s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Compensation ordered

• [1] On 19 September 2024, Mr Haohan Qian (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Grandmetro Constructions Pty Ltd (Respondent). While the Applicant's application had originally indicated that he was seeking reinstatement during the hearing the Applicant confirmed that he did not wish to be reinstated and was seeking compensation. [1]

When can the Commission order a remedy for unfair dismissal?

• [2] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

• [3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

• [4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

• [5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

• [6] The uncontested factual background to the matter is as follows:

• • The Applicant, also known as 'Hansen', commenced employment with the Respondent on 22 June 2023[2] as a Junior Site Engineer.[3]

• On 27 August 2024 the Applicant was working on a residential development project (Project).

• • On 27 August 2024, workers of one of the Respondent's subcontractors, Otis Elevator Company Pty Ltd (Otis), found a large piece of debris in an elevator shaft and raised safety concerns with the Respondent.[4]
• • The Applicant was dismissed without notice on 31 August 2024[5] with the termination letter sent on that same date (Termination Letter) alleging that:
  • on 7 August 2024, the Applicant arranged for a core hole to be drilled into a wall (Lift Shaft Wall) backing onto a lift shaft (Lift Shaft);
  • the Applicant did so without first obtaining written confirmation from site management and "in breach of clearly communicated directions that confirmation must be obtained from site management before commencing ant work regarding lift shafts";
• o by authorising the drilling, the Applicant placed workers, who were in the Lift Shaft at the time the drilling occurred, at imminent and serious risk of harm with the prospect that debris from the drilling could have fallen on them from a height.[6]

• [7] The Applicant denies the allegations as set out in the Termination Letter and submits that he has been unfairly dismissed.

• [8] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. [7]

• [9] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).

• [10] Both the Applicant and the Respondent sought to be represented before the Commission by a lawyer and no party raised any objections to the other party being represented.

• [11] Relevantly, section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

• [12] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

• [13] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act.[8] The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[9]

• [14] A note appearing under s.596 provides that circumstances in which the Commission might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

• [15] By way of summary, the Applicant submitted that English is the Applicant's second language, and he is unfamiliar with the legal framework and processes of the Commission. The Respondent is not a large business and by way of summary submitted that it did not employ persons with knowledge of the relevant legal framework and that English is the second language of its internal representatives who would otherwise appear in the matter. Having considered those matters, I determined that:

• it would be unfair not to allow the Applicant to be represented because the Applicant is unable to represent himself effectively;
• if permission was granted to the Applicant, it would be unfair not to allow the Respondent to be represented taking into account fairness between the Respondent and other persons in this matter; and
• it would be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself effectively.

• [16] I therefore decided to exercise my discretion to grant permission for the both the Applicant and Respondent to be represented by a lawyer.

• [17] Accordingly, at the hearing on held across 2 and 3 December 2024, the Applicant was represented by Mr Fan and the Respondent was represented by Mr Corlett.

• [18] The Applicant gave evidence on his own behalf.

• [19] The following witnesses gave evidence on behalf of the Respondent:

• Haiming (Max) Nie (Nie), employed as a Site Foreman for the Respondent and the Applicant's direct manager;
• Yan (Daniel) Xia (Xia), also employed as a Site Foreman for the Respondent;
• Xiaohui (Harry) Wan (Wan), a Site Manager employed by Southpac Constructions Pty Ltd which is a part of the JQZ Group (JQZ) of companies of which the Respondent is also a part (Wan);
• Stephen Vozzo (Vozzo), an employee of Tecco Intelligence Group Pty Ltd (Tecco) which was the contractor engaged by JQZ to install intercom and security systems (including cameras) at the Project;
• Pierre Antoun (Antoun), who is the proprietor of Concrete Solutions Group Pty Ltd (Concrete Solutions) and had contracted to perform work for JQZ;
• Wilfred Robens (Robens), an employee of Otis, the contractor engaged to install elevators on the Project.

• [20] As noted above, the Applicant filed his application with the Commission on 19 September 2024 (Form F2). The Respondent filed a Form F3 response on 1 October 2023 (Form F3).

• [21] The Applicant filed materials upon which he wished to rely on 5 November including a Statutory Declaration with 13 attachments.

• [22] The Respondent filed materials upon which it wanted to rely on 21 November 2024, being witness statements for the six witnesses who gave evidence on its behalf, with annexures to each of those witness statements.

• [23] On 29 November 2024 the Applicant filed a further Statutory Declaration in reply with annexures.

• [24] Both parties filed final written submissions on 20 December 2024 following the hearing.

• [25] A threshold issue to determine is whether the Applicant has been dismissed from their employment.

• [26] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant's employment with the Respondent has been terminated on the Respondent's initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

• [27] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

• [28] There was no dispute, and I find that the Applicant's employment with the Respondent was terminated at the initiative of the Respondent.

• [29] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

• [30] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

• [31] It is not disputed, and I find that the Applicant was dismissed from his employment on 31 August 2024 and made the application on 19 September 2024. I am therefore satisfied that the application was made within the period required in subsection 394(2).

Was the Applicant protected from unfair dismissal at the time of dismissal?

• [32] I have set out above when a person is protected from unfair dismissal.

• [33] It was not in dispute, and I find that the Respondent is not a small business employer as defined in the FW Act.

• [34] It was not in dispute, and I find that the Applicant was an employee, who commenced their employment with the Respondent on 22 June 2023 and was dismissed on 31 August 2024, a period in excess of 6 months.

• [35] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

• [36] It was not in dispute, and I find that, at the time of dismissal, the sum of the Applicant's annual rate of earnings (being $75,000) was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2024, is $175,000.

• [37] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

• [38] Section 388 of the FW Act provides that a person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

• [39] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act. While the Respondent itself had only 14 employees at the time of the dismissal, s.23(3) of the FW Act provides that for the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity. The Respondent indicated that the number of employees employed by the Respondent and its associated entities exceeds 14.

• [40] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.

Was the dismissal a case of genuine redundancy?

• [41] Under s.389 of the FW Act, a person's dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

• [42] It was not in dispute, and I find that the Applicant's dismissal was not due to the Respondent no longer requiring the Applicant's job to be performed by anyone because of changes in the operational requirements of the Respondent's enterprise.

• [43] I am therefore satisfied that the dismissal was not a case of genuine redundancy.

• [44] Having considered each of the initial matters, I am required to consider the merits of the Applicant's application.

Was the dismissal harsh, unjust or unreasonable?

• [45] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

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

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

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

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

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

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

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

• [46] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[10]

• [47] I set out my consideration of each below.

Section 387(a) - Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?

• [48] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[11] and should not be "capricious, fanciful, spiteful or prejudiced."[12] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[13]

• [49] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[14] "The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."[15]

• • The Respondent submitted that the Applicant engaged in serious misconduct including because his actions gave rise to a serious risk to health and safety and because he failed to follow the Respondent's established work procedures.[16]

• The Applicant submitted that there was no valid reason for the dismissal related to the Applicant's capacity or conduct because:
  • at all times he had approvals from the foreman and site management to carry out the drilling work as instructed;

• o the Applicant was a 'scapegoat' and his dismissal was a part of the Respondent's cover-up action designed to stop Otis from filing complaints to Safework NSW regarding safety issues on site.[17]

• [51] In further detailed submissions provided following the hearing the Applicant submitted there was no valid reason for the dismissal as:[18]

• No sufficient safety training was provided to the Applicant.
• The Respondent did not implement a protocol in writing requiring its site engineers to seek written confirmation from Otis after an incident involving Otis subcontractors occurred on 22 January 2024 (January Incident).
• The Respondent failed to clearly communicate the alleged protocol about seeking written confirmation from Otis to the Applicant.
• On 23 August 2024, Mr Wan failed to clearly communicate to the Applicant the task of organising the core hole drilling on behalf of Tecco.
• Mr Vozzo from Tecco failed to send clear instructions to the Applicant for him to organise the core hole drilling.
• Mr Nie and Mr Xia failed to supervise the Applicant when being notified of the drilling works on 23 and 26 August 2024.
• The Respondent failed to establish on the balance of probabilities that the Otis workers were in the lift shaft at the time the drilling occurred.
• The drilling work organised by the Applicant did not cause concrete debris to fall from height.

• [52] In further detailed submissions provided following the hearing the Respondent submitted there was a valid reason for the dismissal as:

• the Applicant was aware of a new procedure after the January Incident and acted contrary to it;
• the Applicant has acknowledged that his action in directing Mr Antoun to drill into the lift shaft wall in the communications room on Level B0 of Tower 1 without, at the least, notifying Mr Robens fell short of what he considered was his 'duty';
• irrespective, it is apparent that the Applicant's conduct amounted to conduct that caused serious and imminent risk to the health and safety of a person - namely, Mr Koukides;

• • justifying summary dismissal without notice in accordance with both the Applicant's contract and Regulation 1.07(2)(b)(i), Fair Work Act Regulations 2009 (Cth).[19]

The Applicant's prior work experience and nature of the Applicant's work

• [53] The Applicant was educated in China until he finished year 11 and in February 2022 was awarded a Bachelor of Architectural Design from an Australian University.[20] Between March 2022 and March 2023 the Applicant worked as a junior architect in an office environment[21] in Shanghai.[22]

• [54] The Applicant commenced employment with the Respondent in June 2023 and had been employed by the Respondent as a Junior Site Engineer for just over 14 months at the time of his dismissal.[23] The Applicant gave evidence that:

• he did not have any experience working on construction sites prior to his employment with the Respondent;
• he discussed his lack of site experience with Mr Nie at the time of interview; and

• • Mr Nie told him he would be trained on the job.[24]

• [55] During the Applicant's employment with the Respondent, he undertook work on the Project and was required to report to the Site Foreman Mr Nie and, from time to time, the Site Manager Mr Wan.[25] The Applicant's evidence was that his daily work activities included:

• receiving instructions and tasks from Mr Nie and Mr Wan in the morning;
• liaising with subcontractors on site to conduct and progress the works; and

• • reporting to Mr Nie and Mr Wan as to progress, including end-of day reporting.[26]

• [56] The Project is a large residential construction site and Mr Nie normally works 12 hours per day between 6am and 6pm supervising the construction of around 600 units.[27] There were around 10 site engineers under his supervision.[28]

• [57] Mr Nie, gave evidence that site management provides training on work health and safety by:

• inducting new employees with a 20-to-30-minute walk-through of the Project site;
• assigning new employees with a Senior Site Engineer, who assists in pointing out any additional safety issues not disclosed in the initial walk-through;
• holding toolbox meetings with all employees on site every Wednesday, where particular safety issues and protocols are raised; and

• • regular site engineer meetings, held about every four weeks, at which various issues are discussed, including the progress of the Project and safety issues.[29]

• [58] Mr Nie also gave evidence that all JQZ employees working onsite are required to hold a General Construction Induction Card (White Card) issued by SafeWork NSW which indicates that they have completed general construction induction training with a registered training organisation.[30] The Applicant had a White Card.[31]

• [59] The Applicant gave evidence that during his employment with the Respondent, apart from a short 10-minute induction conducted on his first day, he did not receive any training on work health and safety issues.[32] However during cross examination the Applicant agreed that a 20 - 30 minute walk through of the Project site was undertaken.[33] The Applicant said that during this training, undertaken with Mr Bosden, issues such as wearing protective equipment and personal safety were mentioned.[34]

• [60] The Respondent's Site Forman, Mr Xia, refuted that the Applicant was not subject to work, health and safety training after his first day and gave evidence that safety matters were regularly discussed including at toolbox meetings and site engineer specific meetings.[35] The Applicant's evidence was Mr Xia never provided him with any safety training[36] and that his interaction with Mr Xia was limited to ordering concrete, material delivery and site transport.[37]

• [61] Despite his assertion that he was not provided with work health and safety training after his first day, the Applicant:

• • gave evidence that Mr Bosden would conduct toolbox meetings every Wednesday at 7am during which he would point out safety issues such as a lack of personal protective equipment and/or helmets;[38]
• • acknowledged during cross examination that safety issues and protocols were raised at these toolbox meetings and that regular site engineer meetings were also held every four weeks at which project progress and safety issues were discussed.[39]

• [62] The Applicant also gave evidence that:

• • toolbox meetings were not compulsory for site engineers as they were for labourers and subcontractors; [40]

• he formed this view because every time there was a toolbox meeting he would see someone pick up the phone and leave; and

• • it was common for site engineers and other personnel to be absent from toolbox meetings.[41]

• [63] Despite his assertion about the non-compulsory nature or the Toolbox meetings, the Applicant appeared to confirm that he did attend the toolbox meetings and did not seek to avoid them.[42]

• [64] During cross examination the Applicant indicated that it was mainly work in progress that would be discussed at site engineers' meetings and that he could not remember if safety issues were discussed at these meetings.[43]

• [65] The Applicant disputed that he was assigned a Senior Site Engineer as asserted by Mr Nie and gave evidence that:

• when he started working at the Project most of the employees were new recruits who had only worked for the Respondent for a few months; and

• • he was asked to work with junior site engineers when he first started.[44]

• [66] During cross examination it was put to the Applicant that he was allocated Mr Dai who was a senior site engineer. Mr Nie indicated during cross examination that at the time Mr Dai had over a year's experience with JQZ, two years' prior experience with another company and that he asked the Applicant to follow Mr Dai for at least three weeks.[45] The Applicant's evidence was that he was only with Mr Dai for two or three days and most of the time he was with Mr Chan who he said came to the company as a "freshman" in May 2023.[46] The Applicant also said that Mr Dai was a "junior" site engineer[47] and that in the days he worked with him he did not provide any safety training nor discuss any safety issues with him.[48]

• [67] The Applicant gave evidence that it was the Respondent's practice to use a social media platform called 'WeChat' to conduct work-related communications.[49] The Applicant said the Respondent created a 'group chat' via WeChat called 'Olympic Working Group' (WeChat Group) which was comprised of the following members:

• Mr Wan;
• Mr Nie;
• all contract administrators on site;
• all site engineers; and

• [68] The Applicant's evidence was that all of the above members of the WeChat Group are Chinese and communications in the WeChat Group were in Mandarin Chinese.[51]

• [69] Mr Nie's evidence was that the WeChat Group includes all JQZ employees who speak Mandarin and it is used to communicate daily tasks.[52] Certain safety matters were brought to the attention of the members of the WeChat Group.[53]

• [70] During cross examination Mr Nie indicated that he and the site engineers communicate in Mandarin[54] but that some subcontractors speak English,[55] including the intercom and drilling subcontractors,[56] and that site engineers must be bilingual.[57]

• [71] English is the Applicant's second language.[58]

• o no procedure in place for organising core hole drilling works at the Project;[59]

• no proper training on how to organise core hole drilling; and

• o no protocol, procedure or requirement in place to seek Otis' consent before carrying out drilling work in relation to lift shafts[60] or otherwise concerning Otis.[61]
• • The Respondent did not address the drilling procedure in any of the toolbox meetings or site engineers' meetings.[62]

• [73] However, the Applicant also said he was told by Mr Wan and Mr Nie that the normal procedure onsite for core hole drilling was to organise the drilling subcontractor as soon as he received the marked-up photos from other subcontractors.[63]

• [74] Mr Nie's evidence was that "[a]ll site engineers know that written confirmation is required before drilling work can occur on a lift shaft wall."[64] However the Applicant said he was never told to put in a request in writing or to seek approvals in written form[65] and that a worker on site told him that if there was a requirement to put core hole drilling applications in writing, the applications would need to be reviewed by a structural engineer which would cause delays to the construction progress.[66]

• [75] Otis was engaged as a subcontractor to install elevators in the Project's buildings.[67] On 22 January 2024 a Junior Site Engineer (Guo) directed a subcontractor to perform drilling works on a wall that backed onto a lift shaft, causing concrete to fall into the shaft and hit an Otis subcontractor working inside the shaft (January Incident).[68]

• Mr Guo told him that Mr Robens had asked him for a hole to be drilled into a lift shaft and so he had arranged for another contractor to complete that work;

• • he called Mr Robens to seek clarification on what had happened and Mr Robens said words to the effect that while he asked Mr Guo to drill in the lift shaft, he advised him he had to do it after hours, but that Mr Guo had instead done it during the day when Otis had a worker inside.[69]

• [77] Immediately after the January Incident all Otis workers stopped working on the site.[70] Mr Nie indicated he believed that Otis was off site for about three days.[71]

• [78] Mr Wan's evidence was that later on the day of the incident Otis' project manager, Roger Teofilovic (Teofilovic), came to the site to speak with him and other JQZ management staff about the January Incident.[72] Otis indicated it would not return to site until JQZ provided an incident report and implemented protocol to prevent a similar incident from occurring again.[73]

• [79] Mr Guo was not subject to disciplinary action[74] and Mr Wan's evidence was that he did not consider it appropriate to dismiss Mr Guo as the January Incident was the first incident of its kind and steps were taken to try and ensure it did not happen again.[75]

• [80] The Applicant's evidence was that he was told about the January Incident by a labourer and was not told about the incident by management.[76]

Management meeting following the January 2024 incident

• [81] On either 22 January 2024 or 23 January 2024 a meeting was held between Mr Nie, Mr Wan, Mr Xia and Mr Bosden (January Management Meeting) and during this meeting they discussed what action they should take to avoid such an incident again and convince Otis that it was safe on site for workers.[77]Attached to Mr Nie's evidence was a record of the meeting which he said sets out what they resolved to do going forward.[78] The record states as its subject "Otis Incident: Corrective Action Plan" and includes the following notes:

• "Following meeting with Otis management and concourse".
• "All lift shaft work must have written communication and confirmation prior to any works starting. Specifics of task, area involve and the time in which the work will be done must all be agreed to by both parties".
• "If holes must be drilled. No Hammer drill, use core drill".
• "Under no circumstance can unauthorised personnel touch Otis cages".
• "Housekeeping a daily task to keep lift doors/cages and accessways clear of rubbish and materials".
• "Policing internal trades".

• [82] Mr Nie was taken to these minutes during cross examination and the subject "Policing internal trades" recorded within them. In relation to this aspect Mr Nie said:

"...We talk to their boss, talk to their sub-contract, and also we talk to on-site engineer who is in charge of internal trades. Why we talk to their boss? Because we want to support our engineer. Some engineer was too young. They can't control, you know, too many trades. So we just want to help them to make everyone clear."[79]

• [83] It was put to Mr Nie that some of the site engineers didn't have the requisite experience of managing trades and were still too young to which Mr Nie indicated that some but not all had experience.[80]

• [84] An incident report was completed and during cross examination Mr Nie acknowledged that a lack of supervision and training were factors contributing to the January Incident.[81]

A site engineers meeting and new procedure in response to the January 2024 Incident?

• [85] Mr Nie said after the January Management Meeting:

• he had another meeting with Mr Xia, Mr Wan and all site engineers, including the Applicant (January Site Engineers Meeting);

• • at that meeting, which lasted approximately 20 minutes, a new protocol involving lift shaft work was explained to the site engineers.[82]

• [86] Mr Nie's evidence was that all site engineers working on a site at the time are required to attend such site meetings except in very exceptional circumstances, such as where they are supervising a concrete pour that cannot be delayed.[83] Mr Nie said that if a site engineer is not present, it is his practice to call them and get them to immediately attend such a meeting.[84]

• [87] Mr Nie attached a copy of the minutes he said he made of the January Site Engineers Meeting which records those in attendance.[85] Those minutes indicate that the meeting was held on 23 January 2024, the Applicant was present and state:[86]

• "Written confirmation must be obtained before commencing any work regarding lift shafts".
• "If see any OTIS cages open, must report to JQZ management".
• "Under no circumstances that JQZ workers can do any work without OTIS confirmation".
• "House keeping must be arranged daily, lift door access must always be cleared."

• [88] Mr Nie said he did not circulate the minutes of the January Site Engineers Meeting to others and noted that the minutes incorrectly state the meeting as having occurred from 4pm to 5pm when it actually occurred in the morning.[87] Mr Nie indicated he believed he may have used another set of minutes as the base document and did not change the time.[88]

• [89] However it appears a meeting was held on 4pm as during cross examination Mr Nie was taken to the following message sent to the WeChat Group on 23 January 2024.[89]:

• 1. About yesterday's Otis incident, let's have a meeting at 4:00pm at the Engineer's Meeting Room."[90]

• [90] It was put to Mr Nie that he asked Jerry and Joss to attend a meeting in relation to the Otis incident but that he did not ask the Applicant to attend. In response Mr Nie indicated he "did not ask in the WeChat Group".[91]

• [91] Mr Xia gave different evidence and said he believed that a meeting occurred on day of the January Incident, being 22 January 2024, involving all JQZ site engineers.[92] Mr Xia attached to his witness statement a copy of a record of a meeting which:

• is dated 22 January 2024;
• states as the main subject of the meeting 'OTIS';
• lists the main points covered as follows:
  • "Writtern (sic) confirmation must be obtained before commencing any work regarding lift shafts"
  • "If see any OTIS cages open, must report to JQZ management"
  • "Under no circumstances that JQZ workers can do any work without OTIS confirmation"
• is signed by seven people in attendance;

• • does not include the signatures of either the Applicant or Mr Xia.[93]

• [92] Mr Xia's evidence was that attendance at the meeting by site engineers was mandatory and if a site engineer did not turn up to such a meeting it was his practice to call them to direct them to attend. [94] When asked whether all the people in attendance "signed off" in these types of meetings Mr Xia said:

"In practice, no, because if they are in the - assigned to task and it may be in the basement, and we can't get to the personnel, the signature will be missing."[95]

• [93] While Mr Xia gave evidence suggesting he recalled that the Applicant attended the meeting,[96] during cross examination he also said he did not recall if the Applicant was present.[97] Mr Xia also appeared to acknowledge that it was possible that the Applicant did not attend the meeting.[98]

• [94] During cross examination Mr Xia was asked how he notified the site engineers of the meeting on 22 January 2024 to which he indicated he called the engineers "one by one".[99] However Mr Xia was also taken to the Applicant's phone records of 22 January 2024 and confirmed he could not see his phone number in those records.[100]

• [95] The Applicant's evidence was that he did not attend the site engineers' meeting on 23 January 2024 as referred to by Mr Nie and that there was no such meeting on or around that day.[101] The Applicant also said that Mr Xia did not hold any site engineers' meetings on 22 or 23 January 2024.[102]

• [96] In this regard the Applicant's evidence was that the Respondent's practice is to send a WeChat message to the WeChat Group when communicating and calling for a meeting. [103] The Applicant filed a copy of a WeChat message sent to the WeChat group as evidence of this practice.[104] The Applicant suggested that if there was a site engineers' meeting scheduled on 22 or 23 January 2024 either Mr Wan or Mr Nie would have sent a WeChat message via the WeChat Group[105] and neither Mr Wan nor Mr Nie provided notification of any engineer's meeting that day.[106]

• [97] Mr Nie gave evidence during reexamination that WeChat was not the only way site meetings or site engineer meetings were coordinated.[107]

• [98] The Applicant also gave evidence that he was working in the basement for most of the day on 22 January 2024[108] and if he attended a site engineers' meeting scheduled on 22 or 23 January 2024 he would have been asked by Mr Xia or Mr Nie to sign the meeting record.[109]

• [99] Mr Nie was taken to the minutes of the January Site Engineers Meeting [110] and it was put to him that he did not send the minutes to the Applicant via email. Mr Nie appeared to concede that he did not and said that the minutes were an internal record for the 'site team',[111] although it is unclear who had access to the record. Mr Nie was asked how the site engineers could follow protocols if they were not put to them in writing to which Mr Nie responded:

"That's why I think you can see in the WeChat group, I put the tips every day, every morning, and especially - I mean, the first two weeks after first incident, and the - I reminded them in the morning. I said, 'Okay. Today if you do special (indistinct) like you do lift (indistinct), for example, I got another two messages to Hanson. I said, 'You have to get approval before you organise the action'. That is what we prefer because in our culture - I mean, the site engineer, maybe they will not pay attention for the email, for the meeting minutes, but they will see the WeChat group every day, every morning. I don't hope they can remember, like, something happen the one week before, but if I put it in the morning first thing, and they can see the daily task, and they will know what we hope they can do and what they should, like, pay more attention for this procedure. We have a meeting and I know some engineer because they're too young, they won't care what we say in the meeting, and then we will remind - keep reminding them later in the WeChat group".[112]

• [100] Mr Nie said that the new protocol was followed after the incident and in support of this assertion pointed to a text message exchange with between a worker, Jerry (who I understand to be Mr Guo), and Mr Robens, the Otis supervisor for the Project, in respect of drilling that that the worker was organising. In particular, attached to Mr Nie's statement was a text message from Mr Guoon 20 July in which the worker states:[113]

"Hi Will, I just want to keep you in updated for T2L21 core drilling for intercom and T2L9 core drilling for lift level signal. I book with the concrete drilling at Wednesday 9:30-10:00am. Thanks."

• [101] Mr Roben's evidence was that following the January Incident, Mr Bosden advised Otis of a procedure that was being introduced in which a site engineer who was responsible for supervising a particular task that affected any lift shaft had to receive written confirmation from Otis before such work was carried out, particularly drilling.[114] Mr Robens said that the main reason for this was to coordinate with Otis so it could ensure nobody was in the lift shaft at the time.[115]

• [102] Mr Robens' evidence was that this process seemed to work well for a number of months, over the course of which he was regularly contacted by JQZ site engineers.[116] Mr Robens attached a copy of a screen shot of a text message exchange with the Applicant on 9 February 2024 in which the Applicant states:

"Hi Will as discussed we gonna start drilling Level 4 T6 Lift 15 hpi now" (9 February Message).[117]

• • no training in relation to organising subcontractors or work health and safety issues was conducted after the January Incident and no procedure was put into place for future drilling works;[118]
• • he was never asked to seek written confirmation or approval from Otis when handling works that could affect the Lift Shaft.[119]

• [104] The Applicant also disagreed that he was seeking Mr Robens' or Otis' consent or approval prior to carrying out works in the 9 February Message and said he was simply notifying him of the works to be carried out at various lift shafts.[120] During cross examination the Applicant appeared to indicate it was his duty to notify Mr Robens before he started his work[121] and that he was aware of or felt a need to communicate with Mr Robens in the way he did on 9 February 2024.[122]

• [105] During cross examination the Applicant was taken to a message from Mr Xia in the WeChat Group on 5 February 2024 which stated:

"... in the afternoon we arrange someone to do the drilling, and today - so you will try all you can to finish the drilling work in Otis T6B0 and T1 low rise. And before drilling, you should communicate with Will by text."[123]

• [106] I understand the reference to 'Will' to be a reference to Mr Robens. The Applicant agreed that the message was directed to him,[124] and indicated he understood the text was asking him to text him before he needed to drill[125] but did not agree that this was the procedure instituted following the January Incident.[126]

• [107] The Applicant was also taken to another message to the WeChat Group dated 31 January 2024[127] and it was put to him that this was another instance where he was directed to seek approval for core hole drilling. [128] However the message did not indicate from whom approval needed to be sought and the Applicant did not agree that it was referring to approval from Otis. Rather, the Applicant's evidence was that it was his practice to communicate with subcontractors including Otis via text messages and email[129] but that there was no new protocol involving lift shaft work and he was never told to obtain written instructions or to seek written consent or approval from Otis before carrying out work.[130]

• [108] Despite this assertion, the Applicant gave evidence that at a conference after the January Incident, Mr Nie informed all site engineers that labourers on site should not be directed to conduct drilling works by using jackhammers and told them to engage a drilling subcontractor named Pierre from Concrete Solutions who would use drilling machines instead of jackhammers.[131] During cross examination it was put to the Applicant that at this conference Mr Nie not only spoke about not conducting jackhammer drilling on lift shafts but that Mr Nie or Mr Xia also advised of a requirement to get written confirmation from Otis before conducting any drilling on lift shafts and the Applicant denied this.[132]

The May 2024 incident and the Respondent's response to it

• [109] On 7 May 2024 a further incident occurred where a subcontractor installing gyprock removed the top of a protective cage covering the entrance to a lift shaft, allowing a piece of metal to fall into the shaft (May Incident).[133] Mr Robens gave evidence that Otis again removed its workers from the site while JQZ investigated the incident.[134] Mr Xia's evidence was that this same day Mr Teofilovic called and told him that he would not let his workers go back on site until he was convinced it was safe to work.[135]

• [110] Mr Nie gave evidence that on about 9 May 2024, a meeting was held with staff on site, including subcontractors, to address the incident and reiterate the importance of following protocol when dealing with lift shafts, including not interfering with Otis cages that secured the lift shaft openings.[136] Mr Robens attended the meeting and gave evidence that Mr Bosden made clear that nobody was allowed to touch Otis' cages except Otis staff.[137]

• • he did not know about the May Incident until 31 August 2024 during the show cause meeting;[138]
• • during the period from March to May 2024 he was assisting the Project Architect in completing construction drawings and was not asked to attend onsite discussions or site engineers' meetings during this time. [139]

• [112] During cross examination Mr Nie confirmed that the Applicant was working for the Project Architect between March and May 2024. In respect of this period Mr Nie appeared to indicate that he told the Applicant that he did not have to attend site engineers' meetings if he had tasks given to him by the Project Architect but could attend if he did not have tasks at that time.[140]

• [113] Tecco was engaged by JQZ to install the intercom and security systems at the Project and Mr Vozzo was appointed to supervise Tecco's work.[141]

• [114] Mr Vozzo's evidence was that from time to time, Tecco would require drilling to be done into concrete so it could install cabling. As Tecco was not capable of performing such drilling work, Mr Vozzzo would advise JQZ if Tecco needed drilling done and JQZ would organise for it to be completed.[142] Mr Vozzo said his practice was to:

• mark the location of the hole he wanted drilled by drawing a circle with a cross in the middle marking the centre of the hole, along with handwriting the diameter of the hole; and

• • take photographs of where we wanted the holes which he would send to the JQZ site engineer responsible for arranging the drilling.[143]

• [115] In respect of this work, the Applicant's evidence was that Mr Vozzo would leave marks around the site and would send photos of the marks together with detailed explanations via text messages for each of the holes he required to be drilled.[144]

• [116] Mr Vozzo said he had dealt with the Applicant a number of times while working on the Project[145] however the Applicant disputed this and said he had only dealt with Mr Vozzo once in February 2024 prior to the incident.[146] When Mr Vozzo was asked during cross examination how many times he had dealt with the Applicant he only referred to an occasion in February during which he walked around the site with the Applicant to show him where needed the drilling, made mark ups on the hole locations and then sent pictures of these to the Applicant.[147]

• [117] During cross examination Mr Vozzo was asked why he needed to send the Applicant a picture and text describing the drawings when had already walked the Applicant through where he needed to drill to which he indicated that one of the reasons was a language barrier as he did not speak fluent Chinese and he wanted to avoid miscommunication.[148]

• [118] The Applicant said that on this occasion in February Mr Vozzo's markings were hard to read and his description was ambiguous. [149] The Applicant said when he asked Mr Vozzo for clarification he told the Applicant "not to worry about those" and that he just needed to drill a hole at a location close to his marking to allow his team to do the wiring work.[150]

• [119] The Applicant gave evidence that on or around 23 August 2024, at around 10am, he walked past the site meeting room, was called in by Mr Wan and was told to sit in a meeting with Mr Vozzo from Tecco, as well as Mr Wan, Mr Nie and Mr Jerry Guo.[151]

• [120] The Applicant's evidence was that at the meeting the following was said:[152]

Mr Vozzo: "We will need the following work to be done to progress our work. We need to have the building manager rooms cleaned, and core holes to be drilled over concrete slabs and walls to allow wiring."

Mr Wan: "I will get Jerry to organise the cleaning of the building manager's rooms. I will get Hansen to organise the core hole drilling task."

Mr Vozzo: "Good. We will now visit the site and mark up the places where core hole drilling is required. I will send the marked-up photos to Hansen so he can organise the drilling."

• [121] The Applicant's evidence was that no other directions in relation to the proposed drilling works were given to him during the meeting or at all.[153] The Applicant said that as he was dragged into the middle of a meeting he had an "impression" that the locations for the core hole drilling were approved by the site management team and all he needed to do was arrange the drilling with Concrete Solutions.[154]

• [122] Mr Vozzo gave evidence that at the end of the meeting he approached the Applicant and had a conversation to the following effect:[155]

Mr Vozzo" "How about we go now and I will show you what I need done?"

Applicant: "I'm too busy at the moment. I will give you the keys and you can text me what you want me to do."

• the Applicant gave him the key to unlock the communications rooms;

• • he and Henry, a Tecco electrician, marked the location of the holes that he needed drilled on the surface of the concrete and took photos which he sent to the Applicant together with instructions via text message.[156] Mr Vozzo provided a copy of these text messages to the Commission.[157]

• [124] The Applicant said he was required to attend a site engineer's meeting but denied that Mr Vozzo asked him to go to the basement with him and after the meeting.[158] The Applicant gave evidence that:

• • at 11am Mr Nie sent a message to the WeChat Group notifying all site engineers to attend a meeting at the site meeting room; [159]

• Mr Vozzo called him at around 11.30am and he did not answer as he was in the meeting;
• he texted Mr Vozzo and asked him to send a text;

• • Mr Vozzo then requested to pick up the keys from him so he could mark up areas of the basement where he would require core hole drilling;[160]
• • during the meeting Mr Vozzo attended the meeting room to collect keys for the service room from the Applicant;[161]
• • at 1.33pm he received marked-up photos from Mr Vozzo via text message. [162] The Applicant provided a copy of these text messages to the Commission.[163]

• [125] The Applicant's evidence was that unlike the previous occasion in February 2024, Mr Vozzo did not provide any instructions via text and only sent nine photos to him.[164]

• [126] In one of the photographs send to the Applicant via text message (Photo 6), Mr Vozzo had marked 'GPO' and superimposed a red square.[165] The Applicant knew that the square marking was on the Lift Shaft wall.[166] This photograph also includes two red circles superimposed on the floor as shown in the picture was among nine photographs sent to the Applicant by Mr Vozzo on 23 August 2024. The photo with the square 'GPO' marking is unique to the others which can be described as follows:

• one photograph (Photo 1):
  • is of a marking on the wall showing a round circle with a cross drawn through it and the text "50mm" hand written next to it;
  • has a superimposed red circle (rather than a square) around the marking;

• o includes the text "50mm up Outside BM office No access";[167]

• the second photograph (Photo 2):
  • is of two round circles with crosses drawn through them and what appears to be a handwritten measurement;
  • has two superimposed red circles near the markings;

• o includes the text "B0 down Outside BM office door";[168]
• • the third photograph (Photo 3) does not show any markings on a wall but is of a locked door, is marked 'B3' and includes the text "B3 still locked";[169]

• the fourth photograph (Photo 4):
  • is of two round circles with crosses drawn through them and what appears to be a handwritten measurement;
  • has two superimposed red circles around the markings;

• o includes the text "B2 Nbn"; [170]
• • the fifth photograph (Photo 5) does not show any markings on a wall but includes an arrow next to what appears to be some wiring attached to a wall and the words "B0 nbn";[171]

• the seventh photograph (Photo 7) shows:
  • a person making markings;
  • the text "B1 nbn";

• o two circles marked with a cross through the middle and handwritten measurements written next to them[172] however there are no red superimposed circles in this picture;

• the eighth photograph (Photo 8):
  • is of two round circles with crosses drawn through them and what appears to be a handwritten measurement;
  • has two superimposed red circles around the markings;

• o includes the text "B1 nbn room";[173]
• • the ninth photograph (Photo 9) not show any markings on a wall but is of a locked door which has the sign stating 'BUILDING MANAGER RM' attached to it.[174]

• [127] During cross examination it was put to the Applicant that that the photos identified where Mr Vozzo wanted holes drilled and to the extent that these could be identified there seemed to be a marking indicating the width or diameter of the hole and the Applicant agreed.[175] The Applicant was then asked how he would know to drill where there was no note drawn on the wall or in the photograph to which the Applicant replied:

"Because I think the diameter is - doesn't matter as long as the conduit can go through. So I used the, like, same size."[176]

• [128] The Applicant's evidence was that on 26 August 2024, he sent a message to the WeChat Group notifying the site managers of the directions he received from Mr Vozzo to request that Concrete Solutions drill holes.[177]

• [129] The Applicant said he was never told or required by the Respondent to put in any core hole drilling application and/or seek approval in written form.[178]

• [130] During cross examination Mr Nie gave evidence that Mr Vozzo had previously made an error in relation to marking up a concrete slab.[179] Mr Nie was asked, in the context of Mr Vozzo previously marking up the wrong spot, whether it occurred to him that Mr Vozzo would have done the same again and Mr Nie acknowledged there was a risk of this.[180] It was put to Mr Nie that he knew it would be worthwhile for him to check Mr Vozzo's markup to which Mr Nie replied "Yes".[181] Mr Nie accepted that some of his site engineers were 'juniors' and that had he checked the pictures or Mr Vozzo's plans he would have prevented the January Incident.[182]

• [131] In respect of the January Incident Mr Nie was asked why he didn't do so and Mr Nie replied:

"No, for this one, you know we saw that he's followed the plan, and the person should have probably reviewed and check it by himself".[183]

• [132] Mr Nie indicated that he knew that Mr Vozzo was going to run wiring in the communications room[184] but that in his experience across six or seven JQZ sites he never encountered an experience where a contractor would have to drill a hold into a lift wall to run their wires and that he did not consider this to be compliant with Australian Standards.[185]

• he was not aware that the drilling was required into a lift shaft wall; and

• • the Applicant's WeChat message did not mean the Applicant did not also have to communicate with Otis to coordinate and ensure that no one was in the lift shaft at that time.[186]

• during the meeting on 23 August 2024 there was no mention of a lift shaft wall being the location for drilling;

• • neither he nor Mr Nie asked the Applicant to put a request for drilling in writing because he was not aware that any drilling would be needed into a lift shaft wall and it did not occur to him that he needed to remind the Applicant about the need to confirm the work with Otis.[187]

• [135] During cross examination Mr Nie indicated that it did not occur to him that he should notify Otis contractors of the work or double check the plan.[188] Mr Nie's evidence suggests he held the view that if any of the engineers under his supervision saw a mark-up on the lift wall they should talk to management before work happens.[189]

• [136] Photo 6 shows the letters 'GPO' marked in a box that had been drawn on a wall of the communications room.[190] Mr Vozzo gave evidence that he drew the superimposed red square on the photo and typed the letters 'GPO' before texting the Applicant.[191] Mr Vozzo's evidence was that:

• 'GPO' is an abbreviation for 'general power outlet' or 'general purpose outlet' which is a standard electricity socket of the nature found in offices and homes;
• in his experience, the term 'GPO' is generally known and used in the construction industry;

• • he needed a 'GPO' in order to provide power to the switch that was to be installed in the communications room; [192]

• he did not need a hole to be drilled for the 'GPO' as it needed to be installed by licensed electricians;
• unlike homes and offices, it is typical to use conduit that is fixed to the outside of the wall for wiring for the GPO in a location such as the communications room;
• he had marked the GPO because he had access to the room at that time and it was normally locked;
• he deliberately marked the GPO with a square instead of a circle and did not write any diameter on the wall;

• • he had included the photo because he had identified another hole that he needed drilled and this was marked with a superimposed red circle.[193]

• [137] The Applicant's evidence was that he did not know what was meant by 'GPO', neither did Mr Nie and at no point did Mr Vozzo explain that he did not need a core hole to be drilled where it was marked 'GPO'.[194]

• [138] During cross examination it was put to Mr Vozzo that the only way the Applicant would have realized that he didn't need the square holes to be drilled was for the Applicant to recall that when he arranged the work for Mr Vozzo in February Mr Vozzo did not require drilling where the square marking was to which Mr Vozzo responded:

"But also, as an engineer, there's a typical saying, 'Dial before you dig', you investigate before you start drilling."[195]

"So you would be relying on him to ask questions to seek clarification from you, in order not to be confused about that?"

"But also I've worked on many construction sites in my time, any core hole or any major works like this usually has to have an approval process before you can actually proceed. For example, if there's a metal beam in a wall, or a tension cable, these things need to be investigated by an engineer before the drilling can take place".[196]

• [140] On 27 August 2024, subcontractors from Concrete Solutions attended the site and drilled holes, including a hole in the communications room adjacent to the Lift Shaft Wall.[197] Mr Antoun said he attended the site with a subcontractor to assist him and that he met with the Applicant who showed him where the core holes needed to be drilled.[198]

• [141] The Applicant's evidence was that he was present when Concrete Solutions was conducting the drilling works until around 10.30am but left to attend the site office to complete various variation forms after he received a request to do so from Mr Nie via message to the WeChat Group.[199] The Applicant's evidence was that:

• • he recalled that Concrete Solutions used a water-drilling machine and pulled out the concrete pieces from the wall such that no debris was pushed into the lift shaft;[200]
• • before leaving he told the subcontractors from Concrete Solutions that he would be leaving to attend the site office and asked them to meet him there after the completion of the drilling works.[201]

• [142] The Applicant filed a copy of a WeChat message which was sent at 9.48am on 27 August 2024 and which was directed to the Applicant and others and stated:

"Arrange the things on hand and come to the office at 10.30 to fill the Variation Form."[202]

• [143] The Applicant gave evidence that Mr Nie would sometimes ask site engineers to delegate or assign their work on hand because more urgent tasks needed to be prioritised and he understood that he would need to delegate the drilling works and attend the site office as soon as possible.[203] Further, the Applicant said on 27 August 2024, he was very busy, made about 20 calls in the morning and apart from Mr Antoun he had to oversee three different subcontractors who were all scheduled to come on the same day.[204]

• [144] Mr Antoun's evidence was that the last hole the Applicant directed him to drill was a wall that backed onto the Lift Shaft.[205] Mr Antoun said he knew there was a need to be careful drilling in such a place because a worker may be in lift shaft and that he had a discussion to the following effect about this:

Mr Antoun: "But that wall backs on to the lift shaft"

Applicant: "Yes, that is where I have been told to drill. There is nobody inside the

lift shaft, I have already checked".[206]

• [145] The Applicant disputed this and gave evidence that Mr Antoun did not say anything to him after he showed him where to drill by pointing out the locations marked by Mr Vozzo.[207]

• • he set up the drill and started drilling and as he was doing this the Applicant left the room;[208]

• when he finished, he pulled the drill out and removed the concrete core from the wall;

• • the core looked whole, and he did not believe that any concrete fell into the lift shaft; [209]

• as he was packing up a man in an Otis uniform came into the room, asked him what he was doing and said words to the following effect:

"What are you doing? That is the lift shaft. You are meant to check with us before drilling through this".[210]

• [147] The Applicant did however indicate that the hole drilled into the Lift Shaft wall was the last core hole to be drilled and that he left before it was finished.[211] During cross examination the Applicant confirmed he left before the drilling was completed[212] and was then asked how he could say that no debris fell into lift shaft. The Applicant replied that after the incident Mr Antoun called him and told him that he had pulled out the concrete debris.[213] The Applicant appeared to acknowledge that he did not know this at the time[214] but also said that based on his experience he had never seen concrete pushed by a water drill.[215]

• [148] The Applicant's evidence was that before he left, he inspected the lift shaft to ensure nobody was present during the work.[216] In this regard, the Applicant said:

• Otis contractors would leave their toolbox at the entrance of the Lift Shaft;
• he checked the Lift Shaft entrance, walked through all levels between basement level 0 and basement level 3 and confirmed there was no toolbox;

• • there was no sound in the Lift Shaft and so he was sure no one was working in the Lift Shaft.[217] During cross examination the Applicant was challenged about whether this was a safe method and the Applicant indicated he could normally hear the sound of tools when working through the lift shaft.[218]

• [149] Despite doing this, the Applicant also said:

• he was not taught or required by anyone to request written permission or check with Otis prior to carrying out drilling works;
• no one told him that the lift shaft area was a sealed environment for Otis and was not to be penetrated by anyone;

• • no one told him that the lift shafts are not to be touched without Otis' consent or approval.[219]

• [150] During cross examination the Applicant was asked why he checked the lift shaft to which he replied:

"Because I want to make sure nobody injured."[220]

• [151] The Applicant also indicated that he understood it was important not to drill into the lift shaft if somebody was in there and[221] during cross examination the Applicant appeared to agree that anything that affected the Lift Shaft was unsafe while somebody was in the Lift Shaft.[222]

• [152] During cross examination the Applicant indicated that he understood the safety issue[223] and was asked why he didn't take any blame for what happened to which he responded:

"Because I thought that was been approved."[224]

• [153] Mr Nie disputed that the Applicant inspected the Lift Shaft before drilling work commenced and gave evidence that:

• lift shafts that are still under construction are protected by secure cages or doors and once installed they can only be opened by Otis employees;

• • doors had been installed on the Lift Shafts as at 27 August 2024 and when doors are installed it is not possible to verify if anyone is inside a lift shaft without confirming with Otis.[225]

• [154] During cross examination the Applicant confirmed that the doors had been installed on the Lift Shafts and he could not open those doors.[226]

• based on his experience he did not know how the Applicant could have assured himself that nobody was in the lift shaft without confirming this with Otis; and
• at that time the elevator doors had been installed and the lift shafts were essentially a sealed environment which only Otis staff could access;
• even when the doors were not installed and cages were protecting the elevator door openings from being accessed, a person is not able to look up and down the lift shaft for safety reasons;

• • even if a person tried to call out to determine whether someone was in the lift shaft, there is a high likelihood that they would not be heard by the Otis worker, particularly as the height of the tower was over 30 floors including the basement level.[227]

• [156] The Applicant did not communicate with Mr Robens prior to the drilling commencing. The Applicant was also asked why he didn't communicate with Mr Robens in the way he did in the 9 February Message on 27 August to which he replied:

"Because that time, I was very rushed to do another job. So I failed to send a message to him."[228]

• [157] However, it was put to the Applicant that he had enough time to search through three different levels of the basement to make sure that nobody was in the lift shaft, to which he agreed.[229] The Applicant was then asked how he was rushed in that case to which he responded:

"Because I know if I drilling from a lift shaft, I have to make sure nobody inside there first."[230]

• [158] The Applicant said he met the subcontractors from Concrete Solutions at the site office at around 12pm, the subcontractors told him that the drilling works had been successfully completed, and he signed the subcontractor's invoice.[231]

• [159] Mr Robens gave evidence that on the morning of 27 August 2024 he received a phone call from an Otis electrician, George Koukides, who told him, by way of summary:

• he was working on the Lift Shaft when he heard a loud bang and a crash;
• he saw water coming out next to him and a hole that someone had drilled through the wall;
• he said he was fine but a bit shocked;
• he saw the person who had drilled through the Lift Shaft through the hole, got out and confronted him;

• • the person who drilled the hole said he was only drilling where he was told to by JQZ.[232]

• [160] Mr Robens said he had not been made aware that such drilling work was going to be carried out and considered he should have been informed about the work following a procedure implemented by JQZ in January 2024.[233]

• [161] Mr Robens provided a photo that Mr Koukides had given him and said that the photo demonstrates the hole was drilled very close to the steel rail on which the elevator car's counterweight travels.[234] Mr Robens also provided photos that Mr Koukides sent him later on 27 August 2024 which he said appear to be from a concrete core that had been drilled.[235] Mr Robens' evidence was that Mr Koukides told him he had found the core when existing the lift shaft at the bottom basement level.[236]

• [162] Mr Robens' evidence was that Otis staff were removed from the site while JQZ investigated and until JQZ were able to convince Otis that they had an appropriate measure in place to control for such an incident happening again.[237]

• • Mr Robens told him that a worker had almost been hit by a piece of concrete and asked him why core drilling was occurring in the lift shaft;[238]
• • he found a hole that had been drilled through one of the walls of the communications room into the lift shaft;[239]
• • he called Mr Antoun from Concrete Solutions, the subcontractor responsible for the drilling, who explained that he drilled here the Applicant told him to drill.[240]

• [164] Mr Xia said he asked the Applicant why he asked Mr Antoun to drill in the lift shaft and the Applicant indicated that he told Mr Antoun to drill there because that is where Mr Vozzo from Tecco had marked a hole.[241] Mr Xia said he asked the Applicant:

"Why didn't you look at the site drawing before asking him to drill there? Why didn't you let Otis know what you were going to do?"

"I just did what I was told to do by Stephen from Tecco."[242]

• • he found it difficult to believe that the Applicant was not aware that he directed Mr Antoun to drill into a lift shaft wall given how the communications room needed to be entered (i.e. because you have to walk past the lift shaft to get into the room);[243]

• it is standard practice for a site engineer to check the site drawing to make sure they know where they are and the impact of the work they are supervising;

• • all site engineers should have access to the site drawings on their phone through Dropbox.[244]

• [166] Mr Xia said some time after these conversations he received a call from Mr Telofolovic who said words to the following effect:

"Daniel, this is not acceptable. This is the third time this year that our controlled space in the lift shafts have been violated. I am going to have to take my guys off all JQZ sites until you can give me a lot more assurance this type of thing will not happen again."[245]

• [167] Mr Nie gave evidence that on 27 August 2024 he received a call from Mr Xia who told Mr Nie that 'Will' from Otis had called him and told him that:

• the Applicant had organised for a core hole to be drilled into a lift shaft wall while a worker was working inside the lift shaft;
• while the worker didn't notice anything at the time he found a piece of concrete at the bottom of the lift shaft; and

• • 'Roger' was very upset that this had "happened again". [246]

• [168] Mr Nie understood the reference to 'Will' to be a reference to Mr Robens, and the reference to 'Roger' to be a reference to Mr Teofilovic.

• [169] Mr Nie said he was aware that the Applicant had been supervising drilling work that day for Tecco but that there was no indication that the work involved drilling into a lift shaft wall.[247]

• [170] The Applicant gave evidence that on 28 August 2024 Mr Nie approached him on site and advised him that the lift subcontractor, Otis, had found a big piece of debris that the bottom of the Lift Shaft where the Applicant had organised the drilling work, had made a complaint to the Respondent and had threatened to report the Respondent to SafeWork NSW.[248]

• [171] The Applicant's evidence was that he responded to Mr Nie by explaining that:

• Concrete Solutions was only drilling small holes and was using a water drilling machine that would not generate debris or dust;
• Concrete Solutions pulled out pieces of concrete from the wall and left them in the communications room instead of pushing them into the lift shaft;
• the concrete debris was not caused by Concrete Solutions;

• • Mr Wan had told him to organise the subcontractor and he had done what he was told.[249]

• [172] The Applicant gave evidence that on that same day he and Mr Nie attended the communications room adjacent to the lift shaft and found pieces of concrete left by Concrete Solutions that measured to the size of the hole it had drilled.[250] The Applicant said he pointed out to Mr Nie that the debris found by the Otis subcontractor could not have come from Concrete Solutions and Mr Nie agreed and took pictures.[251]

• [173] The Applicant's evidence was that Mr Nie advised him that he would "take care of it" and that the Applicant would be suspended pending an investigation.[252]

• [174] Mr Nie also provided an account of his interaction with the Applicant on 28 August 2024.[253] Mr Nie denied saying that Otis had threatened to report JQZ to SafeWork and gave evidence that nobody from Otis said such a thing to him and nor did he hear from another employee that Otis had threatened to report JQZ to SafeWork.[254] Mr Nie said, in respect of the core hole he noticed in the Lift Shaft Wall, he asked the Applicant what the hole was for and why Mr Vozzo told him to drill there to which the Applicant replied:

"Stephen sent me marked-up pictures which showed this wall required drilling".[255]

• [175] Mr Nie asked the Applicant to show him the picture and the Applicant did so on his phone.[256] Mr Nie's evidence was that the following exchange occurred between Mr Nie and the Applicant:

Mr Nie: "This is a general power outlet; it does not need to be drilled. The electricians put it in later and run conduit along the wall".

Applicant: "I am sorry Max, I did not know what GPO meant. I thought it needed to be drilled."

Mr Nie: "You have worked here for over a year, Hansen. You should know what a GPO is, and that it does not need to be drilled".

• [176] The Applicant's evidence was that Mr Nie did not know what Mr Vozzo meant when he showed him the relevant picture.[257]

• [177] Mr Nie gave evidence that following his conversation with the Applicant he called Mr Vozzo who advised him that he had not told the Applicant to drill into a lift shaft wall and had sent him photos that showed him where to drill.[258] Mr Nie said he told Mr Vozzo that the Applicant had showed him the photo and had drilled where Mr Vozzo had marked 'GPO'.[259] Mr Nie said that Mr Vozzo told him he never asked the Applicant to drill there and that he called him after he sent the photos to explain exactly where he needed to drill.[260]

• [178] During cross examination Mr Nie was taken to a message he sent to Mr Vozzo on 28 August 2024 and in which he said:

"Why you mark up the hole on the lift wall? B0 manage room. What is that for?"[261]

• [179] Mr Nie's evidence appeared to be that he was confused as the Applicant had told him that Mr Vozzo had asked him to drill in that location.[262] Mr Vozzo replied to Mr Nie's text as follows, including Photo 6 that was sent to the Applicant:

"Picture shows gpo and I only ask to drill circles not the squares see this picture".[263]

• [180] It was put to Mr Nie that he did not say to the Applicant, after he showed Mr Nie the photo, that this was a general power outlet and he should not have drilled there[264] and Mr Nie responded as follows:

"The whole story is, for this kind of stuff - my point is that this hole I don't need to drill, but if my engineer still come to me, said this one is 100 per cent from - instruction from our subcontract, so I will go back to subcontract to check whether he really do that instruction to my engineer. To be honest, in the first - first several days after this instance happened I tried to protect Hansen. He knew that. That's why I tried to get everyone clear who should be responsible for this instant. So if Hansen said Stephen give him the message, or give him clear instruction you need to drill hole this one, I would ask Stephen to be on company, have a meeting with us. So he would have the responsible for this one, but I can't have evidence to show that.

... and in addition, I asking Hansen, if you knew this one is GPO why you did these things straightaway, you should ask us; this is abnormal. Also you should double‑check with Stephen. If you check with anyone else on site, like me or Harry or Daniel, they will tell you what is GPO, you don't need to drill the hole, or even if there is no one there, but if you see the mark‑up on the wall, you try to do the hole, but this one is leave the wall. You should call us, let us know. Like Max there's one hole on the lift wall, can we do it, and then I will talk to you; maybe we should wait a second, then we check for something, you know".[265]

• [181] Mr Nie's evidence during cross examination was that he knew what GPO stood for and that drilling should not have happened in that location.[266] However Mr Nie was then taken to a message exchange with Mr Vozzo on the morning of 29 August 2025.[267] The message exchange commences with a picture sent by Mr Nie of a hole that appears to have been drilled over a square marking with the core held inside it.[268] The message exchange then proceeded as follows:

"What cable are you trying to run through this core hole"

Mr Vozzo: "This is for a power point shouldn't be drilled out"

Mr Nie: "But your boy told my engineer to do the core hole"

Mr Vozzo: "We run conduit insider (sic) room to nearest powerpoint"

Mr Nie: "He got the pictures from you to say which on need to be core hole"

"He said he asked you to send him the pictures to show which one need to be core hole and you just send him all these pictures"

Mr Vozzo: "Picture shows gpo and I only ask to drill circles not the squares see this picture" (with a picture of Photo 6).

"I instructed only drill circles with diameter marking on it and written in pen gpo and picture has gpo with square not circle."

Mr Vozzo: 'This is the actual picture I sent Hansen"

Mr Nie: "I mean have you send the message to Hansen to say that only the circle one need to be core hoke (sic)"

Mr Vozzo: "I told him whien I give keys back and send pictures"

"Core hole markings on wall have circles with diameter markings on them, this one has no diameter markings on or near it and shouldn't have been drilled"

• [182] During cross examination Mr Nie acknowledged that it was confusing as to what Mr Vozzo was trying to do in the intercom room by looking at Photo 6.[269]

• • on 27 August 2024 Mr Nie told him that an incident had occurred where drilling work had been conducted on a lift shaft wall while an Otis employee was working inside the shaft and the Applicant had provided an instruction to Mr Antoun about where to drill without confirming the work with Otis;[270]

• either later that day or the following day, Mr Nie told him that Mr Vozzo had marked an area in a photo with 'GPO' for a 'general power outlet' to be installed in the communications room;

• • it is generally understood in the construction industry that a 'GPO' does not require drilling into concrete as the wiring is insulated in a conduit attached to the wall.[271]

• [184] During cross examination Mr Antoun, who had completed the drilling, was taken to an email sent from Mr Bosden to Mr Teofilovic and others on 29 August 2024.[272] In response to the question "Why was the hole requested" that email states:

"Our intercom company Tecco had sent through a mark up by photo. There has been a big misunderstanding between sub-contractor and our site engineer. A core hole was never needed in that location, the contactor was after the wall to be chased 20mm-30mm deep for their conduit for GPO. Please see attached photo, you can see 2- mark ups, the GPO and another on the floor where a core was needed. There has been a breakdown in communication."[273]

• [185] During cross examination Mr Antoun was asked questions about what he would do if he was asked to chase the wall 30mm to which he indicated he would use a chaser and would have to jack hammer concrete to remove it from the wall.[274] Mr Antoun was asked whether using the jack hammer would cause a vibration to the lift shaft wall to which he responded that he did not think so because it was a thick wall.[275]

• [186] During cross examination Mr Vozzo appeared to indicate that he had not given any instructions about chasing the wall because every GPO in rooms such as the communications room were surface mounted.[276]

• [187] Mr Wan said that on that same day he attended a meeting with Mr Nie, Mr Xia, Mr Teofilovic, Mr Robens, Ms Su (a Contract Administrator for the JQZ) and Mr Josifov (a Project Manager for JQZ) and at that meeting:

• Mr Teofilovic made clear that he was disappointed that another incident involving a lift shaft had occurred and asked JQZ to convince him that the project would be safe for Otis to work on going forward;

• • no Otis representative threatened to report JQZ to Safe Work NSW and nor did they ask that the Applicant be dismissed.[277]

• [188] Mr Robens' evidence was that in the days immediately following the incident, he had a number of meetings with JQZ representatives, including Mr Wan, Mr Xia, Mr Nie and Mr Bosden and while Otis representatives expressed concern about what had happened:

• at no stage did he make threats to report the incident to SafeWork NSW or insist that someone be 'sacked' over the incident; and

• • he did not observe nor was he made aware of any other Otis representatives making such statements to JQZ.[278]

• [189] The Applicant also gave evidence that on 28 August 2024 he received a call from Mr Antoun during which Mr Antoun said, in respect of the debris found in the Lift Shaft:

"This is ridiculous! I am pretty sure I have pulled the entire concrete out and if there was anything that went into the shaft it would only be a bit of water".[279]

• [190] During cross examination Mr Antoun's evidence was that he did not remember calling the Applicant.[280] When taken to the Applicant's phone records from 28 August 2024 Mr Antoun was unable to identify his phone number as having made a call to the Applicant.[281]

New process for core hole drilling from 28 August 2024

• [191] An incident report was completed by Mr Bosden describing the incident on 27 August 2024 as follows:

"Core hole requested by intercom company (Tecco). This company has no right to be putting services in lift shaft anyway. Young site engineer has booked core hole to be drilled without consultation with any site management. A 40 mm core was drilled on BO Tower 1 comms/NBN room which backs onto lift shaft 1 tower 1. Otis were working in the shaft at the same. Otis worker was on the lift car which was located at BO. All work ceased immediately in shaft." [282]

• [192] The incident report identified the following as contributing causes of the incident:

• "Lack of knowledge and experience"
• "Lack of training/education on-site"

• [193] During cross examination Mr Nie was taken to these factors and asked whether lack of experience and the Applicant being too young were contributing factors to which he replied:

"I mean, they are too young to qualify the - like some risk, but they are not too young to ask us questions if they're not sure, you know."[284]

• [194] Mr Xia indicated he did not agree that the Applicant was "quite junior"[285] but did agree that lack of supervision was a contributing factor[286] and explained that he understood the reference to "supervision" in the incident report to be as follows:

"So what he means, 'Supervision', is I think both - so in terms of internally, so the senior need to get more supervision to the junior and then for externals, we need to apply more pressure to the subcontractors and the contractors to make sure that they're doing the right thing."[287]

• [195] Mr Nie gave evidence that on 28 August 2024, in a meeting with JQZ site management, it was agreed that that a 'Permit for Penetrations and Coring' document would be implemented that needed to be completed by a site engineer and approved by site management before any future drilling work could commence, including but not limited to work affecting lift shafts.[288]

• [196] Following the incident Ms Su, a contract administrator on site, sent an email to all site engineers attaching a form and advising them that from the following day, it needed to be completed and approved by the site team prior to commencing saw cutting and core hole drilling work.[289]

• [197] Further, on 28 August 2024, a site meeting was called for all site engineers to discuss the core hole drilling procedures and a meeting memo was distributed via the WeChat Group.[290] The minutes of the site meeting state, among other things:

"From now on, all saw cutting, core hole drilling and concrete chasing activities MUST be recorded in written form, and it must be approved by site management before carrying out".

Meeting between Mr Nie and Applicant on 28 August 2024 and Applicant's suspension

• [198] Mr Wan gave evidence that he directed Mr Nie to advise the Applicant that he was not required to attend work until further notice.[291] Mr Nie said after the site meeting on 28 August 2024 he and the Applicant went to Mr Nie's office and during a conversation with the Applicant:

• he asked the Applicant to stay at home the following day;
• he advised the Applicant there was nothing he could do and to "try not to stress too much";
• he advised the Applicant he would notify the Applicant once he had the "result of the investigation"; and

• • the Applicant said words to the effect "Please help me explain to the company that this is the first time I have made this mistake".[292]

• [199] Later that afternoon Mr Nie sent the Applicant an email requesting the Applicant not to attend work until further notice and which stated:

"The reason for this is that we are investigation a work health and safety concern that has been raised with the business."[293]

• [200] The Applicant's evidence was that on 28 August 2024 at 2.10pm Mr Nie sent the Applicant a WeChat message stating that the incident had been reported to a higher level, that he would fill him in later and that he would do his best to help the Applicant.[294]

Call from Mr Nie to the Applicant on 29 August 2024

• [201] On 29 August 2024, the Applicant received a call from Mr Nie.[295] The Applicant's evidence was that Mr Nie said words to the following effect:

"Otis is serious this time. As you know there was a previous incident on-site caused by a colleague of ours where an Otis subcontractor was injured as that colleague authorised excavation works without notifying them.

Our company might not be able to come through for you this time. You need to prepare yourself for the worst-case scenario".[296]

• [202] The Applicant said he replied with words to the following effect:

"As I mentioned before, this is not my fault at all. All I did was follow your instructions and directions. Even if this was somehow my fault, I don't think the company is entitled to dismiss me over this."[297]

• [203] Mr Nie also provided a differing account of this conversation and his evidence was that he said words to the following effect:

"This incident is very serious Hansen. It is the third incident this year. The company is very upset, and I don't know what their final decision will be. You may receive a warning, or face other more serious consequences. You are still young and whatever happens, you can learn from this incident. Don't be too worried or sad. Fortunately, no one was injured."[298]

• [204] Mr Nie said the Applicant responded with words to the following effect:

"Thank you, Max. I am confused as to why this is happening to me, especially since the concrete did not fall into the shaft and no one got injured. Please help me explain this to the company."[299]

• [205] Mr Wan's evidence was that the Respondent's head office was not happy that a further incident had occurred and directed him to consider what type of disciplinary action may be appropriate in relation to the Applicant.[300]

• [206] Mr Nie's evidence was that at 4.56pm on 30 August 2024 he sent an email with a letter attached (Show Cause Letter) which, by way of summary:

• stated that its purpose was to invite the Applicant to show cause why his employment with the Respondent should not be terminated without notice for serious misconduct;
• alleged that on 27 August 2024 the Applicant arranged for a core hole to be drilled into a wall backing onto a lift shaft without first obtaining written confirmation from site management;
• alleged this was in breach of clearly communicated directions that confirmation must be obtained from site management before commencing any work regarding lift shafts;
• alleged that Otis workers were in the Lift Shaft at the time drilling occurred;
• alleged that by authorising the drilling, the Applicant placed Otis workers at imminent and serious risk of harm with the prospect that debris from the drilling could have fallen on them from a height;

• • directed the Applicant to attend a meeting with Mr Wan at 8am on Saturday 31 August 2024 to show cause as to why his employment should not be terminated.[301]

• [207] The Applicant's evidence was that subsequent to his dismissal on 31 August 2024, he learned that the Show Cause Letter had been sent to him on 30 August 2024 but he did not receive the letter on that date as it went to his junk mail[302] and he did not find it until 1 September 2024.[303] The Applicant did however agree that irrespective of when he saw the letter it was sent before 5pm on Friday 30 August 2024.[304]

• [208] Mr Nie said he did not receive a response from the Applicant and called him at 6pm that on 30 August 2024.[305] Mr Nie's evidence was that during that call:

• he told the Applicant he had emailed a letter that said that he and Mr Wan would like to meet with the Applicant the following day to discuss what happened;
• he told the Applicant he would have the chance to tell his story;

• • he told the Applicant that the Applicant had made a mistake by not reporting the drilling to Otis.[306]

• [209] During cross examination Mr Nie's evidence was that he did not use the words "termination" or "show cause"[307] and that he did not mention that the Applicant could bring a support person.[308]

• [210] The Applicant's evidence was that on 30 August 2024 he received a call from Mr Nie who said words to the following effect during that call:

"The company has made a decision and it is likely that they will allege misconduct on your part. Grandmetro has no chance to argue with Otis. I understand that they are looking at getting you to be the 'fall guy'.

The site manager Harry wants to have a chat with you onsite at 8.00am tomorrow".[309]

• [211] The Applicant said he responded with words to the following effect:

"Ok I will be there. However like I said to you before, I did nothing wrong and it is wrong to accuse me of wrongdoing."[310]

• • Mr Nie did not mention the Show Cause Letter to him in this call[311] and nor did he mention that the Applicant was entitled to bring a support person;[312]
• • he did not know the meeting was a 'show cause' meeting and that he would be required to show cause as to why his employment should not be terminated for serious misconduct;[313]

• had he known he would be required to 'show cause' at this meeting he would have requested an extension of time to prepare;

• • had he known he was entitled to bring a support person he would have arranged for a union representative to attend the meeting with him.[314]

• [213] Mr Nie did not agree with the Applicant's description of the conversation and denied that he ever told the Applicant that he would be the "fall guy".[315]

• [214] On the morning of 31 August 2024 the Applicant had a meeting on site with Mr Nie and Mr Wan. The Applicant's evidence was that during that meeting Mr Wan said words to the following effect:

"It is a very serious incident. Otis made a formal complaint to us over the incident, so we have to act. You should admit to us that it was your mistake and misconduct."[316]

• [215] The Applicant said he responded with words to the effect:

"I don't agree. First I did not cause the alleged incident and all my works were authorised by site management. Second, even if the subcontractors I arranged somehow caused this, I should not be treated as committed serious misconduct.

I understand you are trying to make me the fall guy however I won't admit fault because it was not my fault.

As you know, there was this prior incident where our colleague caused an accident where an Otis subcontractor was injured. That was much more serious than this and you did nothing to that person. I just don't understand why you are treating me differently and why I should admit something I didn't do."[317]

• [216] Mr Nie and Mr Wan provided a different account of the conversation and gave evidence that Mr Wan:

• explained that the purpose of the meeting was to discuss the incident on 27 August 2024 where the Applicant directed the contractor to drill a core hole into a wall that backed onto a lift shaft;

• • said words to the effect that this was not something that Tecco actually required the Applicant to do and that he did not inform Otis of the work before taking action.[318]

• [217] Mr Nie said the Applicant responded with words to the following effect:

"I do not believe I should be responsible for this. The concrete did not fall in, and I checked everything before they started drilling. Why am I being treated differently to Jerry? It feels like I am being made to take responsibility for this."[319]

• [218] Mr Wan gave similar evidence and said the Applicant responded with words to the following effect:

"I do not believe I should be responsible for this. The concrete did not fall in, and no one was injured. Nothing happened to Jerry when he made the same mistake. It feels like you are singling me out for this."[320]

• [219] Mr Nie and Mr Wan left the office, agreed that the Applicant had not said anything to justify his actions, reentered the office and then communicated to the Applicant that his employment was terminated.[321]

• [220] The Applicant said Mr Wan and Mr Nie indicated they would discuss the matter with their superiors, left the meeting room, and returned after a few minutes upon which Mr Wan said words to the following effect:

"A decision has been made to dismiss you and there is nothing you can do. We will give you 4 weeks' notice pay in advance and write a gentle termination letter stating that you are dismissed because of your lack of experience. We will not mention this incident in the dismissal letter."[322]

• [221] Mr Wan refuted this and gave evidence that at no point did Mr Wan suggest the Respondent would pay the Applicant four weeks' in lieu of notice or agree to write a 'gentle' termination letter.[323]

• [222] During cross examination Mr Nie indicated that the Applicant asked for a gentle termination letter and Mr Nie indicated he could provide a reference letter and be his referee.[324] Mr Nie denied saying he would provide the Applicant with four weeks' notice payment.[325]

• [223] On the afternoon of 31 August 2024, the Applicant received an email from the Respondent attaching the Termination Letter notifying him of the termination of his employment on the grounds of serious misconduct.[326]

• [224] The Applicant said he called Mr Nie after he received the Termination Letter and Mr Nie told him there was nothing he could do as headquarters had determined that the incident was his fault.[327]

• [225] Mr Nie provided a different account of the conversation and gave evidence that the Applicant disagreed that he had engaged in serious misconduct, sought that the Respondent change the reference to serious misconduct in the termination letter and sought payment of notice.[328] Mr Nie's evidence was that in response he said:

"I will try and talk to someone Hansen, but this is very hard to do. I don't think you are entitled to notice pay."[329]

• [226] Mr Nie contacted the financial controller who suggested that the Applicant send an email.[330]

• [227] The Applicant received payment up to the date of his termination and did not receive any payments in respect of notice.[331]

• [228] As set out earlier in this decision, the Termination Letter indicates that the Respondent dismissed the Applicant on the grounds of serious misconduct because he arranged for a core hole to be drilled into the Lift Shaft Wall:

• without first obtaining written confirmation from site management and "in breach of clearly communicated directions that confirmation must be obtained from site management before commencing ant work regarding lift shafts"; and

• • placing workers, who were in the Lift Shaft at the time the drilling occurred, at imminent and serious risk of harm with the prospect that debris from the drilling could have fallen on them from a height.[332]

• [229] However, during the hearing Mr Wan's evidence suggests he said the following in the meeting on 31 August 2024 in which the Applicant was dismissed:

"I told Hansen, this situation was so serious. You take the responsibility for the - (indistinct) for him. (Through interpreter) I told Hansen in the morning of August 31 he should be responsible for several things. The first thing is that he has drilled a hole for the area that shouldn't have hole, and secondly, the second reason is that he didn't notice someone who was inside the place which he should. (Direct) Yes. That's (indistinct) reason".

• [230] This suggests that Mr Wan's actual reasons for dismissal may have been different to those articulated in the Termination Letter, being that the Applicant arranged for a hole to be drilled where it should not have been drilled and because he did not notice someone inside the Lift Shaft when doing so.

• [231] It can be drawn from the evidence that:

• the Applicant was a relatively inexperienced junior site engineer, having just over 14 months' experience with the Respondent at the time of his dismissal in his first role on a construction site;
• the Applicant's role involved liaising with subcontractors on site to conduct and progress works, including Tecco and Concrete Solutions;
• the Applicant is Mandarin speaking and English is the Applicant's second language but Mr Vozzo from Tecco, who provided drilling instructions to the Applicant, spoke English and was not fluent in Mandarin.

• [232] While the Applicant had his mandatory White Card, this is not site-specific training and in respect of formal training given to the Applicant upon his commencement, this appeared to have been limited to a 20-to-30-minute walk through of the Project site. While the Applicant appears to have been assigned an engineer to work alongside him during his initial stages of employment, I am not persuaded that the engineer or engineers assigned to the Applicant were senior or that they explained to him any risks and measures to mitigate them in relation to lift shafts and drilling.

• [233] While toolbox talks and site engineers' meetings were regularly held, the evidence does not establish that, prior to the January Incident, procedures for drilling near lift shafts were explained to site engineers.

• [234] The January Incident was serious and resulted in injury to a worker. Lack of supervision and training were factors contributing to it and Otis sought assurance that measures would be put in place so its contractors could work safely on the Project before it was willing to return. In this context the management team devised a corrective action plan which included a requirement that:

"All lift shaft work must have written communication and confirmation prior to any works starting. Specifics of task, area involve and the time in which the work will be done must all be agreed to by both parties".

• [235] However, it is unclear as to how the above-described requirement was to be implemented.

• [236] Both Mr Xia and Mr Nie pointed to a subsequent meeting with site engineers on either 22 or 23 January 2024. In respect of Mr Xia's record of the minutes of a meeting on 22 January 2024, the signature of the Applicant is missing. Mr Xia's evidence suggests that people may not sign an attendance sheet because they are engaged in another task and are therefore not at the meeting, the Applicant's evidence was that he was in the basement for most of the day and I find on the balance of probabilities that the Applicant did not attend a meeting on 22 January 2024.[333]

• [237] While Nie's meeting minutes point to a meeting on 23 January 2024 and that the Applicant was in attendance, there are questions around the accuracy of the minutes which Mr Nie said incorrectly recorded the time of the meeting as being 4pm when the meeting was held in the morning and this may have been because he used a template.[334] It also seems peculiar that while Mr Nie was in communication with the WhatsApp Group on 23 January 2024 and requested that "Jerry and Joss" attend a meeting at 4pm about the incident, no mention is made of other attendees. I am not persuaded that the Applicant attended the meeting on 23 January 2024 and it seems more probable that the minutes were a record of the 4pm meeting with "Jerry and Joss" but that Mr Nie used a template and did not update the names of the attendees.

• [238] Further, while the minutes of the meeting on 23 January 2024 referred to by Mr Nie state, among other things:

• "Written confirmation must be obtained before commencing any work regarding lift shafts"; and
• "Under no circumstances that JQZ workers can do any work without OTIS confirmation"

Mr Nie did not circulate the minutes.[335] The evidence does not establish that a procedure was circulated to the Applicant in written form or was otherwise formally communicated to the Applicant prior to the August Incident.

• [239] I accept that the Respondent told Mr Robens that a procedure was being introduced in which a site engineer who was responsible for supervising a particular task that affected any lift shaft had to receive written confirmation from Otis before such work was carried out, particularly drilling.[336] It is also evident that in February 2024 the Applicant messaged Mr Robens to advise him that he was going to start drilling. However this does not establish the existence of an 'approval' process but simply indicates that the Applicant was notifying Mr Robens of the work to be carried out.

• [240] During cross examination the Applicant appeared to indicate it was his duty to notify Mr Robens before he started his work[337] and that he was aware of or felt a need to communicate with Mr Robens in the way he did on 9 February 2024.[338] In the absence of a formal direction it is unclear why the Applicant felt such a need. It seems likely this is because he understood it was important not to drill into the lift shaft if somebody was in in there [339] and knew that anything that affected the lift shaft was unsafe while somebody was in there.[340]

• [241] Even if a direction regarding drilling had somehow reached the Applicant that:

• "Written confirmation must be obtained before commencing any work regarding lift shafts"; and
• "Under no circumstances that JQZ workers can do any work without OTIS confirmation",

it is unclear as to what was expected of the Applicant in this regard. It is unclear who was to seek such confirmation. During cross examination the Applicant indicated that he understood the safety issue[341] and was asked why he didn't take any blame for what happened to which he responded:

"Because I thought that was been approved."[342]

• [242] It seems likely that the Applicant understood the drilling work he was asked to coordinate to have been "approved" by his site managers. While the Applicant may have felt a need to notify Mr Robens of drilling, it is by no means clear that the Applicant understood that he was required to obtain certain approvals before work commenced and the evidence does not establish that such a requirement was communicated to him.

• [243] It is apparent that the Applicant, despite having relatively little experience on construction sites, working on a high-rise construction site where risks were present and having English as a second language, was expected by the Respondent to oversee the work of multiple contractors on a given day who spoke and gave instructions in English. The Respondent's approach to his training and supervision of the Applicant was deficient in this regard. Indeed the incident report identified the following as contributing causes of the incident on 27 August 2024:

• "Lack of knowledge and experience"
• "Lack of training/education on-site"

• [244] The concrete found by Otis seems unlikely to be the concrete concerned in the drilling on 27 August 2024 as it is too large for the hole. It is not in contention that, unlike the circumstances of the January Incident, nobody was injured because of the drilling having occurred. It is also unclear as to whether someone was actually in the lift shaft.

• [245] Despite this, in circumstances where the Applicant knew there was a safety risk associated with drilling into a lift shaft when someone could be inside it, the Applicant was not without fault in his approach to the drilling work. In particular:

• Photo 6 provided by Mr Vozzo is, as acknowledged by Mr Nie, confusing, and it is apparent that the Applicant did not know what a GPO was as marked in Photo 6. This indicates a lack of familiarity with construction terminology. Notwithstanding the confusing instructions given to him by Mr Vozzo, instead of asking Mr Vozzo or his managers questions to understand the task and whether drilling was required in the location marked GPO, the Applicant has nevertheless requested that Concrete Solutions drill the hole in the Lift Shaft Wall.

• • It seems likely that while the Applicant ordinarily felt a need to tell Mr Robens about the drilling, he did not do so on 27 August 2024 because he was busy juggling multiple other tasks and overseeing multiple contractors that day.[344] In the context of his busy day it appears the Applicant has prioritised task completion over safety.

• While the Applicant claims to have checked the Lift Shaft to make sure nobody was in it, the manner in which the Applicant did so was unsafe because:

• The Applicant appears to have done so by checking whether contractors had left a toolbox at the Lift Shaft entrance and whether he could hear noise. This is a point-in-time assessment and would not deal with a situation where a contractor subsequently entered the Lift Shaft. Further, the Applicant left before the drilling was completed by the contractor and could not have known what happened in the Lift Shaft after he left.

• o The doors had been installed on the Lift Shaft as at 27 August 2024 and I accept that when doors are installed it is not possible to verify if anyone is inside a lift shaft without confirming with Otis.[345]

• [246] In the circumstances of this matter, I do not consider the Applicant's actions amount to serious misconduct as asserted by the Respondent. Rather, the Applicant's poor approach to managing the drilling work was reflective of his inexperience and his actions gave rise to a risk to health and safety. Overseeing the work of other contractors in a high-rise, high-risk construction environment comes with a high level of responsibility. The lack of training, direction and supervision given to the Applicant in the early stages of his career and in relation to the drilling work did not assist him. However there also appears to be a fundamental gap in the knowledge and judgment required for the role to which he had been appointed, particularly when expected to deal with contractors who speak and provide instructions in a language other than his first language and who use construction terminology with which he is unfamiliar and in dealing with associated safety risks that may arise from their work. This nature of this gap is such that it is unlikely to have been easily remedied by additional safety training in the short term.

• [247] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to both the Applicant's conduct and capacity.

Section 387(b) - Was the Applicant notified of the valid reason?

• [248] The Respondent relies on both the Termination Letter and Show Cause Letter in relation to this consideration.[346]

• [249] The Applicant's evidence was that after his dismissal on 31 August 2024, he learned that the Show Cause Letter had been sent to him on 30 August 2024 but he did not receive the letter on that date as it went to his junk mail.[347]

• [250] There is no evidence to support that the Show Cause Letter went to the Applicant's junk mail, other than the Applicant's assertion. However, the reasons for dismissal set out in the Show Cause Letter are as follows:

• on 27 August 2024 the Applicant arranged for a core hole to be drilled into a wall backing onto a lift shaft without first obtaining written confirmation from site management in breach of clearly communicated directions that confirmation must be obtained from site management before commencing any work regarding lift shafts;

• • that Otis workers were in the lift shaft at the time drilling occurred and by authorising the drilling, the Applicant placed Otis workers at imminent and serious risk of harm with the prospect that debris from the drilling could have fallen on them from a height.[348]

• [251] These reasons are characterised as serious misconduct by the Respondent in the Show Cause Letter and Termination Letter. The reason I have found as being a valid reason for the dismissal is different. In particular, I have earlier found that there were no "clearly communicated directions that confirmation must be obtained from site management before commencing any work regarding lift shafts" provided to the Applicant. The Applicant therefore did not act in contravention of these directions, and I did not find that he engaged in serious misconduct as alleged by the Respondent. Rather, the reason I have found to be a valid reason are those related to the Applicant's conduct and capacity to perform the role in which he was employed as referred to earlier in this decision. The Show Cause Letter did not notify the Applicant of this reason.

• [252] The evidence does however establish that Mr Nie called the Applicant twice prior to the termination meeting. In a call on 29 August 2024, the Applicant was put on notice that the incident was serious and that, taking the Applicant's account was told by Mr Nie that he "needed to prepare [himself] for the worst-case scenario"[349] or, taking Mr Nie's account was told that he "may receive a warning, or face other more serious consequences".[350] It would have been apparent to the Applicant that Mr Nie was talking about consequences arising from the Applicant concerning the incident concerning the lift shaft. I also accept that Mr Nie called the Applicant on 30 August 2024 to confirm his attendance at the meeting the following day as he had not heard from him. There are competing versions of the call between Mr Nie and the Applicant on 30 August 2024. While Mr Nie did not use the words 'show cause' during the call, his evidence was that,

"...at that moment I just care about his feeling. I just care about the way he feeling and this pressure, you know. So I just want to fix this issues ASAP, so I just ask him, you know, just come to site, we discuss more. I didn't (indistinct) the professional words like 'show cause.' No, I didn't talk that, because our language is Mandarin. I just talked to him what I feeling, you know."[351]

• [253] The Applicant attended the meeting on 31 August 2024 and I consider it likely that Mr Nie would have told the Applicant what the meeting was about when he called him on 30 August 2024. In this regard I accept that Mr Nie told the Applicant that the Applicant had "made a mistake by not reporting the drilling to Otis" and that he "would have the chance to tell his story". [352] I accept that the Applicant could have avoided the incident had he reported the drilling to Otis. However, this would be, in my view, an over-simplification of the description of the valid reason for the Applicant's dismissal. As noted earlier in my decision, the deficiencies in the Applicant's approach to arranging the drilling extend beyond this.

• [254] As noted earlier, Mr Wan's actual reasons for dismissal appear to have been different to those articulated in the Termination letter with Mr Wan telling the Applicant during the meeting on 31 August 2024 that he had drilled a hole in an area that shouldn't have, and secondly, that he didn't notice someone who was inside the Lift Shaft. The evidence does not establish that those reasons were clearly communicated to him before the decision to dismiss him.

• [255] In all the circumstances, I find that the Applicant was not notified of the reason for his dismissal.

Section 387(c) - Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

• [256] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[353]

• [257] The requirements of s.387(c) of the FW Act will be satisfied "[w]here 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..."[354]

• the Show Cause Letter gave the Applicant an opportunity to respond;
• while the Applicant claims not to have seen the Show Cause Letter until after he was dismissed, Mr Nie called the Applicant on 30 August 2024 to confirm that he had received the Show Cause Letter and that the Applicant would attend the Project site the next day;

• • the Applicant was invited in the 31 August 2024 meeting to show cause why he should not be dismissed before the decision to dismiss was made.[355]

• [259] These reasons for the Applicant's dismissal are characterised as serious misconduct by the Respondent in the Show Cause Letter and Termination Letter and are not reflective of the reason I have found to be a valid reason for the dismissal. The evidence also suggests that Mr Wan's actual reasons for dismissal appear to have been different to those articulated in the Termination letter with Mr Wan telling the Applicant during the meeting on 31 August 2024 that he had drilled a hole in an area that shouldn't have hole, and secondly, that he didn't notice someone who was inside Lift Shaft.

• [260] Further, while Mr Wan raised these reasons with Applicant during the meeting on 31 August 2024 the evidence does not establish that those reasons were clearly communicated to him before the decision to dismiss him. In those circumstances, I find that the Applicant was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.

Section 387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

• [261] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

• [262] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."[356]

• [263] There is no evidence of the Applicant requesting a support person and in all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Section 387(e) - Was the Applicant warned about unsatisfactory performance before the dismissal?

• [264] There is no evidence of any warnings about the Applicant's performance I find that the Applicant was not warned of his unsatisfactory performance before dismissal.

Section 387(d) - To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [265] Neither party submitted that the size of the Respondent's enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent's enterprise had no such impact.

Section 387 (e) - To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [266] Neither party submitted that there was an absence of dedicated human resource management specialists or expertise in the Respondent's enterprise or that this was a factor likely to impact on the procedures followed in effecting the dismissal. While there is no evidence of the dedicated human resources specialists in the Respondent's enterprise I find that the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise had no such impact.

• [267] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [268] In this regard the Applicant submitted the Commission should have regard to the following:

• A lack of supervision, training and education onsite was identified by the Respondent's safety officer Jack Bosden as reasons for the safety incident on 27 August 2024.
• The Applicant is still a 'young worker' and may not be able to cope with an unexpected stressful situation.
• A prior incident involving injury occurred on 22 January 2024 and the junior site engineer was not terminated/dismissed over the incident.
• The Applicant did not have any issues with performance prior to the incident on 27 August 2024.

• • The Respondent was under financial pressure to resolve the issue with Otis as soon as possible so that they could resume working onsite.[357]

• [269] The Respondent submitted that other matters the Commission should take into account include:

• while the Applicant has sought to point out the differential treatment of him compared to Jerry Guo who was responsible for the 22 January 2024 incident, it is noted that the January incident was the first time such an incident had occurred, which the Company and JQZ immediately sought to control the risk of occurring again by introducing a new procedure;
• the Applicant was not an employee with a significant length of service, having been employed for about 14 months at the time of his dismissal; and

• • the Applicant's failure to accept any responsibility for the inherent safety risk associated with drilling into a lift shaft wall, which he acknowledged, on the misconceived view that he thought had been approved.[358]

• [270] I agree that a lack of supervision, training and education onsite contributed to the events that ultimately led to the Applicant's dismissal. The Applicant was employed by the Respondent for a little over 14 months at the time of his dismissal and it was his first job on a construction site. The Applicant's evidence was that he discussed his lack of site experience with Mr Nie at the time of interview and was told he would be trained on the job.[359]

• [271] The Applicant is clearly working on large, high rise construction sites. He is working in a high risk environment. Despite this the site induction appears to have been limited to a 20 to 30 minute walk through and while the Applicant was assigned another engineer in his initial stages, I am not persuaded that this person provided any structured training to the Applicant.

• [272] Mr Nie was overseeing the construction of 600 units and had around 10 site engineers reporting to him. Mr Nie is clearly a busy person and there was a lack of supervision provided to the Applicant when he organised this drilling work. While Mr Antoun appears to have had concerns about drilling into the Lift Shaft the Applicant nevertheless directed him to drill there and he complied.

• [273] While the Applicant's first language is Mandarin, and this is the language the site engineers used to communicate with each other regarding their work activities in the WeChat group, Mr Vozzo, Mr Antoun and likely other subcontractors communicated in English. Mr Vozzo pointed to a language barrier necessitating a walkthrough of his drilling locations in February yet there was no such process adopted when the August Incident occurred. That the Applicant did not know what a GPO meant suggests a lack of familiarity with construction terminology on site, yet he was expected to deal with contractors who used such terminology.

• [274] The facts of this matter show that the Applicant was, in practice, directing and overseeing the work of subcontractors. On the day of the August Incident, the Applicant had to deal with multiple contractors and juggle multiple tasks and competing priorities. This comes with responsibility and requires judgement in the context of a high-risk construction environment and in this context the Respondent has thrown the Applicant into the 'deep end' through its lack of structured training and deficient supervision.

• [275] I do however agree with the Respondent that the Applicant does not appear to have accepted any responsibility for the inherent safety risk associated with drilling into a lift shaft wall, even though he knew doing so was unsafe if someone could be in a lift shaft. There are important lessons for the Applicant to learn from the August Incident. However, he is not solely to blame for the August Incident and the Respondent's own deficiencies have meant it has asked the Applicant to undertake a role in which he was not likely to succeed in the absence of adequate supervision and training. The experience the Applicant had with the Respondent in his first role on a construction site was not a positive one given the August Incident and consequences that followed. The fact that the Applicant had only served 14 months does not assist the Respondent in circumstances where it highlights his limited experience. I consider that the factors I have referred to above should be taken into account.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

• [276] I have made findings in relation to each matter specified in section 387 as relevant.

• [277] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[360]

• [278] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh in circumstances where the Respondent has purported to dismiss him summarily for serious misconduct but had appointed him to a role involving overseeing the work of contractors on a large high risk construction site when has not previously worked on a construction site, and without provision of adequate training and supervision. Whilst the Applicant's inexperience and poor judgement were contributing factors to the August Incident and I have found that there is a valid reason for the dismissal, the Respondent's deficiencies in training and supervision were also a significant contributing factor. Instead of placing the blame squarely on the Applicant's shoulders it should have reflected on what actually went wrong, as identified in its own incident report concerning the incident, being a "lack of knowledge and experience, "lack of training/education on-site" and "lack of supervision"[361], and considered the appropriate response in that context.

• [279] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.

• [280] Being satisfied that the Applicant:

• made an application for an order granting a remedy under section 394;
• was a person protected from unfair dismissal; and
• was unfairly dismissed within the meaning of section 385 of the FW Act,

I may, subject to the FW Act, order the Applicant's reinstatement, or the payment of compensation to the Applicant.

• [281] Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement of the Applicant inappropriate?

• [282] The Applicant submitted that in circumstances where the Applicant has indicated to the Commission that he does not wish to be reinstated the Respondent has broken down because of the unfair dismissal, the Commission should consider that reinstatement is not appropriate and order compensation in lieu of reinstatement under section 392 of the FW Act instead.[362]

• [283] The Respondent also submitted that reinstatement is not appropriate, including because of the Applicant's unambiguous evidence that he does not seek reinstatement with the Respondent.[363]

• [284] The Applicant has since confirmed that he does not wish to be reinstated. In such circumstances, "the Applicant's disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant's desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace."[364]

• [285] Having regard to the matters referred to above, I consider that reinstatement is inappropriate.

Is an order for payment of compensation appropriate in all the circumstances of the case?

• [286] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, "[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one..."[365]

• [287] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[366]

• [288] In all the circumstances, I consider that an order for payment of compensation is appropriate because the Applicant has not been able to secure another job and has suffered financial loss, the extent of which I consider further below.

Compensation - what must be taken into account in determining an amount?

• [289] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:

(a) the effect of the order on the viability of the Respondent's enterprise;

(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;

(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;

(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;

(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the Commission considers relevant.

• [290] I consider all the circumstances of the case below.

Effect of the order on the viability of the Respondent's enterprise

• [291] There is no dispute, and I am satisfied that an order for compensation would not have an effect on the viability of the employer's enterprise.

• [292] The Applicant served a little over 14 months. While this is not a lengthy period, given my earlier findings that the Applicant's inexperience contributed to the harshness of the dismissal, in the circumstances of this matter I do not consider that the Applicant's length of service supports reducing or increasing the amount of compensation ordered.

Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed

• [293] As stated by a majority of the Full Court of the Federal Court, "[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive... the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination."[367]

• [294] The Applicant submitted that given the Project is still ongoing it is likely that but for the termination of the Applicant's employment he would have remained employed for the Respondent for at least 6 months.[368]

• [295] However I have earlier found that there is a fundamental gap in the knowledge and judgment required for the role to which the Applicant been appointed and the nature of this gap is such that it is unlikely to have been easily remedied by additional safety training in the short term. Had the Applicant not been unfairly dismissed, there would have likely been a period in which the Respondent considered the other contributing causes of the August Incident as identified in its incident report, being:

• "Lack of knowledge and experience"
• "Lack of training/education on-site"

• [296] Had this occurred there would likely have been a brief period of assessment of the Applicant's failures in relation to the August Incident, this would have been discussed with the Applicant in a procedurally fair way and the conclusion would likely have been drawn that the Applicant's capability gap in respect of the role to which he had been appointed could not have been easily bridged. While the Applicant's employment is not likely to have ended in the abrupt manner that it did on 31 August 2024, in my view is unlikely to have continued beyond a further period of six weeks. The Applicant earned $75,000 per annum and during the six week period would have earned $8,653.85.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

• [297] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[370] What is reasonable depends on the circumstances of the case.[371]

• [298] The Applicant provided evidence of his efforts to find a job since dismissal and while he said he was suffering from adjustment disorder after the dismissal and was obtaining assistance from psychologists, his evidence suggests he applied for numerous positions including roles of:

• Junior Project Manager;
• Junior/Assistant Project Manager - Client Side;
• Assistant / Project Manager - Client Side Hospitality Projects;
• Graduate Civil Engineer;
• Assistant Project Manager/Project Manager (Client-side, construction);
• Assistant Project Manager;
• Site Engineer;

• • Construction Project Manager. [372]

• [299] Mr Nie's evidence was that many of the positions the Applicant said he had applied for were project manager or civil engineer roles for which he did not believe the Applicant had the qualifications or level of experience required and he believed this was why he had not secured alternative employment.[373] I note however that some of the above roles are at the junior or graduate level. I find that the Applicant has taken reasonable steps to mitigate his loss.

• [300] The Applicant's evidence is that he has been unable to find alternative work. That evidence is not challenged by the Respondent and I am satisfied that the Applicant has not earned any income from employment or other work since his dismissal.

Compensation - how is the amount to be calculated?

• [301] As noted by the Full Bench, "[t]he well-established approach to the assessment of compensation under s.392 of the FW Act... is to apply the "Sprigg formula" derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[374] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[375]."[376]

• [302] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination. Workers' compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

• [303] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $8,653.85 on the basis of my finding that the Applicant would likely have remained in employment for a further period of six weeks. This estimate of how long the Applicant would have remained in employment is the "anticipated period of employment".[377]

• [304] I have found that the Applicant has not earned any income since his dismissal and I note that only monies earned since termination for the anticipated period of employment are to be deducted.[378]

• [305] I have considered whether there are various factors that might otherwise have affected the Applicant's earning capacity across the relevant period and have decided not to make any adjustments for contingencies.

• [306] I have considered the impact of taxation but have elected to settle a gross amount of $8,653.85 and leave taxation for determination.

• [307] Having applied the formula in Sprigg, I am nevertheless required to ensure that "the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,"[379] including my findings above relevant to s.392(2) of the FW Act. I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act.

Compensation - is the amount to be reduced on account of misconduct?

• [308] While the Applicant's own conduct did contribute to the Applicant's decision to dismiss him, in the circumstances of this matter, I do not consider the Applicant's actions amount to misconduct as asserted by the Respondent. Rather, the Applicant's poor approach to managing the drilling work was reflective of his inexperience and lack of training and supervision and I do not consider that a reduction in the amount of compensation is warranted in the circumstances.

Compensation - how does the compensation cap apply?

• [309] Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(a) the amount worked out under section 392(6); and

(b) half the amount of the high income threshold immediately before the dismissal.

• [310] The amount worked out under section 392(6) is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the Applicant was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the Applicant for the period of leave in accordance with the regulations.

• [311] The Applicant was not on leave without pay or without full pay during the 26 weeks immediately before the dismissal.

• [312] There was no dispute and I find that the total amount of the remuneration received by the Applicant during the 26 weeks immediately before the dismissal was $37,500.

• [313] There was no dispute and I find that the total amount of the remuneration to which the Applicant was entitled during the 26 weeks immediately before the dismissal was $37,500.

• [314] The high income threshold immediately before the dismissal was $175,000 Half of that amount is $87,500.

• [315] The amount of compensation ordered by the Commission must therefore not exceed $37,500.

• [316] In light of the above, I will make an order that the Respondent pay $8,653.85 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.

2 December and 3 December at the Fair Work Commission in Sydney.

[1] Transcript of Proceedings, 2 December 2024 at PNs 734 to 737.

[2] Applicant's 'Unfair dismissal application Form F2', response to q. 1.1; Respondent's 'Form F3 - Employer response to unfair dismissal application', response to q. 1.1.

[3] Letter of Employment dated 20 June 2023 attached to Applicant's 'Unfair dismissal application Form F2'.

[4] Applicant's 'Unfair dismissal application Form F2', response to q. 2.1.

[5] Applicant's 'Unfair dismissal application Form F2', response to q. 1.3; Respondent's 'Form F3 - Employer response to unfair dismissal application', response to q. 1.3 and 3.1.

[6] Applicant's 'Unfair dismissal application Form F2', response to q. 2.1 and attached Termination Letter dated 31 August 2024

[7] Applicant's 'Unfair dismissal application Form F2', response to q. 1.3.

[8] Warrell v Fair Work Australia [2013] FCA 291.

[9] Warrell v Fair Work Australia [2013] FCA 291.

[10] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

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

[13] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[14] Edwards v Justice Giudice [1999] FCA 1836, [7].

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

[16] Respondent's 'Form F3 - Employer response to unfair dismissal application', response to q. 1 3.1.

[17] Applicant's 'Unfair dismissal application Form F2', response to q. 2.1.

[18] Applicant's Closing Submissions, at [65].

[19] Respondent's Closing Submissions at [45] - [47].

[20] Applicant's Reply Statement at [68] - [69].

[21] Applicant's Reply Statement at [69].

[22] Transcript of Proceedings, 2 December 2025, PN 86.

[24] Applicant's Reply Statement at [70] - [71].

[27] Transcript of Proceedings, 2 December 2025, PNs 1165 - 1173.

[28] Transcript of Proceedings, 2 December 2025, PN 799.

[31] Transcript of Proceedings, 2 December 2024 at PN 186.

[33] Transcript of Proceedings, 2 December 2024 at PN 184.

[34] Applicant's Reply Submissions at [34].

[36] Applicant's Reply Submissions at [34].

[37] Applicant's Reply Statement at [33].

[39] Transcript of Proceedings, 2 December 2024 at PNs 193 - 194.

[40] Applicant's Reply Statement at [7].

[41] Applicant's Reply Statement at [7].

[42] Transcript of Proceedings, 2 December 2025 at PNs 134 - 137.

[43] Transcript of Proceedings, 2 December 2025 at PNs 137 - 138.

[44] Applicant's Reply Statement at [5] and [6].

[45] Transcript of Proceedings, 2 December 2024 at PNs 781, 784.

[46] Transcript of Proceedings, 2 December 2025 at PNs 176 - 179.

[47] Transcript of Proceedings, 2 December 2024 at PN 192.

[48] Transcript of Proceedings, 2 December 2024 at PN 702.

[53] Exhibits R1 and R2; Transcript of Proceedings, 2 December 2025 at PNs 140 - 174.

[54] Transcript of Proceedings, 2 December 2025 at PN 1156.

[55] Transcript of Proceedings, 2 December 2025 at PN 1158.

[56] Transcript of Proceedings, 2 December 2025 at PN 1159.

[57] Transcript of Proceedings, 2 December 2025 at PN 1160.

[58] Applicant's Reply Statement at [68].

[60] Applicant's Reply Statement at [42].

[61] Applicant's Reply Statement at [8].

[62] Applicant's Reply Statement at [8].

[63] Applicant's Statement at [21] and [22].

[68] Wan Statement at [5]; Nie Statement at [9].

[70] Nie Statement at [10], Xia Statement at [12], Robens Statement at [12].

[73] Wan Statement at [6]; Xia Statement at [13]; Nie Statement at [10]./

[74] Respondent's Closing Submissions at [17].

[76] Applicant's Reply Statement at [41].

[77] Nie Statement at [11]; Wan Statement at [7], Xia Statement at [13]..

[78] Nie Statement at [11], Attachment MN1.

[79] Transcript of Proceedings, 2 December 2024, PN930.

[80] Transcript of Proceedings, 2 December 2024, PN931.

[81] Transcript of Proceedings, 2 December 2025, PN 1121.

[89] Applicant's Reply Statement, Annexure HQ - 13. See page 339 of the Digital Court Book.

[90] Applicant's Reply Statement, Annexure HQ - 13. See page 3441 of the Digital Court Book.

[91] Transcript of Proceedings, 2 December 2024 at PNs 862 - 866.

[95] Transcript of Proceedings, 2 December 2024 at PN 1463.

[97] Transcript of Proceedings, 2 December 2024 at PN 1285.

[98] Transcript of Proceedings, 2 December 2024 at PN 1320.

[99] Transcript of Proceedings, 2 December 2024 at PNs 1303 - 1304.

[100] Transcript of Proceedings, 2 December 2024 at PNs 1298 - 1301.

[101] Applicant's Reply Statement at [9].

[102] Applicant's Reply Statement at [35].

[103] Applicant's Reply Statement at [10].

[104] Applicant's Reply Statement at [11], Annexure HQ-2.

[105] Applicant's Reply Statement at [11].

[106] Applicant's Reply Statement at [12] and [36], Annexure HQ-13, Annexure HQ-16.

[107] Transcript of Proceedings, 2 December 2024 at PN 1227.

[108] Transcript of Proceedings, 2 December 2024 at PN 265.

[109] Applicant's Reply Statement at [37].

[111] Transcript of Proceedings, 2 December 2024 at PNs 884 - 885.

[112] Transcript of Proceedings, 2 December 2024 at PN 894.

[117] Robens Statement, Attachment WR-2.

[118] Applicant's Statement at [15].

[119] Applicant's Reply Statement at [64].

[120] Applicant's Reply Statement at [65].

[121] Transcript of Proceedings, 2 December 2025 at PN 293.

[122] Transcript of Proceedings, 2 December 2025 at PN 402.

[123] Transcript of Proceedings, 2 December 2024, PNs 331 - 332; Exhibit R4.

[124] Transcript of Proceedings, 2 December 2024, PN 339.

[125] Transcript of Proceedings, 2 December 2024, PN 340.

[126] Transcript of Proceedings, 2 December 2024, PN 341.

[128] Transcript of Proceedings, 2 December 2024, PNs 356 - 373, PNS 397 -398.

[129] Applicant's Reply Statement at [15].

[130] Applicant's Reply Statement at [13], [15].

[131] Applicant's Statement at [13].

[132] Transcript of Proceedings, 2 December 2024 at PNs 254, 643.

[133] Nie Statement at [15]; Xia Statement at [16] - [17]; Robens Statement at [15].

[135] Xia Statement at [18]; Nie Statement at [19].

[138] Applicant's Reply Statement at [16].

[139] Applicant's Reply Statement at [17], Annexure HQ-14.

[140] Transcript of Proceedings, 2 December 2024, PN 906.

[141] Vozzo Statement at [4] - [5].

[144] Applicant's Reply Statement at [46].

[146] Applicant's Reply Statement at [50].

[147] Transcript of Proceedings, 3 December 2025 at PNs 1761 - 1765

[148] Transcript of Proceedings, 3 December 2025 at PN 1775 - 1776.

[149] Applicant's Reply Statement at [51].

[150] Applicant's Reply Statement at [51].

[151] Applicant's Statement at [16].

[152] Applicant's Statement at [16].

[153] Applicant's Statement at [17].

[154] Applicant's Reply Statement at [54].

[157] Vozzo Statement, Attachment SV-2.

[158] Applicant's Reply Statement at [55].

[159] Applicant's Statement at [18] - [19].

[160] Applicant's Reply Statement at [55].

[161] Applicant's Statement at [18] - [19].

[162] Applicant's Statement at [20].

[163] Applicant's Statement, Annexure HQ-3.

[164] Applicant's Reply Statement at [56].

[165] Transcript of Proceedings, 2 December 2024 at PNs 502 - 506; Exhibit R8, see p 279 of Digital Court Book.

[166] Transcript of Proceedings, 2 December 2024 at PN 507.

[167] Exhibit R8, see p 274 of Digital Court Book.

[168] Exhibit R8, see p 275 of Digital Court Book.

[169] Exhibit R8, see p 276 of Digital Court Book.

[170] Exhibit R8, see p 277 of Digital Court Book.

[171] Exhibit R8, see p 278 of Digital Court Book.

[172] Exhibit R8, see p 280 of Digital Court Book.

[173] Exhibit R8, see p 281 of Digital Court Book.

[174] Exhibit R8, see p 282 of Digital Court Book.

[175] Transcript of Proceedings, 2 December 2025 at PN520.

[176] Transcript of Proceedings, 2 December 2025 at PN521.

[177] Applicant's Statement at [23].

[179] Transcript of Proceedings, 2 December 2024 at PN 960.

[180] Transcript of Proceedings, 2 December 2024 at PNs 973 - 976.

[181] Transcript of Proceedings, 2 December 2024 at PN 961.

[182] Transcript of Proceedings, 2 December 2024, PNs 991 - 992.

[183] Transcript of Proceedings, 2 December 2024 at PN 962.

[184] Transcript of Proceedings, 2 December 2024 at PN 966.

[185] Transcript of Proceedings, 2 December 2024 at PN 971.

[186] Applicant's Statement at [20].

[188] Transcript of Proceedings, 2 December 2024, PN 988.

[189] Transcript of Proceedings, 2 December 2024 at PNs 972, 989.

[190] Vozzo Statement at [17], Attachment SV-2

[194] Applicant's Reply Statement at [57].

[195] Transcript of Proceedings, 3 December 2024 at PN 1914.

[196] Transcript of Proceedings, 3 December 2024 at PN 1915.

[197] Applicant's Statement at [24].

[199] Applicant's Statement at [24].

[200] Applicant's Statement at [26].

[201] Applicant's Statement at [25].

[202] Applicant's Reply Statement, Annexure HQ-20.

[203] Applicant's Reply Statement at [60].

[204] Applicant's Reply Statement at [61].

[207] Applicant's Reply Statement at [59].

[211] Transcript of Proceedings, 2 December 2025 at PNs595 - 596.

[212] Transcript of Proceedings at PN 596.

[213] Transcript of Proceedings at PN 597.

[214] Transcript of Proceedings, 2 December 2025 at PN598.

[215] Transcript of Proceedings at PN 630.

[216] Applicant's Statement at [26]; Applicant's Reply Statement at [62].

[217] Applicant's Reply Statement at [21], [62].

[218] Transcript of Proceedings, 2 December 2024 at PN 421.

[219] Applicant's Reply Statement at [66].

[220] Transcript of Proceedings, 2 December 2025, PN 114.

[221] Transcript of Proceedings, 2 December 2025, PN 115.

[222] Transcript of Proceedings, 2 December 2025, PN 436.

[223] Transcript of Proceedings, 2 December 2025, PN 691.

[224] Transcript of Proceedings, 2 December 2025, PN 692.

[226] Transcript of Proceedings at PNs 412 - 413.

[228] Transcript of Proceedings, 2 December 2025 at PN 403.

[229] Transcript of Proceedings, 2 December 2025 at PN 410.

[230] Transcript of Proceedings, 2 December 2025 at PN 411.

[231] Applicant's Statement at [27].

[234] Robens Statement at [20], Annexure WR-3.

[235] Robens Statement at [21], Annexure WR-4.

[243] Xia Statement at [22], [25].

[248] Applicant's Statement at [28].

[249] Applicant's Statement at [28].

[250] Applicant's Statement at [29].

[251] Applicant's Statement at [30].

[252] Applicant's Statement at [31].

[253] Nie Statement at [21] - [23].

[257] Nie Statement at [19], Annexure HQ-3.

[261] Transcript of Proceedings, 2 December 2025, PN 1016; Vozzo Statement SV-3.

[262] Transcript of Proceedings, 2 December 2025, PNs 1022 - 1024.

[264] Transcript of Proceedings, 2 December 2025, PN 1031.

[265] Transcript of Proceedings, 2 December 2025, PN 1040 - 1041.

[266] Transcript of Proceedings, 2 December 2025, PN 1046.

[267] Vozzo Statement SV-3, Digital Court Book p 284 -285.

[268] Vozzo Statement SV-3, Digital Court Book p 284.

[269] Transcript of Proceedings, 2 December 2025, PNs 1049, 1053.

[274] Transcript of Proceedings, 3 December 2025, PN 1685.

[275] Transcript of Proceedings, 3 December 2025, PN 1686.

[276] Transcript of Proceedings, 3 December 2025, PN 1998.

[279] Applicant's Reply Statement at [68].

[280] Transcript of Proceedings, 3 December 2025 and PNs 1595 - 1605.

[281] Applicant's Reply Statement, Annexure HQ-15A.

[284] Transcript of Proceedings, 2 December 2024, PN 1143.

[285] Transcript of Proceedings, 2 December 2024, PN 1406.

[286] Transcript of Proceedings, 2 December 2024, PN 1410.

[287] Transcript of Proceedings, 2 December 2024, PN 1413.

[289] Applicant's Statement at [32] - [33].

[290] Applicant's Statement at [34]; Nie Statement at [28], Attachment MN-7.

[293] Nie Statement at [30], Attachment NN-8.

[294] Applicant's Statement at [20], Annexure HQ-15.

[295] Applicant's Statement at [35].

[296] Applicant's Statement at [35].

[297] Applicant's Statement at [35].

[301] Nie statement at [32], Attachment MN-9.

[302] Applicant's Statement at [37].

[303] Applicant's Reply Statement at [25]; Transcript of Proceedings, 2 December 2025 at PN654.

[304] Transcript of Proceedings, 2 December 2024 at PN 669.

[307] Transcript of Proceedings, 2 December 2024, PN 1104.

[308] Transcript of Proceedings, 2 December 2024, PN 1100.

[309] Applicant's Statement at [36].

[310] Applicant's Statement at [36].

[311] Transcript of Proceedings, 2 December 2025, PN 656.

[312] Applicant's Reply Statement at [26].

[313] Applicant's Reply Statement at [26].

[314] Applicant's Reply Statement at [27].

[316] Applicant's Statement at [38].

[317] Applicant's Statement at [38].

[318] Nie Statement at [35]; Wan Statement at [25].

[321] Nie Statement at [36] - [37].

[322] Applicant's Statement at [39].

[324] Transcript of Proceedings, 2 December 2024, PN 1110.

[325] Transcript of Proceedings, 2 December 2024, PN 1111.

[326] Applicant's Statement at [40].

[327] Applicant's Statement at [41].

[331] Applicant's Statement at [42].

[332] Applicant's 'Unfair dismissal application Form F2', response to q. 2.1 and attached Termination Letter dated 31 August 2024

[337] Transcript of Proceedings, 2 December 2025 at PN 293.

[338] Transcript of Proceedings, 2 December 2025 at PN 402.

[339] Transcript of Proceedings, 2 December 2025, PN 115.

[340] Transcript of Proceedings, 2 December 2025, PN 436.

[341] Transcript of Proceedings, 2 December 2025, PN 691.

[342] Transcript of Proceedings, 2 December 2025, PN 692.

[344] Applicant's Reply Statement at [61].

[346] Respondent's Closing Submissions at [49] - [50].

[347] Applicant's Statement at [37].

[348] Nie statement at [32], Attachment MN-9.

[349] Applicant's Statement at [35].

[351] Transcript of Proceedings, 3 December 2024 at PN 1095.

[353] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[354] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

[355] Respondent's Closing Submissions at [51] - [52].

[356] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[357] Applicant's Closimg Submissions at [83].

[358] Respondent's Closing Submissions at [59].

[360] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

[362] Applicant's Closing Submissions at [85].

[363] Respondent's Closing Submissions at [61].

[364] Taylor v C-Tech Laser Pty Ltd [2013] FWC 8732, [58].

[365] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

[366] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

[367] He v Lewin [2004] FCAFC 161, [58].

[368] Applicant's Closing Submissions at [92].

[370] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

[371] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

[372] Applicant's Statement at [44], Annexure HQ-11.

[374] [1998] AIRC 989; (1998) 88 IR 21.

[375] [2013] FWCFB 431.

[376] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].

[377] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].

[379] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].

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