Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Whether misconduct - Dismissal found to be harsh, unjust or unreasonable - Reinstatement is an appropriate remedy - Orders made for reinstatement, maintenance of continuity and for partial restoration of lost pay.

[1] Chaya Johnson was employed by Chelgrave Contracting Australia Pty Ltd (Chelgrave) as a maintenance fitter. Chelgrave is a labour hire provider of services to a number of businesses and Mr Johnson's work with Chelgrave was entirely in relation to a contract the company had to provide maintenance services at the Carlton United Breweries (CUB) site at Abbotsford, Victoria. Mr Johnson started work with Chelgrave in May 2017 and was dismissed with effect on 28 May 2020.

[2] This decision concerns Mr Johnson's application for unfair dismissal remedy and for the reasons set out below I have found that the dismissal was unfair and that the appropriate remedy is reinstatement.

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in s.394(2), whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy. Neither party put forward that any of the initial matters required consideration. In relation to the elements within s.396, I find that Mr Johnson's application was lodged with the Commission within the 21 day period for making such applications, that at the relevant time he was dismissed he was a person protected from unfair dismissal, and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[4] Evidence was given in these proceedings by Mr Johnson himself, and a delegate from his union, Mr Chris Brown. Evidence was given on behalf of Chelgrave by Mr Mark Hale, its National General Manager, and Mr Rob McGrillen, its General Manager, Technical and Contracts.

[5] Mr Johnson was represented by Mr Barry Terzic, from the Automotive, Food, Metals, Engineering, Printing, and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU). Chelgrave was represented by Mr Stephen Lucas, solicitor, from Kingston Lawyers. Permission for Chelgrave to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, as well as that a matter of unfairness may arise if permission were not granted (s.596(2)(a) and (c)).

[6] The engagement which is the subject of this application had been from May 2017 and is entirely in relation to the provision of services by Chelgrave at CUB Abbotsford. Mr Johnson has had other employment with Chelgrave, however that employment appears to have been some time ago.

[7] Mr Johnson completed a fitting and turning apprenticeship around 19 years ago and has worked as a maintenance fitter in numerous businesses since qualification as a tradesperson, specialising in maintaining plant and equipment in production industries and especially in the food and beverage industries. He is 40 years of age and has a young child with his partner, as well as two older children with a former partner. His earnings with Chelgrave have been considerable, but below the high-income threshold; in the range of $125,000 - $130,000 per year. His partner is a full-time carer for the young child and is not in paid employment.

[8] Mr Johnson's conditions of employment were under the Chelgrave Contracting Australia Pty. Ltd. AMWU & ETU (CUB Abbotsford) Agreement 2017.[1] The offer of employment made to him stated both that the offer is for the classification of "Maintenance Fitter C7"[2] as well as "C10 Maintenance Fitter"[3] with his actual pay level set in accordance with the site-specific enterprise agreement (the Chelgrave Enterprise Agreement).[4] The nature of work at CUB is that Mr Johnson and his Chelgrave colleagues appear to have been fully integrated into the CUB workplace, taking their instructions from CUB managers and working in accordance with the policies, procedures and expectations of CUB. Two points arise in that regard: Mr Johnson was obliged to follow and conform to CUB's health and safety expectations and his performance, conduct and attendance was subject to oversight and critique by CUB managers and supervisors.

[9] In the past year Mr Johnson's conduct and behaviour has been subject to some concern for Chelgrave and CUB, with Chelgrave arguing it has had to counsel Mr Johnson about several matters. Mr Johnson resisted the propositions both that his conduct and behaviour deserved criticism or that Chelgrave actually counselled him, let alone warned him about matters. For practical purposes, the concerns Chelgrave may have had with Mr Johnson were not, it seems, its own observations and instead were matters fed to it by CUB. If Chelgrave's concerns hold validity, Mr Johnson may be criticised for either or both insufficiently communicating with his host employer and/or inadvertently or deliberately not following procedures.

[10] Both Mr Hale and Mr McGrillen gave evidence that Chelgrave was aware of numerous conduct concerns which had arisen since February 2019. These included allegations about the following:[5]

• Mr Johnson failed to communicate sufficiently about his whereabouts (2 February and 2 and 11 October 2019) and his non-attendance for work (23 January 2020);

• Mr Johnson failed to report an injury (16 July 2019) and to report an exacerbation to an existing injury (July 2019);

• Mr Johnson working overtime without approval (16 July 2019);

• Mr Johnson pre-recorded an absence on sick leave (8 October 2019);

• Insufficient communication about an un-rostered RDO (29 January 2020);

• Concerns Mr Johnson had not completed assigned tasks (13 March 2020);

• Concerns that time sheets were inconsistent with turnstile records (19 March 2020);

• Refusal by Mr Johnson and his colleague Craig Stevens "to attend breakdown raising safety concerns without going to area to assess the situation" (3 April 2020).

[11] Discussions were recorded with Mr Johnson by the Chelgrave site supervisor Russell Walsh[6] as follows:

Discussion with Chaya re changeover and having breaks

Further discussion re changeover with Erwin and Chaya."[7]

[12] None of these matters were the subject of documented warnings before Mr Johnson lost his job in May, although they are claimed to have been considered by Chelgrave in its decision to dismiss Mr Johnson.

[13] Further matters (or possibly the same matters, but just with inconsistent dates) were raised with Chelgrave's solicitors by CUB's solicitors shortly before the hearing of this matter. These were couched as a "list of transgressions by Mr Johnson during his time on the CUB site which have caused CUB to form the conclusion that it would not accept any attempt by your client to return him to the CUB site":

"1 30/09/2019 - Failure to report aggravation of injury (recorded "sick leave" on future date on timesheet but didn't report injury).

2 7/10/2019 - Abandoned job task midway to take a break, without notifying supervisor, and caused the packaging line to be inoperable (repeat occurrence as Mr Johnson had done the same thing in July 2019).

3 23/01/2020 - Failure to notify planned absences (booking appointments in advance to occur during his shift but not notifying his supervisor).

4 12/03/2020 - Refusal to perform job task without first attending breakdown location to risk assess work via completion of JSA.

5 Failure to report aggravation of injury (repeat occurrence).

6 17/03/2020 - Failure to notify supervisor of late arrival, and falsified timesheet record.

7 19/03/2020 - Claimed sick leave when he wasn't sick (provided Stat Dec as evidence, stating he was at Anglesea Police Station on 19/3 & no mention of being ill. Mr Johnson lives at Anglesea).

8 06/04/2020 - Refusal to perform work on breakdown in CIP caustic storage without first attending location to risk assess work via completion of JSA (repeat occurrence).

9 21/04/2020 - Breach of 2 Life Saver safety protocols (removed fixed guarding without isolating equipment; didn't test that equipment was properly isolated). Failure to immediately notify supervisor of near miss."[8]

[14] By May 2020 Mr Johnson had worked at the Abbotsford site for three years. He considered himself to be familiar with the maintenance requirements of much of the plant. He was mainly assigned to the Bottling Plant 3, the Main Packaging Hall and the palletising and warehousing area.

[15] The events that led to Mr Johnson's dismissal took place on Tuesday, 21 April 2020.

[16] On that day Mr Johnson and a colleague, Craig Stevens, were to perform preventative maintenance work on a palletising machine. The work was subject to a CUB "Work Order" which required the inspection of all turntables.[9] Their task that day was to inspect, and correct malfunctioning conveyor rollers associated with a turntable.

[17] The purpose of the turntable is to receive a laden pallet travelling down an incline, turn the pallet at right angles, and then send the pallet down another conveyor at right angles to the initial incline. There is no question the equipment on which work was to be performed is potentially hazardous to workers and it could kill or permanently disfigure a person who met moving parts. The palletiser consists of several elements operated mechanically, electrically and hydraulically. Its task is to receive cartons of filled bottles or cans of beer or cider and load them onto pallets, ultimately for distribution to customers, and Mr Johnson described its task in the following manner:

"27. There are several palletisers in the Brewery, and they are all in the warehouse. The palletisers receive cartons of filled beer or cider bottles/cans (usually 24 bottles/cans per carton) and loads the cartons onto standard pallets. The palletiser does this by firstly arranging about 10 cartons in a single layer on a table so this arrangement of cartons covers about the same area as a pallet. Once the cartons are so arranged, the palletiser slides the cartons off the table onto a pallet. This is then repeated 5 times per pallet so about 6 layers of cartons are stacked on each pallet.

28. Once a pallet is fully loaded, it is moved about 2 metres to a turntable to be rotated 90 degrees and then the pallet moves along another conveyor to a machine that wraps the loaded cartons with plastic film."[10]

[18] A short after-the-event video made by the AMWU delegate, Chris Brown, confirms the scale of machinery and potential hazards associated with its operation. The palletiser is not a single machine, but an integrated unit of several different pieces of machinery working to perform different tasks, but ultimately moving to collect and transfer numerous cartons filled with product onto pallets, after which the plastic wrapped cartons are dispatched elsewhere, presumably for warehousing and then shipping.

[19] The palletiser is well guarded and encased in a cage of about 30m x 25m. The cage has numerous doors for access to the machinery. There are sensors on the doors as well as light curtains within the cage designed to stop the machinery if triggered:

"However, the door sensors and light curtains do not operate to stop all of the caged machinery from operating: some sensors are linked to one part the caged area, so it is possible to be inside the caged area while some equipment remains operational. Unfortunately, it is not clear which sensors are linked to which machines."[11]

[20] In accordance with usual procedure, the two workers, Mr Johnson and Mr Stevens, commenced by undertaking a Job Safety Assessment (JSA). The JSA is a pre-printed form requiring identification of all potential risks and hazards, noting that neither a copy of the completed JSA or an uncompleted JSA pro forma are before the Commission.

[21] Preparation of the JSA was started by Craig Stevens at around 1.00 PM on Mr Johnson's evidence and evidently proceeded to just before the point at which the tradespeople were required to sign on the form that a lock had been put by them on the relevant isolation point. Before that stage of the JSA preparation Mr Stevens became unwell and left the area, so Mr Johnson continued completion of the form and signed that it had been completed. Mr Johnson's evidence is that since the form required signing off by a CUB controller, he took it to such a person, Parshva Shah, who signed it off.

[22] Even though Mr Johnson stated work on the form had commenced at about 1.00 PM and that he asked Mr Shah to sign it between that time and 1.45 PM when he started working on the palletiser, Mr Shah apparently told the Chelgrave investigation he had been asked to sign it between 12.15 to 12.30 PM. The same note in the investigation report refers to Mr Shah as having told the investigation that Mr Stevens attended the site nurse at 1.05 PM, however there is no formal evidence on the subject before me to corroborate the assertion. Mr Shah did not give evidence in these proceedings, and Mr Johnson was not cross-examined about the time he sought Mr Shah's signature. There is no other evidence that would suggest Mr Johnson's version of the timeline is incorrect, and there is no evidential reason to not rely on his evidence. I therefore place no weight on the contention and find that the invitation to sign the form took place was most likely in accordance with the timeline Mr Johnson stated, that is, at a time between 1.00 PM and 1.45 PM.

[23] The completed JSA has not been seen by anyone since the day after it was completed. Apparently Mr Shah accepted to the Chelgrave investigation that he had seen the form and signed it as required in order to authorise the work, but misplaced it, with the investigation report noting that "normally the JSA and work Order would be returned to office in Tray for review end of week, actually collected after the incident by Parsh and placed in the tray in Parsh's office. Next day went to review they were not in tray".[12]

[24] Having completed the JSA as required and had it authorised Mr Johnson commenced work on the palletiser at around 1.45 PM. Since Mr Stevens had left the area feeling unwell Mr Johnson undertook the maintenance work alone.

[25] In order to undertake the required work, he locked out the palletiser from outside the cage of the main door nearest the turntable. Mr Brown's after-the-event video shows what is ordinarily done in such a case. The door is large, appearing to be about 1m wide by 2m high, and comprises heavy duty meshing and is opened by pressing an electrical release button. The door is then manually pushed open by an authorised person, who then applies a padlock with a tag by passing the padlock through holes in the gate's striking plate in order to prevent the gate closing and re-engaging the machine's operating circuit. While this is not evidence of what was actually done, I accept it as an illustration of the process that would ordinarily be followed, with Mr Johnson's evidence being that he applied his locks to the main door nearest the palletiser.[13]

[26] However, Mr Johnson did not enter the caged area through that main door (also known as Door 7) because access to the area in which he needed to work was difficult and dangerous. Instead, he entered through another hinged entry point, nearer the work area.[14] That entry point appears to be about as large as the main door[15] however is secured by bolts, rather than an electrical release button. Mr Johnson told the Chelgrave investigation that he did not have experience on the required task for the machine in question and that what he did was consistent with what he had been explained to him earlier in the day.[16]

[27] Mr Johnson says the entry point he used was recorded on the JSA submitted to Mr Shah.[17] Sometime after the incident on 21 April 2020, but before completion of the Chelgrave investigation report on 7 May 2020, Mr Shah commented to the Chelgrave investigation that his recollection was that removal of the fixed guarding was not recorded on the JSA.[18]

[28] After removing guards from the turntable Mr Johnson started examining chains driving the rollers and noticed they were loose. When he used a wrench to undo some bolts holding the chain sprocket brackets the turntable moved unexpectedly. He was startled by its movement since it "meant that the turntable was live and the only reason it did not operate earlier was that I was setting off a stop sensor".[19] He stopped what he was doing and reinstated the guards and readied the palletiser for operation, knowing that production was due to start shortly.

[29] Chelgrave and CUB are critical about how long it took Mr Johnson to report what had occurred. Chelgrave's investigation report summarised CUB's concern that Mr Johnson had breached its Lifesavers rules in three regards, including that he "[d]id not report the incident in an acceptable time frame. Two-hour delay approximately".[20] (underlining added)

[30] Mr Johnson's evidence is that he and Mr Stevens started filling in the JSA at around 1.00 PM and then he alone started the maintenance work at around 1.45 PM. Mr Brown's after-the-event video includes a somewhat unclear shot of the palletiser's controller screen which appears to include a real-time schematic of the overall machine. The Commission is unaware of whether the controller records events such as the time when the machine was locked out or when a particular sensor or light curtain was triggered, and is similarly unaware of whether any such information was accessed either by Chelgrave or CUB for the purposes of either's investigation. If the machine did record those events it is possible the dispute between the parties about when Mr Johnson started and finished work on the palletiser would not still be unresolved. Nonetheless, it being the only formal evidence before me on the subject I accept Mr Johnson's evidence that he started work on the palletiser around 1.45 PM. It was not put to him in cross-examination that he started work on the machine at another time.

[31] After the turntable moved and Mr Johnson had returned the palletiser to an operational state, he reported the event to Chelgrave's health and safety representative, Nick Cleever, who told him to report to his team leader, Lucas, which he did. He also sent an email to his colleagues to warn them of the hazard.[21] The email is not before the Commission. A Chelgrave interview with Mr Johnson about the incident, taken on 29 April 2020 recorded that when he went looking for his team leader, he "ended up attending the Afternoon Shift Team Briefing that was held after 2:00pm. In his mind, so that all team members would be aware of the situation, reporting it here was a favourable option."[22]

[32] After those things, and close to 2:30 PM Mr Johnson spoke about the matter with Parshva Shah and the CUB Maintenance Controller, Matt Petrofes, who asked him to show them what had happened:

"38. ...The 3 of us went to area, and once there, we went through the isolation process again, effectively halting production for this palletiser's line. I also showed them which door I entered and where I was when the turntable moved.

39. At that point, with my replicating my earlier isolation and opening the same door, Matt beckoned an operator to see if he could put the turntable into operation. The first operator so beckoned could not do this, so a second operator was called over and he could put the turntable into operation while the measures I used were taken.

40. Matt then pointed out to me an isolation switch for the turntable. At that moment I was in the cage, and Matt was outside of the cage. The switch was at about knee height, behind a bollard, and not in anyways obvious. I would say it was hidden and it was not in arm's reach. Matt asked me to turn-off the switch, and to do this I had to crawl on my hands and knees about a metre in to get to the switch. Once there, I turned the switch to the off position. I then crawled back out and Matt again asked the operator to see if the turntable could operate - it was now inoperable.

41. I should add that the switch was visible from another side of the line, and, theoretically, the switch would be accessible from this side too, but this side is a no-go area because there is forklift traffic, and, it is fenced off, so access is not possible.

42. There was not discussion or debate about what just happened. After this re-enactment, I was told to go back to work and carry on."[23]

[33] After these events Mr Johnson was stood down on full pay on 22 April 2020 and the incident was fully investigated by Chelgrave and likely by CUB. Evidence before me about the CUB investigation is largely limited to a report Mr Brown attached to his evidence, being a tabular "abnormality report" prepared by CUB (referred to as ABInBev on the document). The Abnormality Report is stated as having been initiated by Mr Shah, who also had accountability for its completion and included the following pertinent observations about the incident:

"2 Fitters given Non routine corrective task to work on

1 fitter did not continue with work and left to attend personal medical issue

attended site following completion of JSA and isolated side gate near B3 palletiser (Gate 7). Waited for machine to shut down and opened gate, placing personal lock on

Pallet was sitting on other side of light curtain, so proceeded to corner external to zone and opened hinged door cap screws to access turntable

removed turntable covers and began work to inspect chain tension and inspect sprockets (1 arm inside machine and blocking PE, other arm has blocked PE when moved past secondary PE causing turntable to move)

Note: didnt realise that motor isolator (103) was on other side of turntable."[24]

[34] Mr Brown claimed in his evidence that the the report indicated only process faults and that human error was not mentioned,[25] which is obviously not correct, since at several points the report referred to errors of belief by Mr Johnson or a lack of understanding by him.

[35] The same report considered several root causes for the incident and concluded the machine moved because the wrong zone had been isolated, that the wrong zone had been isolated because of a lack of understanding of palletiser zoning, and that the reason the turntable was not isolated was "[b]ecause of belief that isolation of zone is satisfactory isolation of equipment".[26] In a section dealing with prevention of repetition the report lists 18 actions requiring consideration, each at various stages of completion. The actions deal with training, presentation of the JSA's, changes to procedure, introduction of new hardware and software and allocation of capital for purchase of equipment and the like. The table detailing the actions is extracted and shown at ATTACHMENT 1.

[36] Another CUB initiated meeting with Mr Johnson took place in the week following the incident. Attendees at the meeting included three managers from Chelgrave, Mr Hale, Mr McGrillen and Mr Wynne, as well as Mr Brown, Mr Petrofes and two CUB safety officers:

"This meeting went for about an hour, and a big part the meeting was CUB setting out its case that there was a safety breach. As for Chelgrave, they indicated more that they were in the process of investigating the incident. Chris argued on my behalf, pointing out that there were concerns with the systems in place around the palletiser and my conduct did not amount to a serious safety breach. The meeting ended with CUB and saying that they would respond later."[27]

[37] On 29 April 2020, Chelgrave managers met with Mr Johnson and recorded his views about the cause of the incident. The matters put forward by Mr Johnson in that interview were then incorporated into a comprehensive Chelgrave investigation report dated 7 May 2020. The report sought to "find root cause for the risk potential presented and to identify whether there was a breach of CUB lifesavers" being a reference to the CUB policy and procedures dealing with safe work on machinery, entitled "Lock, Tag, Clear And Try". These procedures are variously known as the CUB Lifesavers or LTCT. The investigation was undertaken by John Wynne, a Chelgrave manager, with interviews being conducted not only with Mr Johnson but also with CUB's Matt Petrofes, an Engineer, and Parshva Shah, a Maintenance Controller. Neither Mr Wynne nor the latter mentioned CUB managers gave evidence in these proceedings.

[38] The investigation report is comprehensive and balanced. While it ultimately attributes some criticism of Mr Johnson for breach of the CUB Lifesavers it does not go so far as to identify his conduct as misconduct, let alone serious misconduct. First, the report summarised what Mr Johnson told Mr Wynne:

"Chaya went to the area and opened Door 7, the Door nominated as the entry point. The machine appeared to shut itself down with motors stopping and air bleeding down. Chaya tested the system by resetting. Nothing restarted, so was confident of full isolation. Chaya, having no experience on this particular task on this machine proceeded with the method that had been explained to him to access the turntable. There was also a pallet on the conveyor just near Door 7. Near the corner of the perimeter guarding is a hinged access panel in the fencing that is secured by hex socket screws on the swing side. He undid these screws and opened the access panel entering the space.

Chaya undid the securing screws on the upper cover of the turntable and removed it. On inspection of the chains and sprockets the turntable began to index around. His hand or arm must have passed through one of the sensors which started the drive motor. He was surprised with the movement as he had assumed the isolation covered the whole of the area and when resetting the machine earlier the table did not move.

Chaya removed himself from the equipment. He put the covers back on, closed and secured the hinged fence panel knowing that the line had to be ready for production around 2:00pm. Chaya removed his locks and secured the machine for production."

[39] The Chelgrave investigator interviewed CUB's Matt Petrofes, who whilst confirming the above summary was also critical of Mr Johnson. The criticism acknowledged both that the work requirements on Mr Johnson had changed during the day, and that he was not fully trained in the relevant area. While the report is critical of Mr Johnson the absence of oral evidence either from the author of the report (Mr Wynne) or the person he recorded as expressing the concerns (Mr Petrofes) and the manner in which those criticisms are expressed lead me to not regard the recorded matters as being an expression by Mr Petrofes that Mr Johnson had committed misconduct:

The scope of the work order had changed owing to the limited time on the day.

Chaya said that he had not been fully trained in that area.

The Work Order and the JSA have gone missing from Parsh's desk. The maintenance Controller said that he did sign off on the JSA. There was nothing on the JSA to indicate a section of Fence Guarding has to be removed to gain access.

Chaya went to enter at Door 7, but there was a pallet blocking the area on the conveyor. He used the hinged Door instead, which is not a proper Door and is opened by removing bolts requiring a tool.

Chaya did admit that he failed to apply a Tag to the Hinged Guard when opened.

The Matrix of Functional Validation od (sic) Safety Systems has been checked. There are no gaps apparent in this.

Three breaches committed by Chaya of company "Lifesavers".

1. Not complying with LCTC, (sic) in particular the 'Try' component.

2. Interfering with or removal of a fixed guard. Did not follow the correct procedure for its removal.

3. Did not report the incident in an acceptable time frame. Two-hour delay approximately.

Chaya has demonstrated misconduct on other issues. There is a concern over his own safety and that of work mates and CUB employees."[28]

[40] Mr Shah's comments as recorded by the Chelgrave investigation appear concerned with whether the way Mr Johnson performed his work had been authorised by the JSA, with him believing it was not:

"... The focus was to be on the turntable and conveyor inspection there may be some adjustment required for tensioning, but they can come back to it at the end of week. In the end, due to time, the expectation was to inspect one turntable particularly and the others as time permitted.

The Depalletiser was on separate JSA to the Palletiser work.

From memory removal of any fixed guarding was not covered on the JSA which was signed by Parsh about 12: 15 to 12:30. Work commenced round 1 :00 pm, Craig and Chaya went down to the job together and then Craig presented to the site Nurse around 1 :05pm due to a personal medical issue. Chaya continued on by himself.

Mark Hale asked if it was normal practice to sign a JSA in office and not at worksite. Parsh stated that was a normal practice, for jobs that are routine and simpler non-routine tasks where there are no involved complications.

Anyone can sign off a JSA down to Trade level and cross check if there are two or more trades, as long as they are not doing the job by themselves. In this case however Parsh signed off the document.

Mark Hale asked Parsh what he thought the competence level was of Chaya in this area, and how would he know what was required from the point of view isolations. Parsh responded that the expectation is the trades conduct LTCT on equipment to be worked on, i.e. isolate the machine along with associated equipment to left and right and carry out 'TRY' component of the process. Chaya asked for clarification of the zoning area for the line from the Door, Parsh provided this and nothing else was asked for or offered.

Chaya had completed this LCTC (sic) training in August 2019.

The JSA form has a number of prompts relevant ones being working near nip points and moving parts. LTCT and PPE are a control measure option to detail, there was no selection or detail written of fixed guards being removed. Chaya did not raise any concerns and the he started the work. It was at some point during this time that the event occurred.

Parsh gets notification that the line will be starting, he goes to see the status of work about 2:00. Chaya was not there, and the job appears to be packed up and ready to go back into service.

Parsh talks to Chaya over radio for a status at this time, and he is told by Chaya that he is out of the area and in the workshop completing an email about the job. He did not mention any issues then.

Parsh spoke to Lucas (Team Leader) and was told about the incident. This was about 2:30. Lucas had only learnt of this some five minutes earlier."[29]

[41] After speaking with several people and examining numerous documents, with the exception of the JSA which was missing, the investigator then made findings about the incident. After noting that Mr Johnson was trained in the CUB Lifesavers, the investigator made these general findings and findings about the safety integrity of the machine:

A Risk Assessment previously conducted in 2012 and updated as of 22nd April identified slip/trip hazards and control measures to be put in place including installation of additional interlocked access point near the turn table, removal of redundant bollards and the installation of permanent access stairs to go across the conveyor. These items have not been actioned and have been raised for some time. Access is a known difficulty.

On the 28th April a Safety Validation was completed with the following notes as a result of this incident:

No major defects were found, the safety systems in the MPH Palletiser operated in a safe manner. Though minor defects were found, which were mainly insufficient indication:

•·investigate ES101 and ES202. Functionally this fails safely, however tripped multiple zones and a maintenance corrective is required to investigate/rectify;

• Not all Estop locations shown on SCADA, providing this clarity will ensure a speedy recovery in the event of accentual activation;

• Clearer indication required for TOSA wrapper when in safety fault;

• Unable to find ES210, although ES110 was located twice;

• Globes to be checked on Pall C1A and C1 B Exit Light Curtain;

• New Tipper Estop to be added to Validation Sheet;

• Muting on light curtains is inconsistent and will need some fine tuning. Completed 28th April, with Monthly validations required until simplification (muting removed) achieved; and

• In addition to this, and in alignment with the risk assessment performed;

• Additional signage to align with depal visualisation standard and update of zone maps;

• Scope up Capex required to enable simplification of zoning, relocate estops, remove muting of some light curtains and provide additional Doors for entry Zone1 and 2.

There are clearly deficiencies within the system that need to be addressed and provide for some lenience in Chaya's reasoning for how things operate and his apparent lack of plant knowledge.

There is no "safe" way to access the outer perimeter of the line, it is either under or over the line which provides safety issues, in my opinion, there is a deliberately placed hinged fence guard in place for this work."[30]

[42] The findings then moved to criticism of Mr Johnson, and in particular that he did not fully engage the "Try" component of the CUB Lifesavers.

[43] By way of background, "Try" is described in the CUB LTCT material before the Commission (which appears highly summarised and is not likely to be the full policy or procedure) as requiring steps such as to "[p]ush, buttons, test circuits to confirm the energy source is off and the equipment safe to work on".[31] The training Mr Johnson had completed on the subject exhorts that "LTCT steps - apply locks, tag, clear material and persons, test TRY restart. TRY step is the most important- it can save your life!".[32]

[44] The Chelgrave investigation report concluded that Mr Johnson did not do everything he should have, but tempered that criticism by considering the context within which he was performing his work, and concluded that he could not be held entirely responsible for what happened:

One of the key aspects of a successful Lockout/ Tagout program is clear and decisive training that is regularly reviewed, and refreshers provided to all trades and operators. Chaya has done refresher training in the last 12 months, dated in August 2019. A review of the training slides provided clearly states the process involving Lock, Tag, Clear and Try. A failure identified in this process that Chaya undertook centres around the 'Try" component. Had Chaya fully pursued this component he would have succeeded in a successful isolation; however, this process goes hand in hand with the knowledge of the plant itself.

Chaya indicates he has not had full training in the LG3 Area and was not aware of the limitations of the isolation created by opening Door 7. Chaya was unaware that the whole compound is not one zone and is in fact split and controlled by various points. He was not aware either of the tripping of the light curtain would effectively disable the zoning of the turntable. Had he crossed through the light curtain the incident would not have occurred.

Chaya was possibly not of aware of the potential for the turntable to start manually from the SCADA Panel or by breaking one of the turntable PE beams.

Given Chaya's position on this apparent lack of equipment training and Leadership not providing records or a definitive position on equipment training received and ultimate competence, it is conceivable that he has a deficiency in area knowledge of this equipment.

A deficiency does not necessarily mean that he did not believe he was carrying out the isolations incorrectly. According to Chaya's account he had spoken with other trades to get their view of how to go about the task. This combined with a lack of knowledge of the zoning and isolation points may be a salient point in arguing a case of contributing factors or mitigating circumstances.

Chaya's site and L TCT training records for August 2019 do not have correct answers stated or the trainer's sign off.

There is an inconsistency in how gaining entry to the area safely and conducting the work could be done. Ranging from entry through middle gat and climbing over or under to Parsh's view that entry through Door 7 and through the light curtain. Is it safe to solely rely on the light curtain to Lock out at Equipment Level? The Light Curtain can be reset by others and is not tagged."[33]

[45] The findings concluded as well:

• That Mr Johnson's competence to undertake the assigned tasks was not established:

"Chaya makes the claim that he has not been adequately trained. The Leadership team are not in a position substantiate this one way or the other.

Chaya's level of competency in these areas cannot be supported as a result";[34]

• It was relevant that Mr Johnson started the work with another person, Mr Stevens, who likely had greater expertise in the assigned tasks, and when he left because of illness, his knowledge, including about possible safety measures was no longer available to Mr Johnson;[35]

• Mr Johnson believed he had correctly applied the lock and applied the "Try" component';[36]

• Although noting the criticism that Mr Johnson delayed reporting the incident, and should have done so with greater urgency, that criticism was "not relevant as it is unclear of the timing of the actual reporting".[37]

[46] The investigator explicitly considered the meaning and gravity of these findings and whether disciplinary action should be taken against Mr Johnson and concluded a final warning should be issued to him. It did so after putting forward seven other recommendations for action directed at improving the overall safety system.[38] The recommendation made about Mr Johnson was framed in this manner:

Although this report provides for what may appear to be leniency considering Chaya's apparent breaking of Lifesaver Rules, given the circumstances contained within the report it should not take away the fact that there were some errors made in reference to two Lifesaver Rules which are important. The investigation and preparation of this report does not ignore this fact. This investigation determined that Chaya should be issued with a written Final Warning for his unintended failure to adequately Isolate to Equipment Level as prescribed for maintenance tasks. This is to be issued on the agreement of Carlton and United Breweries Management Team forthwith. This, along with the other recommendations made above can only go toward a better learning outcome for Chaya and the rest of the Trades Team, but also enhance maintenance management within the organisation."[39]

[47] The Chelgrave investigation report was concluded on 7 May 2020.

[48] Mr Johnson's evidence is that he was informed him was dismissed on 28 May 2020 with the termination taking effect on the same day. Chelgrave's email on the subject was short and to the point:

Further to our conversation this morning I would take this opportunity to confirm that due to an incident on the 22nd April 2020 where you did not follow required safety procedure to Isolate machine. As a result CUB have instructed Chelgrave that you are not to return to site and as a result your employment with Chelgrave is terminated effective 28th May 2020

[49] The circumstances of how Mr Johnson came to be dismissed are referred to briefly in Chelgrave's evidence to the Commission, with Mr McGrillen stating:

"12. On 28 May 2020, I received an email from the CUB Abbotsford Plant Manager, David Baxter, providing notice of their instructions to us to permanently remove the Applicant due to a safety incident, multiple previous occurrences of unacceptable behaviour and multiple opportunities to correct his unacceptable behaviour. Mr Baxter advised that the Applicant had not improved his behaviour and that CUB had come to believe that the Applicant could not be trusted to comply with lawful directions and procedures and therefore posed a safety risk to himself and his colleagues on the site working with heavy machinery.

13. Accordingly, that morning I telephoned the Applicant out of courtesy and also sent a followup email confirming that CUB had requested he not return to the site and that, accordingly, his employment with Chelgrave was terminated."[41]

[50] The legislative provisions relevant to this matter are set out in s.387 of the Act, which is as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

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

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

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

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

(h) any other matters that the FWC considers relevant."

[51] Determination of whether the Applicant's dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[52] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way:[42]

"[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced;[43]

• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour);[44]

• it is not necessary to demonstrate "serious misconduct" or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal;[45]

• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss[46] (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee's conduct)."[47] (original references)

[53] A dismissal is unfair in the case of a person protected from unfair dismissal, dismissed by the employer which is not a small business employer and for reasons other than genuine redundancy, if it was harsh unjust or unreasonable, taking into account the criteria within s.387. I will deal with each of the criteria within s.387 in turn.

(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)

[54] Chelgrave responded to Mr Johnson's unfair dismissal application by stating he had been dismissed on the ground of serious misconduct.[48] The serious misconduct identified by Chelgrave is repetitively stated as being his breach of CUB's Lifesaver Rules, his failure to comply with CUB's occupational health and safety requirements, and his wilful disobedience or disregard of a lawful direction,[49] all stemming from the incident on 21 April 2020.

[55] To be a valid reason the reason must be "... sound, defensible or well-founded." A reason which is "... capricious, fanciful, spiteful or prejudiced ..." cannot be a valid reason. [50] The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.[51] The valid reason for termination is not to be judged by legal entitlement to terminate an employee, "... but [by] the existence of a reason for the exercise of that right" related to the facts of the matter.[52] Ascertainment of a valid reason involves a consideration of the overall context of the "practical sphere" of the employment relationship.[53]

[56] A dismissal relating to an employee's "capacity", as that term is used in s.387(a) of the Act, means the employee's ability to do the work he or she is employed to do. A capacity related reason for dismissal might be concerned with an employee's performance, the employee's physical capacity to perform the work, the loss of a qualification or licence necessary to perform the work, or an inability to perform the inherent requirements of the job because of some injury, illness or other disability.[54]

[57] It is possible the actions of a third party may mean the loss of an employee's capacity to perform their work. For example, it has been found that dismissal by an employee by one government agency because they lost a security clearance issued by another government agency was a valid reason for dismissal related to their incapacity to undertake the inherent requirements of their job.[55] A labour hire employee may be validly dismissed where the host employer requires their removal by exercising a contractual right to do so, provided the labour hire employer does not rely exclusively on the host employer's actions as their defence to a claim of unfair dismissal.[56] However, even in such situations the reasons the third party came to their view are still important and require scrutiny, with it being the case that "where a labour hire employer dismisses a worker based on an endorsement of an allegation of misconduct by the host employer, it may be the case that the dismissal is better characterised as conduct-based rather than capacity-based, and its validity under s.387(a) is to be assessed on that basis".[57]

[58] Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response. Where the conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw[58] may be relevant. While an "elevated standard",[59] the standard of proof remains the balance of probabilities but "the nature of the issue necessarily affects the process by which reasonable satisfaction is attained" and such satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences" or "by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion".[60]

[59] It is not the Commission's role 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 court."[61] However, the Commission "must consider the entire factual matrix in determining whether an employee's termination was for a valid reason."[62]

[60] For there to be a valid reason related to the Applicant's conduct, it must be found that the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.[63] Further, "[t]he question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."[64]

[61] It has been said by the Full Bench with reference to the definition of "serious misconduct" within the Fair Work Regulations 2009 that "the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee's conduct)."[65] The Full Bench has also found there is not a "clear rule of law defining the degree of misconduct justifying summary dismissal",[66] and that it "is certainly well established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee's dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason)."[67]

Principles associated with labour hire arrangements

[62] The Full Bench has held that in matters involving a labour hire arrangement in which an employee is removed from a worksite on the instruction of the host employer resolution of whether there is a valid reason for dismissal will depend upon the circumstances of the case.[68] A relevant issue will include the terms of the contract between the host employer and the labour hire employer, but only if those terms are disclosed to the Commission. Relatedly, there is no presumption to be made that a contractual obligation to remove an employee from a worksite if instructed to do so[69] is a universal term.[70] The simple acquiescence of a labour hire employer to such an instruction and the resultant dismissal of an employee may mean it being "difficult to imagine that such a dismissal could be justified on the basis of the worker's incapacity, since the inability of the worker to continue working for the host employer would be the result of the labour hire employer's failure to insist upon compliance with its contract with the host employer rather than any incapacity on the part of the worker."[71] The Commission will take account of a failure by a labour hire employer to form an independent view about whether the employee has engaged in misconduct if that is alleged.[72]

[63] The facts of Mr Johnson's conduct on the day in question, 21 April 2020, are well established and save for the questions of the characterisation of certain of his actions and how long it took him to report the safety incident are not especially in dispute between the parties. The evidence allows the following findings to be made:

• Mr Johnson and Craig Stevens were instructed in the morning to undertake work associated with maintaining the turntables. After being instructed the scope of the job reduced owing to time constraints. Mr Stevens commenced filling out the JSA in tandem with Mr Johnson. Before it was signed as approved, Mr Stevens became ill and left. Mr Johnson took the completed JSA to Mr Shah for approval, who signed it.

• Mr Johnson commenced work on the palletiser alone. Once at the palletiser, Mr Johnson opened the nominated entry point, Gate 7, and applied a lock. He tested the lockout system by resetting. When nothing restarted, he believed there was full isolation of the palletiser. Whether these were sufficient actions on his part is contested.

• Mr Johnson believed that work needed to be done on the conveyor furthest from him. He believed he could not go under the conveyor line nearest him, and that it was unsafe for him to go over the line. There were no permanent access stairs across the conveyor.[73] He believed the safest access was through a hinged access panel secured by hex socket screws and proceeded to remove the panel and enter the palletiser space. Whether using this point of access was permissible is contested.

• After entering the palletiser space Mr Johnson undid the screws on the turntable's upper cover and inspected the chains and sprockets. That process tripped a sensor or light curtain which activated a drive motor which in turn caused the turntable to move.

• Mr Johnson returned the covers to the turntable and left the palletiser space. He closed and secured the hinged access panel, removed his locks from Gate 7 and returned the machine to a state ready for production.

• Mr Johnson left the palletiser area and reported what occurred. The timeliness of the report is contested.

[64] At least three of the above matters potentially indicate misconduct on Mr Johnson's part: whether he sufficiently tested the palletiser's full isolation, his access and egress to the palletiser area through the hinged access panel, and the timeliness of his report of what occurred. Those matters though are not extensively referred to in Chelgrave's evidence, and the company's criticism of Mr Johnson, or more likely that of CUB, is to be discerned mainly from the Chelgrave investigation report. While shedding some light on its view of his actions Chelgrave's notes of its earlier interview with him do not detail criticism of those actions. In summary, the two documents record the following:

• From the notes of the Chelgrave interview with Chaya Johnson, 29 April 2020:

  • In relation to the machine's isolation and when at Gate 7, he applied his lock and tested the system by resetting, and nothing restarted which gave him confidence of full isolation.

  • Pertinent to access through the hinged access panel, this was because he "felt he could not go under the line, unsafe to go over the line". Other fitters had described the best access as being through the hinged fence panel, which was stated on the JSA.

  • He readied the palletiser for use after the incident, and before production resumed at 2.00 PM. He went to see the health and safety representative, Nick Cleever, who told him to report it to the Team Leader, who Mr Johnson went looking for. He ended up at the Afternoon Shift Team Briefing that was held after 2.00 PM, the purpose being "so that all team members would be aware of the situation". At some later time, Mr Petrofes and Lucas asked Mr Johnson to demonstrate what had occurred and at that time Mr Petrofes established that "isolating at Gate 7 did not isolate the turntable". That established that the turntable was only isolated by turning off a motor isolation switch mounted adjacent to the turntable.

• From Chelgrave's investigation report, 7 May 2020:

  • The report is entitled "Breach of Three Lifesaver Rules at CUB". The report may be technically correct but is not well-written with a logical narrative and flow and quite often uses confusing and ambiguous paragraphs. The three potential breaches are not to be easily discerned, however appear to relate to the extent of the isolation mapping conducted before work started on the palletiser and the extent to which the Lifesaver Rules "Try" obligation was met. The report concludes there were some errors made in reference to two Lifesaver Rules, and that was not responsible for a third potential breach, being the claim made about the timeliness of his reporting of the incident.

[65] The evidence before this Commission leads to findings only that Mr Johnson had not done everything reasonably practicable in order to test that the palletiser was fully isolated and that he had not established that the safest access and egress to the palletiser area was through the hinged access panel. The evidence does not lead to the conclusion he failed to give a timely report of the incident to his supervisors or CUB.

[66] These are the only relevant matters of conduct made about Mr Johnson; relevant that is for the purposes of assessment of whether Chelgrave had a valid reason for his dismissal.

[67] Chelgrave relied for its reasoning about Mr Johnson's dismissal that it was required by CUB's Plant Manager, David Baxter, on 28 May 2020 to remove Mr Johnson from its site, effective immediately. There is no independent reasoning on Chelgrave's part on the subject and there is no evidence that anyone in Chelgrave thought before that point that Mr Johnson's conduct warranted dismissal.

[68] The Chelgrave investigation report was concluded on 7 May 2020 and recommended a final warning be issued to Mr Johnson.[74] There is no evidence that the subject was discussed with CUB and the recommended actions found to be wanting, or that discussions took place with CUB about the sanction that should instead be applied to Mr Johnson, or that Chelgrave was engaged in a reasoned process jointly with CUB to ascertain Mr Johnson's culpability, whether alone or in conjunction with others involved. There is not even evidence that Chelgrave was consulted - in the true sense of the word - by CUB about what it proposed to do. Instead, the only evidence before the Commission is that CUB instructed Mr Johnson be removed from its site. Why it issued such instruction is not known; nor are the matters of whether Chelgrave debated the wisdom of the instruction with CUB, or of what, if anything, CUB took into account when it complied. Some insight into the decision is given by advice given to Mr Hale by the CUB Plant Manager, Mr Baxter, after the event, on 6 August 2020. After enquiring about the possible re-engagement of Mr Johnson after the commencement of these proceedings, Mr Baxter advised Mr Hale "that CUB was not prepared to have Chaya work in any CUB department due to the serious nature of his safety breach, which he described as "serious misconduct" combined with a very poor history of failing to follow reasonable directions leading to CUB 's belief that Chaya could not work safely at the CUB site".[75]

[69] Having been issued with the instruction to immediately remove Mr Johnson from the CUB site, Chelgrave promptly told him he was dismissed. No consideration was given at that time to redeployment of Mr Johnson to another Chelgrave site.

[70] The instruction given by CUB to Chelgrave is that Mr Johnson should be dismissed for the combination of two reasons; the serious nature of his conduct in relation to the safety breach, coupled with his "very poor history" of following its reasonable directions. The subjects of CUB's concerns about Mr Johnson's history of following its directions are set out above. Some of the matters are recorded as having been discussed with Mr Johnson, however many of the issues appear never to have been raised with Mr Johnson by anyone, let alone someone in Chelgrave's management chain. Mr Johnson recalled some discussion of the subjects and recalls agreeing he needed to do better but argued there was not extensive or repeated discussion and no documented warnings. In these regards:

• He conceded he could have communicated with supervisors better in February 2020 when he stopped for lunch, thereby delaying production;[76]

• He does not accept he failed to report an injury exacerbation in July 2019, arguing it was a "little tweak and pain" and that it would be unreasonable to require him to report all events of that type;[77]

• He does not recall having left part-way during a changeover in October 2019;[78]

• He does not recall general issues with absenteeism, sick leave or RDO's. In relation to the specific complaint that in March 2020 he had claimed sick leave without entitlement by providing a statutory declaration he conceded he had been spoken to on the matter, but explained the situation arose out of claiming sick leave pertinent to himself, when he should have sought compassionate leave owing to his mother's illness with pneumonia;[79]

• He argued the contention that he had refused to do a particular task in April 2020 was in the context of him having safety concerns. He and Mr Stevens had been asked to perform work in an area in which a dangerous caustic cleaning agent was used. It was the first time the two had been asked to do this work and the instructions were not clear. After raising safety concerns, they were not required to undertake the work.[80]

[71] What may be drawn from these complaints is a finding that Mr Johnson's communications with Chelgrave and/or CUB on important working and workplace matters were not exemplary in 2019 and 2020. Those matters included when he proposed to stop work and when he expected to be late for work, was absent from work or needed to work overtime. The matters raised and sought to be relied upon by Chelgrave may have justified disciplinary action, however Chelgrave did not take such action, and instead only discussed some but apparently not all of the matters with Mr Johnson.

[72] No finding reasonably arises either that Mr Johnson deliberately or wilfully sought sick leave to which he was not entitled in March 2020 or that he refused a reasonable direction in April 2020 to undertake work.

[73] In relation to the former matter, the Chelgrave Enterprise Agreement provides that Personal/Carer's Leave and Compassionate Leave are provided for in accordance with the National Employment Standards (NES) and legacy terms of the National Electrical, Electronic and Communications Contracting Industry Award 1998 which have been incorporated into the Agreement. The incorporated Award does not refer to caring for family members, however the NES in s.97 of the Act does, by entitling an employee upon presentation of suitable evidence to care for an immediate family member. There is no suggestion in the evidence before me that Mr Johnson was not entitled to carer's leave under s.97.

[74] On the subject of the refusal to undertake work in April 2020 which Mr Johnson considered to be unsafe, there is no evidence that it was unreasonable for him to express that view and there is no evidence that his contention that in the end the work was not required is not correct.

[75] Consequently, no findings can be made that Mr Johnson's conduct extended to claiming sick leave he was not entitled to or refusing work in the face of a reasonable direction that it be performed.

[76] As set out above, Chelgrave levelled three complaints against Mr Johnson: his breach of CUB's Lifesaver Rules, his failure to comply with CUB's occupational health and safety requirements, and his wilful disobedience or disregard of a lawful direction. I find that he indeed did breach CUB's Lifesaver Rules by not following as well he could the "Try" principles and that such likely would also be a failure to fully comply with CUB's occupational health and safety requirements. The material before me on the Lifesaver "Rules" is very limited and hardly establishes them as "rules"; instead what is before me is a set of slides exhorting safe practice. Perhaps there is a comprehensive set of "rules" however they are not in evidence in this matter. The same may be said about CUB's occupational health and safety requirements. I do not find that Mr Johnson wilfully disobeyed or disregarded a lawful direction: firstly I am uncertain as to what the disobeyed direction or requirement may have been, and secondly the evidence does not lead to a conclusion that Mr Johnson's conduct was wilful or reckless.

[77] The conduct I have found to have occurred and for which Mr Johnson may be held to account is two-fold:

• He did not do everything he could have in order to test that the palletiser was fully isolated, and he did not establish that the safest access and egress to the palletiser area was through the hinged access panel; and

• His communications with Chelgrave and/or CUB on important working and workplace matters were not exemplary in 2019 and 2020.

[78] Mr Johnson's failure to test that the palletiser was fully isolated and to establish that the safest access and egress to the palletiser area was through the hinged access panel are breaches of his obligation to work safely and more particularly to follow the CUB Lifesavers. His lack of familiarity with the palletiser, the fact he was working alone, and the fact there was no safe access over or around the inside of the machine are factors which each contributed to his decision making.

[79] An employer seeking to rely upon misconduct in the form of contravention of safety policies as a valid reason for dismissal does not have to demonstrate intentional behaviour, as compared with a mere error of judgement, although intentionality may be a relevant consideration under s.387(h).[81] Serious misconduct is defined by the Act to include the matters set out in the Regulations which in turn provides the term has its ordinary meaning including several listed elements.[82]

[80] While it is the case that the incident on 21 April 2020 had the potential for "serious and imminent risk" to Mr Johnson's health or safety, including because of the contribution of his own conduct, with that risk being one of the included matters listed in the Regulations, I am not satisfied on the balance of probabilities either that it was his conduct alone or substantially which led to the events. I am also not satisfied that his decisions and his related actions were so unreasonable as to be characterised as serious misconduct. Mr Johnson's conduct is not to be regarded as a trivial misdemeanour because plainly it could have had far more serious consequences than it did; however, his culpability is reduced because of the poor decision making of those around him. Relevant considerations in this regard include:

• The design and deployment of the palletiser's safety mechanisms were likely substandard or at least deployed in such a way as to mean that the problem encountered by Mr Johnson was reasonably foreseeable. Opening and locking out Door 7 did not isolate the whole machine; Mr Johnson's explanation to the CUB managers after the incident that "he did not think it was necessary to isolate at the [turntable] level as opening the Door rendered all the line inoperable" was likely a reasonable explanation as well as one which exposed an obvious problem. There were differing views about how to safely enter the turntable area: another fitter said he would go through a middle door, and Mr Shah said he would go through the light curtain. CUB management apparently knew turntable access and egress was a problem, with Mr Shah telling the Chelgrave investigation that "jumping down from the conveyor is not good idea".[83] The Chelgrave investigation report records a 2012 risk assessment with unactioned matters:

"A Risk Assessment previously conducted in 2012 and updated as of 22nd April identified slip/trip hazards and control measures to be put in place including installation of additional interlocked access point near the turn table, removal of redundant bollards and the installation of permanent access stairs to go across the conveyor. These items have not been actioned and have been raised for some time. Access is a known difficulty."[84]

I concur with that part of the Chelgrave investigation report which finds the absence of comprehensive isolation mapping to have been a contributory factor:

"Given the complexity of the plant it is not unreasonable to expect information to be provided at a level easily seen and understood by employees concerning LCTC (sic) as an adjunct to the Training provided.

Some parts of the plant now have this in place, the LG3 area does not, evidenced by comparative photos. This combined with a possible deficiency in understanding of the function of some of the safety systems of this plant and its intricacies of operation gives rise to a reasonable deduction that Chaya did not act and finally perform below expectation due to being reckless or deliberately by-passing the site rules.

It would not be unreasonable to lay some of the responsibility on CUB for not addressing Isolation Mapping and indeed Isolation Point labelling on the outcomes seen on this day."[85]

• The decision on the day to allow the work to be undertaken by Mr Johnson alone is questionable and especially so without a worksite view of the proposed work by a responsible CUB manager before the JSA was signed. Mr Johnson should not have been permitted to work on the palletiser alone after his colleague became ill, and the fact he was going to do so demanded an on-site check of the JSA by the CUB supervisors before it was signed. Mr Johnson was plainly not fully trained or familiar with the machinery and permitting him to proceed was a significant lapse in judgement and likely inconsistent with standard supervisory obligations to ensure everything reasonably practicable has been done to ensure worker safety. The fact that the JSA was signed without visiting the worksite was the subject of a question by Chelgrave's manager, Mark Hale, which was not fully explained by what the Maintenance Controller, Mr Shah, had to say to the Chelgrave investigation. Plainly the JSA should not have been authorised:

"Mark Hale asked if it was normal practice to sign a JSA in office and not at worksite. Parsh stated that was a normal practice, for jobs that are routine and simpler non-routine tasks where there are no involved complications.

Anyone can sign off a JSA down to Trade level and cross check if there are two or more trades, as long as they are not doing the job by themselves. In this case however Parsh signed off the document."[86] (underlining added)

[81] One of the criticisms advanced by CUB to the Chelgrave investigation against Mr Johnson about his actions on the day is that he removed the hinged access guard and that "if removing the guard was necessary or preferred it would require detail on the JSA. There was no detail of this".[87] The JSA is said to be missing and there is no means by which the CUB proposition may be tested. No evidence has been taken from any CUB employee in these proceedings. Mr Johnson's evidence, however, was that the JSA identified the entry he would make. The alternative, that he was wrong in his recollection was not put to him in cross-examination. Instead, Mr Johnson confirmed in his oral evidence his recollection that the JSA documented the access point he proposed to use:

"On that JSA you wrote down where you could isolate the equipment?---Yes. So - yes. So I wrote down that I would be placing a lock on the access door, and also put in there another one, that I would be opening another access door that is right adjacent to the turntable, which is the closest access point to where I'd be working."[88]

[82] I am not satisfied the JSA incorrectly identified the work proposed to be done by Mr Johnson.

[83] Section 387(a) requires consideration of whether there is a valid reason for a person's employment relating to their capacity or conduct (including its effect on the safety and welfare of other employees). I do not draw the conclusion that the conduct I have found and its connection with matters of occupational health and safety impel a finding that the circumstances were a valid reason for dismissal. While a level of culpability may be assigned to Mr Johnson for his actions that level is not at the high end. He was not reckless in his actions and did not exhibit any behaviours that would suggest he knew what had to be done but was going to disregard those matters for reason of saving time or making the job easier. Such culpability as may be attributed to Mr Johnson is shared by others.

[84] Taken together, the matters of Mr Johnson's actual conduct, the failings in management systems and the failure to remedy identified safety issues with the palletiser, lead to the conclusion that Mr Johnson's actions on the day were insufficient reason for his dismissal.

[85] Consideration of those matters in tandem with the general behavioural or conduct matters Chelgrave relied upon as part of its decision to dismiss Mr Johnson does not tip the balance toward a finding there was a valid reason for his dismissal. This is not a case in which borderline conduct on the part of an employee coupled with prior warnings and a poor disciplinary history tip the balance in favour of a finding that dismissal was warranted.

[86] Mr Johnson may plainly be criticised for some degree of less than desirable workplace behaviour or conduct over the past year, and there is a case to be made that he needs to ensure he avoids a repetition. Although that may be the case, the matters about which CUB and Chelgrave now express concern have not been substantially put to him, let alone with a request for explanation or a demand for remedy. There has been no reasonable or systematic attempt by Chelgrave or CUB to document concerns about Mr Johnson's communications with it or CUB or to caution or warn him about repetition of the matters which led to those concerns. It is not even clear which of the matters identified as concerns were known to Chelgrave before dismissal; some were most likely merely irritants known only to CUB and expressed to no one. At best Mr Johnson was counselled about some of the matters and not warned. Because of this situation, the general behavioural or conduct concerns held by Chelgrave (or CUB) do not tip the balance in favour of a finding Chelgrave held a valid reason for Mr Johnson's dismissal.

[87] For the reasons set out above, I do not find that Mr Johnson's conduct either on 21 April 2020 or on that date combined with his other work history was a valid reason for his dismissal.

[88] Chelgrave do not rely upon matters of capacity for being a valid reason for Mr Johnson's dismissal. Even so, I have considered whether separate to the matters of his claimed serious misconduct it may be argued that he lost his capacity to be employed by Chelgrave when it was instructed by CUB to remove Mr Johnson from its Abbotsford site.

[89] Such a finding is not available to the Commission. While Chelgrave contend it was contractually obliged to act on CUB's instructions, the Commission is unable to test that proposition since Chelgrave have not brought its contract with CUB forward for examination. While Chelgrave contend that it has offered alternative positions to Mr Johnson and he has refused those offers, any such offers appear to have been in the course of conciliation[89] which if so, may be inferred to have been after dismissal and not before. In all there is no evidence that Chelgrave, having been instructed to remove Mr Johnson from the CUB site then turned its mind to where else he could be employed.

[90] When Chelgrave dismissed Mr Johnson from its employment, it did not have a valid reason for doing so, being a "sound, defensible or well founded" reason within the overall context of the employment relationship. Its dismissal of Mr Johnson was contrary to its investigation report recommendation and not supported by the report's findings. The misconduct I have found is not serious misconduct and is not a valid reason for dismissal.

(b) whether the person was notified of that reason

[91] The evidence is that Mr Johnson was notified of his dismissal first by phone and then by email on 28 May 2020. He was told in the email that his dismissal had been instructed by CUB with him unable to return to site, with the dismissal being because he "did not follow required safety procedure to Isolate machine".[90]

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

[92] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal.[91] While so, it is also accepted that "an opportunity to respond" amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.[92]

[93] A provision in predecessor legislation requiring there not be dismissal until "the employee has been given an opportunity to defend himself or herself against the allegations made" has been held to be a requirement not needing any particular formality, being "intended to be applied in a practical, common sense way so as to ensure that the affected employee is treated fairly.[93] 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".[94]

[94] CUB notified Mr Johnson on 23 April 2020 it had commenced an investigation and put him on notice that it took seriously any established breaches of safety obligations, and that if breaches were substantiated he may be liable for "disciplinary action up to a request for your removal from Site". It interviewed him for that purpose on 24 April 2020.

[95] Chelgrave conducted an investigation into Mr Johnson's conduct as well, most likely in the following week and he later received notes of the interview, dated 29 April 2020, from an unnamed source. Mr Brown later received a copy of the Chelgrave investigation report. There is no evidence Mr Johnson was informed of the findings of either the Chelgrave or CUB investigations before his dismissal.

[96] Findings are unable to be made by me that Mr Johnson either knew that Chelgrave thought his conduct warranted dismissal or had the opportunity to provide it with a response that may have caused a change from the path of termination of employment. It follows that Mr Johnson was not afforded an opportunity to respond to the reasons held by Chelgrave for his dismissal.

(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

[97] There were no discussions as such about an impending dismissal, with Mr Johnson simply being told on 28 May 2020 that he was being dismissed. Accordingly, consideration of this criterion is a neutral factor in my decision.

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[98] There had been no warnings to Mr Johnson of unsatisfactory performance. Although there had been some concerns about general behaviour or conduct, the matters are relatively low level and were not documented or the subject of written cautions or warnings. It is not clear which of the matters identified as concerns were known to Chelgrave before dismissal; some most likely were known only to CUB and expressed to no one. Consideration of this criterion is a neutral factor in my decision.

(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

[99] There is no evidence before the Commission that the size of the employer's enterprise impacted on the procedures it followed in effecting Mr Johnson's dismissal. Consideration of this criterion is therefore a neutral factor in my decision.

(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

[100] There is no evidence before the Commission that there may have been an absence of dedicated human resource management specialists or expertise in Chelgrave, or that such may have impacted on the procedures followed in effecting Mr Johnson's dismissal. Consideration of this criterion is a neutral factor in my decision.

(h) any other matters that the FWC considers relevant

[101] It is relevant to take into account the special circumstances of the parties, being involved as they are in a labour hire arrangement. There is though no general proposition that the actual employer, the labour hire company, may rely on the instruction of a host employer to cause an otherwise unfair dismissal to somehow be fair.

[102] This matter is considerably different to the situation considered by the Full Bench in Pettifer v MODEC Management Services Pty Ltd.[95] In that matter, the terms of the contract were before the Commission:

"[36] Clause 18 of the contract between MODEC and BHPB which governed Mr Pettifer's hire to BHPB provided that:

"The Company Representative may direct the Contractor to have removed from the Site or from any activity connected with the work under the Contract, within such time as a Company Representative reasonably directs, any subcontractor or person employed in connection with the work under the contract, whose involvement the company representative considers not to be in the best interests of the project.

The costs associated with removing such persons shall be borne by the Contractor. The person shall not be employed elsewhere on the Site or on activities connected with the work under the Contract without the prior written approval of the Company. Within a reasonable period of time those person who have been removed from the work under the Contract shall be replaced at the expense of the Contractor if the Company so requires by other suitable qualified persons Approved by the Company"

[37] MODEC was therefore contractually obliged to remove Mr Pettifer from the BHPB Site if instructed to do so. This was the role which Mr Pettifer was employed to perform. No longer capable of performing the inherent functions of this role, MODEC sought to find alternative employment for Mr Pettifer. Only after exhausting these inquiries did MODEC rely on this reason to terminate Mr Pettifer's employment. In these circumstances the Full Bench is satisfied that MODEC had a valid reason relating to Mr Pettifer's capacity to terminate his employment and only exercised this reason because it genuinely was unable to find suitable alternative employment for him."

[103] The decision in Pettifer followed and endorsed[96] the decision of Deputy President Asbury in Kool v Adecco Industrial in which it was held that the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal.[97] That finding in turn was endorsed by the later Full Bench in Tasports v Gee.[98]

[104] Had Chelgrave placed its contract before the Commission, appropriate findings about its contractual obligations could have been made. No endeavours were made by Chelgrave to do so in any manner, not even in a manner which preserved its commercial terms from public scrutiny. In such situations it cannot just be inferred there was a contractual obligation to remove an employee from a worksite if instructed to do so.[99]

[105] The submission that Chelgrave "has offered the Applicant alternate positions but he has declined these"[100] was not elaborated upon and likely because they were only offered during conciliation after dismissal occurred.[101]

[106] I do not consider there to be any further matters requiring consideration under s.387(h).

[107] After considering each of the criteria within s.387, I am not satisfied there was a valid reason for Chelgrave's dismissal of Mr Johnson, and I am further satisfied he was not afforded fairness in the process by which he was dismissed.

[108] The Act requires the Commission to consider whether a dismissal was harsh, unjust or unreasonable by taking into account the matters at ss.387 (a) to (h). The meaning of the term "harsh, unjust or unreasonable" was considered by the High Court in the matter of Byrne and Frew v Australian Airlines Limited:

"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."[102]

[109] It has been further held that a dismissal may be unjust, because the employee was not guilty of the misconduct on which the employer acted; unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.[103]

[110] I find that Mr Johnson's dismissal was harsh, unjust and unreasonable. It was harsh because the penalty of dismissal was disproportionate to the established facts before Chelgrave; it was unjust since he was not afforded an opportunity to provide a response to Chelgrave's consideration of dismissal and it took into account and relied upon general behavioural and conduct matters which had not been adequately put to Mr Johnson as criticisms of his performance; and it was unreasonable because it did not adequately take into account the contributing factors to the events of 21 April 2020.

[111] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are set out in ss.390 - 393. Reinstatement, for which Mr Johnson presses, is dealt within s.391, with the section providing, so far as is relevant:

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:

• (a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

• (b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

• (a) the continuity of the person's employment;

• (b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

• (a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

• (b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement."

[112] Pursuant to sub-s.390(3) an order for the payment of compensation to a person must not be made unless the Fair Work Commission "is satisfied that reinstatement of a person is inappropriate" and also that the Commission "considers an order for payment of compensation is appropriate in all the circumstances of the case."

[113] Chelgrave submitted it would be inappropriate to reinstate Mr Johnson. The submission made in that regard included both that the necessary trust and confidence had been lost[104] and in particular relied upon reinstatement being inappropriate because of "a history of poor work performance".[105] Chelgrave also relied for inappropriateness on the contention that it lacked the contractual power to compel CUB to reinstate.[106] It was also claimed that Mr Johnson "would not have difficulty getting new work because he's had a lot of employers previously and it shouldn't be the case necessarily that he just has to return to this employer in the event that the dismissal is found to not be valid".[107]

[114] In relation to matters of trust and confidence, Chelgrave's solicitor, Mr Lucas submitted:

"... Labour hire is not a shield to any unfair dismissal claim, if it was, probably more people would use labour hire companies because they'd use people that way to get out of the possibility of an unfair dismissal or an invalid dismissal. So we take no issue with the applicant's submission on the power of the Commission to order reinstatement.

We say in this case it is, however, not appropriate. We say it for a number of reasons, the principal ones being that there had been a history of poor work performance. If you take CUB out of the equation - I know it's hard to do that, but if it was just my client, the respondent and the applicant, the evidence which is really in play is a minimum two counselling sessions with Mr McGrillen in relation to various performance matters, then there was the very serious safety breach which my client investigated, and in all of the circumstances of the case, the respondent would say that ultimately it was a valid dismissal."[108]

"But in my respectful submission, reinstatement is not an appropriate circumstance in this case. And I also reiterate if the applicant is reinstated and there has been clear difficulties in his employment in the preceding 12 months, it would be my respectful submission it is likely there's going to be other matters which may arise, and the performance written warnings and appropriate procedural fairness hopefully would be of a higher standard than what may have existed previously. And we'll be back here, Commissioner, because we'll be back here to determine - because clearly there's a loss of confidence, loss of faith in this employee. The host employer has lost all confidence in his abilities to remain at the work site. They don't trust him. They think that he does things inappropriately, and they are very concerned about safety matters."[109]

[115] The issue of when reinstatement is inappropriate and the related question of the need for trust and confidence between the parties was considered by the Full Bench of the Commission in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter.[110] In its decision, the Full Bench held that:

• "trust and confidence" in this context is that which is essential to make an employment relationship workable, which is "not to be confused with an implied term in a contract of employment of mutual trust and confidence, the existence of which was recently eschewed by the High Court in Commonwealth Bank of Australia v Barker"; and

• while "trust and confidence is a necessary ingredient in any employment relationship, it would be wrong to assume that it is the sole criterion or even a necessary one to determine whether or not reinstatement is appropriate".[111] (references omitted)

[116] The Full Bench has also summarised the relevant principles to be followed in assessments of trust and confidence as follows:

"[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."[112] (references omitted)

[117] I am unpersuaded that there has been a mutual loss of trust and confidence that would make reinstatement of Mr Johnson to his former position inappropriate. There is no evidence before the Commission on the subject except for Chelgrave's contentions about its contractual obligations and its workplace behaviour and conduct concerns. Those latter matters do not reasonably suggest a loss of trust and confidence. In fact, absent the events of 21 April 2020, Mr Johnson's employment would likely still be continuing despite the indicated concerns. If he transgressed further and had to be warned and then dismissed on the basis of a failure to heed warnings, then so be it - but that plainly would be in the future, or at least some time beyond May 2020. Both at the date of his dismissal and the date of the hearing, there is no material before the Commission that would reasonably allow a finding there has been a loss of trust and confidence by either party. Such wrinkles in the relationship as Chelgrave have pointed to are not soundly and rationally based or will be set to one side by the findings made in this decision.

[118] Chelgrave argued that "[r]einstatement is not possible due to the Respondent's lack of contractual power to compel CUB to re-engage the Applicant" and that it "is powerless under its contract with CUB to force them to re-employ the Applicant."[113]

[119] Chelgrave's contract with CUB is not in evidence before the Commission. Because of that I do not accept the propositions either that Chelgrave has no contractual power with CUB over the situation, or that somehow it is powerless on the subject.

[120] I am satisfied in all the circumstances that it would be appropriate to reinstate Mr Johnson. There is no evidence before me that suggests his pre-dismissal position is no longer in existence or otherwise not available to him, and so it is my decision that he be reinstated to that former position.

[121] Section 391(2) permits a discretionary decision on the part of the Commission to make an order maintaining the continuity of a reinstated person's employment or the period of the person's continuous service with the employer. Having considered all the evidence in the matter and taking into account my findings in relation to the circumstances of Mr Johnson, I am persuaded that an order should be made both for the continuity of his employment as well as for the maintenance of his continuous service.

[122] Section 391(3) permits a further discretionary decision on the part of the Commission for an order that an employer pay a reinstated person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

[123] The section requires the Commission to take into account in making such decision the amount of any remuneration earned by an employee subsequent to termination as well as the amount of any remuneration reasonably likely to be earned by them between the making of the order and the actual reinstatement. The discretion within the provision is general in nature, and in considering such an order the Commission may properly take into account all of the circumstances in the matter, including the conduct of the applicant which led to the dismissal.[114]

[124] The Commission's consideration of these matters may lead to an order for part payment of lost remuneration. In the recent matter of Hilder v Sydney Trains,[115] Deputy President Sams reinstated a customer service employee he found to have been unfairly dismissed and made a consequential order for lost pay. The dismissal was because of serious misconduct in the form of contravention of policies which expressed a "zero tolerance" of drug use. On appeal the Full Bench found in relation to the central findings of misconduct, that while it should be "reasonably obvious that Mr Hilder's contravention of the Policy constituted a valid reason for dismissal" it was the case that not every established breach of a requirement of workplace policy will constitute a valid reason for dismissal.[116] After affirming the applicant had been unfairly dismissed albeit for different reasoning to that employed at first instance, the Full Bench did not disturb either the order for reinstatement or the order for lost pay.[117]

[125] The order for lost pay, with a 50% reduction was dealt within the Deputy President's decision in this way:

"[141] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission 'may make any order that it considers appropriate' (my emphasis); thus, it is a discretionary exercise to be undertaken by the Commission. However, where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay or make an order for part payment of lost remuneration.

[142] In the circumstances of this matter, I have concluded that restoration of full lost remuneration would not be appropriate. I determine that Mr Hilder should receive 50% of the amount of lost remuneration he would have otherwise received had he not been dismissed, less any income earnt by him since his dismissal. While Mr Hilder's dismissal was unfair, his conduct was nevertheless a serious lapse of judgment, which he readily acknowledged was a mistake. It will also serve as a timely reminder of the seriousness this Commission regards the health and safety of employees and the public in this inherently dangerous industry, and the obligations on employees to ensure they always conduct themselves consistent with this objective."[118]

[126] The deduction of 50% from the order for lost remuneration must be seen against the particular facts of the Hilder matter. The misconduct in question was that the applicant failed a random urine drug test and tested positive for cannabis metabolites. He later agreed he had smoked cannabis the night before attending for work. He was 63 years of age at the time of dismissal and had worked for Sydney Trains for 6 years. The restoration of lost pay order was pertinent to the period between the 26 April 2019 and 21 days after the date of the decision on 12 December 2019 by when reinstatement was required.

[127] Similar reasoning was adopted by Deputy President Saunders in the recent matter of Geoffrey Dyson v Centennial Myuna Pty Ltd. After estimating that the applicant's lost earnings were in excess of $100,000, the Deputy President concluded a deduction of three months earnings was appropriate,[119] noting that this represented about half the period of lost earnings. The applicant in that matter had been found to have committed serious safety breaches, which amounted to misconduct, but that termination of employment was harsh.

[128] I consider it to be appropriate to make an order for lost remuneration but with a reduction to take account of Mr Johnson's conduct which led to his dismissal. The circumstances in which he was dismissed, together with my findings about whether there was a valid reason for his dismissal, lead me to consider it appropriate that there be an order to restore lost pay. While that is so, I have made findings about his conduct which require being taken into account. In particular, I have found that he did not do everything he could have done in order to test that the palletiser was fully isolated and he did not establish that the safest access and egress to the palletiser area was through the hinged access panel.

[129] Mr Johnson's evidence is that he was unfamiliar with the palletiser, and especially so given that he was to work on his own. He should have drawn that to the attention of the supervisor, Mr Shah, and either requested further information or the provision of assistance.

[130] I consider in the circumstances it to be appropriate to make a 15% deduction for these circumstances from the restoration of lost pay order. A deduction in the order of that made in Hilder or Dyson would be unwarranted and likely excessive given the level of contribution which can be indicated as attributable to Mr Johnson's actions.

[131] In forming my view about the nature of an order for lost remuneration, I have also taken into account that Mr Johnson was cooperative with Chelgrave and CUB about the near miss incident and its causes. That cooperation was to his credit.

[132] While satisfied there is a sufficient level of trust and confidence in order to make the relationship viable and productive that it is appropriate to order reinstatement I have also considered whether there should be any discount applied for reason of the general behavioural or conduct concerns held by Chelgrave, but do not apply any discount. Firstly, I have not found the matters were sufficiently put to Mr Johnson as to constitute disciplinary counselling or warnings. While there were some efforts to discuss some of the matters, they were not significant or to be relied upon. Secondly, I do not accept they were concerns actually held by Chelgrave; at best it was acting as a late-coming and out-of-the-loop surrogate on these matters for CUB, which in turn never counselled or warned Mr Johnson. It would be unjust to make a deduction from the order for lost pay for these matters.

[133] Even so, Mr Johnson would be living in a fantasy world if he did not now realise that his supervisors at CUB thought his level of communications required improvement. Demonstrably they do - the lengthy list of recorded concerns speaks to that need, even if they had not been put to him as matters that must be addressed. Mr Johnson is now on notice, through this decision, that his performance on these matters must be demonstrably and sustainably improved.

[134] I am satisfied with Mr Johnson's efforts to obtain employment after losing his job with Chelgrave. His witness statement records he has applied for about 4 or 5 jobs since dismissal and has not been successful in obtaining alternative employment. He believes he came close to obtaining employment with one firm, but that prospect evaporated after adverse commentary from CUB. There is though, no evidence that such was the case, and I make no finding on the subject. As a result, I am satisfied it is appropriate no deduction from lost remuneration is made for reason of Mr Johnson's efforts to mitigate his loss after dismissal.

[135] After the hearing concluded, and at my request, Chelgrave advised that since Mr Johnson's termination on 28 May 2020, maintenance workers did not work at the CUB Abbotsford site because of the COVID-19 pandemic for 5 days between 22 June 2020 and 26 June 2020. It is not known what payments, if any were made to the employees concerned, or whether any had access to paid leave on those days. In view of the deduction made by me to the restoration of lost pay order I do not consider it necessary to make a further deduction for the impact of the COVID-19 pandemic.

[136] No deduction is to be made for Mr Johnson's earnings after he was dismissed. He had not earned anything after being dismissed and at the time of the hearing, on 22 September 2020, was not in employment.

[137] No deduction is made from the order for lost pay for any social security payments Mr Johnson may have received after dismissal. Any question which arises about an obligation to repay those benefits is a matter between Mr Johnson and the relevant authority and is not a relevant consideration for the purpose of determining the amount of lost pay ordered.

[138] The period since Mr Johnson's dismissal and the publication of this decision is just under 23 weeks [28 May to 4 November]. A 15% deduction will reduce the order for lost pay by an amount of slightly more than 3 weeks. I do not consider the remaining amount to require further adjustment in the overall circumstances of this matter because it is disproportionately high or low.

[139] Questions arise about the interrelated matters of the nature of the position in which Mr Johnson was employed immediately before his dismissal as well as the capacity and desirability of the Commission reinstating Mr Johnson to work at CUB Abbotsford.

[140] I am satisfied the Commission may order reinstatement to the CUB Abbotsford site.

[141] As recorded at the start of this decision the offer of employment made to Mr Johnson refers both to the classification of "Maintenance Fitter C7" as well as "C10 Maintenance Fitter" with his actual pay level set in accordance with the Chelgrave Enterprise Agreement, with him having been paid at the C7 level.

[142] I find that position to be as a Maintenance Fitter at the CUB Abbotsford site and remunerated at the C7 level of the Chelgrave Enterprise Agreement. While Mr Johnson's initial contract of employment refers to him being a "C10 Maintenance Fitter" with no specific place of work, there is clear evidence before me that at some time after his initial employment, if not from the time of initial employment, he has been continuously engaged at the C7 level, working at all times at the CUB Abbotsford site. Reinstatement as a C7 Maintenance Fitter at the CUB Abbotsford site will be consistent with the reasoning of the High Court in Blackadder v Ramsey Butchering Services Pty Ltd, involving a matter arising under predecessor legislation:

"The central issue in this appeal is one of statutory construction. What is meant in s 170CH(3)(a) by "an order requiring the employer to reinstate the employee by ... reappointing the employee to the position in which the employee was employed immediately before the termination". In particular, what is meant in that provision by "position"?

"Position", when used in s 170CH(3)(a), refers to the place in the employer's commercial structure which the employee occupied before termination. It refers not only to the pay and other benefits which an employee may earn in a position, but also to the work which the person filling that position does. It follows that an employer, ordered to reinstate an employee by reappointing the employee to the position in which the employee was employed immediately before the termination, not only must recommence paying or providing the financial or other benefits attached to the position, but also must put the employee back to the performance of those duties which the employee was fulfilling before termination."[120]

[143] As a result of the matters set out above an Order is issued by the Commission at the same time as this decision, requiring Chelgrave to reinstate Mr Johnson to the position of C7 Maintenance Fitter at the CUB Abbotsford site; to maintain his continuity of employment and continuous service; and to pay him an amount for lost remuneration for the period between 28 May 2020 and the date on which he is reinstated, taxed according to law. The order will require Mr Johnson's reinstatement within 14 days from the date of this decision.

[144] An order for reinstatement will be issued separately to this decision, which provides for the following:

a) Pursuant to s.391(1) of the Fair Work Act 2009 (the Act) the Respondent, Chelgrave Contracting Australia Pty Ltd, shall reinstate the Applicant, Mr Chaya Johnson, to his former position as C7 Maintenance Fitter at the Carlton United Breweries Abbotsford site;

b) Pursuant to s.391(2) of the Act, the Respondent shall maintain the Applicant's continuity of employment and the period of the Applicant's continuous service;

c) Pursuant to ss.391(3) and (4) of the Act, the Respondent shall pay to the Applicant all lost remuneration, including superannuation, from the date of dismissal to his reinstatement, from which shall be deducted an amount of 15%. The payment to the Applicant is to be taxed according to law;

d) Lost remuneration shall be calculated by reference to Mr Johnson's average earnings, including overtime and other penalties, in the six months prior to him being stood down on full pay on 22 April 2020;

e) Reinstatement is to occur within 14 days of the date of this Order;

f) Liberty to apply is given to either party in the event that there is a dispute about the calculation of the amount of lost remuneration to be paid.

ATTACHMENT 1 - PREVENTION TABLE - FROM EXHIBIT A2, ATTACHMENT CB - 4.

PREVENTION ‐ Action Log (Root Cause Elimination & Routine Update Actions)

Remove redundant bollards to make access to motor isolator easier

1. Independent audit of Draft procedure feedback to meet industry leading practice ‐COMPLETE

2. Isolation hardware audit (MPH, Brewing & Utilities) ‐

3. Present Draft procedure and hardware recommendations to safety committee for feedback and

Training package update once procedure finalised. (Update to discuss cases including areas with zoning (eg

Eliminate missing JSA & increase audit capability with greater document control

19/05 ‐ JSA feedback from all areas in progress. Seek feedback on JSA suggested changes through safety committee to finalise template for printed books

Recommendations to be presented to safety committee ‐ 09/06/2020 Lock Out station audits across site commencing. MPH completed 19/05, Utilities & Brewing completed 04/06.

Re‐communicate need to isolate to machine component level when conducting correctives

Send out COMS to trades & share in L1's including need to "TRY"

Review validations of area, muting sensors and light curtains

Update Safety validation SOP for new muting sensor setup

Muting on light curtains is inconsistent and will need some fine tuning. This was Completed 28th April, with Monthly validations required until simplification(muting removed) achieved. RK to update WI. Linked to RIA for 6/7

Install additional fixed guards / modify existing based on new zoning philisophy.

Scope up Capex required to enable simplification of zoning, relocate estops, remove muting of some light curtains and provide additional gates for entry Zone1 and

2. RiA being developed for July Capital approval 6/7 approval

Interim measure to climb ontop of conveyors to access isolators without guard removal. Ladder purchased

Conducted toolbox meeting with all shifts within 24hrs of incident

Additional signage to align with depal visualization std and update zone maps. (Note zoning available SCADA screen)

Signage matching SCADA screen has been updated on line. Next action is to update based on depall visualisation stds ‐ reviewing techncial resource to support. Updates completed as per line item 11. SCADA upgrades to be completed with CAPEX support as per line item 12

Complete safety systems validation program across the site and maintain on a 9 monthly frequency.

Long term program - due to stand downs, progress paused.

Long term program - due to stand downs, progress paused. (PS. This should be in a monthly rhythm for Sherlyn, Ben and myself to review monthly until embedded completely)

Conduct OWD for isolations to cover operations and maintenance machine access.

Refresher training in JSA including work instruction - MPH trades 04/06/2020, B1, Brewing & Utilities to be planned.

LG3 trades completed prior to LG3 overhaul. Plan to complete refresher training before B1 and Can Line overhaul. Team Leader training 10 & 13th July

[2] Exhibit R1, Offer of Employment- Assignment detail, filed 6 July 2020; Form F3, Employer Response Form, 6 July 2020, item 3.1.6.

[3] Exhibit R1, Offer of Employment, filed 6 July 2020.

[4] Exhibit A2, Witness Statement of Chaya Johnson, 4 August 2020, [11]; Attachment CJ-1, Chelgrave Contracting Australia Pty. Ltd. AMWU & ETU (CUB Abbotsford) Agreement 2017, AE426803.

[5] Exhibit R9, Summary of issues raised by CUB to Chelgrave in relation to Chaya Johnson, filed 6 July 2020.

[8] Exhibit A1, Correspondence from Rigby Cooke Lawyers (for CUB) to Kingston Lawyers (Respondent's solicitors), 14 September 2020.

[24] Exhibit A3, Witness Statement of Chris Brown, 4 August 2020, Attachment CB-4.

[28] Exhibit A3, Attachment CB - 2, p.6.

[31] Exhibit R4, Lock, Tag, Clear and Try, Carlton United Breweries, Abbotsford, filed 6 July 2020, p.11.

[32] Exhibit R3, Site Compliance Training, August 2019, filed 6 July 2020.

[33] Exhibit A3, Attachment CB - 2, pp.10 - 11.

[41] Exhibit R8, Witness Statement of Rob McGrillen, 26 August 2020.

[42] Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

[43] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373.

[44] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6] - [7].

[45] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9] - [10].

[46] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

[47] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]- [34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22] - [23].

[48] Form F3, Employer Response Form, 6 July 2020, item 3.1.

[49] Ibid, item 3.1.22 - 3.1.29; see also item 3.2.

[50] Selvachandran v Peteron Plastics [1995] IRCA 333; (1995) 62 IR 371 at 373.

[51] Robe v Burwood Mitsubishi [Print R4471].

[52] Miller v UNSW [2003] FCAFC 180 per Gray J at [13].

[53] Selvachandran v Peteron Plastics [1995] IRCA 333; (1995) 62 IR 371 at 373.

[54] Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42], with reference to Crozier v Australian Industrial Relations Commission 2001 FCA 1031 at [14].

[55] Applicant v Department of Defence [2014] FWC 4919 at [61] - [68].

[56] Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243 at [40].

[57] Tasports v Gee [2017] FWCFB 1714 at [36].

[58] [1938] HCA 34; (1938) 60 CLR 336.

[59] Wong v Taitung Australia Pty Ltd [2017] FWCFB 990 at [11].

[60] [1938] HCA 34; (1938) 60 CLR 336 at 350, 363.

[61] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185 at [46] citing Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at 685.

[62] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185 at [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413.

[63] Edwards v Giudice [1999] FCA 1836 at [7].

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

[65] Titan Plant Hire Pty Ltd v Malsen [2016] FWCFB 5520 at [28].

[66] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [36].

[68] Tasports v Gee [2017] FWCFB 1714 at [34].

[69] Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243 at [37].

[70] Tasports v Gee [2017] FWCFB 1714 at [35].

[72] Kool v Adecco Industrial Pty Ltd T/A Adecco [2016] FWC 925 at [72].

[73] Exhibit A3, Attachment CB-2, p.10.

[74] Exhibit A3, Attachment CB - 4, p.14.

[75] Exhibit R7, Witness Statement of Mark Hale, 26 August 2020, [10].

[81] Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [33] - [34].

[82] Fair Work Regulations 2009, r.1.07.

[84] Exhibit A3, Attachment CB-2, p.10.

[91] Chubb Security Australia Pty Ltd v Thomas (2000), unreported, AIRCFB, Print S2679 at [41].

[92] Wadey v YMCA Canberra [1996] IRCA 568 cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544; (2010) 204 IR 399 at [85].

[93] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1; [2010] FWAFB 1200 at [26] citing Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1 at 7 (Wilcox CJ).

[94] Gibson v Bosmac Pty Ltd [1995] IRCA 222 (5 May 1995); [1995] IRCA 222; (1995) 60 IR 1 at 7 (Wilcox CJ).

[95] [2016] FWCFB 5243.

[97] [2016] FWC 925 at [48] - [49].

[98] [2017] FWCFB 1714 at [34].

[99] See Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243 at [37]; Tasports v Gee [2017] FWCFB 1714 at [35].

[100] Exhibit R10, Respondent's Outline of Submissions, 26 August 2020, [65].

[102] [1995] HCA 24 [128], per McHugh and Gummow JJ.

[103] Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, p.10, with reference to Byrne v Australian Airlines Ltd [1995] HCA 24 [128], per McHugh and Gummow JJ.

[104] Form F3, Employer Response Form, 6 July 2020, item 3.2.4.

[110] [2014] FWCFB 7198.

[114] Kenley v JB Hi Fi (unreported) (2000) AIRCFB Print S7235 at [36].

[115] [2019] FWC 8412.

[116] Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [35].

[118] [2019] FWC 8412.

[119] [2020] FWC 5486, [95].

[120] [2005] HCA 22; 139 IR 338 at [42] - [43] (Hayne J).

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