions and the impact such restrictions have on the ability for employees to mobilise to the facility.”

[279] The dispute resolution procedure has a broad scope: 210

“The parties commit to making every endeavour to settle issues raised by employees concerning their employment …”

[280] I am inclined to the view that a dispute of the nature raised by Mr Lattimer comfortably falls within the scope of the dispute resolution procedure set out in clause 27 of the Agreement.

[281] The status quo provision provides that: 211

“27.5 Whilst the above process is being followed the status quo will be preserved and employees will continue to perform their normal duties, subject to safe working practice and without prejudicing the rights of the employee or the Company.”

[282] The status quo clause would have no work to do if the Company was able to simply ignore it and continue the course of action the subject of the dispute. The dispute resolution process could have proceeded without prejudicing the rights of Jadestone to ultimately dismiss Mr Lattimer once the dispute was resolved.

[283] In my view the existence of clauses 14 and 27 of the Enterprise Agreement weigh in favour of Mr Lattimer’s dismissal being unfair.

[284] Jadestone submits that the following matters are relevant considerations:

[285] These are all matters which are considered earlier in the decision in relation to the question of whether Mr Lattimer was dismissed and whether his dismissal was for a valid reason. I have also taken them into account when considering whether his dismissal was harsh, unjust or unreasonable more broadly. I also note the following in relation to those submissions:

Conclusion

[286] For the reasons set out earlier in this decision I am view that Mr Lattimer’s dismissal was procedurally unfair.

[287] Jadestone submit that even if it is accepted that Mr Lattimer was denied procedural fairness the dismissal was not harsh, unjust or unreasonable given the reasons for his dismissal. Jadestone cite a number of cases in support of this submission. In each of these cases a valid reason was found to have existed for the dismissal. In Scott v Aqua Environmental Pty Ltd212 the applicant was absent from work on multiple occasions without approval. In Oren v Garry Crick Auto Group213 the applicant failed to perform his duties properly despite training and contrary to law. In De Silva v ExxonMobil Chemical Australia Pty Ltd214 the applicant had consistently failed to perform their duties properly.

[288] In its submissions Jadestone point out that:215

“In circumstances where the employee is aware of the precise nature of the employer’s concern about his or her conduct and has an opportunity to provide a response, the Commission has previously found the procedural deficiency is not of sufficient significance to render the termination harsh, unjust or unreasonable.”

[289] This case is fundamentally different. There was no valid reason for Mr Lattimer’s dismissal. Mr Lattimer was not aware of the precise nature of his employer’s concern. Mr Lattimer was not provided with an opportunity to provide a response, rather, he was forced to create his own by initiating a dispute pursuant to the dispute resolution procedure.

[290] I have considered each of the matters specified in section 387 of the FW Act. I am satisfied that the dismissal of Mr Lattimer was harsh given the barriers to him securing alternative employment with comparable renumeration given his age. I am satisfied that the dismissal of Mr Lattimer was unjust because it was without a valid reason. I am satisfied that the dismissal of Mr Lattimer was unreasonable because he had taken steps to ensure his availability for work but was unable to do so due to no fault of his own. Accordingly, I find Mr Lattimer’s dismissal was unfair.

Remedy

[291] Mr Lattimer seeks an order that he be reinstated with continuity of service and be compensated the remuneration lost between the date of his dismissal and his reinstatement.

[292] Section 390 of the FW Act sets out the circumstances in which an order for reinstatement or compensation may be made:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[293] I am satisfied that Mr Lattimer was protected from unfair dismissal pursuant to section 382 of the FW Act and was dismissed unfairly.

[294] Reinstatement is the FW Act’s primary remedy for unfair dismissal and must be ordered if sought unless the FWC is satisfied on proper grounds that reinstatement is not appropriate.

[295] In DP World Sydney Limited v Lambley216 the Full Bench of the FWC said:

“The language of s.390 makes the position pellucidly clear. The Commission “must” order reinstatement unless reinstatement of the person is inappropriate.”

[296] The Directions required the parties to file submissions and evidence in relation to remedy.

[297] Mr Lattimer submits that reinstatement would be appropriate given the circumstances of his dismissal.

[298] Jadestone submits reinstatement would be inappropriate because it says the relationship of trust and confidence between Jadestone and Mr Lattimer has been destroyed “… as a result of Lattimers failure to attend for work as required by Jadestone.” Jadestone submit that this one failure creates a likelihood that additional absences will occur in the future with adverse consequences to Jadestone’s operations. Jadestone say that given Mr Lattimer’s absence on 13 July 2021 and the controlled border arrangements put in place by the Western Australian Government that further performance by Mr Lattimer of his contractual obligations would either be impossible or radically different than his contractual obligations.217

[299] Trust and confidence is a necessary ingredient in any employment relationship. Where trust and confidence have been lost, reinstatement may be impractical.218

[300] It is not sufficient to merely state there has been a loss of trust and confidence.219The reason for the loss of trust and confidence must be ‘soundly and rationally based’.220 The assessment requires the FWC to carefully consider the facts of the matter by scrutinising the basis for any alleged breakdown of trust and confidence. The FWC is entitled to consider the rationality of any attitude taken by a party.221

[301] Jadestone’s assertion that there has been a break down of trust and confidence is evidenced only by the opinion of Mr Read.

[302] The proper assessment of an alleged loss of trust and confidence in the employment relationship was extensively considered in Perkins v GraceWorldwide (Aust) Pty Ltd222 (Perkins) In Perkins, Wilcox CJ and Marshall and North JJ made the following statement:223

“So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”

[303] The question of whether the relationship can be restored if the employee is reinstated cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account.224

[304] Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.225

[305] Mr Lattimer failed to attend work because he was unfit to do so. Jadestone did not query the veracity of his state of health prior to his dismissal which suggests that it did not believe that it had a basis for suggesting his fitness for work was falsified.

[306] Mr Lattimer has not demonstrated any pattern or tendency of failing to attend work without lawful excuse.

[307] There is no evidence to suggest that he is likely to fail to attend to work in the future without lawful excuse.

[308] As at the date of this decision the Western Australian Government has removed the hard border and travel between Western Australia and Queensland is now unrestricted.

[309] While it may be embarrassing or frustrating for Jadestone to be required to re-employ a person it believed to have been unsympathetic to the position in which Jadestone found itself and ungrateful for the steps taken by Jadestone to minimise the impact of COVID-19 on its operations I do not think that this makes the restoration of the employment relationship impracticable.

[310] In all of the circumstances I consider that an order for the reinstatement of Mr Lattimer is appropriate.

[311] Section 391(1) of the FW Act provides that an order for reinstatement must be an order that Jadestone reinstate Mr Lattimer by:

[312] There is no evidence before me to suggest that the position in which Mr Lattimer was employed in immediately before his dismissal no longer exists.

[313] I am satisfied that it is open to me to make an order reappointing Mr Lattimer within seven days of the date of this decision to the position in which Mr Lattimer was employed immediately before his dismissal.

[314] Section 391(2) of the FW Act provides that, if the FWC makes an order for reinstatement and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

[315] In all the circumstances, particularly that Mr Lattimer was denied procedural fairness and that no valid reason existed for his dismissal I consider it appropriate to make an order to maintain Mr Lattimer’s continuity of employment and period of continuous service with Jadestone.

[316] Section 391(3) of the FW Act provides that, if the FWC makes an order for reinstatement and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to an applicant an amount for the remuneration lost, or likely to have been lost, by the applicant because of the dismissal.

[317] Section 391(4) of the FW Act provides that, in determining an amount for the purposes of such an order, that I must take into account:

[318] An order to restore lost pay does not necessarily follow an order for reinstatement. The FWC may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.226 Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.227

[319] In all the circumstances, particularly given that Mr Lattimer was denied procedural fairness and that no valid reason existed for his dismissal, I consider it appropriate to make an order to restore lost pay.

[320] An Order228 giving effect to this Decision will be issued with this Decision.

tle: Seal of the Fair Work Commission with DP Binet's Signature

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR741013>

Appearances:

Mr B Wilson, for the Applicant.

Mr J Bourke QC, for the Respondent.

Hearing details:

2022.

Perth.

20 January.

Final written submissions:

Applicant, 25 February 2022.

Respondent, 4 February 2022.

1 Warrell v Walton (2013) 233 IR 335, 341 [22].

2 Exhibit DCB1 at 35-135.

 3   Exhibit DCB1 at 181-359.

 4   Exhibit DCB1 at 360-363.

5 Exhibit DCB1 at 364-365.

 6   Exhibit DCB1 at 366-409.

 7   Exhibit DCB1 at 182.

 8   Exhibit DCB1 at 183.

 9   Exhibit DCB1 at 184.

 10   Exhibit DCB1 at 364 -365.

 11   Exhibit DCB1 at 5, 37.

 12   Exhibit DCB1 at 37, 213—216.

13 Exhibit DCB1 at 218-238.

14 Exhibit DCB1 at 223.

15 Ibid.

16 Exhibit DCB1 at 453.

17 Exhibit DCB1 at 280-281.

 18   Exhibit DCB1 at 37.

19 Exhibit DCB1 at 282-283.

20 Exhibit DCB1 at 186.

21 Exhibit DCB1 at 38, 186 and 287-288.

22 Exhibit DCB1 at 187.

23 Ibid.

 24   Ibid.

25 Ibid.

 26   Exhibit DCB1 at 38.

27 Exhibit DCB1 at 188.

28 Ibid.

29 Ibid.

 30   Exhibit DCB1 at 189.

 31   Exhibit DCB1 at 38, 278

32 Exhibit DCB1 at 39, 278. I have preferred the evidence of Mr Read over that of Mr Lattimer where their evidence differed as to Mr Lattimer’s roster pattern given Mr Lattimer’s concession during the Hearing that some of the dates in his evidence may not be correct.

33 Exhibit DCB1 at 189-190.

34 Exhibit DCB1 at 190.

35 Exhibit DCB1 at 289-292.

 36   Ibid.

37 Exhibit DCB1 at 192.

38 Ibid.

39 Exhibit DCB1 at pages 192-193.

 40   Exhibit DCB1 at 193.

41 Exhibit DCB1 at 360-361.

42 Exhibit DCB1 at 362.

 43   Applicant on Transcript at PN689.

44 Exhibit DCB1 at 278.

45 Exhibit DCB1 at 294.

46 Exhibit DCB1 at 278.

47 Exhibit DCB1 at 297.

48 Exhibit DCB1 at 194.

49 Exhibit DCB1 at 279.

50 Exhibit DCB1 at 40, 194.

51 Exhibit DCB1 at 194-195.

52 Exhibit DCB1 at 195.

53 Ibid.

54 Exhibit DCB1 at 39, 279.

55 Exhibit DCB1 at 195-196.

56 Exhibit DCB1 at 39.

57 Exhibit DCB1 at 196.

58 Exhibit DCB1 at 279.

59 Exhibit DCB1 at 196.

60 Ibid.

61 Ibid.

62 Exhibit DCB1 at 299-300.

 63   Exhibit DCB1 at 197.

 64   Ibid.

65 Exhibit DCB1 at 197-198

66 Exhibit DCB1 at 198.

67 Exhibit DCB1 at 279.

68 Jadestone Energy (Australia) Pty Ltd [2021] FWCA 2942.

69 Exhibit DCB1 at 39.

70 Exhibit DCB1 at 276-277.

71 Exhibit DCB1 at 250-251.

 72   Exhibit DCB1 at 279.

 73   Exhibit DCB1 at 41; Exhibit A1; Exhibit A2.

 74   Exhibit DCB1 at 167.

 75   Exhibit DCB1 at 200.

 76   Exhibit DCB1 at 101.

 77   Exhibit DCB1 at 101-102.

 78   Exhibit DCB1 at 41.

 79   Exhibit DCB1 at 103.

 80   Exhibit DCB1 at 41.

 81   Ibid.

 82   Exhibit DCB1 at 107.

 83   Exhibit DCB1 at 43.

 84   Exhibit DCB1 at 108.

 85   Exhibit DCB1 at 42.

86 Exhibit DCB1 at 202.

87 Ibid.

 88   Exhibit DCB1 108.

 89   Exhibit DCB1 at 108.

 90   Ibid

 91   Exhibit DCB1 at 109.

 92   Exhibit DCB1 at 113.

 93   Exhibit DCB1 at 114.

 94   Exhibit DCB1 at 114-115.

 95   Ibid.

 96   Exhibit DCB1 at 112.

 97   Exhibit DCB1 at 111.

 98   Exhibit DCB1 at 110.

 99   Exhibit DCB1 at 42.

 100   Exhibit DCB1 at 115.

 101   Exhibit DCB1 at 337.

 102   Exhibit DCB1 at 121.

 103   Exhibit DCB1 at 335.

 104   Exhibit DCB1 at 121.

 105   Exhibit DCB1 at 339.

106 Exhibit DCB1 at 342-343.

 107   Exhibit DCB1 at 126.

 108   Exhibit DCB1 at 43.

109 Exhibit DCB1 at 347-348.

110 Exhibit DCB1 at 350.

111 Exhibit DCB1 at 263.

 112   Exhibit DCB1 at 351.

 113   Exhibit DCB1 at 43.

 114   Exhibit DCB1 at 352.

115 Exhibit DCB1 at 133-135

116 Exhibit DCB1 at 141, 459.

117 Exhibit DCB1 at 43.

118 Ibid.

119 Section 383 of FW Act..

 120   Exhibit DCB1 at 364 -365.

 121   Exhibit DCB1 at 356-359.

122 Exhibit DCB1 at 453.

 123   Exhibit DCB1 at 356-359.

124 Exhibit DCB1 at 159-160.

 125   Jadestone’s Closing Submissions filed on 4 February 2022 at 2-3.

126 [2018] FWCFB 139.

127 Ibid, [21].

128 Sharpe v MCG Group Pty Limited [2010] FWA 2357, [29].

129 Visscher v Giudice (2009) 239 CLR 361, [55].

130 Abandonment of Employment [2018] FWCFB 139, [21], citing Visscher v Giudice (2009) 239 CLR 361, [53].

131 Exhibit DCB1 at 453.

132 Exhibit DCB1 at 453-454, 280-281.

133 Exhibit DCB1 at 213-238.

 134   Exhibit DCB1 at 414

135 Ibid.

 136   Exhibit DCB1 at 276.

 137   Ibid.

138 Exhibit DCB1 at 45.

 139   Exhibit DCB1 at 414.

140 Exhibit DCB1 at pages 280-281.

141 Exhibit DCB1 at 455.

142 Ibid.

 143   Ibid.

 144   Exhibit DCB1 at 279.

 145   Exhibit DCB1 at 41; Exhibit A1; Exhibit A2.

 146   Exhibit DCB1 at 101-102, 41, 150, 107, 43.

 147   Exhibit A2

 148   I do not accept Jadestone’s submission that he ought of replied to an email sent to his Jadestone address when he was rostered off duty on leave and in the absence of evidence that he could in fact access such emails.

 149   Exhibit DCB1 at 101-102.

 150   Exhibit DCB1 at 103.

 151   Exhibit DCB1 at 43.

 152   Exhibit DCB1 at 42.

 153   Exhibit DCB1 at 108.

 154   Exhibit DCB1 at 109.

 155   Exhibit DCB1 at 114.

 156   Exhibit DCB1 at 114-115.

 157   Exhibit DCB1 at 112.

 158   Exhibit DCB1 at 111.

 159   Exhibit DCB1 at 110.

 160   Exhibit DCB1 at 42.

 161   Exhibit DCB1 at 115.

 162   Exhibit DCB1 at 337.

 163   Exhibit DCB1 at 121.

 164   Exhibit DCB1 at 335.

 165   Exhibit DCB1 at 121.

166 Exhibit DCB1 at 342-343.

 167   Exhibit DCB1 at 126.

 168   Exhibit DCB1 at 43.

169 Exhibit DCB1 at 263.

 170   Exhibit DCB1 at 351.

 171   Exhibit DCB1 at 43.

 172   Exhibit DCB1 at 352.

173 [2010] FWA 2357.

174 (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).

175 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

176 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

177 Ibid.

178 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

179 Edwards v Justice Giudice (1999) 94 FCR 561, 565 [7] (Moore J).

180 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23] - [24].

181 Exhibit DCB1 at 133-135.

 182   Exhibit DCB1 at 104.

 183   Exhibit A1.

 184   Exhibit DCB1 at 101-132.

 185   Exhibit DCB1 at 112, 126.

 186   Exhibit DCB1 at 339.

 187   Exhibit DCB1 at 121,126.

188 Exhibit DCB1 at 292.

189 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73] (‘Crozier’).

190 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

191 Ibid.

192 Exhibit DCB1 at 342-343.

193 Ibid.

194 Exhibit DCB1 at 133-135.

 195   Exhibit DCB1 at 160-163.

196 Crozier, 151 [73]..

197 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

198 Ibid.

199 Crozier, 151 [75].

200 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

201 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

202 Exhibit DCB1 at 292.

203 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

204 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].

205 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].

206 Exhibit DCB1 at 250-251.

207 [2021] FWCFB 1903.

208 See Kucks v CSR Ltd (1996) 66 IR 182, 184; WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005 at [114].

209 Exhibit DCB1 at 350.

210 Exhibit DCB1 at 263.

211 Ibid. 7, 97, 74.

212 [2011] FWA 3713.

213 [2014] FWC 6553.

214 (SDP Lacy, 9 January 2002, PR910623).

215 Exhibit DCB1 at 173.

216 [2013] FWCFB 9230 at [138].

217 Exhibit DCB1 at 169.

218 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 at [24], [40].

219 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191.

220 Ibid.

221 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Nguyen), [28].

222 (1997) 72 IR 186.

223 Ibid.

224 Haigh v Bradken Resources Pty Ltd [2013] FWC 7493, [13] citing Regional Express Holdings Limited trading as REX Airlines v R Richards [2010] FWAFB 8753, [26].

225 Nguyen, [27] citing Tenix Defence Pty Ltd v Galea [2003] AIRC (11 March 2003) at [7]-[8].

226 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].

227 See Regional Express Holdings Ltd v Richards [2010] FWAFB 8753, [29].

228 PR741015.