[2020] FWC 856


Fair Work Act 2009

s.394—Unfair dismissal

Ashlee Mckain
BGC Australia Pty Ltd


PERTH, 11 MARCH 2020

Application for an unfair dismissal remedy – serious misconduct – application dismissed.

[1] BGC Australia Pty Ltd (BGC) dismissed Ms Mckain for serious misconduct whilst on leave after she refused to return, or allowed to be collected, BGC’s company vehicle. That refusal was revealed in Ms Mckain’s correspondence to BGC, including several emails, such as one, where Ms Mckain pressed, ‘[U]se [sic] ain’t getting shit from me or my property especially when use [sic] can’t even pay me what I signed up for’. Before her dismissal Ms Mckain clearly perceived BGC had treated her poorly. A jeremiad of grievances formed much of the content of Ms Mckain’s application for an unfair dismissal remedy.

[2] In short, having taken into account each of the matters specified in s.387 of the Fair Work Act 2009 (Cth) (the Act), and notwithstanding Ms Mckain’s grievances with BGC, I am satisfied that BGC had a valid reason for dismissing Ms Mckain based on her conduct. I find that Ms Mckain’s dismissal was not ‘harsh, unjust or unreasonable’, within the meaning of s.387 of the Act. It follows that Ms Mckain’s dismissal was not unfair. Accordingly, I am obliged to dismiss Ms Mckain’s application and an order 1 to that effect is being issued in conjunction with this decision. My reasons follow.


Events leading up to Ms Mckain’s dismissal

[3] Ms Mckain commenced employment with BGC on or around 2 October 2017 as a field tester. For the purpose of carrying out her duties as a field tester, Ms Mckain was provided with a motor vehicle, which was owned by BGC (company vehicle).

[4] Ms Mckain’s employment contract set out the following concerning a ‘Company Motor Vehicle’:

You will be provided with a fully maintained company vehicle for work purposes and limited personal use. The provision of this vehicle is subject to the BGC Vehicle Policy and Guideline.

It is a condition of all arrangements that you maintain all of the necessary licences, obey all applicable road rules and never drive the vehicle with drugs or alcohol in your system. 2

[5] While the employment contract stipulated that the provision of the company vehicle was subject to the BGC Vehicle Policy and Guideline (Vehicle Policy), at hearing Ms McKain said she was not provided with the Vehicle Policy and did not have access to it as her email/intranet access was not set up. However, apart from Ms Mckain’s assertion, there was no evidence to show that Ms Mckain did not have access to the BGC intranet.

[6] Relevant parts of the Vehicle Policy included:


The BGC Vehicle Policy and Guidelines provides information on the obligations, expectations and use of BGC Company and provided vehicles.


Site Based / Pool Vehicle

A site based / pool vehicle:

  Is not allocated to any one individual

  Remains on site after hours and is not used for travel to and from work

Tool of Trade Vehicle

A Tool of Trade Vehicle may be allocated to an employee whose role requires them to do substantial travel between sites, works or clients. An employee who has been allocated a Tool of Trade Vehicle may also be allowed limited private use of the vehicle subject to approval by the business unit General Manager. The vehicle is not considered to be part of the employee’s remuneration package and the use of this vehicle may be revoked as the requirements of the business unit change.

A Tool of Trade Vehicle may be required to be available for others to use when the employee is on personal or annual leave.

Remuneration Vehicle

A vehicle may be considered in an employee’s Employment Package, typically Remuneration Vehicles are only available for:

  General Manager and Senior Business Unit Managers

  Direct reports to General Managers or Business Unit Managers where approved by the Executive Director

The Company reserves the right to vary the allocation of fleet vehicles and the allocation and use of Company vehicles is at the sole discretion of BGC.


Employees, who need a vehicle to assist them to complete their work duties, may be allocated a tool of trade vehicle upon recommendation of the General Manager of the relevant division and the approval of a Director. Minimum kilometer usage (work related and hence excluding travel between home and the primary place of work) is 200km’s [sic] a week. Exception will be at the discretion of the Directors.

Employee’s requirements

Usage of the vehicle whilst on leave will be at the sole discretion of the General Manager.

It is expected that the private use by employees of a company car will be minimal. When on leave, you may be directed to pay for your own fuel.

Use of the vehicle by any person not employed by BGC is discouraged. Usage is permitted only if the designated driver is tired or unfit to drive the vehicle safely and the designated driver is present in the vehicle.

The Company does not accept any responsibility for breaches of traffic regulations including speeding and parking infringements. Employees who fail to make payment for infringement notices by the due date will be subject to disciplinary action. 3

[7] On 13 September 2019, Ms Mckain made a workers’ compensation claim and was assessed as having no capacity to work from 12 to 19 September 2019. 4 Ms Mckain gave evidence that she had been repeatedly bullied throughout her employment with BGC, not treated the same as everyone else on several occasions, had been stalked on fake job sites, and her anxiety had become unbearable – hence the reason for taking leave.5

[8] Mr Hobbs, BGC Concrete’s General Manager, was purported as being concerned about Ms Mckain’s possession of the company vehicle whilst on leave. 6 After a discussion with Ms Curtis, BGC’s Senior Human Resources Advisor, it was agreed that Mr Scharf, Ms Mckain’s Supervisor, would send a text message to Ms Mckain directing her to return the company vehicle or make the company vehicle available for collection from her residence.7

[9] Ms Curtis drafted the proposed wording for the text message, 8 and it can be assumed that it was sent, as on 16 September 2019, Ms Curtis received an email from Mr Hobbs informing her that Ms Mckain had advised of her intention not to comply with Mr Scharf’s direction.9

[10] Ms Mckain gave evidence that on 16 September 2019, she replied to a request to return the company vehicle, reminding her Supervisor that BGC had a spare ute to continue their business as usual:

Chris BGC: Hello Ashlee, given you will be off for the week and that we need to cover duties, I will need to organise to pickup the work vehicle. Please let me know if home and I will organise for the vehicle to be picked up this afternoon.

Ms Mckain: Wilf has the spare Ute not me

As u know I’m on stress leave because of all this mistreatment so if you could please respect that and not contact me during this period of time as it doesn’t help my situation and why I have needed this time off. 10

[11] Having discussed the matter together, Mr Hobbs and Ms Curtis decided that unless Ms Mckain provided another medical certificate extending her personal leave, they would leave the company vehicle with her. 11

[12] Subsequently, on 19 September 2019, Ms Mckain produced a further WorkCover certificate that showed that she was unable to return to work until 4 October 2019. 12

[13] On 2 October 2019 at 11:39am, Ms Mckain sent an email to BGC Cement’s Senior Laboratory Supervisor, Ms Pratt, which stated, ‘’Can u please send me his contact number as he doesn’t answer my emails. If not I’ll sell the ute an [sic] recoup my wages’. 13

[14] On 4 October 2019 at 12:09pm, Ms Brindley, BGC’s General Manager Human Resources, emailed Ms Mckain to enquire whether she would be returning to work or intended to take more time off as her most recent WorkCover certificate only covered absences up to 3 October 2019. 14 Further, Ms Mckain was advised that if she wanted further time off she would need to provide a medical certificate.15 Ms Brindley acknowledged that Ms Mckain had sent emails to numerous people in BGC and had advised of her difficulty making contact with persons. Ms Brindley therefore directed that all queries concerning her workers’ compensation claim should be addressed to the Group Injury Manager, and employment queries should be directed to her.16

[15] Later that day, Ms Mckain provided a further WorkCover certificate for the period from 4 October until 18 October 2019. 17 Therefore, Ms Brindley emailed Ms Mckain advising her that if she was absent from work for a further two weeks, BGC would require her to return the company vehicle.18 Ms Brindley’s email stated:

…[G]iven that you will be off work for some time, we require the return of the Company vehicle.

I advise that BGC representatives will be at the address in Greenfield that you provided us at 11:30 on Monday to collect the vehicle, please ensure that you have removed any personal items from the vehicle before they arrive. 19

[16] Ms Mckain replied to Ms Brindley’s email on 4 October 2019 at 5:59pm, stating, ‘[S]orry I’ll be unavailable to do so until my contract or employment has ended. This car is part of my package and it stays with me’. 20 The following day, on 5 October 2019 at 6:50am, Ms Mckain sent an email to Ms Brindley, which stated, ‘[U]se [sic] ain’t getting shit from me or my property especially when use [sic] can’t even pay me what I signed up for’.21

[17] Ms Mckain gave evidence that ‘BGC HR representatives made threats of termination of my employment if [the] car hadn’t been returned from my residence in Mandurah to BGC Canningvale’. 22 Attached to Ms Mckain’s witness statement was an email from Ms Brindley dated 4 October 2019, a subsequent email from Ms Brindley dated 16 October 2019 (see paragraph 21 of this decision ) the email notifying Ms Mckain of her dismissal dated 25 October 2019 (see paragraph 27 of this decision) and a subsequent letter of demand of 30 October 2019 regarding the return of the company vehicle (see paragraph 28 of this decision).23

[18] Ms Brindley emailed Ms Mckain on 6 October 2019 at 7:09am, and informed her that the company vehicle was a ‘tool of trade’ vehicle, owned by BGC, and did not form part of her employment package. 24 Ms Brindley advised Ms Mckain that BGC’s representatives would collect the company vehicle from her residence on 7 October 2019.25

[19] On 6 October 2019 at 11:54am, Ms Mckain sent the following email to Ms Brindley:

Well tomorrow I will be admitting myself into hospital believe it or not. I was told by Rosemary that my pay was slashed down that $2 because of having the car part of my package to use. It also states in my contract that I am allowed to use the car of minimum personal use. I signed for the car and am still a BGC employee so maybe if use [sic] paid me right I wouldn’t have a problem in giving the vehicle back while I’m on compensation. Given that I haven’t been paid what I signed up for I will be needing the vehicle for that minimum personal use to get to my appointment to do with my workers comp claim. From now on I advise you to contact the below person for any communication for me during this workers compensation claim as you are making my stress levels higher and bullying me while I’m on workers’ compensation for just that already isn’t really resolving my claim.

John Windus

[contact details omitted]

[20] On 7 October 2019, Ms Brindley is said to have instructed BGC’s solicitor, Mr Fletcher, to email Mr Windus in the hope that Mr Windus could assist Ms Mckain to understand her obligations and responsibilities under her employment contract. 26 Mr Fletcher’s email, sent on 7 October 2019 at 7:47pm to Mr Windus, stated:

Dear Mr Windus

I act for BGC (Australia) Pty Ltd trading as BGC Concrete (BGC).

I understand that you are representing Ms Ashlee Mckain in relation to an employment dispute with BGC.

Ms Mckain is absent from work due to illness and has asked BGC to direct communications to you.

Whilst BGC does not concede that it is obliged to comply with any directive from Ms Mckain about who to speak to, I have been asked to contact you in this instance in the hope that you can assist Ms Mckain to understand her obligations and responsibilities.

  Ms Mckain has exhausted her paid personal leave, and by agreement annual leave, but seems to be under the misapprehension that she will continue to be paid for continued absences after all of her leave has expired.

  Ms Mckain has retained the BGC vehicle which she used in the course of the work and has threatened to sell it if she does not receive payment for her absence. The vehicle is a tool of trade which Ms Mckain does not have a right to continue to possess. Ms Mckain has been asked to make arrangements for its return but she has repeatedly refused.

  These, and other issues with Ms Mckain’s conduct (including evidence of unsafe driving) mean that there is a serious disciplinary discussion that must occur when she returns to work. By refusing to return the BGC vehicle Ms Mckain is only making these matters worse.

I would appreciate if you could contact me as a priority to confirm arrangements for the return of the BGC vehicle. If Ms Mckain fails to return the vehicle she may be considered as having refused a lawful and reasonable request which could give rise to a basis to terminate her employment… 27

[21] On 16 October 2019, Ms Brindley sent an email to Ms Mckain directing her to make arrangements to return the company vehicle. In that email, Ms Brindley stated:

…[I] am directing you to contact me by phone or email before 4:00pm tomorrow to make arrangements for the vehicle to be returned.

[22] Ms Brindley sent a text message on 16 October 2019 at 5:04pm directing Ms Mckain’s attention to the email dated 16 October 2019. 29 Ms Curtis received a subsequent WorkCover certificate of capacity from BGC’s Insurance Group Manager on 22 October 2019, indicating that Ms Mckain would not be returning to work until 3 November 2019.30

[23] Ms Curtis gave evidence that on 21 October 2019, Mr Hobbs called her and advised that on 18 and 21 October 2019, two BGC employees attended Ms Mckain’s residence and unsuccessfully attempted to retrieve the company vehicle.

[24] According to Ms Curtis, on 24 October 2019, she sent an email to Ms Mckain and once again directed Ms Mckain to return the company vehicle by no later than 3:00pm on 25 October 2019 – advising, ‘If you do not comply with this direction your continuing serious misconduct will result in your employment being terminated’. 31 Ms Curtis stated that in addition she sent a text message to Ms Mckain directing her attention to the email dated 24 October 2019.

[25] On 24 October 2019, Ms Mckain responded to Ms Curtis’ email dated 24 October 2019, but did not commit to returning the company vehicle. 32

[26] Ms Curtis’ evidence was that on 25 October 2019, Mr Scharf sent her an email attaching pictures of text messages between him and Ms Mckain, where he directed Ms Mckain to send all requests for timesheets to Ms Curtis. Ms Mckain responded to the direction by stating, ‘[N]o worries I’ll see use [sic] in court’. 33

[27] Ms Curtis said that on 25 October 2019, at approximately 3:00pm, she called Mr Hobbs to enquire whether Ms Mckain had returned the vehicle or made arrangements to return the company vehicle. 34 Mr Hobbs informed Ms Curtis to the effect that Ms Mckain had not done so.35 Ms Curtis gave evidence that both her and Mr Hobbs agreed that it was appropriate to terminate Ms Mckain’s employment on the grounds of serious misconduct.36 Consequently, Ms Curtis emailed Ms Mckain on 25 October 2019 at 4:25pm and informed her that her employment had been terminated due to her repeated refusal to follow BGC’s lawful and reasonable directions to return the company vehicle, which amounted to a serious breach of her employment contract.37 A text message was sent directing Ms Mckain to the email dated 25 October 2019.38

Recovery of BGC property and post-employment communications

[28] BGC sent a letter of demand to Ms Mckain on 30 October 2019, for the return of the company vehicle and the mobile phone. 39 On 30 October 2019, Ms Mckain advised Ms Curtis that she was sick and asked that Mr Windus be contacted.40 Ms Mckain sent a further email on 2 November 2019 to Ms Curtis, advising that the company vehicle and mobile phone would be available for collection from Ms Mckain’s residence on 4 November 2019 between 12.00-3.00pm.41

[29] Having retrieved both company vehicle and phone, Ms Curtis’ evidence was that there was damage to both, with the mobile phone having been broken and damaged beyond repair. 42 Ms Mckain gave evidence that she was provided with a company mobile but a safety cover was not provided.43 Ms Mckain stated that she had dropped the mobile phone causing the screen to smash and had straight away informed her Supervisor so he could contact her personal phone until she had enough money to replace the screen.44

[30] Ms Curtis gave evidence that on 6 November 2019, she received an email from Mr Scharf which attached a copy of a ‘series of abusive text messages which were sent to him from Ms Mckain’. 45 The text messages read:

How dare u bring u my fucking personal life u maggot cunt

Fuxking piece of shit are

U absolutely discust me

Might just get into ur personal life hey! Know a few people that will be able to help me out with a dog cunt like u

Want to talk me at fake sites.

Yuck. 46


Agreed matters

[31] There is no jurisdictional barrier to this unfair dismissal application being considered and determined by the Commission. It is not in contest, and I am satisfied on the evidence before me, that Ms Mckain was dismissed, she had made her application in time, 47 she was a person protected from unfair dismissal,48 BGC was not a small business employer, and the case was not one of genuine redundancy.49

Was the dismissal harsh, unjust or unreasonable?

[32] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 50

Matters to consider

[33] Section 387 requires that the Commission consider certain criteria when determining whether an applicant’s dismissal was ‘harsh, unjust or unreasonable’. They include:

a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

b) whether the person was notified of that reason; and

c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

h) any other matters that the FWC considers relevant.

Valid reason for the dismissal

[34] When determining if a dismissal is unfair, the Commission must take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct. 51

[35] The reasons considered are the employer’s ‘reason(s)’. 52 The Full Bench in B, C, and D v Australia Postal Corporation t/as Australia Post (Australian Postal Corporation) stated:

[34]... In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal. 53

[36] In summary, where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is rather for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. 54

[37] In the context of the present case, whether the reason for dismissal was a sound, defensible or well founded reason depends in part on BGC’s Vehicle Policy, Ms Mckain’s contractual obligations, her general duties as an employee, and whether BGC was entitled to give the directions that it did.

[38] Relevantly, BGC had expressed in its Vehicle Policy that a ‘Tool of Trade Vehicle’ was: (a) not part of an employee’s remuneration package; and (b) may be required for others to use when the employee is on personal or annual leave. When stipulating the requirements of employees under the Vehicle Policy, BGC had stated, ‘[U]sage of the vehicle whilst on leave will be at the sole discretion of the General Manager’.

[39] Ms Mckain’s employment contract was unequivocal in its terms stating that ‘[T]he provision of this vehicle is subject to the BGC Vehicle Policy and Guideline’. While Ms Mckain gave evidence that she did not have access to the Vehicle Policy because her email/intranet was not set up, she was nevertheless aware, having signed her employment contract, that the company vehicle was subject to the Vehicle Policy and was provided for work purposes and ‘limited personal use’.

[40] Informed by Ms Brindley via email on 6 October 2019 that the company vehicle was owned by BGC, was provided to perform her role, and did not form part of her package, Ms Mckain’s response was to reference her contract, stating that the company vehicle could be used for ‘minimum personal use’. Yet, it was evident from Ms Mckain’s emails dated 2 October 2019 and 6 October 2019 that she was declining to return of the company vehicle (at least initially) because she considered she had not been compensated for what she ‘signed up for’. 55 Ms Mckain stated in the 6 October 2019 email, ‘I signed for the car and am still a BGC employee so maybe if use [sic] paid me right I wouldn’t have a problem in giving the vehicle back while I’m on compensation’.56 In the 2 October 2019 email, Ms Mckain stated ‘Can u [sic] please send me his contact number as he doesn’t answer my emails. If not I’ll sell the ute and recoup my wages’.57

[41] BGC directed Ms Mckain to return on the vehicle on 16 September 2019, 4 October 2019, 6 October 2019, 7 October 2019, 16 October 2019 and 24 October 2019.

[42] In the communications of 7 October 2019 (to Mr Windus) BGC informed Mr Windus, ‘[I]f Ms Mckain fails to return the vehicle she may be considered as having refused a lawful and reasonable request which could give rise to a basis to terminate her employment. 58

[43] The email sent by Ms Brindley on 16 October 2019 again reiterated that Ms Mckain was to contact Ms Brindley by phone or email by 4:00pm on 17 October 2019, to make arrangements for the company vehicle to be returned. 59 Ms Mckain was advised that BGC reserved the right to take whatever steps were necessary to recover the vehicle and disciplinary action may be taken, if there was failure to comply with the direction.60

[44] On 24 October 2019, Ms Curtis sent to Ms Mckain an email which stated Ms Mckain’s ‘failure to follow the lawful and reasonable directions of your employer to make contact and confirm the return of the vehicle amounts to serious misconduct’. 61 Ms Mckain was directed to return the vehicle to Canning Vale by no later than 3:00pm on 25 October 2019.62 The email concluded with the statement ‘[I]f you do not comply with this direction your continuing serious misconduct will result in your employment being terminated’.63

[45] There could be no doubt that the direction to return the company vehicle was lawful and reasonable. An employer clearly has authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable. 64 In R v Darling Island Stevedoring and Lighterage Co Ltd; Ex part Halliday,65 (Darling Island Stevedoring) it was held:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.

[46] The Full Bench in Briggs v AWH 66 stated that the determination of whether an employer’s direction was a reasonable one did not involve an abstract or unconfined assessment as to the justice or merit of the direction. The employer therefore is not required to demonstrate that the ‘direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties’.67 Adopting the approach identified in Darling Island Stevedoring, the Full Bench cited Dixon J, quoting:

But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. 68

[47] The terms of Ms Mckain’s employment contract and the Vehicle Policy, clearly stipulated the circumstances in which a vehicle was provided, the obligations that fell upon the employee, and that ultimately BGC retained sole discretion concerning the usage of the company vehicle whilst on leave. There was no compelling evidence adduced to support the assertion that the company vehicle formed part of Ms Mckain’s employee entitlements (salary package), or that she had unfettered access and use of the company vehicle whilst on leave.

[48] The ‘concrete’ work carried out by BGC clearly necessitated that particular workers have access to BGC vehicles. According to BGC it was common practice for it to direct its employees to return its vehicles when on leave for prolonged periods. While Ms Mckain appeared to dispute this, there was no evidence to persuade me that BGC adopted a contrary approach then that stated.

[49] Further, Ms Curtis’ and Ms Brindley’s communications with Ms Mckain again set out the terms on which the company vehicle was provided, and were accompanied by lawful and reasonable directions to either return the company vehicle or to make arrangements to return it (that is to facilitate its collection). It was not the case that BGC was unappreciative that Ms Mckain may not be positioned to drive the company vehicle back to BGC’s premises. On several occasions the company attempted to facilitate the company vehicle’s return, by sending BGC employees to Ms Mckain’s residence to collect – but this was to no avail.

[50] While Ms Mckain might say that she was unaware of a direction or directions to return the vehicle, the evidence proclaims otherwise. Ms Mckain had been instructed on multiple occasions to either return the company vehicle or make arrangements for it to be returned. Ms Mckain had been prompted by text messages to check her emails. Ultimately, Ms Mckain did not return the company vehicle, and she communicated that refusal in a manner which I view as inappropriate in an employment relationship.

[51] It was perhaps unlikely that Ms Brindley expected Ms Mckain might couch her communication in some semblance of obeisance. However, it was not unrealistic for Ms Brindley to have expected appropriate communication absent profanity and adoption of an entitled and hostile tone. Why Ms Mckain thought it appropriate to communicate in the manner that she did with Ms Brindley escapes me; her communication style was far-removed that which is acceptable in an employment relationship.

[52] In short, Ms Mckain was insubordinate in her refusal to comply with a lawful and reasonable direction to return the company vehicle. She had been provided with several opportunities to comply with her obligations, warned of the potential consequences of failure to do so, and had engaged in conduct that breached the Vehicle Policy, her employment contract and general duties as an employee. What had been asked of Ms Mckain was neither onerous nor unreasonable – it was simply to return that which was not hers, a company vehicle.

[53] In the circumstances, I am persuaded that Ms Mckain’s employment was terminated for a valid reason. Her misconduct was manifestly serious, and in clear breach of the contract of employment and Vehicle Policy that governed her employment, in addition to her general duties as an employee.

Notification of the reason and an opportunity to respond

[54] At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality, and that the requirement is to be applied in a common sense practical way in order to ensure that the employee is treated fairly. 69 The Full Bench in Royal Melbourne Institute of Technology v Asher70 observed that in Osman v Toyota Motor Corporation Australia Ltd,71 the Full Bench had referred to the comments of Wilcox CJ in Gibson v Bosmac Pty Ltd72 (approved in Selvachandran73), where Wilcox CJ had said:

Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. 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 of the section.

[55] Ms Mckain was repeatedly directed to return the company vehicle or to facilitate its return. BGC had been unequivocal regarding the information it had conveyed to Ms Curtis outlining what it required, the timeframe in which the company vehicle was to be returned and that she was placing her job at risk.

[56] When asked to communicate with her representative Mr Windus, BGC had done just that through its lawyer – to no avail. Paragraphs [42] to [45] of this decision clearly outline the lengths that BGC went to, to secure the return of the company vehicle.

[57] After Ms Curtis sent the email dated 24 October 2019 to Ms Mckain, Ms Mckain replied ‘…[K]eep threatening me go ahead but use [sic] are making my stress and anxiety much worse when you are obviously aware not to contact me’. It was evident that Ms Mckain was cognisant that her continued employment was a risk. Rather than asking for an extension of time or negotiating the mode by which the company vehicle would be returned, in an obdurate manner she continued to obfuscate regarding its return, and pressed matters again concerning deductions from her pay because of the provision of the company vehicle.

[58] I conclude that Ms Mckain understood the precise nature of BGC’s directions, was aware that her continued employment was at risk, and had more than five weeks to comply with those directions before she was dismissed. In the circumstances, notwithstanding that Ms Mckain was on leave, I am satisfied that she was notified of a valid reason for her dismissal before any action was taken to terminate her employment, 74 and that she was accorded the opportunity to respond.

Support person

[59] The circumstances of the matter clearly did not lend themselves to a face to face discussion with Ms Mckain regarding her dismissal. Ms Mckain was on personal leave from 13 September 2019 until her dismissal on 25 October 2019. While Mr Windus appeared to be supporting Ms Mckain in the process, it is still the case that Ms Mckain did not request a support person and accordingly was not refused one. This is understandable in the absence of a face to face meeting, and Ms Mckain’s continued refusal to engage with BGC about the return of the company vehicle. As such, I am content to conclude that the criterion is not relevant in the circumstances of this particular matter.

Warnings about unsatisfactory performance

[60] As will be evident from the background material, it was not the case that BGC sought to rely upon unsatisfactory performance to justify dismissing Ms Mckain. Ms Mckain’s dismissal arose from her failure to comply with BGC’s direction. It follows that this criterion is not relevant to the assessment required.

Size of BGC’s enterprise and dedicated human resource specialists

[61] BGC submitted that it is a large enterprise which employs dedicated human resource specialists. It was its size, stated BGC, that resulted in a significant and positive impact on the procedures followed leading to Ms Mckain’s dismissal. Those procedures were said to include: (a) clear directions in writing to return the company vehicle; (b) repeated opportunities to comply with the directions provided both to Ms Mckain and Mr Windus; and (c) clear written warnings about the disciplinary consequence of a failure to comply with the directions. In this respect, I would agree with BGC’s contention that it carried out the dismissal process in a procedurally fair manner.

Any other matters considered relevant

[62] In her email dated 25 October 2019, Ms Curtis notified Ms Mckain that her repeated failure to comply with lawful and reasonable directions amounted to serious misconduct and therefore a decision had been made to terminate Ms Mckain’s employment effective immediately without notice. 75 Whether Ms Mckain’s conduct justified summary dismissal is a factor relevant for consideration under s.387(h) of the Act.76

[63] The term ‘serious misconduct’ does not operate as a fixed standard for the determination of the type of conduct by the employee which may warrant summary dismissal. 77 In Sharp v BCS Infrastructure Support Pty Limited,78 the Full Bench referred to the decision in Rankin v Marine Power International Pty Ltd in which Gillard J stated that ‘[T]here is no rule of law that defines the degree of misconduct which would justify dismissal without notice’,79 and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship.80

[64] Wilful or deliberate behaviour amounting to serious misconduct is conduct which strikes at the heart of the employment relationship. In North v Television Corporation Ltd 81 Franki J stated:

It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.

[65] The decision of Laws v London Chronicle (Indicator Newspapers) Ltd 82, referred to above, makes it plain that an act of disobedience or misconduct (justifying summary dismissal) requires that the disobedience must be also be ‘wilful’, as observed:

... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.

[66] Clearly, BGC bears the onus of establishing the serious misconduct. The applicable standard of proof is on the balance of probabilities, but the more serious the allegation, the higher the burden on the employer to prove the allegation. 83

[67] I am satisfied that Ms Mckain’s misconduct was manifestly serious and in clear breach of the obligations she had under the Vehicle Policy, her employment contract and general duties as an employee. The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and, importantly, mutual trust. Ms Mckain clearly had the trust of BGC to do what was right concerning the company vehicle, that was to return it on direction to do so. It was after all not hers to keep or to sell. But her actions manifested a wilful disregard of the repeated lawful and reasonable directions of BGC.

[68] There was no cogent evidence to show that the company vehicle formed part of Ms Mckain’s salary package, or that she had complete discretion to use it when she so pleased. In fact, it was the opposite. BGC had retained discretion to direct an employee to return the company vehicle whilst on leave.

[69] It is therefore my conclusion that the ‘trust’ and ‘confidence’ essential to the relationship of employer and employee had been destroyed. There was, in my view, a valid reason for terminating the employment of Ms Mckain based on her serious misconduct.

[70] In Parmalat Food Products Pty Ltd v Wililo84 the Full Bench held:

The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of the termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. 85

[71] The gravity of Ms Mckain’s conduct was such that there is no issue regarding disproportionality. I have taken in consideration Ms Mckain’s length of service and have, in addition, observed that at the time of her dismissal she was on personal leave having asserted that she was stressed by work related matters and suffering from anxiety attacks. However, I note that she was competent to engage support or representation during the disciplinary process and, in addition, responded to some emails sent. While I have sympathy for Ms Mckain’s plight, noting that she was clearly troubled by matters personal to her, I am of the view that she was cognisant of the seriousness of her misconduct.

[72] I have no doubt that the loss of a regular income and access to other entitlements that come with full-time work will inevitably have an impact on Ms Mckain. Notwithstanding, I am unable to conclude that her dismissal was harsh. I am satisfied that the outcome I have determined ensures a ‘fair go all round’ is accorded to both Ms Mckain and BGC.

al of the Fair Work Commission - Signed Deputy President Beaumont


A Mckain
, Applicant
J Parkinson
, of Kingston Reid for the Respondent

Hearing details:
18 February.

Printed by authority of the Commonwealth Government Printer


 1   PR717385.

 2   Witness Statement of Rennay Curtis (Curtis Statement) [13] Annexure RC-1.

 3   Ibid [14]; Annexure RC-2.

 4   Ibid [17].

 5   Witness Statement of Ashlee Mckain dated 13 December 2019 (Mckain Statement) [33].

 6   Curtis Statement [19].

 7   Ibid [19].

 8   Ibid [19]; Annexure RC-4.

 9   Ibid [20].

 10   Mckain Statement [22] Annexure L.

 11   Curtis Statement [21].

 12   Ibid [22]; Annexure RC-6.

 13   Ibid [23]; Annexure RC-7.

 14   Ibid [24]; Annexure RC-8.

 15   Ibid [24]; Annexure RC-8.

 16   Ibid [24]; Annexure RC-8.

 17   Ibid [25]; Annexure RC-9.

 18   Ibid [26]; Annexure RC-10.

 19   Ibid Annexure RC-10.

 20   Ibid Annexure RC-11.

 21   Ibid Annexure RC-12.

 22   Mckain Statement [24].

 23   Ibid [24]; Annexure N.

 24   Curtis Statement [29] Annexure RC-13.

 25   Ibid [29]; Annexure RC-13.

 26   Ibid [31].

 27   Ibid [31]; Annexure RC-15.

 28   Ibid [32]; Annexure RC-16.

 29   Ibid [33]; Annexure RC-17.

 30   Ibid [34]; Annexure RC-18.

 31   Ibid [36]; Annexure RC-19.

 32   Ibid [38]; Annexure RC-21.

 33   Ibid [39]; Annexure RC-22.

 34   Ibid [40].

 35   Ibid [40].

 36   Ibid [42].

 37   Ibid [43]; Annexure RC-23.

 38   Ibid [44]; Annexure RC-24.

 39   Ibid [46]; Annexure RC-26.

 40   Ibid [48].

 41   Ibid [48].

 42   Ibid [51] – [52].

 43   Mckain Statement [29].

 44   Ibid [29].

 45   Curtis Statement [53].

 46   Ibid [53]; Annexure RC-32.

 47   Fair Work Act 2009 (Cth) s.394(2).

 48   Ibid s.382.

 49   Ibid s.385(d).

 50   (1995) 185 CLR 411, 463.

 51   Fair Work Act 2009 (Cth) s.387(a).

 52   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 [25], affirming D v Australia Postal Corporation t/as Australia Post [2013] FWCFB 6191, [34].

 53   [2013] FWCFB 6191.

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

 55   Curtis Statement Annexure RC-14

 56   Ibid Annexure RC-14.

 57   Ibid Annexure RC-7.

 58   Ibid Annexure RC-15.

 59   Ibid Annexure RC-16.

 60   Ibid Annexure RC-16.

 61   Ibid Annexure RC-19.

 62   Ibid Annexure RC-19.

 63   Ibid Annexure RC-19.

 64   R v Darling Island Stevedore & Lighterage (1938) 60 CLR 601, 621-2.

 65   Ibid, 621-2.

 66   [2013] FWCFB 3316, [8].

 67   [2013] FWCFB 3316, [8].

 68   (1938) 60 CLR 601, 622.

 69   Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, [26].

 70   [2010] FWAFB 1200, [26].

 71   PR948009.

 72   (1995) 60 IR 1.

 73   Selvachandran v Peteron Plastics Pty Ltd (1995) 61 IR 371.

 74   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 75   Curtis Statement Annexure RC-23.

 76   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [32]; Potter v WorkCover Corporation (2004) 13 IR 458, 474.

 77   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [34]; Grandbridge Limited v Mrs Diane Wiburd [2017] FWCFB 6732.

 78   [2015] FWCFB 1033, [34].

 79   (2001) 7 IR 117.

 80   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [34].

 81   (1976) 11 ALR 599, 616.

 82   [1959] 2 All ER 285.

 83   Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

 84   (2011) 207 IR 243 [24].

 85   Ibid [24].