s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether misconduct occurred - whether discussing sex life at work is sexual harassment - valid reason - lack of procedural fairness - dismissal not unfair - application dismissed.

• [2] Mettler Toledo Limited dismissed Mr Evan-Ashley Solace[1] following complaints from co-workers of inappropriate sexualised language and offensive behaviour. Mr Solace says the allegations that were levelled against him are untrue and the process undertaken by Mettler-Toledo to investigate the allegations was flawed. Mr Solace has applied to the Commission under the Fair Work Act 2009 (Cth) for an unfair dismissal remedy.

• [3] I heard Mr Solace's application over Monday 4 August and Tuesday 5 August 2025. I granted permission to Mr Ron Jones to represent Mr Solace and Mr James Francis of Counsel to represent Mettler Toledo. Mr Solace gave evidence in support of his case. Mettler Toledo called Ms Stacey Kucharski, Ms Carly Hopgood, Ms Carlie McCann, Ms Sophie Prendergast (Human Resources Manager) and Mr Matthew Brooks (National Service Manager).

• [4] Having considered the relevant evidence and submissions of the parties, I find that there was a valid reason for Mr Solace's dismissal. I also find that the process undertaken by Mettler Toledo was flawed. However, on balance, I find that Mr Solace's dismissal was not unfair. His application must be dismissed.

• [6] The parties agree - and I am satisfied - that Mr Solace had completed the minimum employment period; was covered by the Clerks Private Sector Award 2020; made his application within time; Mettler Toledo is not a small business employer; and the dismissal was not a case of genuine redundancy. Mr Solace was protected from unfair dismissal at the time he was dismissed.

• [7] Mettler Toledo is a national company that sells and services precision instrumentation such as weigh bridges, balances, X-rays, metal detectors. Mettler Toledo employed Mr Solace as a Scheduling Assistant on Monday 5 December 2022. He worked at the Mettler Toledo Perth office.

3. What were the events leading up to Mr Solace's dismissal?

• [8] Ms Kucharski, Ms Hopgood and Ms McCann all worked at the Mettler-Toledo Perth office with Mr Solace, though Ms Hopgood's and Ms McCann's periods of employment did not overlap.

• [9] Ms Kucharski is a Service Administrator for Mettler-Toledo. She has held this role since December 2023 and works out of the company's Perth office. Ms Kucharski initially reported to Mr Hood, the Regional Service Manager for WA, who in turn reported to Mr Brooks. Ms Kucharski primarily manages the scheduling and administration for CBH, a client of Mettler Toledo.

• [10] Ms Kucharski's evidence is that she has had issues with Mr Solace's conduct since she started her employment with Mettler Toledo. Ms Kucharski says that Mr Solace acted in an inappropriate and unwelcome manner towards her and others in the workplace.

• [11] Mr Brooks is normally based at Mettler Toledo's Melbourne office but would visit the Perth office. Mr Brooks visited the Perth Office on Tuesday 25 March 2025. Ms Kucharski met with him and raised the following issues:[2]

(a) Mr Solace would 'bait' the women in the office into asking questions about his sex life. Mr Solace would do this by saying a small piece of innocuous information, which the women would respond to by asking questions. Mr Solace would then share details about his sex life.

(b) Mr Solace told Ms Kucharski that he and his wife are into partner swapping and lead a polyamorous lifestyle.

(c) On one occasion Mr Solace told Ms Kucharski that he and his wife attend Live Action Role-Play events where his wife dresses up as a nurse, with Mr Solace saying that he finds it, 'so fucking hot when she fixes me up while she is all dressed up'.

(d) In or about March 2025, Mr Solace attended work with scratches over his body. Mr Solace showed them to Ms Kucharski, Ms McCann and technicians who came into the office, explaining that he had been to a party the night before and the scratches were from a 'friend' who wanted to prove that her nails were sharp.

(e) Mr Solace told Ms Kucharski and Ms McCann that he'd had a vasectomy and that his wife was having a tubal ligation due to their polyamorous lifestyle.

(f) On multiple occasions Mr Solace would use the urinal in the men's bathroom with the door open. Ms Kucharski told him that she found this disgusting. Mr Solace also told Ms Kucharski that he would use the women's bathroom if the men's was occupied.

(g) Mr Solace openly burped and farted in the office. During the last five months of his employment, Mr Solace would do this every day. During one instance, Ms McCann asked him to excuse himself, which Mr Solace laughed at. Mr Solace would also fart when walking past Ms Kucharski's desk.

(h) Mr Solace would make comments about Ms Kucharski's appearance that came across as suggestive due to his tone of voice and the way he would stare at her body.

(i) Mr Solace's wife would visit the Perth office during lunchtime. During these visits, Mr Solace's wife would sit on his lap, and they would kiss and touch each other.

• [12] On Monday 31 March 2025, Ms Kucharski sent an email to Mr Brooks to make an official complaint.[3] Mr Kucharski cited the issues detailed in [10] and also raised concerns regarding Mr Solace's behaviour towards Ms McCann as well as Mr Solace disparaging co-workers.

• [13] Ms Hopgood was employed by Mettler-Toledo as a Service Coordinator from October 2023 until January 2025. Her role involved the scheduling and mobilisation of technicians for client jobs. Ms Hopgood reported to Mr Hood during her employment with Mettler-Toledo.

• [14] Ms Hopgood's evidence is that Mr Solace's desk was next to her desk, which meant he was seated approximately 1-1.5 metres away from her during work hours.[4]

• [15] Ms Hopgood cited the following conduct and incidents with Mr Solace:[5]

(a) A week after she started working for Mettler Toledo, Mr Solace discussed his polyamorous relationship with his wife. Mr Solace asked Ms Hopgood if she would be able to live a polyamorous lifestyle. Ms Hopgood says she closed the conversation down quickly as it made her uncomfortable.

(b) On multiple occasions Mr Solace would try to start a conversation about his polyamorous lifestyle, such as his wife's partners and the issues that this raised.

(c) On Friday 13 December 2024, there was an off-site lunch for Christmas. Mr Solace mentioned that there was an adult shop around the corner and that he was going to buy a gift for a female friend. In cross-examination Mr Solace agreed that he mentioned this, but that this conversation did not happen in the workplace.

(d) On multiple occasions Mr Solace's wife brought his lunch to the office. During these visits, Mr Solace and his wife would kiss and fondle each other.

(e) Mr Solace would regularly leave the toilet door open when he used the urinal. Due to the bathroom layout, this meant that people could see him using the urinal when walking to the staff kitchen or to the women's toilet.

(f) Mr Solace mentioned seeing a friend's burlesque performance.

(g) Mr Solace would regularly fart and belch in front of others without excusing himself. When it was brought up, Mr Solace would laugh it off.

• [16] Ms Hopgood's evidence is that she also overheard Mr Solace talking about his wife's partners with Ms Kucharski.

• [17] Ms Hopgood chose to leave her employment with Mettler Toledo due to Mr Solace. She said that Mr Solace made her feel unsafe and constantly on edge. During Ms Hopgood's exit interview with Mr Brooks she informed him that if Mr Solace didn't work there, she would not be leaving.[6]

• [18] Ms Prendergast called Ms Hopgood after her employment ended. During this phone call, Ms Hopgood repeated her issues with Mr Solace. Ms Prendergast's evidence is that she provided this feedback to the General Manager. As no formal complaint had been made and Ms Hopgood was no longer employed, Ms Prendergast and the General Manager agreed to document the issues and monitor the situation in the Perth office.[7]

• [19] Ms McCann has been employed as a Scheduler with Mettler-Toledo since Monday 10 February 2025. She is based at Mettler-Toledo's Perth office. Ms McCann's role involves scheduling technicians on jobs. Ms McCann reports directly to Mr Dickensen, who is the Team Leader for scheduling, and is based in Mettler-Toledo's national office in Melbourne. Ms McCann worked closely with Mr Solace while he was employed and works closely with Ms Kucharski.[8]

• [20] Ms McCann's evidence is that she directly observed Mr Solace acting in an inappropriate manner both toward and in front of Ms Kucharski and herself. Ms McCann cited the following conduct and incidents:[9]

(a) On Valentine's Day 2025, Mr Solace spoke in detail about his wife dating another man and that they were engaged in a polyamorous relationship and partner swapping.

(b) On an unspecified date, Mr Solace spoke further about his polyamorous lifestyle. Mr Solace had scratches on his arms and indicated that the scratches on his arms were from rough sex he'd had at a sex party.

(c) Mr Solace made comments about Ms Kucharski and complimented how 'lovely' she looked in her pants. This was done in a 'leering' fashion that made Ms McCann feel uneasy.

(d) Mr Solace would often discuss the detail of his sex life with his wife, including that:

1. His wife was a 'furry' who liked to dress up in animal outfits or fur skins.
2. His wife would make her own costumes to wear at sex parties.
3. At a particular sex party, the men were dressed as knights, and his wife was dressed as nurse who tended to the 'injured' men.

(e) Mr Solace told Ms McCann that he'd had a vasectomy. A week later, Mr Solace told Ms McCann that his wife was having surgery. When Ms McCann asked what was wrong, Mr Solace told her that his wife was having a tubal ligation due to them having multiple sexual partners.

(f) During the five-weeks that Ms McCann and Mr Solace worked together, Ms McCann saw Mr Solace deliberately leave the toilet door open multiple times while using the urinal. The toilet was in full view of the staff area and main thoroughfare to the kitchen. Mr Solace only did this when it was only Ms Kucharski and Ms McCann in the office.

(g) On more than one occasion Mr Solace threatened to use the women's bathroom.

(h) Mr Solace would regularly fart as he passed Ms McCann's desk. This would happen four to five times a day. When Ms McCann told him it was 'gross', Mr Solace laughed and said, 'it's natural'.

(i) Mr Solace would take his shoes off and walk around the office. Mr Solace's feet smelt strongly, which Ms McCann could smell from her desk. Mr Solace only did this when there were no other men in the office; if any of the male co-workers entered the office, he would put his shoes back on.

• [21] Ms McCann says that she never asked Mr Solace to discuss his personal life with her.

• [22] In February and March 2025, Ms McCann told Dickensen that Mr Solace's conduct made her uncomfortable and that she wanted it addressed. During the conversation in March 2025, Mr Dickensen told Ms McCann to raise her concerns with Mr Brooks directly as he was due to visit the Perth office at the end of March.

• [23] On Tuesday 25 March 2025, Ms McCann and Mr Brooks met. Ms McCann's evidence is that it was a 45-minute meeting where she discussed her concerns with Mr Solace. Mr Brooks advised Ms McCann that if she wished to make a formal complaint, she would need to do so in writing.

• [24] Ms McCann sent an email Mr Brooks later that day to make a formal complaint against Mr Solace.[10] Ms McCann relayed the issues cited at [19] of this Decision, as well as further issues such as Mr Solace using the women's bathroom; Mr Solace constantly burping; Mr Solace trying to get Ms Kucharski and herself to sniff the smelling salts on his desk; Mr Solace asking her how much she earns; Mr Solace's lack of assistance with regards to their shared work; Mr Solace spending much of the work day watching anime; and Mr Solace speaking poorly about co-workers.

3.2 The investigation into the complaints against Mr Solace

• [25] It is necessary to set out in some detail the investigation Mettler Toledo conducted to highlight the deficiencies in the process.

• [26] Around the beginning of April 2025, Mr Brooks met with the General Manager and Ms Prendergast to discuss Ms Kucharski's and Ms McCann's complaints.

• [27] On Monday 21 April 2025 a day before Mr Solace was due to return from leave, Ms Prendergast sent the following letter to Mr Solace:[11]

We have been made aware of serious allegations against you of which the details are as follows.

• Inappropriate conduct during work hours
  • Sexual references regarding your personal life
• Ignoring and disrespecting bathroom protocol
  • Leaving toilet door open while using it
  • Using the women's bathroom
• Lack of basic hygiene around fellow staff members in the office area
  • Instances of burping and flatulence in front of colleagues
• Exposing a colleague's salary without their permission or consent
• Negative comments that consist of unsupportive connotations regarding METTLER TOLEDO and management
• Breach of Code of Conduct
• Breach Standard Conditions of Employment

Due to the nature of these allegations, effective immediately you are instructed not to attend work. You will be paid your ordinary rate of pay during this period and are required to remain away from the workplace.

Show Cause Letter and Requirements to attend a meeting

You are required to provide a response in writing prior to this meeting for discussion and consideration in which case we expect your response by 5.00pm, Tuesday 22nd April 2025.

Teams: Andrew Bick - Head Region South Korea/Pacific

You have the option to bring a support person. Should you choose to do so, it is important to note that a support person is there to support you but not act as your advocate.

If you fail to provide a written response and attend the meeting on Wednesday 23rd April 2025, METTLER TOLEDO will make a final decision regarding your ongoing employment, in your absence. This may include termination of your employment with METTLER TOLEDO.

• [28] That same day, Mr Solace confirmed that he would attend the meeting on Wednesday 23 April. On Tuesday 22 April 2025, Ms Prendergast emailed Mr Solace, '...As per our letter dated 21st April 2025, if we do not receive a written response by 5pm tonight (WA time), we will proceed to make a decision without your input.'.[12] Mr Solace informed Ms Prendergast that he did not seek to provide a written response prior to the meeting on Wednesday 23 April 2025 and that he would provide a verbal response at the meeting.[13]

• [29] Mr Solace recorded the Wednesday 23 April 2025 meeting and provided a transcript of the meeting as part of his evidence. The witnesses agreed that it is an accurate transcription.

• [30] During this meeting, Ms Prendergast, Mr Bick and Mr Brooks put to Ms Solace that there were three complainants. The allegations as drafted in the 21 April 2025 letter were put to Mr Solace.

• [31] Mr Solace denied ever speaking about his sex life at work; leaving open the toilet door while using it; or talking about a colleague's salary without permission. Mr Solace explained that he would on occasion use the women's bathroom when the men's bathroom was occupied. Further, that the women's bathroom was a multi-gender disabled toilet. Mr Solace agreed that he would burp and fart at his desk, but that it was not excessive. Mr Solace further explained that he had made comments where he had expressed frustration in the workplace.

• [32] Mr Solace also stated that the complainants were making frivolous complaints against him, and that they were effectively colluding in making the complaints.

• [33] Notably, during this meeting, Ms Prendergast made the following comment, 'I know you're denying the claims and you are strong about that, however we feel that the claims are substantiated. Very much so. Okay and the proof is that three separate individuals have put a grievance together, all separately, and it all just matches back to one particular issue and that's about your behaviour at work.'[14]

• [34] During the meeting Mr Bick stated that '[Ms Kucharski] doesn't have a bad word to say about anyone and frankly I believe what she is saying'.[15] Mr Bick also stated:

'I ask you, in an employment rich environment like Western Australia, where you've admitted talking openly about your dissatisfaction with management and with Mettler-Toledo as an organisation, why stay? Why, when you know that you don't have the support of the people around you where you feel that you're being victimised and singled out, which I genuinely believe you're not, then the WIIFM, what's in it for me? I mean look, we will take your responses seriously, we will continue to seek legal advice from our lawyers here in Melbourne as to what our next steps should be, we take this allegation serious as much as we would if you brought something to the table. But again, I personally, and I am talking now very personally, I would not want to work in an environment where I was not welcomed or people felt that I was inappropriate. I would be looking for an exit pathway.'[16]

• [35] At the end of the meeting, Mr Bick indicated that Mr Solace's evidence would be provided to Hope Earle (the law firm Mettler Toledo had engaged) and they would seek legal advice as to the next steps.

• [36] Shortly after the meeting, Mr Solace sent a formal written response where he stated the following:[17]

As requested in your letter dated 21 April 2025 and as discussed during the meeting on 23 April 2024, please find below my formal written response addressing the allegations raised against me. While I have already provided these responses verbally, I am submitting this written statement to ensure clarity and transparency.

I strongly deny this allegation. I deliberately maintain professional boundaries and avoid discussing my personal life at work. I have never made sexual references in the workplace. I request that specific examples or evidence be provided if this allegation is to be upheld.

I categorically deny ever leaving the toilet door open. On one occasion, I used the disabled/female toilet due to the male facilities being occupied and an urgent need. This action was not done with any disrespect or disregard to protocol.

Our office culture includes eating at desks. I do not act inappropriately or offensively. I believe this allegation is exaggerated. Had any concerns been raised with me directly, I would have addressed them immediately and respectfully.

I have never disclosed any colleague's salary. I shared information about my own salary in good faith with a new colleague, so she could make informed decisions after probation. Discussing my own compensation is within my rights and was intended to be supportive.

Negative Comments about Mettler Toledo or Management

I acknowledge expressing frustration in the workplace. These comments were the result of feeling continually targeted and undermined by a particular manager over an extended period. I believe I have been the subject of a deliberate and sustained effort to find fault in my behaviour, no matter how minor or unfounded. I have previously sought advice from the Fair Work Ombudsman due to a lack of resolution and support internally.

It is disappointing that senior management continues to pursue vague and exaggerated complaints rather than address the core issues of bias, selective enforcement, and disproportionate response. This process appears to be more about creating a paper trail against me than resolving genuine concerns of misconduct.

As stated during the meeting, I remain willing to cooperate fully with any fair and reasonable process. However, I believe this process reflects a pattern of targeted treatment that I have endured over time. I welcome any further opportunity to clarify or discuss these matters as needed.'

• [37] On Friday 25 April 2025, Mr Solace wrote to Ms Prendergast to request copies of the written complaints made against him by the three individuals. Mr Solace sought the 'exact wording' of the complaints and noted that he was happy to receive anonymised versions of the complaints if any identifying information needed to be redacted to maintain confidentiality.[18]

• [38] Ms Prendergast's evidence is that due to the nature of the contested allegations, there was a decision to obtain legal advice. Based on that advice, a third party was engaged to interview the complainants and other staff in the Perth office.

• [39] On Tuesday 29 April 2025, Ms Prendergast replied to Mr Solace's email. Ms Prendergast's email stated that Mettler Toledo had taken Mr Solace's responses into consideration and taken the view that due to the nature of the complaints, a continuation of the investigation was warranted.[19]

• [40] On Friday 2 May 2025, Ms Prendergast emailed Mr Solace. The email stated, 'As requested, I am providing you with a detailed outline of the allegations raised against you.'[20] A letter was attached to the email, which provided as follows:[21]

As discussed with you on Wednesday 23rd April 202[5] and my letter sent to you by email on Monday 21st April, as you are aware, I have received information regarding your conduct in your role as Scheduling Administrator, from multiple complainants.

The issues raised with me in the complaints collectively give rise to the following workplace allegations against you:

1. You have used inappropriate sexualised language towards female staff members and in the company of female staff members, including conversations of a sexualised nature, which is uninvited, consistent with sexual harassment.

1. You engage in impolite and disgraceful behaviour in front of other staff members which other staff members find offensive.

1. You continually disparage the company and individuals in the workplace to other staff.

As part of the complaints policy process no adverse inference is taken against any complainee and no trust or accuracy on the substantive matter of any of the allegations subject of the complaints have been made.

The nature of the process dictates that you be given an opportunity to respond to the allegations subject of the complaint. To aid in your response I have provided particulars of each allegation below.

You have used inappropriate sexualised language towards female staff members and in the company of female staff members, including conversations of a sexualised nature, which is uninvited, consistent with sexual harassment.

The particulars of Allegation 1 are as follows:

• - In or around June/July last year you insisted on having a conversation about you and your wife engaging in polyamorous conduct, with a female staff member who was visibly uncomfortable engaging in the subject matter.

• - In or around August/September last year you engaged in a conversation in which you indulged your personal sex life to others. Including discussing that part of your social life entails engaging in L.A.R.P. (Live Action Role Play) meetings where your wife dresses up as a Nurse and "you find it hot when she dresses up, fixing you up".

• - Between February and March this year you engaged in conversations of a sexual nature by disclosing your sexual exploits in partner swapping, sexual role plays and sexual fetishes.

• - Between February and March this year you went to great lengths to discuss the fact that you had a vasectomy, and your wife had a tubal ligation procedure to stop unwanted pregnancies due to you and your wife's extra [marital] sexual activities with many sexual partners.

• - You continually make suggestive comments in a leering fashion towards female staff members for example, "nice pants on you" or "and nice colour" in a way that is unnerving to the female staff member.

• - You strongly make hints of the rough way you engage in your sexual activities by disclosing injuries sustained during your sexual exploits.

In all of the circumstances these particulars (which are not exhaustive) are consistent with the allegations that you engage in either sexualised conversations directed at individuals or sexualised conversations or innuendo in the presence of others that is offensive and or harassing.

You engage in impolite and disgraceful behaviour in front of other staff members which other staff members find offensive.

The particulars of Allegation 2 are as follows:

• - When making use of the male staff toilets, you regularly refuse to, or refrain from, closing the door behind you which ensures that while you are urinating other staff members can visibly see you.

• - Other staff members have witnessed you entering the female staff toilets when you or a person in the same situation ought to know that in doing so was wholly improper.

• - You continually, 3-4 times a day, engage in the passing of intestinal gas (i.e. 'flatulence') and burp in close vicinity to other staff members without any due regard to the uncomfortable environment this creates for other staff. This is done even though other staff members have told you they find it offensive and in turn instead of excusing yourself you laugh in their faces.

In circumstances where particulars such as these (which are not exhaustive), as a male member of staff you should know or ought to know that conducting yourself appropriately, with female staff members in particular, and not to cause offence to others would be expected.

You continually disparage the company and individuals in the workplace to other staff.

• - You denigrate and talk offensively about the company and other staff members, namely [RA], [CC] and Matthew Brooks, to and amongst other staff members. You have described individuals as being "inept".

• - You have described [RA] as "a prick who needs to think about what he is doing".

• - You have described [CC] as "being useless at his job and only ever does [CC] specials", referring to [CC]'s compentenc[i]es.

In all the circumstances these particulars (which are not exhaustive) indicate a serious concern that you are deliberately undermining others and the company by being disgracefully critical when the company's Code of Conduct provides an avenue to report any meritorious complaint or grievance.

You have breached the company's Code of Conduct.

The particulars of Allegation 4 are as follows:

• - The particulars of allegations 1-3 cumulative are relief on as well as "relationships with others" in the company's Code of Conduct pages 18-20

I now afford you the opportunity to respond, in writing within 5 days from the receipt of this letter, that is by 5pm Wednesday 7th May, to respond to the allegations subject of the complaints.

In accordance with the principles of natural justice, no finding or determination has been made nor will be made in relation to the allegations that are set out in this letter to you until you have had the opportunity to formally respond. Your response should provide any explanation on the matters that are raised in each allegation and any evidence that you consider relevant.

You are required to provide your response directly to me. If you intend to reply by email, please address your response as STRICTLY PRIVATE AND CONFIDENTIAL and ensure that any documents you intend to rely on are attached.

I will consider any written response from you along with the attached material prior to making a determination on the issues raised by the complaints. If you do not respond within 5 days, a decision and determination will be made on the material currently before me.

You may also elect to have a confidential meeting with me at a mutually convenient date and time, but before 5pm on Wednesday 7th May 2025, to discuss these allegations and provide you with an opportunity to respond. Please let me know if you wish to request this option.

You may elect to have a support person of your choice at this meeting, I refer to the Code of Conduct at page 14. Please advise me well in advance if you wish a support person to accompany you.

• [41] An hour later, Mr Solace sent the following email in reply to Ms Prendergast's letter:[22]

Please find below my formal response to the allegations made against me. I would like to note at the outset that the full detail of these allegations should have been made available prior to or at the Show Cause meeting held on 23 April 2025. Being asked to respond to serious allegations without sufficient detail undermines the principles of procedural fairness. I am now providing this written response in good faith, but I wish to formally record my concern about the process to date.

Allegation 1: Inappropriate Sexualised Language

I strongly deny this allegation. I have not engaged in any inappropriate or sexually explicit discussions in the workplace. The conversation referenced in June/July occurred with Stacy, who was discussing her partner, [redacted]. I responded by referencing my own relationship. This was not inappropriate and was mutually conversational. Any attempt to characterise this as harassment would be discriminatory.

The claim about discussing LARP in a sexual context is false. I have only ever discussed LARP as an activity unrelated to sexual conduct.

The references to vasectomy and sterilisation were made only to explain my time off work to colleagues and were not sexualised in nature.

I have offered compliments on clothing in a respectful manner. Any implication of leering intent is incorrect. I also deny any comments about sexual injuries.

All alleged instances in this allegation appear to involve the same individual, Stacy, yet I was informed that complaints had been made by three women. I request clarification on this inconsistency.

Allegation 2: Impolite and Disgraceful Behaviour

I categorically deny leaving the male toilet door open regularly. I always close the door and take care to maintain privacy.

The single instance of using the female/disabled toilet was due to urgency and the male toilet being occupied. This was a practical decision made in the

I reject the claims that I engage in burping or flatulence multiple times a day. Any such behaviour would not be deliberate or malicious, and I have never laughed at a colleague in response to a concern.

Allegation 3: Disparaging the Company and Staff

While I have expressed workplace frustration at times, I have never used defamatory language. I deny calling [RA] 'a prick' and reject that quote as false.

I acknowledge having used the term '[CC] Special' to describe tasks where key information was missing. This phrase is commonly used by field technicians and was not created by me. It reflects operational frustrations.

I have not called the company 'toxic'. I have raised concerns about staff turnover and culture, especially in light of my current experience, which I believe fairly reflects issues within the business.

I reject the allegation that I have breached the company's Code of Conduct. My responses to Allegations 1-3 demonstrate that the alleged conduct is either false, mischaracterised, or grossly exaggerated.

I have acted professionally throughout my time at METTLER TOLEDO, and I continue to uphold the standards expected of me. I believe this entire process reflects a targeted approach rather than a fair and balanced inquiry.

As all allegations appear to stem from interactions with one individual, Stacy, I request clarification on the earlier claim that three women made complaints. Furthermore, I would like to understand the company's policy and disciplinary framework regarding the making of false or malicious complaints. Given the seriousness of the allegations made against me - many of which I believe to be fabricated or misrepresented - it is important to understand how the company plans to proceed in the event that these allegations are found to be unfounded.

I remain committed to cooperating fully with this process and I expect to be treated fairly and impartially moving forward.

• [42] On Thursday 8 and Friday 9 May 2025, Ms Prendergast, Mr Brooks and Mr Bick deliberated over the complaints and Mr Solace's responses. They agreed that Allegations 1 and 2 were substantiated on the basis that Ms Kucharski, Ms Hopgood and Ms McCann spoke to the same issues and that Ms Hopgood and Ms McCann had never met. They reached the view that it was improbable that the complaints had been fabricated.

• [43] On Monday 12 May 2025, Mr Solace emailed Ms Prendergast following up his request for further information on the 'inconsistency in the number of complainants referenced in the allegations versus those named', 'clarification on the company's policy and approach toward false or malicious complaints' and the investigation generally.[23] That same day, Ms Prendergast informed Mr Solace via email of a meeting on 13 May 2025 to inform him of the outcome of the investigation.

• [44] On Tuesday 13 May 2025, Mr Solace met with Ms Prendergast and another representative of Mettler Toledo. Mr Solace again recorded the meeting and provided a transcript of the meeting as part of his evidence. The witnesses again agreed that the transcript is accurate.

• [45] During the meeting, Ms Prendergast handed Mr Solace a termination letter that provided as follows:[24]

This letter is to provide you written confirmation of the outcome of the investigations held into those complaints with reference to the allegations previously provided to you.

In total there were 4 allegations, of which all [sic] 3 were substantiated. Of the 3 allegations that were substantiated, Allegations 1 and 4 have been proved as serious misconduct and allegations 2 has been proved as misconduct.

Details of written reasons are provided for you below:

1. You have used inappropriate sexualised language towards female staff members and in the company of female staff member, including conversations of a sexualised nature, which is uninvited, consistent with sexual harassment.

The Company relied on a number of reported issues that were all corroborated by one or more witnesses. All of the substantiated claims were consistent with the particulars provided to you. The Company considered you responses and denials but found that it was implausible for more than one complainant to express the knowledge and substance of the conduct if it never took place.

In substantiating this allegation, the Company considered the fact that this conduct doesn't need to have any wilful intent or a malicious motive. It is enough that a reasonable person would anticipate that another person would be offended by conversations of a sexual nature and how that behaviour is received by others. The Company, consistent with the Fair Work Regulations - Reg 1.07 (3) (iv), regard this behaviour as serious misconduct.

The company has determined that you should be summarily dismissed from

employment with METTLER TOLEDO for the conduct subject of allegations 1. This

letter serves as notice to you of the termination of your employment as of 13th May

2. You engage in impolite and disgraceful behaviour in front of other staff

members which other staff members find offensive.

This allegation is substantiated in part based upon the evidence provided by the complainants and corroborated by witnesses which formed the basis of the particulars provided to you.

It was witnessed that you left the door of the male toilet open on more than

(a) one occasion and were heard to have said to female staff that you would use the female toilet whenever you wanted.

(b) In as much as you say that any actions in relation to flatulence were not deliberate, the fact that you would not think it fit to excuse yourself when working in close proximity with others or apologise when an objective person in the same situation would understand the offensive nature this may cause, would give rise to a deliberateness of the conduct or at least a very offensive or impersonal approach to your work colleagues. This is in circumstances when other staff have been very clear that they found it offensive.

(c) In relation to the issue surrounding the smelling salts, this aspect of the allegation has been withdrawn as the company found this aspect unsubstantiated.

All of the particulars subject of this allegation, with the exception of dot point 4 in

relation to smelling salts, were sufficiently corroborated.

It is incumbent and expected by all our staff to respect the workspace both in a professional and personal manner. By your conduct you have made the work unit in WA unpleasant with your work colleagues feeling very offended.

Taken cumulatively this allegation is proved as misconduct and the Company determined to formally warn you about this conduct. This letter to you serves as this warning that conduct such as described will never be acceptable at METTLER TOLEDO.

3. You continually disparage the company and individuals in the workplace to other staff.

This allegation based on the available evidence before me, was unsubstantiated. However, it is expected that all employees who have any issues or concerns in the workplace, raise those directly with the company and follow the grievance procedure laid out in the Code of Conduct.

4. You have breached the companies Code of Conduct

As allegations 1 and 2 have been substantiated, this allegation is also substantiated. METTLER TOLEDO uphold a standard in the workplace where all employees can complete their duties in an environment of mutual respect. By your conduct you have breached this standard to a serious level.

I refer you the Code of Conduct, in particular page 18, on sexual harassment. Your conduct and conversations of a sexual nature breach this standard by having conversations of a sexual nature, covered under dot point 13 of that section. Sexually explicit conversation is never acceptable in the workplace.

The company has determined that you should be summarily dismissed from

employment at METTLER TOLEDO for the conduct subject of allegations 4. This

letter serves as notice to you of the termination of your employment as of 13th May

• [46] Mr Solace questioned the allegation regarding smelling salts as it had not been raised in the prior correspondence from Mettler Toledo. Ms Prendergast's position is that it was in the second letter that had been presented to Mr Solace. Ms Prendergast was clearly incorrect.

• [47] Mr Solace asked Mettler Toledo to step through the investigation process. This was rejected. Mr Solace was told that the investigation was complete and was asked to return any work equipment or items.

3.3 The complaint from Mr Solace against Ms Hopgood

• [48] For completeness, I note that on Friday 24 January 2025, Mr Solace sent the following email to Ms Prendergast:[25]

I am writing to formally raise a complaint about the ongoing bullying behavior I have experienced from Carly H. This situation has been distressing and has significantly impacted both my work environment and personal well-being.

Over the past year, Carly has repeatedly made exaggerated complaints about my work and behavior, seemingly aimed at undermining my position and self-worth. I believe these actions qualify as a psychosocial hazard, adversely affecting my productivity and contributing to a negative emotional state.

During this time, I have been investigated multiple times by Matthew, resulting in two written warnings. Each time, I provided a perfectly reasonable response to the concerns raised. However, despite my explanations, the outcomes have continued to move negatively against me professionally.

Throughout this ordeal, I have maintained a professional demeanour and refrained from retaliating. Despite being aware of emails sent by Carly and her request to some of our techs to gather negative information about me, I have chosen to focus on my work and foster a positive workplace environment. It is concerning that her request included instructions to keep this information from Matt, Rob, and Darryl, raising further questions about her intentions.

I want to emphasize that this behaviour not only undermines my self-worth but may also foster an atmosphere of distrust among team members. I urge you to take this matter seriously, as it could have broader implications for our team's cohesion and morale.

Thank you for your attention to this issue. I appreciate your support in addressing this matter and look forward to your response.

• [49] On Wednesday 29 January 2025, Ms Prendergast and Mr Solace spoke about his complaint. Ms Prendergast then sent Mr Solace an email seeking further information about his allegations. Mr Solace never provided the further information.[26]

• [50] Mr Solace's complaint was made in Ms Hopgood's final week with Mettler Toledo. Ms Prendergast did not bring it to Ms Hopgood's attention before she left.

• [51] Mr Solace did not make explicit submissions on what findings I should make regarding his complaint and how it was handled. Mr Solace submitted that Mettler Toledo's handling of his complaint was inconsistent with the Code of Conduct but did not explain how.[27] I find that there are no findings for me to make on this issue that are relevant to the questions I must determine.

4. Was the dismissal 'harsh, unjust or unreasonable'?

• [52] I now turn to consider whether Mr Solace's dismissal was 'harsh, unjust or unreasonable' per s 385(b) of the Act.

• [53] Section 387 of the Act requires me to take into account eight matters in assessing whether Mr Solace's dismissal was unfair. I set out my consideration below.

4.1 Section 387(a) - was there a valid reason for the dismissal related to Mr Solace's capacity or conduct?

• [54] A valid reason is one that is 'sound, defensible or well-founded'[28] and should not be 'capricious, fanciful, spiteful or prejudiced'.[29]

• [55] Where the reason for dismissal relates to conduct, the Commission must find that the conduct occurred and that the conduct justified dismissal. Whether the conduct relied upon as a reason for dismissal occurred is to be determined based on the evidence,[30] and it is to be assessed on the balance of probabilities,[31] considering the gravity of the allegations.[32]

• [56] Mr Solace was summarily dismissed due to serious misconduct on the basis he had engaged in sexual harassment.

• [57] Mr Solace's primary submission is that he did not engage in the complained conduct. His secondary submission essentially is that if the conduct did happen, it was not sexual harassment. Mr Solace submits that where he did talk about his personal life or in engage in the alleged conduct, the witnesses mistakenly interpreted it to be sexual.[33] Further, that this mistaken interpretation was based on 'fear of the unknown'.[34] This was not expanded on, but is presumably a reference to Mr Solace's polyamorous relationship.

• [58] The definition of sexual harassment in the Act has the meaning given by s 28A of the Sex Discrimination Act 1984 (Cth).

• [59] The principles and authorities on sexual harassment as per the SDA in the workplace were recently examined by the Federal Court in Magar v Khan,[35] and can be summarised as follows:

• (a) There are essentially three elements to the definition of sexual harassment under s 28A of the SDA.[36]

• (b) The first element is whether there has been a sexual advance, a request for sexual favours, or other unwelcome conduct of a sexual nature. This is a question of fact.[37]

• (c) In determining whether there is conduct of a sexual nature, regard must be had to s 28A(2), which provides this includes both oral and written statements of a sexual nature directed to, or in the presence of a person.[38]

• (d) The meaning of 'other unwelcome conduct of a sexual nature' has a broad construction and should not be narrowly construed.[39]

• (e) The second element of sexual harassment is that the identified form of conduct must be unwelcome to the person who has been harassed. This is a subjective test and is ordinarily proven by the person allegedly harassed giving evidence that the conduct was in fact unwelcome.[40]

• (f) A person experiencing harassment does not have to positively reject the sexual conduct or explicitly tell the person that the conduct is unwelcome before the conduct can be considered unwelcome.[41]

(g) The third element of sexual harassment is that circumstances in which the unwelcome conduct occurred must be such that a reasonable person would have anticipated the possibility that the person being harassed would be offended, humiliated or intimidated by the conduct. Section 28(1A) sets out a non-exhaustive list of factors to be considered.

• (h) Unlike the first two elements, the third element is to be determined objectively. The reasonable person is assumed to have some knowledge of the personal qualities of the person harassed.[42]

• (i) The intention of the alleged harasser is irrelevant.[43]

• [60] The Mettler Toledo Code of Conduct picks up the language of s 28A of the SDA, stating that:

'Sexual harassment can be defined as any unwanted, unwelcome or uninvited behaviour of a sexual nature, which makes a person feel humiliated, intimidated or offended. Sexual harassment can take many different forms and may include physical contact, verbal comments, jokes, propositions, the display or offensive material or other behaviour which creates a sexually hostile working environment. If is defined not by the intent of the offender, but by the perceptions of and effect on the victim, and whether these reactions were reasonable.'[44]

• [61] The Mettler Toledo Code of Conduct lists sexually explicit conversation and leering or staring at a person as examples of sexual harassment.

• [62] During cross-examination Mr Solace conceded that despite his assertions that he did not talk about his personal life at work, he had discussed his polyamorous relationship with Ms Kucharski[45] and had told Ms McCann that his wife is a furry.[46] Mr Solace also agreed that he had told Ms Hopgood that he was going to buy a friend a present from an adult shop, but that it had been said at a Christmas party; the inference being that it was outside of work. He otherwise rejected the evidence of Ms Hopgood, Ms Kucharski and Ms McCann.

• [63] Sometimes in disputes of fact that come before the Commission, the difference between the witnesses is a matter of perspective, where the witnesses have different interpretations of the same conversation or event. However, this is not a situation where Mr Solace agrees that he spoke widely about his sex life at work but did so because based on his interactions with his co-workers he thought it was appropriate or acceptable. The accounts between the witnesses are largely not compatible, so the question is whether - on the balance of probabilities - the events described by Ms Hopgood, Ms Kucharski and Ms McCann occurred, taking into account Mr Solace's denials.

• [64] It is worth noting that quantity of witnesses does not automatically determine who has the more credible account. The quality of the witness evidence must be assessed. I also note that given the seriousness of the allegations, the quality of the evidence required must meet the Briginshaw[47] standard.

• [65] In this case, I found Ms McCann to be a particularly credible and forthright witness. She was calm and clear, and her evidence was not diminished during cross-examination. Ms McCann is also the newest employee and had not worked with Ms Hopgood. Ms McCann's evidence was cogent and a compelling basis for fact finding.

• [66] Ms Kuccharski was not as confident as Ms McCann, but I also found Ms Kucharski gave her evidence honestly. I found that Ms Hopgood was not as open with her answers in comparison to Ms McCann and Ms Kucharski and so did not find her evidence to be as compelling, but I did not find that she was lying.

• [67] Mr Solace took issue with how Ms McCann's, Ms Kucharski's and Ms Hopgood's evidence covered similar grounds. However, beyond asking Ms McCann whether she had spoken with Ms Kucharski about Mr Solace's behaviour,[48] it was not put to the three witnesses during cross-examination that they had colluded in forming their complaints or evidence, or that they had some coordinated ulterior motive in making their complaints. I find that they were truthful in their accounts. The fact that their evidence covers the same complained conduct supports a finding that the conduct did happen.

• [68] On balance and noting the seriousness of the allegations, I find that the individual witnesses were credible, and when considered together, I am satisfied that Mr Solace did make all the comments that Ms Hopgood, Ms Kucharski and Ms McCann attested to.

• [69] I accept that Mr Solace told his co-workers that he was in a polyamorous relationship. That in itself does not constitute sexual harassment or a valid reason in this case. I am conscious that lifestyles and sexual orientations outside heteronormative monogamy are often wrongly treated with prejudice. I am also conscious that there are lifestyles or activities that are incorrectly viewed as sexual or improper due to out-dated views or bias.

• [70] However, Mr Solace's comments went beyond identifying his relationship and lifestyle with his wife. I accept that Mr Solace spoke at work about how he and his wife would swap partners; that he and his wife attended sex parties; how his wife would make costumes for sexual encounters; the details of his vasectomy; the details of his wife's tubal ligation and how that was linked to their sex life; and that he showed off scratches on his arms from a sex party.

• [71] Mr Solace's representative spent time in cross-examination and closing submissions protesting that Mr Solace's LARP activities were wrongly assumed to be sexual in nature and that there is nothing sexual about LARP. It is obvious that LARP is an activity that can have no sexual connotations. Not everyone who attends renaissance faires or plays Dungeons & Dragons is doing so for sexual or sexualised reasons. However, that does not mean that LARP is never a sexual activity. In this case, the evidence of the witnesses is that Mr Solace would describe his LARP activities in the same conversation as describing how 'hot' he found his wife when she would tend to him and 'injured knights'. It was reasonable for the witnesses to conclude that Mr Solace was talking about LARP in a sexual context.

• [72] With regards to the scratches on Mr Solace's arm, his evidence was that they weren't from a female friend, they were from a male friend. I find that this does not invalidate the evidence from the three witnesses that Mr Solace spoke about how he received the scratches during a sex party.

• [73] There is nothing wrong with being sex positive. However, there is a time and place to be discussing your sex life, and the workplace is often neither unless there is positive evidence that it is acceptable. I also note that even where such conversation may not be offensive to one co-worker, it still may be offensive to other co-workers listening, or in breach of relevant workplace policies.

• [74] With regards to the allegations that Mr Solace would leer at Ms Kucharski and Ms Hopgood, I accept the evidence of the three witnesses. This is based on my overall assessment of the genuineness of their evidence.

• [75] I find that the frequency and detail of Mr Solace's conversations about his sex life went beyond appropriate work conduct and constituted conduct of a sexual nature. I also find in this case that Mr Solace's conduct with his wife in the workplace and Mr Solace's staring at Ms Kucharski and Ms Hopgood also constituted conduct of a sexual nature.

• [76] I also find that the conduct was not welcomed by Ms McCann, Ms Hopgood or Ms Kucharski. I have taken into consideration the fact that the witnesses did not explicitly to tell Mr Solace to stop talking about his sex life or to stop his behaviour. However, I accept Ms Hopgood's evidence that she would attempt to end the conversation with Mr Solace or move away from him when he attempted to talk about his sex life,[49] as well as Ms Kucharski's evidence that she would disengage from conversations with Mr Solace and would ignore him when he spoke about his sex life.[50] I also accept Ms McCann's evidence that she never invited Mr Solace to discuss his personal life with her.

• [77] With regards to the third element of sexual harassment, I find that a reasonable person would have anticipated the possibility of Ms McCann, Ms Kucharski or Ms Hopgood being offended, humiliated or intimidated by Mr Solace's conduct. This is not based on Mr Solace's relationship and lifestyle being different to heteronormative monogamy - a reasonable person does not judge or discriminate against the relationships of informed and consenting adults. However, I have taken in account that this was an office-based environment and there was no evidence led that the relationships Mr Solace had with his co-workers were the sort that involved consensual sharing of details about their sex lives. I would also find it difficult to think of a workplace where it would be appropriate to leer at your co-workers.

• [78] In such circumstances, it is entirely reasonable that Mr Solace's conduct would offend, humiliate or intimidate the witnesses. Indeed, I accept Ms Hopgood's evidence that the conduct offended her so much that she chose to leave Metter Toledo.

• [79] I note that Mr Solace's evidence is that he never received the Mettler Toledo Code of Conduct, despite signing a form indicating that he had understood and read the Code.[51] This is immaterial. A reasonable person understands that they should not be discussing their sex life at work unless there is positive evidence that it is acceptable. A reasonable person understands that they should not be engaging in sexual harassment even without a policy document telling them not to.

• [80] Accordingly, I find that Mr Solace did sexually harass Ms Hopgood, Ms Kurcharski and Ms McCann. This is serious misconduct and is a valid reason for dismissal.

• [81] For completeness, I note that it is unnecessary for me to make findings whether it was appropriate for Mr Solace to discuss in the workplace how his wife is a furry.

• [82] With regards to the other allegations about Mr Solace's actions in the workplace, I accept the evidence that Mr Solace would openly and deliberately burp and fart in the office on a regular basis, including when walking past other co-workers' desks. I also accept the evidence that Mr Solace would leave the toilet door open when going to the toilet, which meant that co-workers could see him in the toilet. I also accept that Mr Solace's wife would visit him at work during lunch, and they would engage in physical displays of affection that made Ms Kucharski and Ms Hopgood uncomfortable.

• [83] This conduct itself is not a valid reason for dismissal, but I find that combined with my findings regarding sexual harassment, it supports the finding of a valid reason.

• [84] Overall, I find that Mr Solace conducted himself at work in a way that was entirely inappropriate and inconsiderate to his co-workers. There was a valid reason for his dismissal.

4.2 Section 387(b) and (c) - notification of valid reason and opportunity to respond

• [85] An employee protected from unfair dismissal should be notified of the reason to terminate their employment before the decision to dismiss.[52] Failure to do so impacts on their ability to respond to that reason before the decision to terminate is made.[53]

• [86] It is clear on the evidence that Mettler Toledo reached a view on the allegations against Mr Solace and the decision to terminate him but did not give Mr Solace the opportunity to respond to that reason. At the meeting on Thursday 13 May 2025, Mr Solace was told that the allegations had been substantiated and was given the letter of termination at the same time.

• [87] I find that Mr Solace was not notified of the reason for his dismissal prior to the decision being made and was not given the opportunity to respond.

4.3 Section 387(d) - any unreasonable refusal to allow a support person

• [88] Based on the evidence, Mr Solace did not request a support person. This is a neutral consideration.

4.4 Section 387(e) - warnings concerning performance

• [89] Mr Solace was not terminated for poor performance. This is therefore a neutral consideration.

4.5 Section 387(f) and (g) - size of the Respondent's enterprise and whether the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed

• [90] Mettler-Toledo is a large enterprise with nearly 200 employees and dedicated HR specialists. I find this is a neutral consideration.

4.6 Section 387(h) - any other matters the Commission considers relevant

• [91] Calling Mettler Toledo's handling of the allegations against Mr Solace shambolic would be generous to Mettler Toledo.

• [92] Ms Prendergast invited Mr Solace to a show cause meeting before he was given the opportunity to respond to any allegations. Ms Prendergast is the Human Resources Manager. It is hard to believe that a human resources professional would not understand what 'show cause' means. Mr Solace was also only given 24 hours to respond, which was a deficient amount of time given the lack of particulars at that point and Mettler Toledo's position that if he didn't respond and attend the meeting, it could result in the termination of his employment.

• [93] As already noted at [32] and [33] of this Decision, at the meeting on Wednesday 23 April 2025, Ms Prendergast told Mr Solace that Mettler Toledo felt the allegations were substantiated. Ms Prendergast's evidence at the hearing on this point was unconvincing and made little sense, which was an unfortunate pattern throughout her evidence. Under cross-examination Ms Prendergast tried to argue that when she told Mr Solace that the claims had been substantiated that it was 'nothing conclusive' and that it was a 'thought' or 'feeling' but also confirmed that she did feel the allegations were substantiated at that point.[54]

• [94] At the Wednesday 23 April 2025 meeting, Mr Bick also told Mr Solace that he believed Ms Kucharski and encouraged Mr Solace to look for an 'exit pathway'. This was entirely inappropriate and indicated that Mettler Toledo had already reached a view on the allegations despite Mr Solace not being informed of the specifics of the allegations or given a proper opportunity to respond to them.

• [95] After the meeting on Wednesday 23 April 2025, Mettler Toledo took the step of obtaining legal advice and engaging a lawyer to interview the complainants. This was at best, an attempt to reset the investigation, and at worse, an attempt to legitimise their pre-emptive decision on the allegations against Mr Solace.

• [96] Ms Prendergast's letter to Mr Solace on Friday 2 May 2025 contained the complaint particulars that should have been sent to him prior to seeking any verbal or written response. Mr Solace was given five days to respond. Mr Solace responded within an hour of receiving the letter, largely denying the allegations.

• [97] The lawyer conducting the investigation for Mettler Toledo did not speak with Mr Solace directly.

• [98] Throughout Ms Prendergast's cross-examination, she was determined to not disclose details about the investigation and how it was conducted on the basis that it was 'internal' and 'private.[55] Whilst I appreciate that Ms Prendergast was attempting to avoid disclosing the legal advice Mettler Toledo received, it meant that I had no further insights into how the allegations were investigated, to Mettler Toledo's detriment.

• [99] Ultimately, I find it was immaterial that Mr Solace did not receive copies of the actual complaints, as he did eventually receive particulars with sufficient detail that he could properly respond to the allegations. However, I find that the investigation was overall flawed, and the evidence shows that Mettler Toledo had decided on an outcome before even speaking to Mr Solace.

4.7 Is the Commission satisfied that Mr Solace's dismissal was harsh, unjust or unreasonable?

• [100] I have made findings in relation to each matter in s 387 as relevant to this case. I have found all factors except for s 387(a), (b), (c) and (h) to be neutral in this matter.

• [101] The procedural deficiencies in Mr Solace's dismissal are serious, and I remain amazed that Mettler Toledo conducted the investigation and dismissal in such a flawed manner despite the presence of Ms Prendergast as a HR professional and the guidance of legal counsel. However, in considering all the evidence in this matter, though the investigation itself was terrible, I find that I agree with the end findings. I find that the valid reason outweighs the deficiencies in the investigation and how Mr Solace was dismissed.

• [102] Mr Solace's dismissal was not unfair. His application is dismissed.

[2] Witness Statement of Stacey Kucharski, Digital Court Book 228 [9].

[4] Witness Statement of Carly Hopgood, DCB 113 [5].

[7] Witness statement of Sophie Prendergast, Ibid 126 [4]; Ibid 127 [5].

[8] Witness Statement of Carlie McCann, Ibid 106 [1]-[4].

[27] Applicant's Written Submissions, Ibid 19 [27]-[32].

[28] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July [1995] IRCA 333; 1995); 62 IR 371, 373.

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

[31] Edwards v Justice Giudice [1999] FCA 1836, [6]-[7]; [1999] FCA 1836; (1999) 94 FCR 561 [6]-[7].

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

[33] Transcript, Tuesday 5 August 2025, PN972.

[35] [2025] FCA 874 [43]-[53].

[36] Hughes (t/as Beesley & Hughes Lawyers) v Hill [2020] FCAFC 126; 277 FCR 511 [21]-[25].

[39] Magar [46] citing Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147; 105 NSWLR 403.

[40] Magar [49] citing Hughes at [23].

[41] Magar[49] citing San v Dirluck Pty Ltd [2005] FMCA 750; 222 ALR 91; Taylor v August & Pemberton Pty Ltd [2023] FCA 1313; 328 IR 1.

[43] Magar [52] citing Vitality Works at [98].

[45] Transcript, Monday 4 August 2025 PN175.

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

[48] Transcript, Monday 4 August 2025, PN690-691; PN733.

[52] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897, [70]-[73]; (2000) 98 IR 137.

[54] Transcript, Monday 4 August 2025, PN497.

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