| [2020] FWC 5729 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Benjamin Hatch
v
WesTrac Pty Ltd
(U2020/8327)
DEPUTY PRESIDENT SAUNDERS |
NEWCASTLE, 27 OCTOBER 2020 |
Application for relief from unfair dismissal – no valid reason for dismissal –– dismissal harsh, unreasonable and unjust – compensation ordered.
Introduction and background
[1] Mr Benjamin Hatch was employed by WesTrac Pty Ltd (WesTrac) in the role of Field Services Technician. He was dismissed because WesTrac believed that he had an intent to steal from the workplace. Mr Hatch contends that he had no such intent and his dismissal was harsh, unjust and unreasonable. WesTrac denies those allegations.
[2] WesTrac is one of the largest authorised Caterpillar equipment dealers globally, providing customers with a range of machinery and equipment as well as comprehensive management solutions to customers who own and operate heavy equipment. 1 WesTrac provides services to a number of coal mines in the Hunter Valley, including the Bengalla mine, located south west of Muswellbrook. WesTrac provides the Bengalla mine with a high level of on-site support and services and part sales. Mr Hatch was based at the Bengalla mine on a full-time basis prior to his dismissal.
[3] In certain parts of the coal mining industry, on-site theft has become an issue in recent years and many operators of coal mines have implemented zero tolerance policies towards on-site stealing. Many of WesTrac’s customers have implemented policies and procedures to address the issue and make it clear that stealing is not acceptable. This stance aligns with WesTrac’s position. 2
[4] I heard Mr Hatch’s unfair dismissal case against WesTrac on 21 September 2020. Mr Hatch gave evidence in support of his case. WesTrac adduced evidence from the following witnesses:
• Ms Alysha Fletcher, Senior People and Culture Advisor of WesTrac.
• Ms Bianca Jones, People and Culture Manager of WesTrac.
• Mr Matthew Farrell, Regional Operations Manager Hunter and Western NSW of WesTrac.
[5] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the Application.
[6] There is no dispute between the parties and I am satisfied on the evidence that:
(a) Mr Hatch’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b) Mr Hatch was a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to Mr Hatch’s dismissal; and
(d) Mr Hatch’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
[7] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Hatch’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
General principals
[8] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 3 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”4 and should not be “capricious, fanciful, spiteful or prejudiced.”5
[9] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 6 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).7
[10] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.8 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 9
[11] The employer bears the evidentiary onus of proving that the conduct on which it relies took place. 10 In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.11
[12] In Patrick Stevedores Holdings Pty Ltd v CFMMEU, 12 Justice Lee made the following useful observations about the Briginshaw standard and its impact on fact finding and the state of satisfaction required [references omitted]:
“Fact Finding and the State of Satisfaction Required
14. It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140.
15. Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties.
16. It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission:
The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.
Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw...at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262):
‘No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences...
Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).
17. It is also clear that so-called “Briginshaw principles” apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA)…”
Reasons for termination
[13] WesTrac’s decision to terminate Mr Hatch’s employment was based on:
• him removing struts from the return to store area at the Bengalla mine on 11 April 2020 and placing them in his vehicle with the intent to steal the items owned by Bengalla;
• the conduct was wilful and deliberate and inconsistent with the continuation of Mr Hatch’s employment;
• the conduct caused imminent risk to the reputation of WesTrac’s business;
• the conduct was in breach of WesTrac’s Code of Conduct Policy and Personal Behaviour Procedure, which, amongst other things, required Mr Hatch to act in an ethical, lawful, professional and trustworthy manner; and
• Mr Hatch had a poor employment history and had engaged in previous breaches of WesTrac’s policies and procedures, including having been removed from numerous customer sites as a result of those breaches.
[14] WesTrac contends that together these matters provided a valid reason to terminate Mr Hatch’s employment.
[15] It follows from the principles set out above that for WesTrac to succeed in relation to its allegation of misconduct against Mr Hatch I am required to reach a state of satisfaction or an actual persuasion that WesTrac has proved that Mr Hatch had an intent to steal, while taking into account the seriousness of the allegation and the gravity of the consequences that could follow if the allegation were to be accepted. 13
Relevant facts
[16] When a worker at the Bengalla mine is finished with an item and no longer requires it, the item is placed on what is known as the return to store bench or return to store area. For example, if a part is taken off a machine, whether it is broken or not, it is placed on the return to store bench. 14 Employees from the Bengalla mine assess the items on the return to store bench and decide whether they go into the junk pile or into the store room for later use.15 Some items on the return to store bench are tagged. The tag is about the size of an Iphone16 and includes information such as a job number, date, name, what the item was allocated for.17
[17] The Bengalla mine has a policy whereby items must not be taken from the store room without authorisation and being signed out. There is no dispute that, on 11 April 2020, the Bengalla mine did not have a policy or procedure for taking items from the return to store bench. 18 However, it is accepted that any WesTrac employee who stole, or had an intention to steal, items from the return to store bench would be in breach of a range of WesTrac’s policies and procedures, as well as the Bengalla’s mine’s policies and procedures.
[18] Mr Hatch gave evidence to the following effect in relation to the events on 11 April 2020:
• On a daily basis at the Bengalla mine, Mr Hatch took parts back to his work ute to work on. 19
• On his way back from a morning tea break at the Bengalla mine on 11 April 2020, Mr Hatch saw four struts sitting on the return to store bench. This was the first occasion on which Mr Hatch had seen the struts on the return to store bench. 20
• A strut is a structural component which is designed to resist compression and load bearing. Metal struts are commonly used to hold up a bonnet, boot, tailgate or hatchback on a car or machine.
• The four struts sitting on the return to work bench were tagged and bound together with elastic bands. 21 The tag was tied around the wrapping of the elastic bands.22
• Mr Hatch picked up the bundle of four struts and walked over to his work ute, which was about 200m away. Mr Hatch says he did so for the purpose of comparing the Bengalla struts with the personal struts he had in his work ute, which he says he had purchased from Amazon.com.au for his family vehicle. Mr Hatch says that he had been researching for a good brand of struts for his family car for a long time. 23 Mr Hatch contends that his intention was to compare the size and quality of the Bengalla struts with his personal struts. According to Mr Hatch, the Bengalla struts were “a different designed strut …. Different brand …”24
• Mr Hatch looked in his work ute for his personal struts for about seven or eight minutes, but could not locate his personal struts. 25 Mr Hatch then removed two of the Bengalla struts from the bundle of four struts. The two struts Mr Hatch removed from the bundle “looked like they had all the markings on them”.26 Mr Hatch left those two struts in his work ute and returned the other two to the return to store bench. Mr Hatch says that he did this so that he could have a better look for his personal struts on his next break and compare them to the two Bengalla struts he had left in his work ute. Mr Hatch’s reason for leaving two struts in his work ute, rather than one, was because they “were pretty badly worn” and the label on at least one of the struts may have been illegible.27 Mr Hatch wanted to be able to check the label and model number on one of the struts if it was unclear on the other strut.28 In addition, Mr Hatch says that “you can have a left and right strut and they can be different”.29 Although Mr Hatch accepts that he took two of the four Bengalla struts from the bundle of struts and placed them in his work ute, he says he did not take the tag off the bundle of struts.30
• Mr Hatch denies that he left two struts in his work ute because he had no intention of putting them back on the return to store bench. 31 He also denies that he thought no one would notice that two struts were missing if he walked back from his work ute with two struts still in his hand.32
• Mr Hatch accepts that it would have been more efficient to take the whole bundle of four Bengalla struts back to the return to store bench and come back later in the day to undertake his comparison. 33
• When Mr Hatch placed two of the struts back on the return to work bench, he was confronted by Mr Michael Matthews, a subcontractor of Vanroon Services Pty Ltd (another contractor on the Bengalla mine). Mr Matthew Honeysett, another subcontractor to Vanroon Services Pty Ltd, was nearby. There is a dispute regarding what was said between Mr Hatch and Mr Matthews. Mr Hatch says that Mr Matthews confronted him about taking struts and he responded by saying, “Calm down mate. There are only four in the bundle and I wanted to compare them with the struts in my ute so I can research a different brand of strut.” Mr Hatch claims that Mr Matthews responded, “Yeah sure. Whatever.” 34 In contrast, Mr Matthews asserts that Mr Hatch did not “have any answers” when Mr Matthews confronted Mr Hatch with the allegation of stealing. I deal with the statements given by Mr Matthews and Mr Honeysett in paragraphs [17] and [18] below. Mr Hatch spoke to Mr Matthews for a minute or a few minutes.35
• After Mr Hatch finished his conversation with Mr Matthews, he noticed that the nitrogen gas he was waiting for to undertake his next work task had not arrived. 36 At that time Mr Hatch was working right next to the return to store bench.37 Mr Hatch had some spare time and took the opportunity to go back to his work ute and look for his personal struts again.38 It took Mr Hatch about two or three minutes of looking to find his personal struts in his work ute.39 He says they were right at the top of his toolbox “at the back underneath a huge shifter”.40
• It took Mr Hatch probably less than a minute to undertake the comparison between his personal struts and the Bengalla struts. 41 Mr Hatch says he compared “the structure of the struts, the quality of the build; like, the way they hold the gas within them, because the ones I currently had kept failing, and it seemed like the seal, the internal seal, the lip seal on it, on the shaft kept failing, so I would see it was a better quality seal, that brand that they used, so I could possibly look up that brand to find the struts that I require.”42
• Mr Hatch says that he “always kept a spare set [of struts] within my ute. Every time I bought a set, I had a set would go in my ute, and there was also a set on the vehicle, installed. So because they were unpredictable and they constantly fail, I always kept a spare set.” 43
• After undertaking the comparison between the struts, Mr Hatch walked back to the return to store bench and put the two struts he had used for the comparison inside the bundle with the other two struts. 44
• The series of events from when Mr Hatch first took the struts from the return to store bench to when he returned the final two struts to that bench took about 15 minutes. 45
• On 20 April 2020 Mr Hatch, together with his union representative, met with Ms Fletcher, Mr Daen Ellenor, Branch Manager of WesTrac’s Mt Thorley Field Service Centre, and Mr Geoff Russell, WesTrac Field Service Supervisor. Allegations were put to Mr Hatch. He responded by explaining that he undertook a comparison between the Bengalla struts and his personal struts in his work ute; he said he had no intention to steal the struts and did not steal them. 46
• By letter 20 April 2020, Mr Hatch was required to provide a written response to the allegations put to him. He responded by letter dated 21 April 2020. Attached to that response was (a) a copy of an invoice dated 3 May 2019 from Amazon.com.au to Mr Hatch in the sum of $45.95 for the delivery of a pair of “Nissan Pathfinder gas struts rear window suit WD21 12/1986-11/1995 pair Braumach” and (b) a photograph of Mr Hatch holding a pair of Braumach struts which Mr Hatch says were the personal struts he bought in May 2019 and which he kept in his work ute from the time he bought them and they were still there on 11 April 2020.
• Mr Hatch says that struts should last about five years, 47 but the ones in his personal car were “constantly failing”, in the sense that they were failing roughly every 12 months.48 Mr Hatch replaced the struts in his personal car in about January 2019.49 The next time he did so was in about July 2020, at which time Mr Hatch says the struts were “pretty failed” when he replaced them and he had pushed it out as long as he could to get more longevity out of the struts.50
• In re-examination, Mr Hatch gave evidence that the Bengalla struts he was comparing to his personal struts were not struts he could actually use on his personal car because they “were a completely different design”. 51
[19] In a hand written statement dated 17 April 2020, Mr Matthews wrote:
“On Saturday 11/4/20 dayshift, I was working on WCH refitting A-frame in Bay 1 and returning from lunch I witnessed WesTrac fitter Ben Hatch inspecting parts that were in the return to store area which were 4 brand new struts off a bonnet I assume and then proceeded to put them all in his Ute parked near the fuel farm after he ripped the info tag off them. When he returned to Bay 1 I confronted Ben asking why he took them and put them in his Ute. He didn’t have any answers and knew I was upset at him for doing so. I told him that we are visitors here and it’s a privilege just to be working here and have a job atm in times like this and should be ashamed of himself. I also remind him of all the tooling that had gone missing here on site and it’s not tolerated here was my words to him. Later that afternoon the 4 struts were returned to the parts area and I had asked Spanno to put them back in the store. Matthew Honeysett was beside me when I had asked Ben at the rear of the water cart.
I only notified Jason Taylor on Sunday afternoon as I was unsure what or how to go about it straight away but he assured me we would sort it out on the next couple days at work.
Please don’t hesitate to contact me if any questions.
Michael Matthews [mobile phone number]”
[20] Mr Honeysett also provided the Bengalla mine with a handwritten statement in the following terms:
“Saturday, 11/4, I was working on WC4 reassembling the A–frame and rear struts, after crib I was around the rear of the truck in Bay 1, working with Mick to put the rear struts back up . Ben from WesTrac came over to us, and Mick asked him why he took parts from the ‘return to store’ bench to his ute, Ben didn’t reply. Mick then said there has been a lot of tool theft around lately shouldn’t be taking site property, Ben never replied and myself and Mick ended up walking away to continue with the job.
17/4/20
0420 am
Matt Honeysett”
[21] Neither Mr Matthews nor Mr Honeysett was called to give evidence in the proceedings. No application was made for an order requiring them to attend the Commission and give evidence. The evidence does not disclose who asked Mr Matthews and Mr Honeysett to provide a statement, what they were asked to address in their statements, how they prepared their statements, or whether they saw the other person’s statement at any time. There are material inconsistencies between (a) Mr Matthews’ statement and Mr Hatch’s version of events, (b) Mr Honeysett’s statement and Mr Hatch’s version of events, and (c) Mr Matthews’ statement and Mr Honeysett’s statement. At no time during WesTrac’s investigation did anyone from WesTrac speak to Mr Matthews or Mr Honeysett, or otherwise arrange for these inconsistencies to be put to Mr Matthews or Mr Honeysett for their response, notwithstanding the offer by Mr Matthews in his statement to contact him with “any questions” and the inclusion of his mobile telephone number on his statement. Mr Hatch maintains that Mr Matthews was hostile towards him in the workplace for some time prior to the incident on 11 April 2020 and had a motive to have Mr Hatch removed from the Bengalla mine site. 52 Some of the information contained in the handwritten statements made by Mr Matthews and Mr Honeysett is both controversial and potentially significant. For example, if Mr Hatch “ripped the info tag” off the struts (as Mr Matthews contends) or, when confronted by Mr Matthews about stealing, “didn’t reply” (as Mr Honeysett contends) or “didn’t have any answers” (as Mr Matthews contends) and only came up with the comparison explanation when the accusation was put to him by WesTrac on 20 April 2020, those matters would add weight to WesTrac’s contention that Mr Hatch had an intention to steal the struts. Mr Hatch has not been given an opportunity to test the truth and reliability of the information contained in the handwritten statements made by Mr Matthews and Mr Honeysett, ask questions about how those statements were prepared, or to challenge Mr Matthews in relation to the matters Mr Hatch says caused Mr Matthews to be set against him. For all those reasons, it would be most unfair to rely on the contested parts of the handwritten statements made by Mr Matthews and Mr Honeysett. I will not give those handwritten statements any weight save for where they are consistent with Mr Hatch’s evidence.
[22] There are troubling aspects of Mr Hatch’s evidence in relation to the events which took place on 11 April 2020. They include the following:
• There was someone near the return to store bench at the Bengalla mine when Mr Hatch took the four struts from the bench. Mr Hatch did not seek authorisation from that person to take the struts to his work ute, nor did Mr Hatch tell that person (or anyone else) that he was taking the struts to his work ute for the purpose of comparing them with his personal struts, after which he would return them to the return to store bench. 53
• Mr Hatch left two struts in his work ute, rather than taking all four struts back to the return to store bench until he could find his personal struts.
• There was a person near the return to store bench when Mr Hatch returned the first two struts to the bench. Mr Hatch did not explain to that person that he was only returning two of the struts and had left two in his work ute. 54
• After Mr Hatch found his personal struts and undertook his comparison of those struts with the Bengalla struts, he did not take his personal struts to show Mr Matthews or anyone else in the workplace that he was being truthful when he earlier said that he had personal struts in his work ute. 55
• Mr Hatch did not take his personal struts into the workplace for the purpose of comparing them against the Bengalla struts at the return to store bench.
• The first time Mr Hatch explicitly indicated that he could not actually use the struts in question on his personal vehicle was during re-examination.
[23] WesTrac’s employees found that Mr Hatch’s explanation for taking the struts was implausible and opportunistic, and the most plausible explanation was that Mr Hatch took the struts with the intention of stealing them and, had he not been confronted by Mr Matthews, he would have taken the struts. 56 WesTrac’s employees formed these views for the following reasons:
(a) Mr Hatch did not ask for approval to remove the struts from the return to store bench. 57
(b) The Amazon invoice produced by Mr Hatch on 21 April 2020 indicated that he had purchased his own personal struts in May 2019, giving him ample opportunity – near 12 months – to compare his personal struts prior to purportedly wanting to do so on 11 April 2020. 58
(c) Mr Hatch claims he was initially unable to find the personal struts he intended to compare against the ones he had removed from the return to store bench. However, it is reasonable to assume that if Mr Hatch knew he would need his personal struts for the purpose of comparison at some stage during 11 April 2020, he would have placed his personal struts somewhere readily accessible or at least known where he had placed them in his work ute. 59
(d) Mr Hatch left two of the struts in his ute and only returned them after being confronted by Mr Matthews and accused of stealing them. 60
(e) Mr Hatch was not allocated to the job on–site that day. It was unclear how Mr Hatch even knew that the struts were in the return to store area. The struts were going to be used for a job to work on a water cart which had been allocated to another employee, but the job did not go ahead. 61
(f) Mr Hatch was on–site on Saturday, 11 April 2020 but had not been allocated any tasks that required him to be in the return to store area. It was reasonable to conclude that he had seen the struts sitting on the return to store bench in the two days prior to the incident when he was on-site, and he had returned to the area to remove them. 62
(g) Given that Mr Hatch was not allocated any job that required him to be on that part of the Bengalla mine site, it was implausible that he had chosen to bring in his own personal struts on that particular day for the purposes of the comparison. He was also unable to initially locate his personal struts which indicated that he had not planned on conducting a comparison that day. 63
(h) Mr Hatch had been caught in the act and had placed the struts back in the area he had found them after being confronted by the other workers on–site. 64
(i) Mr Hatch admitted to taking the struts and placing them in his ute, so had admitted to the conduct. However, Mr Hatch claimed that the conduct engaged in was not carried out with the intention to steal the struts. 65
(j) The witnesses observed that the tags that hold the bundle of struts together had been removed from the bundle. The tag held the struts together in a bundle. 66
(k) Mr Hatch claimed that he removed the struts and placed them in his ute to conduct a comparison, however, he did not conduct the comparison immediately. 67
[24] While some of these matters are the same as or similar to the troubling aspects of Mr Hatch’s evidence identified in paragraph [22] above and/or do support a finding that Mr Hatch intended to steal the struts, a number of these matters are based on assumptions which were never put to Mr Hatch for his response. For example, various of WesTrac’s witnesses assumed that Mr Hatch had seen the struts on the return to store bench in the days prior to 11 April 2020, from which they reasoned that he would have placed his personal struts somewhere readily accessible. They then rely on these matters to conclude that Mr Hatch’s explanation that he could not find his personal struts when he first looked for them was implausible. However, when the facts underpinning these assumptions were put to Mr Hatch at the hearing, a different picture emerged. Mr Hatch gave unchallenged evidence that he was working on a job near the return to store area on 11 April 2020 and he first saw the struts on the return to work bench on that day. He also gave evidence that he always keeps a spare set of personal struts in his work ute because that is where his tools are kept and the struts on his family car have failed a number of times. This evidence, if accepted, supports Mr Hatch’s contention that he could not find his personal struts when he first looked for them in his work ute.
Conclusion on valid reason
[25] I accept that it is possible that Mr Hatch intended to steal the struts on 11 April 2020. The troubling aspects of the evidence to which I have referred above support such a conclusion. However, having carefully observed and listened to Mr Hatch give evidence in these proceedings, I have not reached a state of satisfaction or an actual persuasion that Mr Hatch had an intention to steal the struts. On the basis of the evidence adduced in these proceedings, I am not satisfied on the balance of probabilities and having regard to the Briginshaw standard that Mr Hatch had an intention to steal the struts. My reasons for making this finding are as follows:
• Mr Hatch’s version of events has been substantially consistent throughout WesTrac’s investigation of the incident and his evidence in these proceedings.
• Mr Hatch’s contention that he took the two struts to his work ute for the purpose of undertaking a comparison with his personal struts is supported by (a) his Amazon.com.au invoice for the struts purchased by him in May 2019 and (b) the photographs he provided to WesTrac of those struts on 21 April 2020.
• Mr Hatch was asked a lot of questions during his evidence before the Commission about the events which took place on 11 April 2020 and why he acted in the way that he did. He was able to answer all those questions and, importantly, his answers made logical sense and did not expose any significant inconsistencies. Put simply, his account ‘hangs together’ and has a ring of truth to it, albeit he accepts in hindsight that he should have gone about his comparison of the struts in a completely different way. He should have obtained authority before taking the struts to his work ute for the purpose of undertaking the comparison.
• Mr Hatch commenced employment with WesTrac as an apprentice Plant Mechanic in 2009. At no time during his 12 years of employment with WesTrac was Mr Hatch accused of stealing, save for in respect of the events which took place on 11 April 2020.
• I consider that Mr Hatch was a credible witness. He came across as a straight forward and plain speaking man. He answered questions put to him in a direct and responsive manner and made a number of concessions about how, with the benefit of hindsight, he could and should have done things differently. Further, Mr Hatch “wholeheartedly and sincerely apologise[d] to WesTrac for the confusion and misunderstanding that has unfortunately arisen because of my actions on that day”. 68
[26] WesTrac’s case on valid reason hinges on its contention that Mr Hatch had an intention to steal the struts. In light of my finding in that regard, I conclude that WesTrac did not have a valid reason for Mr Hatch’s dismissal related to his capacity or conduct.
[27] Mr Hatch was notified of the reason for his dismissal in a show cause letter dated 27 April 2020 and the letter of termination dated 29 May 2020.
[28] During the investigation process Mr Hatch was given opportunities to respond, and did in fact respond, to the reason for his dismissal. The opportunities Mr Hatch had to respond to the reason for his dismissal were expanded by reason of an application filed in the Commission prior to his dismissal for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the applicable enterprise agreement. As a result of that application, Mr Hatch was given an opportunity to seek relevant material and more time to respond to WesTrac’s request that he show cause as to why his employment should not be terminated.
Unreasonable refusal to allow a support person (s 387(d))
[29] Mr Hatch had a support person with him in the meetings on 20 and 27 April 2020.
[30] There is no evidence to support a finding that WesTrac refused to allow Mr Hatch to have a support person present at any meeting relating to his dismissal.
[31] Accordingly, I am satisfied that there was not any unreasonable refusal by WesTrac to allow Mr Hatch to have a support person present to assist in any discussions relating to his dismissal.
Warnings of unsatisfactory performance (s 387(e))
[32] Mr Hatch was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
[33] WesTrac is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of WesTrac’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Mr Hatch’s dismissal.
Other relevant matters
[34] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[35] WesTrac’s Counselling and Disciplinary Procedure emphasises the importance of ensuring that “a thorough and comprehensive investigation is carried out as soon as is practicably possible”. 69 In my view, WesTrac did not meet that standard in this case. WesTrac’s failures in this regard give weight to Mr Hatch’s argument that his dismissal was unreasonable.
[36] First, having regard to the material inconsistencies between (a) Mr Matthews’ statement and Mr Hatch’s version of events, (b) Mr Honeysett’s statement and Mr Hatch’s version of events, and (c) Mr Matthews’ statement and Mr Honeysett’s statement, a thorough and comprehensive investigation required WesTrac to at least make reasonable attempts to speak to Mr Matthews and Mr Honeysett with a view to obtaining a better understanding of what they saw and heard, putting the main inconsistencies to them for their response, and inquiring into Mr Hatch’s allegations concerning Mr Matthews’ dislike of him. WesTrac did not take such steps.
[37] Secondly, rather than making assumptions about various matters and relying on those assumptions to form an opinion as to the plausibility of Mr Hatch’s account, 70 those assumptions and concerns should have been put to Mr Hatch for his response, particularly where the accusation against Mr Hatch was criminal in nature, namely that he had an intention to steal.
[38] Thirdly, Mr Farrell was one of the persons involved in the making of the decision to terminate Mr Hatch’s employment. 71 In forming his view that Mr Hatch had an intention to steal, Mr Farrell relied on, among other things, Mr Hatch’s “account of the events and after he was questioned, his response and the information that was provided through the process”.72 Because Mr Farrell did not participate in the investigation process, he relied on information given to him by other WesTrac employees about what happened during the investigation.73 That information included what Mr Farrell was told by Mr Ellenor and Ms Fletcher on 23 April 2020.74 In that discussion, Mr Farrell gave evidence that he had a conversation with Mr Ellenor in words to the following effect:75
Mr Ellenor said:
“Alysha and I have finalised the investigation. We have concluded that Ben removed the struts with the intention of stealing them. In our initial conversation Ben did not provide any explanation for his actions. However in his written response he stated that he was attempting to conduct a comparison between his personal struts and the struts he had removed and placed in his ute. On the basis of the findings, our recommendation is that we finalise investigation process with Ben and issue a show cause.”
Mr Farrell said:
“I agree with that recommendation. Please confirm that you also have Bianca’s endorsement and then proceed on that basis.”
[39] Mr Farrell accepted in cross examination that he would be concerned if what he was told on 23 April 2020 was inaccurate. 76
[40] Ms Fletcher gave evidence that the intention to steal allegation was put to Mr Hatch, for the first time, in a meeting on 20 April 2020, at which time Mr Hatch gave the following response: 77
“I know where the allegations came from. It was two VRS employees. One of them, Mick Matthews, has it in for me. I had 2 struts of my own in my vehicle and I wanted to compare the struts for my own education. Mick Matthews asked me if I was stealing the struts and I said that I had no intention of stealing them. I thought he was joking around when he approached me on the day. The struts were wrapped in an elastic band and I pulled at the struts out and put them in my ute, but I didn’t take any tags off.”
[41] Mr Hatch’s evidence as to what he said during the meeting on 20 April 2020 is consistent with Ms Fletcher’s evidence. I accept that evidence. It follows that on 23 April 2020 Mr Farrell was given inaccurate information because he was told that in the initial meeting with Mr Hatch he (Mr Hatch) did not provide any explanation for his actions, whereas Mr Hatch did provide an explanation in that meeting and his explanation was consistent with what he said at all other times. A thorough and comprehensive investigation requires the investigators to provide accurate information to the decision makers.
[42] Mr Hatch submits that other parts of the Counselling and Disciplinary Procedure were not met, such as taking notes during interviews. The purpose of the Counselling and Disciplinary Procedure is to provide ‘guidance’ for those involved in performance and disciplinary matters. In this case, there is no dispute about what was said in the interviews with Mr Hatch. Accordingly, the fact that interview notes were not taken did not result in any unfairness being visited upon Mr Hatch. I am not satisfied that there were any other relevant or material breaches of the Counselling and Disciplinary Procedure.
[43] Mr Hatch was dismissed summarily, without any payment in lieu of notice. In view of my finding that Mr Hatch did not engage in any misconduct, let alone serious misconduct, because he did not have an intention to steal the struts, Mr Hatch’s summary dismissal was harsh. The dismissal was also harsh in its consequences for the personal and economic situation of Mr Hatch. He remained unemployed in the period from 29 May 2020 until 20 July 2020. In that period, Mr Hatch applied for over 60 jobs in a range of industries, occupations, and locations. On 20 July 2020 Mr Hatch commenced employment in a new job which pays him about $59,000 per annum, which is about half of what he earned with WesTrac. As a result of Mr Hatch’s period of unemployment and lower earnings, he was unable to meet his mortgage payments and placed his mortgage on hold. He was required to sell many of his personal possessions, including his motorbike and car, in order to pay for usual household expenses and bills. Mr Hatch has also withdrawn from his superannuation fund to assist with his family’s finances.
Conclusion as to harsh, unjust or unreasonable dismissal
[44] WesTrac accepted, rightly in my view, that Mr Hatch’s unfair dismissal application must succeed if I accept his evidence in relation to whether he had an intention to steal the struts. 78 I have accepted his evidence in that regard. I have also identified above aspects of the investigation procedure which were unfair and the impact which the dismissal has had on Mr Hatch and his family.
[45] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that WesTrac’s dismissal of Mr Hatch was harsh, unjust and unreasonable.
Remedy
[46] Having found that Mr Hatch was protected from unfair dismissal, and that his dismissal was harsh, unjust and unreasonable, it is necessary to consider what, if any, remedy should be granted to him. Mr Hatch seeks the remedy of reinstatement. As a result, I need to consider whether reinstatement of Mr Hatch would be appropriate or inappropriate.
[47] WesTrac submits that it would be inappropriate to order reinstatement or re-employment to a different position. WesTrac says that it has lost trust and confidence in Mr Hatch to perform his role in accordance with applicable policies and procedures. WesTrac also points to the fact that prior to Mr Hatch’s dismissal, it considered whether there were alternative options available including redeploying Mr Hatch to another customer site, but many of WesTrac’s customers have refused to allow Mr Hatch onto their sites on account of previous incidents and breaches. 79 WesTrac concluded that there were no other suitable roles or sites where Mr Hatch could be placed.80
[48] A Full Bench examined the relevant principles concerning an alleged loss of trust and confidence in the context of an application for reinstatement in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (references omitted): 81
“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”
[49] As a result of the incident on 11 April 2020, the Begalla mine instructed WesTrac that Mr Hatch is “not to return to site”. 82 This is not the first mine which has issued such an instruction to WesTrac. A disciplinary form prepared in connection with a written warning issued to Mr Hatch in June 2019 includes the following relevant information:83
“The following sites have now formerly [sic] requested not to have Ben Hatch as part of their WesTrac field services solution:
• BHP MAC
• Bulga
• Thiess Mt Owen
• Yancoal MTW
The following sites have informally requested not to have Ben Hatch as part of their WesTrac field service solution:
• Ravensworth
• HVO
The result means we have little to no sites willing to accept Ben as the WesTrac field service technical solution.
The above complaints along with previous site complaints are unacceptable and jeopardise the WesTrac Field Service brand.”
[50] The written warning was issued to Mr Hatch in June 2019 as a result of WesTrac’s client, Yancoal, making a formal complaint about Mr Hatch’s performance, particularly:
• Poor adherence/lack of regard to safety.
• Not contributing to repairs as expected and sitting in the WesTrac vehicles whilst others perform the task.
• Excessive use of mobile phone.
• Being caught watching You Tube/non work related footage on a mobile phone.
• General lack of confidence in Mr Hatch’s work ethic and ability.
[51] Mr Hatch was also issued with the following Diary Notes in relation to his performance or conduct during his employment at WesTrac: 84
(a) Diary Note dated 1 January 2014 – WesTrac managers spoke to Mr Hatch about his approach to fault finding and the way he relays his findings to the customer. The standard of the work being produced by Mr Hatch is not up to the standard required by WesTrac.
(b) Diary Note dated 28 August 2014 – on 6/8/14 Mr Hatch dismantled a compressor shaft seal whilst the machine was on shutdown. When dismantling the component the service manual was either read incorrectly or not used, resulting in the front bearing plate being released on the compressor. Due to the bearing plate being released the compressor now has axial play in the input shaft causing the mechanical seal to leak.
(c) Diary Note dated 8 July 2015 – on numerous occasions Mr Hatch handed his timesheets in late.
(d) Diary Note dated 30 October 2015 – Mr Hatch handed his timesheets in late after the end of the pay period, which meant that his timesheets needed to be signed off by an Area Manager.
(e) Diary Note dated 21 November 2016 – Mr Hatch was not meeting Newcrest expectations as an on-shift fitter. He needed to improve in the following areas:
• Holding people up on jobs
• Being asked multiple times to do a task
• Excessive time taken to complete tasks
(f) Diary Note dated 21 November 2016 – Mr Hatch did not remove his personal danger tag and lock from an isolation point before leaving site on 6 November 2016.
(g) Diary Note dated 26 February 2018 – It was reported by BHP Mt Arthur Coal on 20/12/2017 that there were issues with Mr Hatch’s performance on site, specifically related to low work output, poor attitude, lack of completed shift handovers and jobs not being completed as requested.
(h) Diary Note dated 5 March 2019 – WesTrac managers discussed with Mr Hatch a number of performance complaints from WesTrac’s customers and their request not to have Mr Hatch return to the following sites: BHP MAC, Bulga, Thiess Mt Owen (formal request) and RAV, HVO (informal request). Details of the complaints are set out in the Diary Note.
[52] Mr Hatch was asked about these matters during cross examination. Out of all these Diary Notes and disciplinary history, the only thing he accepted responsibility for was the lock and tag issue on 21 November 2016. 85 Regardless of Mr Hatch’s dispute about these matters, it remains the fact that many of WesTrac’s customers do not want Mr Hatch back working on their sites. That fact is relevant to the appropriateness of any order for reinstatement.
[53] It was put to Mr Hatch that the only site where WesTrac could place him after June 2019 was the Bengalla mine. Mr Hatch disagreed with that proposition and contended that he could have been placed at the following mines in the Hunter Valley: Rix’s Creek, Mount Pleasant and Mangoola. 86
[54] Mr Farrell gave evidence, which I accept, that WesTrac’s on-site presence at Rix’s Creek, Mount Pleasant, Mangoola and Muswellbrook Coal is “very different to others … is quite limited and we provide technical expertise from time to time as required but there are no ongoing agreements in place that where we service those mines and that can be quite variable how we support those customers”. 87 Mr Farrell explained that with the possible exception of Mount Pleasant, WesTrac does not have full time service people based at any of those mines. WesTrac has “people that service those mines but it is not their sole role just to go to those mines. They could be at one of those aforementioned mines one day per week and any of our other Hunter Valley customers for the remainder of their time depending on the different nature of the work and requirements.”88
[55] In a service business such as the one conducted by WesTrac, it is essential that WesTrac’s Field Service Technicians not only be competent in the performance of their service, repair and maintenance tasks, but they be able to build and maintain good relationships with the customers they service. The reputation and success of WesTrac’s business depends to a significant extent on its relationship with its customers and its reputation in the market place. The Diary Notes and performance history set out above establishes that Mr Hatch has not been able to build and maintain good relationships with a significant number of the mines serviced by WesTrac in the Hunter Valley. Mr Hatch’s conduct on 11 April 2020 is yet a further example of the difficulty WesTrac faces with placing Mr Hatch at client sites. Although I have not found that Mr Hatch had an intention to steal the struts, his conduct on 11 April 2020 was problematic and gave rise to a risk of reputational damage for WesTrac. It was inappropriate for Mr Hatch to take items from the return to store bench without seeking prior approval, even if his only purpose was to conduct the comparison with his personal struts. By failing to seek approval or even notify anyone as to what he was doing, there was an obvious risk that an allegation of stealing may be made against him and WesTrac’s reputation would be thereby damaged. Although Mr Hatch’s conduct in this regard did not give WesTrac a valid reason for his dismissal, it is a relevant consideration on the question of the appropriateness of an order for reinstatement. I accept that Mr Hatch’s apology and willingness to undergo further training and comply with WesTrac’s policies and procedures 89 provides some support for a view that he may be able to improve, but the number and extent of issues raised by WesTrac’s customers is a significant concern.
[56] It is possible that the Bengalla mine may revisit its decision that Mr Hatch is “not to return to site” after it reads this decision, but I do not consider that to be a likely outcome, particularly in light of the inappropriateness of Mr Hatch’s conduct in taking items from the return to store bench without seeking prior approval, even if his only purpose was to conduct the comparison with his personal struts. Coupled with that is the fact that a significant number of operators of mines in the Hunter Valley have requested that Mr Hatch not return to their sites. Those matters provide a rational basis for (a) WesTrac’s decision at the time of Mr Hatch’s dismissal not to place him at another client site or redeploy him to another position and (b) WesTrac’s submission in these proceedings that reinstatement to any position would not be appropriate on the basis of a loss of trust and confidence. Having regard to all the circumstances, I am not satisfied that a sufficient level of trust and confidence could be restored to make the employment relationship between Mr Hatch and WesTrac viable and productive. I am satisfied that reinstatement of Mr Hatch by WesTrac is inappropriate in all the circumstances.
Compensation
[57] Section 390(3)(b) of the Act provides that the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 90
[58] Having regard to all the circumstances of the case, including the fact that Mr Hatch has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.
[59] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Hatch. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.
[60] I will use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket 91 and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.92 The approach to calculating compensation in accordance with these authorities is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration Mr Hatch would have received, or would have been likely to receive, if he had not been dismissed (s 392(2)(c))
[61] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 93
[62] I am satisfied on the balance of probabilities that if Mr Hatch had not been dismissed on 29 May 2020, he would have remained employed by WesTrac for a further four months. I make this finding in light of the number of operators of mines in the Hunter Valley which have requested that Mr Hatch not return to their sites and, as a result, the limited number of mines at which Mr Hatch could have been utilised to undertake work for WesTrac in the Hunter Valley and (b) the number and range of issues raised by WesTrac’s customers with Mr Hatch’s performance and conduct over a number of years and the impact those matters had and would have continued to have (if he had remained employed) on WesTrac’s ability to have trust and confidence in Mr Hatch’s ability and willingness to do the right thing at all times and build good working relationships with WesTrac’s customers. In my view, these matters would have more likely than not resulted in Mr Hatch’s employment with WesTrac coming to an end four months later than it did.
[63] Four months’ pay at an annual rate of remuneration of approximately $120,000 per annum 94 is $40,000. I am satisfied that is the remuneration that Mr Hatch would have received, or would have been likely to receive, if he had not been dismissed.
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
[64] Mr Hatch did not earn any remuneration in the seven week period from his dismissal on 29 May 2020 to the commencement of his new job on 20 July 2020. In the period since 20 July 2020, Mr Hatch has been earning remuneration at a rate of about $59,000 per annum. 95
[65] Accordingly, in the four month period following his dismissal on 29 May 2020, Mr Hatch has earned gross remuneration of $11,686.59 (4 months (17.3 weeks) – 7 weeks unemployed = 10.3 weeks @ $1,134.62 per week ($59,000/52) = $11,686.59). It follows that $28,313.41 ($40,000 - $11,686.59 = $28,313.41) is the gross amount of additional remuneration Mr Hatch would likely have earned had he not been dismissed by WesTrac and instead continued to be employed by WesTrac until the conclusion of a four month period after 29 May 2020. This calculation is intended to put Mr Hatch in the position he would have been in but for the termination of his employment. 96
Viability (s 392(2)(a))
[66] No submission was made on behalf of WesTrac that any particular amount of compensation would affect the viability of its enterprise.
[67] My view is that no adjustment will be made on this account.
Length of service (s 392(2)(b))
[68] My view is that Mr Hatch’s period of service with WesTrac (about 12 years) does not justify any adjustment to the amount of compensation.
Mitigation efforts (s 392(2)(d))
[69] The evidence establishes that Mr Hatch made reasonable efforts to obtain alternative employment following his dismissal. In particular, Mr Hatch applied for in excess of 60 jobs in various industries, occupations and locations.
[70] In all the circumstances, my view is that Mr Hatch acted reasonably to mitigate the loss suffered by him because of the dismissal and I do not consider it appropriate to reduce the compensation on this account.
Any other relevant matter (s 392(2)(g))
[71] It is necessary to consider whether to discount the remaining amount ($28,313.41) for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Hatch was subject might have brought about some change in earning capacity or earnings. 97 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.
[72] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision. 98
[73] Because I am looking in this matter at an anticipated period of employment which has already passed (four months after 29 May 2020), there is no uncertainty about Mr Hatch’s earnings, capacity or any other matters during that period of time.
[74] In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $28,313.41 for contingencies.
[75] Save for the matters referred to in this decision, my view is that there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.
[76] I have considered the impact of taxation, but my view is that I prefer to determine compensation as a gross amount and leave taxation for determination.
Misconduct (s 392(3))
[77] Mr Hatch did not commit any misconduct, so my view is that this has no relevance to the assessment of compensation.
Shock, distress or humiliation, or other analogous hurt (s 392(4))
[78] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap (s 392(5)-(6))
[79] The amount of $28,313.41 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Mr Hatch was entitled in his employment with WesTrac during the 26 weeks immediately before his dismissal. In those circumstances, my view is that there is no basis to reduce the amount of $28,313.41 by reason of s 392(5) of the Act.
Instalments (s 393)
[80] No application has been made to date by WesTrac for any amount of compensation awarded to be paid in the form of instalments.
[81] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is no basis for me to reassess the assumptions made in reaching the amount of $28,313.41. 99
[82] For the reasons I have given, my view is that a remedy of compensation in the sum of $28,313.41 (less taxation as required by law) in favour of Mr Hatch is appropriate in the circumstances of this case. An order will be made to that effect [PR723973].
DEPUTY PRESIDENT
Appearances:
J Williams, counsel, for the Applicant
A DeBoos, solicitor, for the Respondent
Hearing details:
2020.
Newcastle:
21 September.
Printed by authority of the Commonwealth Government Printer
<PR723972>
1 Ex R3 at [9]
2 Ex R3 at [13]
3 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
4 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
5 Ibid
6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
7 Ibid
8 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
9 Ibid
10 Ibid
11 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
12 [2019] FCA 451
13 Ibid at [18]
14 PN46
15 PN47
16 PN75
17 PN49
18 PN989-993
19 PN95
20 PN56-59
21 PN72
22 PN73-74
23 Ex A1 at BIH-3
24 PN69
25 PN80
26 PN78
27 PN79
28 Ex A1 at [17]
29 Ex A1 at BIH-3
30 ExA1 at [16]
31 PN86
32 PN87
33 PN84
34 Ex A1 at [20]
35 PN137
36 PN147
37 PN144
38 PN147 & PN155
39 PN156
40 PN163
41 PN157
42 PN158
43 PN160
44 PN162
45 PN151
46 Ex R2 at [17]
47 PN343
48 PN67 & PN160
49 PN321-325
50 PN336-337
51 PN345
52 PN106-131, PN346-350 & Ex A1 at BIH-3
53 PN132-133
54 PN135-136
55 PN98-101
56 Ex R2 at [25]
57 Ex R2 at [25(a)]; Ex R1 at [24(b)]; Ex R3 at [24(d)]
58 Ex R2 at [25(b)]; Ex R1 at [24(a)]; Ex R3 at [24(c)]
59 Ex R2 at [25(c)]; Ex R3 at [24(b)]
60 Ex R2 at [25(d)]
61 Ex R1 at [24(c)]
62 Ex R1 at [24(d)]
63 Ex R1 at [24(e)]
64 Ex R1 at [24(g)]
65 Ex R1 at [24(h)]
66 Ex R1 at [24(f)]
67 Ex R3 at [24(a)]
68 Ex A1 at BIH-13
69 Ex R1 at BJ-2, clause 3.1
70 See paragraph [24] above
71 PN901
72 PN921
73 Ex R3 at [21]-[22]
74 PN927-932
75 Ex R3 at [22]
76 PN980-983
77 Ex R2 at [17]
78 PN1075
79 Ex R1 at [46]
80 Ibid
82 Ex R1 at BJ-1
83 Ex R1 at p53
84 Ex R1 at BJ-4
85 PN301-2
86 PN296-298
87 PN1024
88 PN1025-6
89 Ex A1 at BIH-13 (letter dated 28 May 2020)
90 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]
91 (1998) 88 IR 21
92 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431
93 Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]-[17]
94 Ex A1 at [8]
95 Ex A1 at [52]
96 Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]
97 Ellawala v Australian Postal Corporation Print S5109 at [36]
98 Enhance Systems Pty Ltd v Cox PR910779 at [39]
99 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]