| [2020] FWC 4819 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Samuel Tiavo
v
Axiom Rail Pty Ltd
(U2020/2350)
DEPUTY PRESIDENT YOUNG |
MELBOURNE, 15 SEPTEMBER 2020 |
Application for an unfair dismissal remedy.
[1] On 2 March 2020, Mr Samuel Tiavo made an application to the Fair Work Commission under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Axiom Australia Pty Ltd (Axiom). Mr Tiavo seeks compensation.
[2] Axiom denies that Mr Tiavo was unfairly dismissed.
[3] Mr Tiavo’s application was the subject of a hearing before me on 18 June 2020.
[4] Ms Alice Dunn of the Australian Rail, Tram and Bus Industry Union (RTBU) appeared on behalf of Mr Tiavo. Pursuant to section 596 of the Act, Mr Mark Ritchie of Workplace Wizards appeared on behalf of Axiom.
[5] Mr Tiavo gave evidence on his own behalf.
[6] The following witnesses gave evidence on behalf of Axiom:
• Troy Atherton – Yard Supervisor
• Colleen D’Arcy – Human Resources and Development Manager
• David Schembri – Operations Manager
[7] Mr Tiavo filed submissions in the Commission on 6 May 2020 and 8 July 2020. Axiom filed submissions on 27 May 2020 and 22 July 2020.
[8] Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:
• the application was made within the period required in subsection 394(2);
• Axiom is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;
• Mr Tiavo was an employee who had completed a period of employment with Axiom of at least the minimum employment period;
• Mr Tiavo’s employment was subject to the Axiom Rail Enterprise Agreement 2016 (Agreement) and, as such, at the time of dismissal Mr Tiavo was a person protected from unfair dismissal; and
• the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.
[9] I have concluded that Mr Tiavo’s dismissal was not unfair. These are my reasons for that conclusion.
[10] I first make some general comments regarding the evidence given by the witnesses called. I found Mr Tiavo to be a most unimpressive and unconvincing witness. He was often evasive and unresponsive and repeatedly did not answer the question that was asked of him. He exhibited a high degree of forgetfulness and an inability to recall conversations and events, particularly when cross examined on matters that did not support his case. 1 I do not consider he was a witness of truth. I therefore consider his evidence ought be approached with a significant degree of caution and is not a reliable source of information upon which facts may confidently be found. Conversely, I found both Mr Schembri and Ms D’Arcy to be credible witnesses who gave forthright, direct evidence. Mr Atherton was not required for cross examination by the Applicant and, accordingly, his evidence as to issues in dispute is unchallenged.
[11] Axiom is a rail maintenance company in Victoria. 2
[12] Mr Tiavo commenced employment with Axiom in October 2016 3 in the position of casual Grade 6A Operator. From 26 May 2017 Mr Tiavo was employed as a full-time employee.4
[13] On 16 January 2020, Mr Tiavo was issued with a first and final written warning (Final Written Warning). 5 The Final Written Warning raised concerns in relation to:
• A customer complaint regarding Mr Tiavo’s attitude during a shift on 13 December 2019 alleging that Mr Tiavo asked when he could finish as soon as arriving on site, that he was “being difficult” when instructed to perform specific tasks and that he left site early without permission; and
• A text message exchange between Mr Tiavo and Axiom on 17 December 2019 regarding the number of nights shifts for which Mr Tiavo had been rostered, in which Mr Tiavo called the recipient a “fukhead” and a “fukwit” (Text Message). Axiom considered the Text Message to be “abusive and inappropriate language” which was a “violation of [Axiom’s] values of Care, Quality, Innovation and Integrity.”
[14] The Final Written Warning relevantly states:
“The following improvements are expected of you immediately:
• Communicate with David Schembri, Operations Manager if you need to leave site early for any reason, a text message or call is sufficient;
• Follow all reasonable directions and instructions provided to you by Supervisors and/or Managers onsite. If a direction or instruction made to you raises a concern, then you must communicate this with David Schembri, Operations Manager as soon as possible;
• Under no circumstance may you speak to another employee of RMS in an offensive, abusive and/or indecent manner; and
• You will conduct yourself in a professional, mature and controlled manner when interacting with employees of RMS, RMS clients and/or members of the public during the course of business.
This is a very serious matter which will not be tolerated and as such immediate improvement on your part is required. We hope that no further discussions will need to be held with you pertaining to inappropriate behaviour in the workplace.
However, please note that your employment will be terminated, or further disciplinary action will be taken if we do not see immediate improvement in your conduct.
You are welcome to have a support person of your choice present at future meetings if termination is a potential outcome.” 6
[15] On 12 February 2020 Mr Tiavo’s employment was terminated for misconduct. Mr Tiavo was provided with three weeks’ pay in lieu of notice of termination.
[16] On his dismissal, Mr Tiavo was provided with a letter of termination (Termination Letter). 7 The full text of the Termination Letter is set out in Annexure A to this decision.
Tiavo’s employment
[17] There is no dispute that Mr Tiavo’s employment with Axiom was subject to the provisions of the Agreement. It is of utility to first set out the relevant provisions of the Agreement.
[18] Clause 6(a) of the Agreement sets out the modes of engagement and provides:
“a full-time employee is one who is engaged for 38 ordinary hours per week plus reasonable additional hours on an ongoing basis.” 8
[19] Clause 9 of the Agreement deals with ordinary hours of work and provides:
“9. ORDINARY HOURS OF WORK
The ordinary hours of work shall be one hundred and fifty-two (152) ordinary hours per four-week cycle arranged as 19 days of 8 hours plus 1 Rostered Day Off in each 4 week period.
The rostered hours of work shall be an average of thirty-eight (38) hours per week.
Ordinary hours of work shall not exceed eight (8) hours per shift. No employee during the course of any shift shall be booked off duty for more than half an hour, including time for a meal. Except in emergency circumstances the maximum hours of work in anyone shift, standard or otherwise shall not exceed 12 hours.
Employees are required to adhere to nominated start and finish times for all work periods.
These provisions may be varied by individual flexibility arrangements as provided for in Clause 21. For example, 4 ten hour shifts in a week with the fifth day off work plus 1 RDO per 4 week cycle.” 9
[20] Clause 12 of the Agreement deals with additional hours and, relevantly, provides:
“12. ADDITIONAL HOURS.
Time worked outside ordinary hours as defined in Clause 9 constitutes additional hours and is payable at one and a half times for the first 2 hours and two times thereafter based on the all-purpose rate for the classification as per Schedule C of this Agreement.” 10
[21] Clause 13 of the Agreement deals with shift work and day work. The presently relevant clauses are clauses 13, 13.1 and 13.2, which provide as follows:
“13. SHIFT WORK AND DAY WORK
The Company performs construction and maintenance work on railways and is from time to time required by its clients to establish shifts to undertake works when the rail network is at its safest, i.e. at night. The arrangement and timing of these shifts varies due to the nature of the works ordered by the clients which can vary from timed routine maintenance, which can be planned ahead to short notice emergency maintenance. For these latter cases the notice may be less than 24 hours in which case the Employer will make arrangements so that employees required for the work are supported through sufficient work breaks.
In addition, the hourly rates as provided in Schedule C include consideration for the nature of this type of work.
13.1 Definitions
“Ordinary Hours”: Ordinary hours are as defined under clause 9.
“Day Work”: In addition to the provisions under clause 9, the Ordinary Hours of duty for day work employees shall be between 6.00 a.m. and 6.00 p.m. Monday to Friday inclusive.
“Early Morning Shift”: Early Morning Shift is defined as a shift starting at or after 4:00am (0400 hours) and before, 6:00am (0600 hours).
“Afternoon Shift”: Afternoon Shift is defined as a shift finishing after 6.00 pm (1800 hours) and at, or before, midnight (2400 hours).
“Night Shift”: Night Shift is defined as a shift finishing after midnight (2400 hours) and starting before4:00 am (0400 hours).
“Rotating Shifts”: Rotating shifts are when an employee works on rostered rotating shifts, i.e. day, afternoon and night.
“Shift Worker”. Whilst an employee works on rotating shifts or night shift, they shall be considered to be a Shift Worker for the purposes of this Agreement.
Each hour (or part thereof) of Ordinary Hours of work shall be paid at the rate applicable for the day on which the hour (or part thereof) was worked.
13.2 Shift Work Availability
A shift worker shall be required to make themselves available to work shifts as determined by the Company from time to time.
Having regard for Clause 22.9 Change to regular roster or ordinary hours of work the Company will provide as much notice as is available including if possible providing employees, employed to work rostered shift work, with a copy of the rostered hours they are required to work at least two (2) weeks prior to the commencement of each roster and giving fourteen (14) days’ notice to employees if it is intended to alter agreed rosters.” 11
[22] Mr Tiavo says that upon his employment with Axiom becoming permanent he worked night shift on a full-time basis with a regular roster which allowed him to balance the care of his three children with his wife. 12 Mr Tiavo says that Axiom was aware of his caring responsibilities and that from time to time, when given enough notice, he would work a day shift where required.13
[23] Mr Tiavo asserts that in late 2018, Axiom started changing his hours of work, notifying him of his hours of work from week to week. Mr Tiavo says that he was sometimes required to work day shift and other times night shift. He says that he was often directed to work via text message with as little as 10 hours’ notice. 14 He also says that he was sometimes rostered for as little as 16 hours per week, in which circumstances Axiom expected him to cover the remaining hours using accrued leave, or leave without pay.15 Mr Tiavo says that whenever possible he attended the shifts he was rostered to work. If, due to short notice and family obligations, he was unable to attend he always contacted someone to let them know.16 Mr Tiavo says that he raised this concern with Axiom repeatedly,17 including in the Text Message.18
[24] Mr Schembri is responsible for overseeing the scheduling at Axiom. 19 Mr Schembri’s evidence was that Mr Tiavo was not employed on permanent night shift. His evidence was that Axiom does not employ any employees permanently on night shift.20 He said that all permanent employees are scheduled to work 152 hours over a four week cycle. Whilst ideally those hours would be worked on a client’s site, the reality is that they are usually a combination of work on a client’s site and work in the Axiom yard.21 The nature of the work is reactive and on most occasions not booked far in advance.22 The majority of work for clients is night shift.23 Most employees prefer to work night shift due to the extra loading payable24 and the other benefits associated with night shift.25 Employees are scheduled and expected to work in the yard on day shift unless they can be scheduled to undertake work on a client’s site.26 The yard operates from 6 am to 6 pm and employees scheduled to work in the yard work either 7 am to 3.30 pm or 9 am to 5.30 pm.27 Yard shifts are usually Monday to Friday.28 Mr Schembri’s evidence under cross examination was that when employees first commence employment with Axiom they are informed that if they are not allocated a night shift during the week they are to attend the yard the following day.29 His evidence was that a permanent employee, such as Mr Tiavo, would not be unsure as to whether they had work for the day as they know that if they are not allocated a client shift they are to attend the yard for day work the following day.30 He considered that Mr Tiavo would be aware of this as this had been the rostering practice since Mr Tiavo commenced employment with Axiom.31 He gave further evidence that text messages are sent out with client shifts for the following week, usually on a Friday.32 Outside of those shifts, employees are required to attend the yard and work day shift the following day.33 At around 5.30 pm each night a text message is sent to confirm that the employee is not required on night shift and confirm the starting time of the day shift in the yard the following day.34 Mr Schembri’s evidence was that the texts were confirmation that the shift to be worked would be in the yard the next day, not a night shift, and the start time of the day work (being either 7.00 am or 9.00 am).35
[25] Mr Atherton was Mr Tiavo’s yard supervisor. His unchallenged evidence was that Mr Tiavo worked both at client sites and in the yard. 36 His further unchallenged evidence was that when Mr Tiavo was to work day shift in the yard Mr Tiavo often, without notice, would not attend work or would arrive late and leave early and therefore only work four - six hours in that shift.37 Yard shifts are eight hours.38 Mr Tiavo would also often arrange for one of his brothers, who are also employed by Axiom, to work his shifts without notifying Axiom or seeking their approval.39 As a result, Mr Tiavo often did not work a full week and in those circumstances, Mr Atherton would advise him that if he wanted to be paid for a full week he would need to use annual leave hours or RDOs.40
[26] I accept the evidence of Mr Schembri and Mr Atherton as to these matters. Firstly, I found Mr Schembri to be a credible witness who answered questions frankly and directly. Secondly, Mr Atherton was not required for cross examination and his evidence was therefore not challenged in any way by Mr Tiavo. Thirdly, under cross examination whilst expressing a preference to work night shift, 41 Mr Tiavo conceded that he was, in fact, not employed to work on permanent night shift.42 Fourthly, he agreed that he was required to be available to work day shift, early morning shift, afternoon shift and night shift as determined by Axiom.43 He also agreed that all of these shifts are provided for in the Agreement.44 Fifthly, under cross examination Mr Tiavo said that he knew that if he had not been allocated work on a client site that he was to work day shift in the yard.45 He agreed that work in the yard was scheduled for either 7.00 am - 3.30 pm or 9.00 am - 5.30 pm and that was how he had been scheduled to work.46 He also agreed under cross examination that the rostering arrangements as described by Mr Schembri had been the same since he commenced employment and he was aware of them.47
[27] Accordingly, I find that Mr Tiavo was not employed to work permanent night shift. Rather, I find that he was employed to work day shift, early morning shift, afternoon shift and night shift as rostered by Axiom and as provided for in the Agreement. I note that the Agreement also provides that these shifts may be varied in certain circumstances. 48 I find that Mr Tiavo knew that if he was not advised on a Friday evening that he was rostered to a shift on a client site in the following week, which in most cases was a night shift, he was required to undertake day work in the yard. I find that those shifts were either 7.00 am - 3.30 pm or 9.00 am - 5.30 pm Monday to Friday and that Mr Tiavo knew that. I find that those rostering arrangements had been in place since the commencement of Mr Tiavo’s employment and he was aware of them. I also find that Mr Tiavo had a preference to work night shift and would often not attend for work when he was to undertake day shift in the yard. I find that it was in these circumstances that Mr Tiavo would be required to use accrued annual leave or RDOs if he wished to be paid for a full week. Finally, I find that the text message sent each evening at around 5.30 pm was to confirm that no client shifts had arisen and that the employee was not required on night shift that night and, as a consequence, to confirm the starting time of their day shift in the yard the following day, being either 7.00 am or 9.00 am.
Time entry training 2 July 2019
[28] On 2 July 2019 Mr Tiavo attended a small group training session conducted by Ms D’Arcy in relation to use of Axiom’s digital platform for submission of timesheets, leave applications and the implementation of Axiom’s leave procedure. 49 Ms D’Arcy’s uncontested evidence is that the training session ran for two hours and concluded with a multiple-choice assessment.50 Mr Tiavo undertook the assessment successfully.51
Meeting on 5 July 2019
[29] Ms D’Arcy and Mr Atherton’s evidence is that on 5 July 2019 they met with Mr Tiavo to discuss with him the incorrect recording of his time 52 (5 July Meeting).
[30] Ms D’Arcy’s evidence is that she had been alerted by Mr Schembri that Mr Tiavo was incorrectly submitting his hours of work. She says that Mr Atherton had also told her that he had had to correct Mr Tiavo’s time entries on multiple occasions. 53 Ms D’Arcy’s evidence is that at the 5 July Meeting, Mr Tiavo was told that Axiom was concerned that he was submitting his hours incorrectly as the hours he claimed payment for were inconsistent with the hours he worked, as confirmed by Mr Atherton and the yard supervisor at the time, Mr Owczarek. Ms D’Arcy says at the 5 July Meeting Mr Tiavo was told that Axiom had significant concerns about his availability for shifts, unreliability of attendance and lack of communication or notice of inability to attend for shift or approval requests for flexible hours.54 Ms D’Arcy says that she told Mr Tiavo, amongst other things, that he was required to seek approval for, and give adequate notice of, an absence or flexibility in hours, in advance. She says she specifically told Mr Tiavo that he is required to record time correctly and communicate clearly about his attendances or absences. She says that Mr Tiavo was issued with a verbal warning.55 She says a verbal warning was issued in lieu of a more serious sanction as Mr Tiavo appeared to genuinely agree and understand Axiom’s requirements of him. She says Mr Tiavo said he would seek approval prior to any absence and ensure that his timesheets accurately reflected his hours.56 Ms D’Arcy made a diary note after the meeting with Mr Tiavo57 which is exhibited to her witness statement.58 Under cross examination Ms D’Arcy agreed that there is no express mention in her diary note to Mr Tiavo being issued with a verbal warning59 however maintained that she specifically recalled issuing Mr Tiavo with a verbal warning in relation to incorrect time recording at the meeting.60
[31] Mr Atherton’s evidence was that Mr Tiavo would regularly record his time incorrectly. 61 His evidence was that each week he would review Mr Tiavo’s actual hours worked against the hours he submitted to payroll and manually adjust his timesheet.62 Mr Atherton says that at the 5 July Meeting Mr Tiavo was questioned as to why his timesheets were continually entered inaccurately. Mr Atherton says that Mr Tiavo acknowledged that his hours had been entered incorrectly but said this was because he had technical difficulties with his phone. Mr Atherton’s evidence is that he did not believe the incorrect time entries were due to difficulties with Mr Tiavo’s phone, however, he offered Mr Tiavo the use of his computer to enter his time and the option of calling Mr Atherton to get him to enter Mr Tiavo’s time. Mr Atherton also says that Ms D’Arcy offered to assist Mr Tiavo with entering his time. Mr Atherton says that Mr Tiavo was “firmly warned” that he was not to falsify his hours.63
[32] Mr Tiavo’s evidence is that the only issue raised with him by Axiom during his employment were the matters which resulted in the Final Written Warning being issued to him. 64 He says he has never been issued with any other verbal or written warnings.65 Under cross examination Mr Tiavo initially said that Mr Atherton had never raised his incorrect time recording with him66 or spoken to him about it.67 He then said that he could not remember if Mr Atherton had ever raised with him that he was being dishonest or extremely careless with his timesheets.68 He said that he also could not remember his manager ever sitting down with him and talking to him about his time recording.69 However, he ultimately conceded that the 5 July Meeting did occur.70 He said that during the 5 July Meeting he was not warned, and was not told that he had to improve his time recording.71 However, Mr Tiavo also gave evidence that at the 5 July Meeting Mr Atherton and Ms D’Arcy said in relation to the hours he was recording on his timesheets:
“That I had to correct it with the right hours that I was putting on my sign-in sheet.” 72
[33] In response to a question from the bench as to the purpose of the 5 July Meeting, Mr Tiavo said that “we spoke about the hours” 73 and it was “just to let me know to correctly fill in my timesheets on the app.”74
[34] I accept the evidence of Ms D’Arcy as to the content of the 5 July Meeting. Firstly, I found Ms D’Arcy to be a credible and direct witness, who answered questions in an honest and forthright manner. Secondly, Ms D’Arcy’s evidence is corroborated by that of Mr Atherton, whose evidence was not challenged in cross examination. Thirdly, Mr Tiavo’s evidence is inconsistent and contradictory. In respect of these matters Mr Tiavo also seemed to have a high degree of forgetfulness and an inability to recall events. Mr Tiavo firstly denied that Mr Atherton had ever spoken to him about his time recording. He then said that he couldn’t remember if Mr Atherton had ever raised an issue with him about his time recording and told him it needed to improve. He also couldn’t remember if he had ever had a meeting with his manager (being Mr Atherton) in which he was spoken to about his time recording. He then conceded that the 5 July Meeting did, in fact, occur and gave contradictory evidence that “the hours” were spoken about at the 5 July Meeting and he was told to correctly enter the hours he worked on the app. I consider Mr Tiavo’s evidence to be unreliable.
[35] Accordingly, I find that at the 5 July Meeting Mr Tiavo was told that Axiom was concerned that he was incorrectly recording his hours on his timesheets, as the hours for which payment was being claimed were not consistent with the hours worked. I find that Mr Tiavo was informed that he was required to enter his time correctly. I also find that Mr Tiavo was told that Axiom had significant concerns about his availability for shifts, unreliability of attendance and lack of communication or notice of inability to attend for shift or approval requests for flexible hours. I find the Mr Tiavo was also told that he was required to communicate clearly about his attendances or absences. I also find that Mr Tiavo was issued with a verbal warning at the 5 July Meeting in relation to incorrect recording of time.
Incorrect time recording
[36] It did not appear contested that the process for recording time was that employees, including Mr Tiavo, sign a workshop daily attendance sheet (Sign-In Sheet) each day which specifies their start time and their finish time. 75 At the end of each week the employee logs in to the portal and submits their time to payroll for payment processing.76 On 15 July 2019 Mr Tiavo advised Ms Lazarenko, Payroll and Assistant Accountant for Axiom, by email rather than through the portal, that his hours of work for the week Monday 8 July 2019 - Sunday 14 July 2019 were Tuesday to Friday eight hours each day, with Friday being attendance at a Track Vehicle Operator (TVO) course off site from 7 am – 1 pm.77 Mr Tiavo’s Sign-In Sheets, completed by him,78 provide that the hours he actually worked in that week were as follows:
• 8 July 2019 - 9.30 am – 1.00 pm;
• 9 July 2019 – 7.00 am – 2.30 pm;
• 10 July 2019 – 6.55 am – 3.30 pm. 79
[37] Mr Tiavo agreed that the Sign-In Sheets reflect the actual hours worked by an employee. 80 It did not appear contested that Mr Tiavo attended the TVO course on Friday 12 July 2019 from 7.00 am – 1.00 pm. It also did not appear contested that hours recorded on the Sign-In Sheets included an unpaid lunch break of half an hour, with the possible exception of Monday 8 July 2019.81 It is apparent, and was conceded by Mr Tiavo under cross examination, that the hours he submitted to payroll for the week 8 July 2019 – 14 July 2019 did not reflect the hours he actually worked and recorded on the Sign-In Sheets.82 Mr Tiavo agreed that he did not work eight hours on Tuesday 9 July 2019,83 did not work at all on Thursday 11 July 2019,84 and that he attended the TVO course for 7.00 am – 1.00 pm on Friday 12 July 201985 (being a maximum of six hours). Under cross examination, in relation to these discrepancies, Mr Tiavo said “I can’t remember that day”86, “I don’t remember”87, “I don’t recall”88 and “I can’t recall that day”.89 It was put to Mr Tiavo under cross examination that claiming eight hours for Thursday 11 July 2019 when, in fact, he did not work at all was dishonest,90 to which Mr Tiavo responded “no comment”.91 When pressed further, Mr Tiavo said this was an honest mistake,92 he had not been dishonest93 and he did not recall.94 His explanation for this discrepancy was that he couldn’t remember “back then”.95 The following exchange occurred between Mr Ritchie and Mr Tiavo:
“But you were pretty sure on the Monday - yes, I’ve definitely worked it - for the Thursday before, what, four/five days earlier. You must have known whether you worked or not, Sam? -Yes.
My proposition to you, Sam, and you’re free to agree with it or reject it, is that you’ve either been deliberately dishonest here to try and round your hours up to 38 per week or you’ve been absolutely careless. What do you say to that? Do you agree with that? -Yes” 96
[38] Mr Schembri gave evidence, by way of further example, that Mr Tiavo submitted his time for 12 August 2019, claiming that he worked eight hours. Mr Schembri checked this with the yard supervisor, Mr Owczarek, who advised him that Mr Tiavo had not worked in the yard that day. Upon review of the Sign- In Sheet Mr Schembri found that Mr Tiavo had not entered any time for that day. Mr Schembri says he then telephoned Mr Tiavo and Mr Tiavo told him that he worked in the yard that day and someone had changed the Sign-In Sheet. Mr Schembri told Mr Tiavo he would check the cameras to confirm his attendance and asked where he parked his car that day to enable him to do that. Mr Tiavo told Mr Schembri that he would have to check. Mr Schembri followed up by text with Mr Tiavo on 13 August 2019 and again on 15 August 2019. 97 Mr Schembri says that when Mr Tiavo finally responded to him he said that he had not worked in the yard that day. Under cross examination Mr Schembri said that he considered this incident to be an example of Mr Tiavo falsifying his hours98 but conceded it was possible that it could have been human error.99
[39] Mr Tiavo’s evidence under cross examination was that he did not remember whether the telephone call with Mr Schembri in relation to his time on 12 August 2019 occurred, 100 saying it was “too far back”.101 Mr Tiavo could not recall telling Mr Schembri that someone had changed the Sign-In Sheet,102 had no recollection of Mr Schembri telling him he would check the cameras to confirm his attendance nor could he recall Mr Schembri asking him where he parked his car.103 He also had no recollection of ultimately telling Mr Schembri that he did not attend work that day104 nor of the text messages that occurred between him and Mr Schembri in relation to this issue.105 He agreed however that the text messages were his.106
[40] I accept the evidence of Mr Schembri in relation to this issue. Firstly, I found Mr Schembri’s evidence to be credible. Secondly, Mr Schembri’s evidence is consistent with and supported by the text messages between him and Mr Tiavo. Thirdly, Mr Tiavo does not contest that these text messages occurred. Fourthly, Mr Tiavo seemed unable to recall whether these events occurred. I consider Mr Tiavo’s lack of recollection to lack credibility. I consider it implausible that Mr Tiavo could not recall whether or not he was telephoned by the Operations Manager in relation to incorrectly submitting time on his timesheets. I do not consider that Mr Tiavo gave truthful evidence in relation to this matter.
[41] Accordingly, I find that Mr Tiavo submitted timesheets for the week 8 July 2019 – 14 July 2019 which did not reflect the hours he actually worked. I find that Mr Tiavo sought payment for eight hours per day on each of Tuesday to Friday of that week when in fact he did not work eight hours on Tuesday 9 July 2019 or Friday 12 July 2019 and did not work at all on Thursday 11 July 2019, in addition to not submitting time for four hours worked on Monday 8 July 2019. I also find that on 12 August 2019 Mr Tiavo again submitted time for a day that he had not worked. For reasons set out later in this decision, it is not necessary for me to finally determine whether these incorrect timesheet entries were, as contended by Mr Tiavo, “honest mistakes”. However, I make the following observations. Firstly, the entries for the week 8 July 2019 - 14 July 2019 occurred in relation to the week immediately following the 5 July Meeting in which Mr Tiavo was told he was to correctly record his time and was issued a verbal warning for failing to do so. Secondly, the time was entered on the immediately following Monday morning. I consider it implausible that Mr Tiavo could not accurately recall the hours he had worked in the immediately preceding week. Thirdly, Mr Tiavo was advised by text of his shifts and also signed the Sign-In Sheet for each shift. If he had any doubts as to the hours he had worked, Mr Tiavo could have confirmed this easily. Fourthly, Mr Tiavo’s evidence on this issue was evasive, unresponsive and, as with much of Mr Tiavo’s evidence, attended by a high degree of forgetfulness.
Attendance
[42] Mr Schembri gave evidence that in the 12 months prior to his dismissal, on several occasions, Mr Tiavo had failed to attend shifts as rostered, refused to work day shift in the yard and arrived late to work. 107 Mr Schembri says that he dealt with most of those issues verbally by warning Mr Tiavo and making it clear he needed to improve his conduct.108
[43] Mr Atherton’s evidence, which was not contested by Mr Tiavo, was that Mr Tiavo was often late or did not attend for work when required to work day shift in the yard. 109 Mr Atherton gave evidence that, by way of example, Mr Tiavo was late or did not attend for work on 7 November 2019, 17 January 2020, 30 January 2020, 3 February 2020, 5 February 2020 and 7 February 2020. Mr Atherton gave further uncontested evidence that:
• on 7 November 2019 Mr Tiavo was scheduled to start at 9.00 am. At 10.09 am Mr Tiavo sent a text message to Mr Atherton saying “not coming in today bud inlaws cant watch my kid”;
• on 17 January 2020 Mr Tiavo was scheduled to start at 7.00 am. Mr Atherton tried multiple times to call Mr Tiavo but he did not answer his phone. At 8.32 am Mr Tiavo answered his phone and hung up when he realised it was Mr Atherton. Mr Atherton sent Mr Tiavo a text message offering him a 12 hour shift that day but Mr Tiavo did not respond. Mr Tiavo did not answer Mr Atherton’s calls or texts until Tuesday 21 January 2020, saying that he told Mr Atherton that he was sick;
• on 30 January 2020 Mr Tiavo did not attend work advising Mr Atherton by text at 2.22 am and again at 8.38 am that he “cant come to the yard today. My mother in law is very unwell this morning.” Mr Tiavo was scheduled to start work at 7.00 am that day;
• on 3 February 2020 Mr Tiavo was scheduled to start at 7.00 am. At 8.01 am Mr Tiavo sent a text message to Mr Atherton saying “Hey mate not coming in today I have no one to take my kids to school and I’ve got my little one with me”;
• on 5 February 2020 Mr Tiavo was scheduled to start work at 7.00 am. At 7.00 am Mr Tiavo sent Mr Atherton a text message saying that he would be late as he was stuck in traffic. He arrived at the yard at about 7.30 am - 8.00 am. At 8.00 am he sent a further text message to Mr Atherton stating “Just letting you know mate I gotta leave at 2 pm school pick up and the person caring for my little one at home has to leave at 2.30 pm”;
• on 7 November 2020 Mr Tiavo was scheduled to start work at 7.00 am. At 7.30 am Mr Tiavo sent Mr Atherton a text message saying, “Hey mate slept in”. He then sent Mr Atherton a further text message at 8.21 am saying “running late bud.” Mr Tiavo arrived at work after 8.30 am. Mr Tiavo left work without notice at 2.00 pm, sending Mr Atherton a text message at 2.08 pm saying “Hey bud gotta leave for school pikups chhers”;
• on 10 February 2020 Mr Tiavo was scheduled to start at 7.00 am. At 7.20 am he sent Mr Atherton a text message saying, “Hey bud im coming in still just having car dramas cheers Sam”. He arrived at work at 8.00 am;
• on 12 February 2020 Mr Tiavo was scheduled to start work at 7.00 am. At 6.57 am he sent a text message to Mr Atherton saying “Held up in traffic”. He arrived at work about half an hour later.
[44] Ms D’Arcy gave evidence that on 28 August 2019 she became more concerned regarding Mr Tiavo’s attendance. 110 On 29 August 2019 Mr Tiavo was rostered to work day work in the yard. Mr Tiavo was notified of that shift by text at 5.35 pm on 28 August 2019.111 Mr Tiavo had confirmed his availability for day work that day.112 Ms D’Arcy says Mr Atherton informed her that Mr Tiavo had not attended the yard.113 Ms D’Arcy says that later that morning she and Mr Schembri telephoned Mr Tiavo and asked why he had not attended work and had not notified anyone of his absence. Ms D’Arcy says that Mr Tiavo said he had not been notified of the shift by operations. Ms D’Arcy says that she told Mr Tiavo she had seen the notification sent to him by operations. She says that she told Mr Tiavo that his conduct was unacceptable and would not be tolerated in the future.114 She says Mr Tiavo was given a further verbal warning in this conversation.115 Ms D’Arcy made diary notes of this conversation.116 Those notes are headed “Verbal Warning 4 shift refusal & not presenting for work” and include the following:
“ST advised he didn’t see the message until right now & has sick kids
CD said not good enough and must notify DS/TA or ops if unable to attend in the future.”
…
“ST says he needs flexibility due to childcare arrangements & we know that. CD states everyone has stuff going on & must be fair for everyone.
ST states he only wants night shift. CD explains EBA requirement to be available Mo-Sun & shifts need to be fair.” 117
[45] Mr Schembri’s evidence as to the telephone call is largely consistent with Ms D’Arcy’s evidence. 118
[46] Both Mr Schembri and Ms D’Arcy agreed that Mr Tiavo’s attendance issues were always in circumstances when Mr Tiavo was to work day work in the yard. 119
[47] As already set out, Mr Tiavo’s evidence is that the only issue raised with him by Axiom during his employment were the matters which resulted in the Final Written Warning being issued to him. 120 He says he has never been issued with any other verbal or written warnings.121
[48] For the following reasons, I find that Mr Tiavo was often late or did not attend for work when required to work day shift in the yard. Firstly, Mr Schembri, Mr Atherton and Ms D’Arcy gave consistent evidence as to Mr Tiavo’s attendance issues when working day work in the yard. Secondly, Mr Atherton’s evidence was not challenged in any way by Mr Tiavo. Thirdly, under cross examination Mr Tiavo agreed that Mr Atherton’s statements regarding his attendance in the yard were correct. 122 I also accept the evidence of Ms D’Arcy as to the telephone conversation on 29 August 2019. Firstly, Ms D’Arcy’s evidence is corroborated by that of Mr Schembri. Secondly, it is consistent with and corroborated by the diary notes made by Ms D’Arcy. Thirdly, Mr Tiavo’s evidence that the Final Written Warning is the only issue that was raised with him during his employment cannot be true in light of his concession under cross examination that the 5 July Meeting occurred and, therefore, cannot be relied upon. Accordingly, I find that on 29 August 2019 Mr Tiavo was issued with a verbal warning in relation to his attendance.
Late to work – 7 February 2020
[49] Mr Tiavo concedes that he attended work late on 7 February 2020, 123 however says that this was due to lack of notice and exhaustion following the death of a family member and cultural obligations associated with grieving.124 Mr Tiavo says that on 6 February 2020 at 5:24 pm, he received a text message directing him to attend day shift in the yard at 7:00 am on 7 February 2020. As set out above, at 7.30 am on 7 February 2020 Mr Tiavo sent Mr Atherton a text message saying, “Hey mate slept in”. He then sent Mr Atherton a further text message at 8.21 am saying “running late bud.” Mr Tiavo’s evidence is that he then signed on in the yard at 9:00 am.125
Incorrect timesheets – 10 February 2020
[50] Mr Tiavo concedes that on 10 February 2020 he submitted a timesheet for the immediately preceding week which incorrectly recorded his hours of work. Specifically, he entered into his timesheet that he commenced work on 7 February 2020 at 7.00 am rather than 9:00am. Mr Tiavo’s evidence is that this was “an innocent mistake” due to rushing to get his timesheet in by 8.00 am for the pay run. 126 Under cross examination Mr Schembri agreed that it was possible that this was “human error.”127
Dismissal
[51] On 11 February 2020, Mr Tiavo was directed by email to attend a meeting with Ms D’Arcy and Mr Schembri “to discuss your employment”. The email informed Mr Tiavo that he could attend with a support person. This meeting was postponed to 12 February 2020 due to unavailability of Mr Tiavo’s union representative, Mr Evans 128 (Termination Meeting). The Termination Meeting was attended by Mr Tiavo, Mr Evans, Ms D’Arcy and Mr Schembri. Mr Tiavo says that he was informed of the allegations against him at the Termination Meeting and directed to respond to the allegations in that meeting.129 His evidence is that the following allegations were put to him at the Termination Meeting:
• being late to work 7 February 2020 and thereby failing to follow a lawful and reasonable direction;
• submitting incorrect working hours on 10 February 2020 for the previous week (specifically 7 February 2020); and
• dishonesty and falsification of hours.
[52] Mr Tiavo says that he was not provided with the allegations until the Termination Meeting. 130 His evidence is that he responded to the allegations by explaining the following:
• there was a death in his family around early February and he was required to support his family through their grieving;
• he made a genuine error with his timesheet on 10 February 2020; and
• he denied being deliberately dishonest and falsifying his timesheet. 131
[53] Mr Schembri’s evidence is that in the Termination Meeting he put to Mr Tiavo that he had:
• falsified his hours on his timesheet for 7 February 2020 by stating that he commenced work at 7.00 am when he commenced at 9.00 am;
• stated on his timesheet that he did not take lunch when he did and had entered this in his timesheet before the lunch break;
• been continuously late for shifts without communication or with late communication; and
• failed to attend work on several occasions without any communication. 132
[54] Mr Schembri says that he asked Mr Tiavo if he wanted to say anything in response to the allegations. 133 In response, he says that Mr Evans and Mr Tiavo asked for some time to discuss the allegations before responding and left the room for approximately 10 minutes.134 Upon returning he says Mr Tiavo said:
• he had a death in the family;
• he correctly put his start time on the Sign-In Sheet but made an error when putting it in to his timesheet;
• he did not mean to defraud the company and apologised for his behaviour;
• he did not have lunch and was taking a call and not aware that the supervisor was looking for him;
• he had a lot going on at the time. 135
[55] Mr Schembri says that Mr Tiavo confirmed that he had nothing further he wished to add. 136 Mr Schembri and Ms D’Arcy then went to Ms D’Arcy’s office to discuss Mr Tiavo’s responses.137 Mr Schembri’s evidence is that he did not consider Mr Tiavo’s explanations were adequate and he and Ms D’Arcy determined to terminate Mr Tiavo’s employment in light of Mr Tiavo’s ongoing issues with accurate time recording, inconsistency in coming to work, his failure to give adequate notice of his absences, falsifying his timesheets and ongoing lack of reliability.138 He says that he and Ms D’Arcy wrote the Termination Letter in Ms D’Arcy’s office and then returned to Mr Tiavo and Mr Evans, where he read the Termination Letter. 139
[56] Ms D’Arcy’s evidence regarding the Termination Meeting is broadly consistent with that of Mr Schembri. 140
[57] Following the Termination Meeting, Mr Tiavo was provided with the Termination Letter terminating his employment with immediate effect for misconduct. 141
[58] As to the allegations that were put to Mr Tiavo in the Termination Meeting, I prefer Mr Tiavo’s evidence for the following reasons. Firstly, it is consistent with the Termination Letter which is focused on the events of 7 February 2020 and the time entered for that day by Mr Tiavo on 10 February 2020. Secondly, it is consistent with the responses Mr Schembri says Mr Tiavo provided in relation to the allegations that were put to him, which are also largely consistent with Mr Tiavo’s evidence as to the responses he provided. Accordingly, I find that the allegations that were put to Mr Tiavo at the Termination Meeting were:
• failing to attend for work at 7.00 am on 7 February 2020 as directed by Axiom; and
• on 10 February 2020 falsely and dishonestly submitting his hours of work for 7 February 2020.
[59] I otherwise accept Mr Schembri and Ms D’Arcy’s evidence as to the Termination Meeting and the decision to terminate Mr Tiavo’s employment.
[60] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[61] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 142
[62] I set out my consideration of each below.
[63] The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee’s conduct or performance are well established. A valid reason is one that is “sound, defensible or well founded” 143 and should not be “capricious, fanciful, spiteful or prejudiced.”144 The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.145 The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.
[64] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.146 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission 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. 147
[65] Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw v Briginshaw, 148 the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained”149 and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”150 or “circumstances pointing with a wavering finger to an affirmative conclusion”.151 The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.152
[66] The rule in Briginshaw has elsewhere been described as reflecting a conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour. 153 In Greyhound Racing Authority,154 Santow JA noted:
“… The notion of “inexact proof, and indefinite testimony or indirect inferences” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal].” 155
[67] The ‘level of comfort’ referred to means that the finder of fact must “feel an actual persuasion of the occurrence or existence of the fact in issue”; the “mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact.” 156
[68] The Termination Letter asserts that:
• on 7 February 2020 Mr Tiavo failed to attend work at 7.00 am as directed by Axiom (Direction); and
• on 10 February 2020 Mr Tiavo submitted his working hours for the previous week stating that he commenced work at 7.00 am on 7 February 2020 despite this not being the case.
[69] The Termination Letter asserts that the Direction was a “clear lawful and reasonable direction” and further that Axiom considers “the falsification of hours to be a very serious issue and an act of dishonesty” which it considers to be a breach of clause 24 of the Agreement and constitutes grounds for serious misconduct. The Termination Letter however goes on to state “Although we consider your actions amount to ‘serious misconduct’ and may warrant immediate dismissal, without notice of termination, as a gesture of good faith, we have decided to downgrade your actions to misconduct.”
[70] In its closing written submissions, Axiom first contends that the reasons for Mr Tiavo’s dismissal were his:
• inability to honestly and accurately record his time;
• inability to attend work on time on a sufficiently regular basis;
• failure to improve conduct despite receiving multiple warnings and continued support from Axiom; and
• inability to adhere to the Company’s policies and procedures. 157
(First Submission)
[71] However, later in its closing written submissions it contends that the reasons were Mr Tiavo’s:
• inability and unwillingness to honestly or accurately fill out his timesheets/time theft;
• persistent lateness and failure to attend shifts;
• failure to follow company policies and/or management directions; and
• irreparable damage caused by Mr Tiavo’s conduct to the mutual trust and confidence essential to the employment relationship. 158
(Second submission)
[72] Accordingly, it is unclear from Axiom’s closing written submissions, precisely what it contends were the reasons for Mr Tiavo’s dismissal. It is clear, however, that neither the First Submission nor the Second Submission is limited to the events associated with 7 February 2020. As such, neither submission is consistent with the evidence, the terms of the Termination Letter or, as I have found, the allegations that were put to Mr Tiavo at the Termination Meeting and I reject them. I consider that the “actions amounting to serious misconduct” referred to in the Termination Letter and, therefore, the reasons relied upon by Axiom to dismiss Mr Tiavo were his failure to comply with the Direction and the submission of his timesheet for 7 February 2020 falsely and dishonestly stating that he commenced work at 7.00 am.
[73] Mr Tiavo denies these allegations and submits that there was no valid reason for his dismissal. 159 Mr Tiavo submits that the real reason for his dismissal was that he sought to assert his rights to full-time hours and the corresponding pay associated with those hours.160
Did Tiavo dishonestly enter his time for 7 February 2020?
[74] There is no dispute that the timesheet submitted by Mr Tiavo on 10 February 2020 for 7 February 2020 incorrectly provided that he started work at 7.00 am, when in fact he commenced work at 9.00 am due to having slept in. Mr Tiavo submits that this was an innocent mistake and, in light of Mr Schembri agreeing under cross examination that it was possible that an incorrect entry may be due to human error, Mr Tiavo submits the most likely conclusion is that there were issues across the board with employees accurately recording their time. 161 Mr Tiavo also submits that there is no written evidence that he was ever warned about being dishonest and that if Axiom had concerns regarding Mr Tiavo’s honesty they would have put them in writing.162 Finally, Mr Tiavo says that the standard of proof of misconduct depends on the seriousness of the allegations. He submits that in accordance with the principles articulated in Briginshaw an allegation of dishonesty is a grave matter with serious consequences and the Commission ought be cautious in finding that he was dishonest.
[75] As to the first of those submissions, they are rejected, and for the following reasons I find that Mr Tiavo did dishonestly enter his time for 7 February 2020. Firstly, whilst the evidence is that there was some confusion amongst employees about time entry using the new digital platform, 163 there is no evidence that any other employee had difficulty accurately recording their time after the training was conducted on 2 July 2019. Indeed, Ms D’Arcy’s evidence is that Mr Tiavo was the only employee who had consistent problems entering time correctly.164 Secondly, Mr Atherton’s unchallenged evidence was that Mr Tiavo would regularly record his time incorrectly.165 Although Ms D’Arcy’s evidence was that it is the role of the responsible manager to corroborate an employee’s attendance,166 Mr Atherton’s unchallenged evidence was that he manually reviewed and amended Mr Tiavo’s timesheet each week to reflect the hours Mr Tiavo actually worked because of a lack of trust and honesty from Mr Tiavo.167 Thirdly, at the 5 July Meeting Mr Tiavo’s incorrect time recording was discussed and he was directed that he was required to correctly enter his time. Even on Mr Tiavo’s own evidence this occurred.168 Further, at the 5 July Meeting Mr Tiavo was issued with a verbal warning for incorrectly recording his time and informed not to falsify his time entries. Notwithstanding this, Mr Tiavo continued to incorrectly enter time on multiple occasions and claim payment for hours he did not work. In these circumstances, I consider it implausible that the further incorrect entry on 10 February 2020 was an innocent or honest mistake. Fourthly, as set out in paragraphs [39] and [41] above, Mr Tiavo’s evidence regarding the incorrect entry of time was evasive, unresponsive and exhibited a high degree of forgetfulness. It was simply not credible.
[76] I accept the submission that in accordance with the principles articulated in Briginshaw, such a finding ought not be made lightly and that the Commission ought be cautious in concluding that an employee has engaged in misconduct. However, in the present circumstances, for the reasons set out above, I am persuaded and comfortably satisfied that Mr Tiavo did engage in the misconduct alleged.
[77] As to the contention that if Axiom genuinely held concerns regarding Mr Tiavo’s honesty it would have put them to him in writing, I also reject that contention. In my view, the absence of a written document informing Mr Tiavo that Axiom had concerns that he was dishonestly entering his time does not lead to the conclusion that no such view was held or that Mr Tiavo did not do so. Firstly, it is simply not necessary to warn an employee not to act dishonestly or engage in misconduct. Secondly, even on Mr Tiavo’s evidence he was told that Axiom had concerns regarding the accuracy of his time recording and that he was required to enter his time correctly. Thirdly, I have found that Mr Tiavo was issued with a verbal warning at the 5 July Meeting for incorrectly recording his time. Fourthly, Mr Atherton’s uncontested evidence is that Mr Tiavo was “firmly warned that he should not be falsifying his hours” and further, that he did not believe that Mr Tiavo’s incorrect entries were due to technical problems with his phone. 169 Fifthly, Ms D’Arcy’s evidence was that a verbal warning was issued on 5 July 2019 rather than a more serious sanction because Mr Tiavo appeared to genuinely agree and understand Axiom’s requirements.170
[78] Accordingly, I find that on 10 February 2020 Mr Tiavo dishonestly entered his time for 7 February 2020. I also find that such conduct amounts to misconduct and constitutes a valid reason for Mr Tiavo’s dismissal. Further, should I be wrong, and Mr Tiavo did not enter his time for 7 February 2020 dishonestly, I consider he did so carelessly and without regard as to whether the entry was true and correct. In circumstances where he had been trained in correct time entry, offered assistance to ensure his time was entered correctly, been issued a verbal waring for incorrect time entry and continued to repeatedly incorrectly enter time, such conduct would also constitute a valid reason for his dismissal.
Failure to attend work as directed on 7 February 2020 – lawful and reasonable direction?
[79] It is uncontested that on 7 February 2020 Mr Tiavo was directed to attend for day work in the yard starting at 7.00 am (Direction) but did not attend for work until 9.00 am. He therefore did not attend work as directed.
[80] Mr Tiavo submits that the Direction was in breach of the Agreement. Mr Tiavo submits that at 5.24 pm on 6 February 2020 he was directed to attend day work in the yard at 7.00 am on 7 February 2020. He submits that the Agreement allows Axiom to roster short-term emergency maintenance only with less than 24 hours’ notice and that day work in the yard does not constitute short-term emergency maintenance. Further, he says that the Agreement requires rosters to be provided two weeks in advance. Additionally, Mr Tiavo submits that if the Direction was not in breach of the Agreement, then it was not a reasonable direction. He submits that a direction to attend work with 13 hours’ notice is not reasonable as it is impossible to commit to family responsibilities or social engagements. 171
[81] Accordingly, at issue is whether the Direction was a lawful and reasonable direction with which Mr Tiavo was required to comply. A refusal to obey a lawful and reasonable direction can constitute a valid reason for dismissal. 172
[82] Clause 13 of the Agreement deals with shift work and day work and is set out in full in paragraph [21] above. The second sentence of that clause provides that the arrangement and timing of client shifts varies and can be “timed routine maintenance which can be planned ahead to short-notice emergency maintenance.” The clause then provides that “for these latter cases” notice may be less than 24 hours. I consider the use of the word “latter” is a reference to the immediately previously referred to cases, being client “short- term emergency maintenance work”. Accordingly, I accept the submission that it is for this work that notice of less than 24 hours may be given under clause 13 of the Agreement. Mr Tiavo contends that day work in the yard is not short-term emergency maintenance work and that he was only given 13 hours’ notice of his shift on 7 February 2020. As such, Mr Tiavo submits that the Direction was in breach of the Agreement. Although not expressly submitted I infer that Mr Tiavo submits that therefore the Direction was not lawful.
[83] Mr Tiavo was engaged to work shifts as determined by Axiom which included day shift, early morning shift, afternoon shift and night shift. He accepted in cross examination that this was required of him under the Agreement 173 and that although his preference was to work only night shift, he was required to work day shift in the yard.174 Accordingly, a direction to work day work in the yard is, prima facie, a lawful direction consistent with Mr Tiavo’s contract of employment. I accept the contention that day work in the yard is not short-term emergency maintenance work. Day work in the yard is neither client work, nor is it emergency maintenance work.175 The evidence is that day work in the yard is work undertaken when there is no client work176 and it involves matters such as preparing vehicles for future work and generally “helping out.”177 Further, I accept that a direction to attend work with 13 hours’ notice may not be a reasonable direction, depending on all the circumstances of the employment. However, in the present circumstances, I reject the contention that Mr Tiavo was only given 13 hours’ notice to attend day shift in the yard on 7 February 2020. Mr Tiavo’s own evidence is that he knew from the commencement of his employment that if he was not rostered to undertake client work, he was required to undertake day work in the yard. He agreed that these rostering arrangements had been in place for the duration of his employment and that he was aware of them. I have found that Mr Tiavo knew that if he was not advised on a Friday evening that he was rostered to a shift at a client site in the following week he was required to undertake day work in the yard. I have found that those shifts were either 7.00 am - 3.30 pm or 9.00 am - 5.30 pm Monday to Friday and that Mr Tiavo knew that. I have also previously found that the text sent in the evening at around 5.30 pm was confirmation that no client work had arisen for that evening and therefore, in accordance with the usual practice, Mr Tiavo was required to work day work in the yard the following day, commencing at either 7.00 am or 9.00 am. In these circumstances, I do not consider it can be said that Mr Tiavo was given 13 hours’ notice of his day work shift on 7 February 2020. Mr Tiavo knew from the previous Friday that unless there was further client work booked in for that week, he was required to work day shift in the yard on 7 February 2020. He also knew that those shifts were from 7.00 am - 3.30 pm or 9.00 am - 5.30 pm Monday to Friday. Accordingly, it was not the case that Mr Tiavo was given 13 hours’ notice of his shift on 7 February 2020, nor that he was unaware of his work requirements and therefore unable to plan his family responsibilities or his social life.
[84] As to the contention that rosters are required to be given at least two weeks in advance, in my view this is not what is required under clause 13.2 of the Agreement. 178 Clause 13.2 provides that employees will be given as much notice as is available including “if possible” at least two weeks. There is therefore no absolute requirement to provide two weeks’ notice of rosters; rather, the notice that is required is as much as is available and, if possible, rosters are to be provided two weeks in advance. Mr Schembri’s evidence is that client work is often booked at short notice, is reactive work and on most occasions, Axiom does not have work booked far in advance.179 Ms D’Arcy also gave evidence that Axiom provides employees with as much notice of work rosters as is possible.180 I accept their evidence. Accordingly, I do not consider that in the presently relevant circumstances the provision of rosters on Friday evening, for the following week is in breach of clause 13.2 of the Agreement.
[85] Accordingly, I find that the Direction was both a lawful and reasonable direction and that Mr Tiavo failed to comply with it. In the ordinary course, one instance of failure to attend for work on time would not constitute a valid reason for dismissal. However, Mr Tiavo’s unreliable attendance had been raised with him by Mr Schembri on a number of occasions, 181 was raised with him in the 5 July Meeting, was the subject of a verbal warning issued to him on 29 August 2019, and was, in part, the subject of the Final Written Warning. In these circumstances, I consider that Mr Tiavo’s failure to comply with the Direction on 7 February 2020 constitutes a valid reason for dismissal.
[86] Mr Tiavo submits that the real reason for his dismissal was that he sought to assert his rights to full-time hours and the corresponding pay associated with those hours. Mr Tiavo submits that he was sometimes rostered as little as 16 hours per week and Axiom expected him to cover the shortfall using accrued leave or take leave without pay. 182 I reject those submissions. Firstly, in my view the evidence does not support a conclusion that the reason for Mr Tiavo’s dismissal was other than his conduct on 7 February 2020 and 10 February 2020, following, as I have found, issues regarding Mr Tiavo’s time entry and attendance being raised with him on prior occasions and verbal warnings being issued in respect of those matters. Secondly, I do not accept Mr Tiavo’s evidence that he was rostered to work as little as 16 hours per week. I accept that Mr Tiavo may have been rostered to work as little as 16 hours of night shift or other client shifts per week. However, Mr Tiavo’s own evidence is that when he was not rostered to work a client shift he was required to work the remainder of the week on day work in the yard. Accordingly, in order to be paid for a full week, Mr Tiavo was required to attend for a number of day shifts and to work the entirety of each of those shifts. Mr Schembri’s evidence was that whilst ideally full-time employees’ hours would be worked on a client site, the reality is that they are usually a combination of work at a client site and work in the main yard. Mr Atherton’s uncontested evidence is that Mr Tiavo would often not show up for day shifts or would often arrive late and leave early and only work four - six hours.183 His further uncontested evidence is that it was in these circumstances that he told Mr Tiavo that he would need to use accrued leave or RDOs if he wanted to be paid for a full week.184 Mr Atherton’s evidence was also that Mr Tiavo would also often arrange for one of his brothers to work his shifts185 and that he would often take extended lunch breaks.186 Fourthly, notwithstanding that even on his own evidence Mr Tiavo was employed to work shifts as directed by Axiom and as provided for in the Agreement, I consider it clear from the evidence that Mr Tiavo only wanted to work night shift. Further, Mr Tiavo told Ms D’Arcy this in the telephone conversation of 29 August 2019 and reiterated this to Mr Schembri in a text message when he said in the context of being told that the following week was “quiet” and his shifts would therefore be in the yard “Inductions for no work??? Not good enough dave. Ive sorted my family commitments out. Which i have the kids during the day and work the nights…”.187 Indeed it was Mr Tiavo’s dissatisfaction with only being rostered for three nights shifts in a week, and his abusive response to this, that, amongst other things, led to the issuing of the Final Written Warning. In the Text Message Mr Tiavo says “40 hours priority not 3 shifts get it right fukwit”.188 Fifthly, it is uncontested that Axiom’s concerns with Mr Tiavo’s attendance and incorrect time entries only arose in circumstances where Mr Tiavo was on day work. Sixthly, I consider the evidence establishes that Mr Tiavo took what can, at best, be described as a flexible approach to attendance in the yard and the undertaking and completion of day work shifts. In these circumstances, I consider that if Mr Tiavo did not work full-time hours it was due to his own conduct and failure to attend for day work shifts and/or undertake the entirety of his shift and not because he was, as asserted, rostered as little as 16 hours per week.
[87] In reaching this conclusion, I have given consideration to the evidence given by Mr Schembri under cross examination regarding the flexibility he considers Axiom has in relation to rostering under the Agreement, including his evidence under cross examination that it was permissible under the Agreement to average hours over a four week cycle such that an employee could potentially be rostered for as little as 16 hours in one week, subject to working 152 hours over a four week cycle. Mr Schembri also agreed under cross examination that if an employee only worked 16 hours in a week, they would only be paid for 16 hours unless they took annual leave or used RDOs. 189 However, whatever the view of Mr Schembri might be as to permissible rostering arrangements under the Agreement, and indeed its correctness, I consider the evidence establishes that in relation to Mr Tiavo the reason he may on occasion have been paid for as little as 16 hours of work per week is because he did not want to work shifts other than night shift and failed to attend and/or complete the entirety of day work shifts when night shifts were not available. It was not because he was only rostered for 16 hours of work per week, even if such an arrangement should be permissible under clause 9 of the Agreement. Further, Mr Schembri’s evidence under cross examination was in response to generic questions as to what rostering arrangements he considered were permissible under the Agreement. The questions put to him were not directed to Mr Tiavo’s circumstances nor Mr Tiavo’s assertion that he was rostered for and paid for as little as 16 hours per week.
Two Valid reasons
[88] I consider that Mr Tiavo’s dishonest entry of time on 10 February 2020 for hours worked on 7 February 2020 constitutes misconduct and a valid reason for his dismissal. I also consider Mr Tiavo’s failure to comply with the Direction, having regard to all the circumstances, constitutes a further valid reason for his dismissal.
Was Tiavo notified of the valid reason? – Section 387(b)
[89] Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment, 190 and in explicit191 and plain and clear terms.192 In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport)193 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 194
[90] It is uncontested that the matters which I have found to constitute valid reasons for Mr Tiavo’s dismissal were put to him at the Termination Meeting and are included in the Termination Letter. Mr Tiavo was notified of the valid reasons for his dismissal.
Was Tiavo given an opportunity to respond to any valid reason related to his capacity or conduct? - Section 387(c)
[91] Section 387(c) requires the Commission must take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 195
[92] 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. 196 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.197
[93] In Wadey v YMCA Canberra 198 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:
“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
[94] Mr Tiavo submits that he was not afforded an adequate opportunity to respond to the allegations and that Axiom had “no intention of giving [him] a fair opportunity to respond to the allegations.” Mr Tiavo submits that Axiom could have told him of the allegations before the Termination Meeting but did not do so and that he was told of the reasons for his dismissal on the same day as he was dismissed. Mr Tiavo contends that a decision had already been made to terminate his employment.
[95] I reject those submissions. Whilst I accept that the allegations could have been given to Mr Tiavo before the Termination Meeting, and indeed, this may have been the preferred course, there is no requirement that this occur. What is required is that Mr Tiavo was treated fairly. Mr Tiavo was told that the meeting was in relation to his employment and that he could bring a support person. The meeting was rescheduled to allow Mr Evans, RTBU official, to attend. He had been advised in the Final Written Warning that he could bring a support person to any further meetings if termination was a potential outcome. Accordingly, the seriousness of the matter was apparent. It is uncontested that the allegations were put to Mr Tiavo. Prior to responding to those allegations Mr Tiavo requested time to leave the meeting to discuss the allegations with Mr Evans. 199 This was agreed to and Mr Tiavo provided his response upon his return.200 Accordingly, Mr Tiavo was not required to respond immediately and discussed his response privately with Mr Evans before providing it to Mr Schembri and Ms D’Arcy. I note that neither Mr Tiavo nor Mr Evans requested any further period for response. Mr Tiavo was asked by Mr Schembri to show cause as to why his employment ought not be terminated201 and if there was anything further that he wished to add.202 In these circumstances I consider that Mr Tiavo was provided with an opportunity to respond to the allegations and that opportunity was reasonable.
[96] As to the contention that the decision to terminate Mr Tiavo’s employment had already been made, I do not consider that the evidence supports such a conclusion. Mr Schembri’s evidence, which I accept, is that following Mr Tiavo providing his response to the allegations and confirming that he had nothing further to add, he and Ms D’Arcy went to Ms D’Arcy’s office to discuss Mr Tiavo’s response. 203 His evidence is that he did not consider Mr Tiavo’s responses to be adequate and in light of all the circumstances considered termination was the appropriate sanction. His evidence is that Ms D’Arcy agreed with this.204 Ms D’Arcy’s evidence, which I also accept, is that she and Mr Schembri left the meeting to discuss Mr Tiavo’s response and give consideration to the matters raised by Mr Tiavo.205 Under cross examination Ms D’Arcy rejected that the meeting on 12 February 2020 was simply “going through the motions”206or that a decision to dismiss Mr Tiavo had already been made.207 Her evidence was that the decision was made to dismiss Mr Tiavo as he did not provide a response to the allegations which give Axiom confidence that his conduct was “going to be turned around.”208
[97] Accordingly, I consider Mr Tiavo was provided with an opportunity to respond and that opportunity was reasonable.
Did Axiom unreasonably refuse to allow Tiavo to have a support person present to assist at discussions relating to the dismissal? - Section 387(d)
[98] Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal.
[99] It is not contended that Mr Tiavo was denied the presence of a support person at the Termination Meeting. Mr Evans attended the Termination Meeting with Mr Tiavo and, indeed, the Termination Meeting was rescheduled from 11 February 2020 to 12 February 2020 to accommodate Mr Evans’ availability to attend.
Was Tiavo warned about unsatisfactory performance before the dismissal - Section 387(e)
[100] If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal.
[101] Mr Tiavo submits that he had not received any warning for conduct that was relied upon to justify his dismissal. The reasons for dismissal that I have found to constitute a valid reason are matters of conduct not capacity. Mr Tiavo’s dismissal therefore did not relate to unsatisfactory performance and he was not required to be warned. However, in any event, I have found that Mr Tiavo was verbally warned not to falsify his timesheets in the 5 July Meeting and was also warned as to his unreliability and attendance on 29 August 2019.
To what degree would the size of Axiom’s enterprise be likely to impact on the procedures followed in effecting the dismissal? - Section 387(f)
[102] Section 387(f) requires the Commission to take into account the degree to which the size of the employer would likely impact on the procedures followed in effecting the dismissal.
[103] At the time of Mr Tiavo’s dismissal, Axiom employed 93 employees. 209 The size of the employer’s enterprise would have no impact on the procedures followed in effecting dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in Axiom’s enterprise be likely to impact on the procedures followed in effecting the dismissal? - Section 387(g)
[104] Section 387(g) requires the Commission to take into account the degree to which the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.
[105] There was no absence of dedicated human resource management specialist or expertise in Axiom’s enterprise. It is apparent that Ms D’Arcy was involved in the process leading up to Mr Tiavo’s dismissal and in the dismissal. Accordingly, section 387(g) has no application.
What other matters are relevant? - Section 387(h)
[106] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[107] Mr Tiavo submits that he was a diligent employee who performed his work to a high standard. He says that apart from one instance, he had a clean disciplinary record and that these matters weigh in favour of finding that his dismissal was harsh. 210 At the time of his termination of employment Mr Tiavo was subject to the Final Written Warning. That warning expressly put him on notice that his employment would be terminated if Axiom did not “see immediate improvement in [his] conduct.” He had been issued with a verbal warning for incorrect time entries on 5 July 2019 and a further verbal warning in relation to attendance issues on 29 August 2019. In these circumstances, I do not consider it can be said that Mr Tiavo had a clean disciplinary record “apart from one instance” nor that his disciplinary record weighs in favour of a finding that his dismissal was harsh. To the contrary, I consider Mr Tiavo’s disciplinary record and the fact that at the time of his dismissal he was subject to a final warning to weigh against a finding that his dismissal was harsh, unjust or unreasonable. Further, the fact that Mr Tiavo had been previously warned about incorrect time entry and his unreliable attendance also weights against a finding that his dismissal was harsh, unjust or unreasonable.
[108] Mr Tiavo submits that the dismissal has had a serious adverse effect on his personal and economic situation. He says that he is the main income earner in his household and the dismissal has had a significant impact on him and his family. 211 He says that he and his family moved to Tarneit to be closer to his work. He says that as a result of his dismissal he has been unable to pay the mortgage on his house in Bacchus Marsh and rent in Tarneit. This has necessitated he and his family moving back to their Bacchus Marsh property and cancelling the application to rent it. He says this process has been costly.212 I accept those submissions. I have no doubt that Mr Tiavo’s dismissal has had a negative effect on his economic and personal circumstances. However, I do not consider that Mr Tiavo’s personal and economic situation weighs so heavily as to render the dismissal harsh, unjust or unreasonable.
[109] The proportionality of the dismissal to the conduct that is the subject of the valid reason is a matter to be considered in connection with section 387(h). I have found that Mr Tiavo dishonestly entered time on 10 February 2020 in respect of the hours worked on 7 February 2020 and failed to comply with a lawful and reasonable direction. Mr Tiavo’s dishonest conduct constitutes misconduct and, indeed, in my view, constitutes serious misconduct. It alone justified the termination of Mr Tiavo’s employment. However, in combination with Mr Tiavo’s failure to comply with the Direction, I consider it clear that dismissal was proportionate to Mr Tiavo’s misconduct. Further, notwithstanding that Axiom considered Mr Tiavo had engaged in serious misconduct justifying summary dismissal, he was provided with three weeks’ payment in lieu of notice. I consider this to weigh against a finding that the dismissal was harsh, unjust or unreasonable.
[110] For completeness, should I be wrong and Mr Tiavo carelessly, as opposed to dishonestly, entered his time for 7 February 2020, I do not consider, in all the circumstances, including the failure to comply with the Direction and the previous warning issued to Mr Tiavo regarding his time entries, that dismissal would have been disproportionate to Mr Tiavo’s misconduct.
Conclusion
[111] I have made findings in relation to each matter specified in section 387 as relevant.
[112] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 213
[113] Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, I am satisfied that the dismissal of Mr Tiavo was not harsh, unjust or unreasonable.
[114] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Tiavo was unfairly dismissed within the meaning of section 385 of the Act. The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
A Dunn on behalf of the Applicant
M Ritchie for the Respondent
Hearing details:
2020.
Melbourne (by telephone):
June 18.
Final written submissions:
Applicant, 8 July 2020
Respondent, 22 July 2020
Printed by authority of the Commonwealth Government Printer
<PR722621>
Hi Sam
As you know, you are employed as a Grade 6A Operator (“Position”) at Axiom Rail Pty Ltd
(“Company”), commencing your employment on 3 October 2016.
Background
As you are aware, on 29 August 2019 we had informal discussions with you about your unsatisfactory performance and conduct. Subsequently, on 16 January 2020, you received a final written warning for your continued unsatisfactory performance and conduct.
Despite this, on Thursday, 6 February 2020, you were directed via text message to attend the Yard at 7am on Friday, 7 February 2020 for work. Sam, despite this clear lawful and reasonable direction, you failed to attend work as required. Ultimately, you sent the Yard Supervisor a text message at 07:35 AM advising that you were running late, citing you having slept in as the reason for your lateness.
Subsequently, on Monday, 10 February 2020, you submitted your working hours for the previous week, (i.e. the week ending Sunday, 9 February 2020). Notably, in the hours you submitted, you indicated you commenced work at 7am on Friday, 7 February 2020, despite this not being the case.
We consider the falsification of hours to be a very serious issue and an act of dishonesty. Accordingly, we consider this is a clear breach of Clause 24 (below) of the Axiom Rail Enterprise Agreement 2016, constituting grounds for dismissal owing to serious misconduct.
24. TERMINATION OF EMPLOYMENT
a) Clauses 16 (Termination of employment) of the Award applies and is incorporated into this Agreement - this provides notice of termination in accordance with the National Employment Standards.
b) An employee may be terminated if they do not maintain the essential licenses required to operate plant and equipment and licenses, tickets and/or permits to work on sites necessary to undertake their work.
c) The Employer may elect to make payment for all or that part of the period of notice that it does not require the employee to work.
d) In circumstances where the Employee is terminated on the grounds of serious misconduct, no notice period or payment in lieu thereof shall apply. Serious misconduct includes but is not limited to bringing the Company into disrepute, failing to comply with a reasonable request from the Management, dishonesty, theft of fuel, tools, spare parts or other property and falsification of hours.
e) The Employee undertakes to return to the Employer on termination all physical and intellectual property of the Employer whether in material, electronic, documentary or any other form.
Sam, as you know, this behaviour is unacceptable and cannot be tolerated by the Company. We have educated our employees on this and have stated on numerous occasions that timesheets should reflect your hours worked and are not to be falsified.
However, before we decide as to whether your employment with the Company should continue, we have arranged a meeting with you today, 12 February 2020, providing you with an opportunity to explain your ongoing unsatisfactory conduct.
Your responses were:
• You did not mean to put the incorrect start time on your timesheet for Friday, 7th February2020
• You correctly put the start time of 9am on the Yard attendance sheet for that day.
• You and your family are flat out at the moment with you working and trying to support them.
• You experienced the loss of a family member last week.
• You did not mean to defraud the company of hours and apologised for this behaviour.
• You advised that you did not have lunch and were taking a call and was not inside the break room or aware that the Yard Supervisor was looking for you.
Although we consider your actions amount to ‘serious misconduct’ and may warrant immediate dismissal, without notice of termination, as a gesture of good faith, we have decided to downgrade your actions to misconduct. Please note, you will not be required to work out your notice of termination period of 3 weeks, and this will be paid to you in lieu of you working out this period. Therefore, you will be finishing up with us effective immediately, making your last day of employment today, 12 February 2020.
Your final pay, along with any accrued leave entitlements will be paid to you shortly - following your termination - and you will be given a final payslip to reflect this. Please ensure any Company property you have in your possession by close of business today, 12 February 2020.
While we are disappointed in the manner of your departure from the Company, we wish you all the best with your future endeavours.
Yours sincerely
David Schembri
Operations Manager
Axiom Aust Pty Ltd
1 See for example Transcript PN507-526
2 Respondent’s outline of submissions at [1]
3 Transcript PN50-53
4 Ibid
5 Applicant’s outline of submissions at [18]; Exhibit R2, Annexure CD-13
6 Exhibit R2, Annexure CD-13
7 Exhibit A1, Annexure ST-1; Exhibit R2, Annexure CD-16
8 Exhibit R1 at clause 6(a)
9 Ibid at clause 9
10 Ibid at clause 12
11 Ibid at clause 13
12 Exhibit A1 at [10]
13 Ibid at [11]
14 Applicant’s outline of submissions at [12]
15 Ibid at [13]-[14]
16 Exhibit A1 at [13]
17 Applicant’s outline of submissions at [15]
18 Exhibit A1 at [17]
19 Exhibit R4 at [2]
20 Ibid at [4]
21 Ibid at [3]
22 Ibid at [10]
23 Ibid at [11]
24 Exhibit R1 at clause 13.3(c)
25 Exhibit R4 at [7]
26 Ibid at [10-11]
27 Ibid at [6]
28 Transcript PN807
29 Transcript PN796, PN808, PN867
30 Transcript PN866-867
31 Exhibit R4 at [6]
32 Transcript PN872-873
33 Transcript PN805
34 Transcript PN890-891
35 Transcript PN890
36 Exhibit R3 at [3]
37 Ibid at [6]
38 Ibid
39 Ibid at [9]
40 Ibid at [8]
41 Transcript PN184-185
42 Transcript PN177
43 Transcript PN175-177, PN183
44 Transcript PN178-183; Exhibit R1 at clause 13.1
45 Transcript PN186-187, PN205-206
46 Transcript PN208-209
47 Transcript PN211-212
48 Exhibit R1 at clause 13.4
49 Exhibit R2 at [5], [17]; Exhibit R3 at [13]
50 Exhibit R2 at [12], [13]
51 Exhibit R2, Annexure CD-4,
52 Exhibit R2 at [26]; Exhibit R3 at [14]
53 Exhibit R2 at [27]
54 Ibid at [28]
55 Ibid at [28], Transcript PN604
56 Exhibit R2 at [28]
57 Transcript PN604
58 Exhibit R2, Annexure CD-8
59 Transcript PN602
60 Transcript PN604
61 Exhibit R3 at [7]
62 Ibid at [10]
63 Ibid at [14]
64 Exhibit A1 at [8]
65 Ibid at [9]
66 Transcript PN371
67 Transcript PN372
68 Transcript PN379
69 Transcript PN380
70 Transcript PN385
71 Transcript PN406
72 Transcript PN392
73 Transcript PN411
74 Transcript PN412
75 Transcript PN302
76 Transcript PN303-305
77 Exhibit R2, Annexure CD-8; Transcript PN270
78 Transcript PN280-283
79 Exhibit R2, Annexure CD-8; Transcript PN284-291, PN315
80 Transcript PN281
81 Transcript PN323-330, PN351-353
82 Transcript PN318- 325, PN 329-341, PN351
83 Transcript PN321- 324
84 Transcript PN332, PN338
85 Transcript PN344
86 Transcript PN331
87 Transcript PN332
88 Transcript PN359
89 Transcript PN360
90 Transcript PN354
91 Transcript PN354
92 Transcript PN356
93 Transcript PN358
94 Transcript PN359, PN360
95 Transcript PN362
96 Transcript PN363-364
97 Exhibit R4, Annexure DS-1
98 Transcript PN775
99 Transcript PN778
100 Transcript PN422
101 Transcript PN423
102 Transcript PN425
103 Transcript PN426
104 Transcript PN427
105 Transcript PN429-PN435
106 Transcript PN437
107 Exhibit R4 at [13]
108 Ibid at [14]
109 Exhibit R3 at [6]
110 Exhibit R2 at [29]
111 Exhibit A1 at [29]
112 Exhibit R2, Annexure CD-9
113 Ibid at [30]
114 Exhibit R2 at [30]
115 Transcript PN 615-617
116 Exhibit R2 at [30(f)] and Annexure CD-11
117 Ibid
118 Exhibit R4 at [16]
119 Transcript PN636, PN849
120 Exhibit A1 at [8]
121 Ibid at [9]
122 Transcript PN248
123 Applicant’s outline of submissions at [20]; Exhibit A1 at [23]
124 Exhibit A1 at [23]
125 Ibid
126 Ibid at [24]
127 Transcript PN778
128 Applicant’s outline of submissions at [33], Exhibit R2 at [41]
129 Applicant’s outline of submissions at [21]
130 Ibid at [34]
131 Exhibit A1 at [27]
132 Ibid at [28]
133 Ibid at [29]
134 Ibid at [30]
135 Ibid at [31]
136 Ibid at [32]
137 Ibid at [34]
138 Ibid at [36]
139 Ibid at [37]
140 Exhibit R2 at [42-45]
141 Exhibit A1, Annexure ST-1; Exhibit R2, Annexure CD-16
142 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]
143 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
144 Ibid
145 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
146 Edwards v Justice Giudice [1999] FCA 1836, [7]
147 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]
148 Briginshaw v Briginshaw (1938) 60 CLR 336
149 Ibid at 363
150 Ibid per Dixon J at 362
151 Ibid per Rich J at 350
152 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 per Dixon J at 216
153 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450
154 [2003] NSWCA 388
155 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35]; approved in Karakatsanis v Racing Victoria Ltd
(2013) 306 ALR 125 at [35-37]
156 NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124]
157 Respondent’s closing submissions at [2]
158 Ibid at [10]
159 Applicant’s closing submissions at [3]
160 Ibid at [16]
161 Ibid at [12]
162 Ibid at [10]
163 Exhibit R2 at [6]
164 Ibid at [23]
165 Exhibit R3 at [7]
166 Exhibit R2 at [25]
167 Exhibit R3 at [10-11]
168 Transcript PN411-412
169 Exhibit R3 at [14]
170 Exhibit R2 at [28(f)]
171 Applicant’s closing submissions at [5-9]
172 Grant v BHP Coal Pty Ltd [2014] FWCFB 3027
173 Transcript PN175-177, PN183
174 Transcript PN241
175 Transcript PN787, PN791, PN850
176 Exhibit R4 at [10-11]
177 Transcript PN786
178 Clause 13.2 is set out in paragraph [21] of this decision
179 Exhibit R4 at [10]
180 Transcript PN635; PN681
181 Exhibit R4 at [13-14]
182 Exhibit A1 at [12]
183 Exhibit R3 at [6]
184 Ibid at [8]
185 Ibid at [9]
186 Ibid at [7(c)]
187 Exhibit R4, Annexure DS-2
188 Exhibit R2, Annexure CD-14; Exhibit R4, Annexure DS-3
189 Transcript PN810, PN812, PN853, PN854, PN855
190 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
191 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
192 Ibid
193 (2000) 98 IR 137
194 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
195 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]
196 RMIT v Asher (2010) 194 IR 1, 14-15
197 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
198 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544
199 Exhibit R4 at [30]
200 Ibid at [31]
201 Exhibit R2 at [44]; Exhibit R4 at [30-31]
202 Exhibit R4 at [32]
203 Ibid at [34]
204 Ibid at [36]
205 Exhibit R2 at [44(b)]
206 Transcript PN676
207 Transcript PN677
208 Transcript PN677
209 Form F3 Employer’s Response at q.1.7
210 Applicant’s outline of submission at [45]
211 Exhibit A1 at [30]
212 Ibid at [31]
213 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6–7]