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[2026] FWC 553
General information, not legal advice.
Fair Work Commission
2026-02-20
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for relief from unfair dismissal - valid reason found - Procedural deficiencies Outcome would not have changed - Dismissal not Unfair - Application dismissed.
[1] On 30 July 2025, Mr Jason Nikora (Nikora / the Applicant) made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act), alleging that he had been unfairly dismissed from his employment with Black Cat Civil Pty Ltd (the Respondent). Mr Nikora initially sought reinstatement but subsequently amended the remedy he sought to compensation.
[2] On 14 October 2025, I issued a Notice of Listing and Directions to the parties regarding the hearing of the matter. A hearing was held on 24 November 2025.
[3] Mr Nikora represented himself, and the Respondent were represented by Mr Simon Jones, in house Counsel and Mr Kerry Smith, the Human Resources Manager. CCTV footage in relation to an incident that occurred at Moranbah Airport was not yet available on the day of the hearing because of technical issues. The footage was subsequently produced, and both parties were invited to make submissions in relation to what the footage showed. Those submissions were subsequently received and taken into account in determining the matter.
[5] Mr Nikora commenced employment with the Respondent on 14 June 2022 as a Plant Operator in a FIFO 7-days-on/7-days-off arrangement.
[8] Mr Elves gave evidence that at Caval Ridge Mine the onsite speed limits are either 20, 40 or 60km per hour. He said during the client site induction the site rules are clearly set out including the zero-tolerance policy.
[9] On 27 June 2025, Mr Terry Theuerkauf, Mr Nikora's supervisor, was notified by a client that he believed one of the Respondent's vehicles had been speeding. Mr Theuerkauf said the supervisor had called him to advise him that on his way to site, he was behind a BCC vehicle that he believed to be speeding. Mr Theuerkauf said the supervisor had stated that he was doing the speed limit yet the vehicle in front "just took off".
[10] Mr Theuerkauf said the supervisor provided him with the BCC number BC183 and he then looked at the vehicle pre-starts and confirmed that Mr Nikora had been the one operating the vehicle.
[11] The following morning, Saturday 28 June 2026, Mr Theuerkauf spoke with Mr Nikora, advised him of the complaint raised about the speeding, and "told him that he had to watch his speed". Mr Theuerkauf advised the site manager about the conversation he had with Mr Nikora and the note he had made on BCC OneDrive. An email from Mr Theuerkauf to Mr Elves dated 28 June 2025 4.08pm reads as follows:
As we discussed this morning I have spoken with Jason Nakora this morning in regards to the phone call I received from a BMA supervisor around Jason's driving behaviours on site as he was observed to be doing far more than the 20kmh speed limit around the MIA yesterday morning (27/6/25) whilst driving to prestart in the morning at start of shift, (entered into HR on one drive) I have also spoken with Jason on another occasion where I received a phone call from the OCE which observed him doing considerably more than the 40KMH speed limit, it's been a bit of a pattern around not knowing how to slow down and abide by sites speed limits."
[12] The Respondent obtained GPS-tracking information. Based on this GPS-tracking information, it was asserted that Mr Nikora was speeding while on the worksite on both 26 and 27 June 2025.
1 July 2025 including Moranbah Airport Incident
[13] On 1 July 2025, Mr Nikora and the rest of the Black Cat team arrived on-site at Caval Ridge Mine and were denied entry to the mine. The team was instructed to return to camp. One of Mr Nikora's colleagues, Mr Kaden Nikora-Blythe, was notified he was being transferred to the Goonyella Mine.
[14] Mr Nikora contacted Mr Theuerkauf to seek transfer to Goonyella and was directed to speak to the Respondent's site manager Mr Liam Elves. Mr Elves stated that there were no positions available for Mr Nikora after the position was provided to Mr Nikora-Blythe. Later that day, Mr Nikora and his colleagues went to the pub before their flights.
[15] Mr Elves said that on several occasions he received complaints from the client about their observations of Mr Nikora's driving behaviour onsite, the main contention being that he was speeding around site. Mr Elves said on the morning of 11 July 2025 he received yet another verbal report of Mr Nikora speeding on site.
[16] Mr Theuerkauf gave evidence that on the morning of 1 July 2025 the Respondents staff were locked off site for the day, and they gathered at the mess on standby waiting to be allowed into site to commence work. Mr Theuerkauf said Mr Nikora approached him questioning a recent decision of the Respondent to have his grandson Mr Nikora-Blythe moved to a different site.
[17] Mr Theuerkauf said that Mr Nikora also requested to be transferred with his grandson and Mr Theuerkauf said it was not his call and Mr Nikora would have to speak with Mr Elves. Mr Elves gave evidence that on 1 July Mr Nikora messaged him about a recent decision to relocate some staff to a different site including his grandson and he also requested a transfer alongside his grandson. Mr Elves said he explained to Mr Nikora there were no positions available for him, and the reasons Mr Nikora-Blythe was being transferred.
[18] Mr Edwards' evidence was that he and Mr Nikora had been drinking for an hour before travelling to the airport later that day. Mr Edwards said he had 5 or 6 drinks in that time and thought Mr Nikora may have had the same number of drinks but was not sure. Mr Edwards' evidence was that Mr Nikora-Blythe was the designated driver.
[19] The CCTV footage shows Mr Nikora, along with colleague Mr Edwards, arrived at the airport in Moranbah while off work and in civilian clothes after the time they said they had been drinking at a hotel.
[20] There were several discrepancies between the evidence of Mr Edwards and Mr Nikora-Blythe in that Mr Nikora-Blythe's evidence was he travelled to the airport separately from Mr Nikora and Mr Edwards. However, Mr Edwards indicated Mr Nikora-Blythe had driven himself and Mr Nikora to the airport after being at the pub as Mr Nikora-Blythe was the designated driver. It seems more likely that Mr Nikora-Blythe was travelling with Mr Nikora and Mr Edwards.
[21] Mr Nikora-Blythe said Mr Edwards was sitting next to him and Mr Nikora in the airport. Mr Nikora and Mr Nikora-Blythe gave evidence that Mr Theuerkauf initiated a conversation with Mr Nikora by sitting down next to Mr Nikora, and in an abusive and threatening manner alleging Mr Nikora had been speeding on-site, which Mr Nikora denied.
[22] Mr Nikora and Mr Nikora-Blythe gave evidence that Mr Theuerkauf was insulting Mr Nikora such as by calling him an 'idiot', and Mr Nikora had responded in kind with insults such as calling Mr Theuerkauf a 'liar'. There is no dispute that there was a verbal altercation between Mr Nikora and his supervisor Mr Theuerkauf at the airport lounge on 1 July 2025.
[23] The CCTV footage while having no audio recording, appears to show Mr Nikora being quite animated while sitting in the airport lounge before Mr Theuerkauf arrived, which would be consistent with his own evidence that he had been drinking alcohol immediately beforehand. Mr Theuerkauf gave evidence that he believed Mr Nikora was in an impaired state during their exchange at the airport lounge.
[24] Mr Theuerkauf denied during his evidence that he had sat down next to Mr Nikora. Contrary to Mr Theuerkauf's evidence, the CCTV footage demonstrates Mr Theuerkauf did sit down next to Mr Nikora.
[25] Mr Theuerkauf gave evidence that Mr Nikora approached Mr Theuerkauf in the boarding line, and that he attempted to de-escalate the conversation. Mr Theuerkauf said he responded to Mr Nikora by explaining the reasons for the changes (relating to Mr Nikora-Blythe's transfer).
[26] Mr Nikora-Blythe rejected during his oral evidence the suggestion that Mr Nikora initiated a confrontation in the boarding line. Mr Nikora-Blythe said the argument happened when they were all sitting down and it was not in the boarding line, and that Mr Theuerkauf and Mr Nikora apologised to each other.
[27] Mr Edwards' evidence was of little assistance because it was to the effect that he was listening to music at the time, he went to the toilet and then a vending machine around the relevant time, and did not appear to recall any specifics concerning this incident other than that he saw Mr Nikora and Mr Theuerkauf talking to each other when in the line to board the flight. He said he did not see any confrontation between Mr Nikora and Mr Theuerkauf and only heard about it later.
[28] Mr Theuerkauf stated that Mr Nikora grabbed him on the shoulder, which Mr Nikora and Mr Nikora-Blythe denied under cross-examination. The CCTV footage shows Mr Nikora initially grabbing towards Mr Theuerkauf's arm, and later putting his arm around Mr Theuerkauf several times after both Mr Theuerkauf and Mr Nikora had stood up.
[29] Another employee of the Respondent, Mr Granate, gave evidence that supports Mr Theuerkauf's claims about the events in relation to what occurred in the boarding line. In his oral evidence he agreed that he did not say Mr Nikora assaulted Mr Theuerkauf and he "could not tell that...".
[30] Mr Granate's evidence indicates he did not see Mr Theuerkauf sit down next to Mr Nikora at any stage which is inconsistent with what the CCTV footage shows. The CCTV footage tends not to support Mr Nikora's claim that Mr Theuerkauf initiated a verbal altercation with Mr Nikora when he sat down next to Mr Nikora at the airport lounge which is contrary to claims made in the evidence of Mr Nikora and Mr Nikora-Blythe.
[31] Because there is no audio it cannot be unequivocally ascertained from the footage who initiated a verbal exchange however it appears there was a brief friendly exchange and then Mr Theuerkauf engaged with his phone and there was a period when there appears from the footage to be no verbal discussion between Mr Nikora and Mr Theuerkauf.
[32] Mr Theuerkauf's version is that Mr Nikora initiated the altercation which was a continuation of the previous discussion they had had about Mr Nikora-Blythe being transferred to another mine and Mr Nikora also wanting to be transferred. Mr Nikora's version is that Mr Theuerkauf initiated the exchange by insulting Mr Nikora about speeding at the worksite. It appears from the CCTV footage that of the two men, Mr Nikora physical mannerisms and stance appear the more aggressive, whilst Mr Theuerkauf's appears more neutral.
[33] Both Mr Nikora and Mr Theuerkauf later appeared to de-escalate the situation in the boarding line for their flight with a handshake. Mr Theuerkauf did not report the incident to the Respondent until over a week later.
[34] Mr Theuerkauf gave evidence that he was not threatened by Mr Nikora but that unspecified other people were threatened by Mr Nikora's conduct. Mr Nikora-Blythe's evidence was to the effect that a verbal disagreement continued in the boarding line, but it settled down and they apologised to each other. Mr Nikora-Blythe said he did not see either put a hand on each other.
[35] On 10 July 2025, Mr Nikora and Mr Edwards, along with other colleagues, around 6pm after arriving at camp accommodation, drank beer together before going to dinner around 7pm. Mr Edwards said it was a couple of beers.
[36] Mr Nikora gave evidence he went to bed in his donga at 8pm. Black Cat Civil received a report that one of the staff members had urinated behind the dongas, and it alleged that Mr Nikora was responsible. Mr Nikora vehemently denies this allegation.
[37] Mr Edwards gave evidence that he did not observe any of his colleagues urinating behind any buildings, and that he had been with Mr Nikora for most of the time outside of a five- or ten-minute stint to do washing. Mr Edwards said he did not think Mr Nikora left the area during the time before they went to dinner. Mr Edwards did not think the gathering was loud that night. He accepted there may have been loud gatherings in the past but they would not have gone past 7.30pm.
[38] There was no direct witness evidence called at the hearing in support of this allegation by the Respondent. The evidence Mr Smith referred to in relation to this matter was an email from a Mr Lanhan. The email includes a statement as follows:
"It has been reported that 'gatherings' at camp are becoming louder and later and Jason (Nikora) has been seen urinating on the back of accommodation dwellings which is also unacceptable. I have passed this information on to Terry and he is going to escalate this to his manager...,"
[39] On 11 July 2025, Mr Theuerkauf said he received a further complaint from a client alleging that one of the Respondent's vehicles, identified as being driven by Mr Nikora, had been speeding onsite. Mr Theuerkauf said he informed Mr Elves of this complaint immediately. Mr Theuerkauf said on this occasion Mr Nikora had been operating BC531. The complaint email included the following:
'... it was also brought up again this morning by a BMA representative about Jason
observed speed on site in the service truck BC531 this swing after I had spoken with
Jason only last swing about his speed around the MIA in a ute ...'
[40] Mr Theuerkauf gave evidence that he had worked with Mr Nikora for 5 years and was more recently his direct supervisor. He said more recently he had received multiple complaints concerning Mr Nikora's driving behaviour onsite, specifically the speed in which he is driving the service truck, especially around the MIA areas which are posted 40km per hour.
[41] Mr Smith gave evidence this allegation was discussed between Mr Nikora and the site management team, and it was discussed at the Show Cause Meeting that all the Respondent's vehicles have GPS trackers that can establish the speed of the equipment at any given time, and that the evidence was clear. Mr Smith also said that there was evidence that this had been discussed with Mr Nikora by the management team in the weeks prior.
[42] Ms Murphy gave evidence that she sat with Mr Alister Head, Fleet Operations Manager, to review the Fleet Office Data to identify if Mr Nikora had been speeding in BC531 during the dates 26 June 2025 to 1 July 2025 and it was identified that Mr Nikora had exceeded the speed limits on three separate occasions during the identified dates. Ms Murphy said it was also identified that Mr Nikora had been spoken to previously by Mr Theuerkauf regarding speeding on the site and there was an email record of the conversation occurring. Mr Elves gave evidence that he had often received comments and verbal reports of Mr Nikora's performance and behaviour, including speeding around site.
[43] Mr Smith said on 11 July 2025 he received an email from Mr Elves stating that he had received multiple complaints regarding Mr Nikora's conduct that he deemed serious enough to stand him down pending further investigation.
[44] Mr Smith said at the time he was working in the Philippines so could not properly review the email until 14 July 2025. Mr Smith said on the afternoon of 14 July 2025 his colleague Ms Murphy advised him that she believed there was enough evidence to issue Mr Nikora with a Show Cause notice regarding various complaints.
14 July 2025 Show Cause letter and Removal from Site
[45] Mr Elves said on 14 July 2025 shortly after he arrived at site, the client representative approached him in his office and notified him of the client's knowledge of an alleged altercation between Mr Nikora and Mr Theuerkauf at the airport. The client representative stated that the altercation was witnessed by several of the client's staff, and that the client does not put up with that kind of behaviour. It was alleged that Mr Nikora assaulted a member of the Respondent's staff. Mr Nikora said the client representative also raised Mr Nikora's conduct in the camp and that it was revoking his site access immediately and he would be no longer be eligible to work at the client's projects.
[46] Mr Nikora attended the office with Mr Theuerkauf, Mr Elves was also in attendance. The Respondent put three allegations to Mr Nikora: that he urinated at the back of camp rooms on 10 July 2025; that he inappropriately confronted Mr Theuerkauf on 1 July 2025; and that he had driven in excess of speed limits. Mr Nikora gave evidence that the speeding allegations had not been put to him in a sufficiently specific nature to be able to respond appropriately, and Mr Elves, under cross-examination, confirmed that none of the details of the speeding allegations were put to Mr Nikora.
[47] Mr Elves said he advised Mr Nikora that he was stood down and arranged for him to be taken back to camp. Mr Elves said he questioned Mr Nikora about the urination incident, asking if he did urinate behind the rooms, how many drinks he consumed that night, and roughly how long he was up for. Mr Elves said Mr Nikora denied the allegations. Mr Elves agreed he did not specifically state the dates and times of the allegations in his discussion with Mr Nikora, just what the allegations were. Mr Elves said he read to Mr Nikora the email he had received from Mr Lanham from BMA and told Mr Nikora the Respondent would be looking into the speeding allegations and the allegations in relation to the incident at the airport.
[48] Mr Theuerkauf was then instructed to take Mr Nikora back to camp. Mr Elves agreed he had Mr Theuerkauf drive Mr Nikora back to the camp.
[49] Ms Murphy said the three allegations were investigated concurrently and Ms Murphy requested the Caval Ridge Mine site team to send her all documentation regarding the allegations.
[50] Ms Murphy gave evidence that she was informed by Mr Elves that the Respondent's client, BMA, had requested verbally that Mr Nikora be removed from site. Ms Murphy said based on the allegations made by the client, and the client's request to have Mr Nikora removed from site, she deemed the allegations serious enough to have Mr Nikora removed from site. Ms Murphy said at 4pm on 14 July 2025, the client sent an email to the Respondent advising that due to the incidents at the airport and the camp Mr Nikora's accommodation approvals had been revoked and he was not to return to site.
[51] Mr Nikora said during his evidence that he was unaware that the client had asked that he be removed from site at the time. Arrangements were made for Mr Nikora to take a flight out on the evening of 14 July 2025.
[52] Ms Murphy said at 4.22pm she emailed Mr Nikora a Show Cause notice for a meeting to take place at 8am on 16 July 2025. Ms Murphy said at 4.33pm Mr Nikora acknowledged receipt of email. The Show Cause letter itself did not give any specific time or date in relation to the three allegations.
[53] Mr Smith gave evidence that while he could not give evidence off the top of his head about the availability of other roles to Mr Nikora, the Respondent was doing other projects across Queensland, and the Northern Territory and different positions would have been available with different skill sets.
Show Cause Meeting and Dismissal 16 July 2025
[54] Mr Nikora prepared a statement before the conference to assist him. The conference was conducted by Mr Smith, HR Manager for the Respondent, and Ms Murphy, HR Coordinator for the Respondent.
[55] Mr Nikora gave evidence that he felt that the Respondent had pre-determined to dismiss him and his response was not properly considered. Mr Nikora did not provide any support from witnesses, and stated he was not prompted to provide witnesses.
[56] Mr Smith said that at the commencement of the Show Cause meeting he explained again the Show Cause process, why the meeting was being held, and the allegations against Mr Nikora. Mr Smith said Mr Nikora read out a prepared statement, and denied any wrongdoing in relation to camp behaviour and the incident at the airport. Mr Smith said Mr Nikora stated he had no recollection of speeding, and if he did, he was sorry.
[57] Mr Smith said following this they discussed each allegation individually explaining what the investigation revealed in relation to each allegation. Mr Smith said Mr Nikora continued to deny urination at the camp, and claimed Mr Theuerkauf approached him at the airport, not the other way around. Mr Smith said Mr Nikora failed to nominate a witness who could corroborate his version of the incident at the airport.
[58] Ms Murphy said Mr Smith addressed each of the allegations listed individually and Mr Nikora was given an opportunity to respond to each allegation which he did so by reading his prepared statement. Ms Murphy said Mr Nikora denied urinating at the camp and said Mr Theuerkauf approached him at the airport and started the altercation. Ms Murphy said when Mr Nikora was questioned about speeding and presented with the finding of the investigation, he stated that he believed he had not been speeding and did not make any more comment regarding the matter, and just that he was apologetic for speeding. Ms Murphy maintained Mr Nikora was told about the GPS data for the vehicles used by Mr Nikora in relation to the allegations of speeding.
[59] Ms Murphy said that at the end of the meeting, Mr Nikora was asked if he had any further information or evidence, witnesses, or comments he would like to put forward before the Respondent made a decision and he said no.
[60] Following the conference, Mr Smith said he asked Ms Murphy to contact Mr Theuerkauf and Mr Granata again to confirm their statements. Mr Smith said upon receiving this conformation he spoke to Mr Jai Tomlinson, the Director of the Respondent, regarding the matter. Mr Smith said they discussed the hard evidence obtained from the Fleet Office data confirming that Mr Nikora had been speeding on three (3) separate occasions as well as the finding that speeding had previously been discussed with him by his supervisor.
[61] Ms Smith said they discussed Mr Nikora's camp conduct, and that the Respondent's client claimed to have spoken to Mr Nikora about that previously.
[62] Mr Smith said a decision was taken to terminate the employment of Mr Nikora and he was issued a termination letter which advised that his employment with the Respondent was terminated on the basis of driving in excess of speed limits and for behaviour displayed not in accordance with the standards of the Respondent. The termination was effective on 16 July 2025.
[63] Ms Murphy maintained that Mr Nikora's conduct was serious misconduct.
[64] Ms Murphy and Mr Smith gave evidence that although the show cause letter and the show cause meeting did not provide specific information as to the details of the allegations, these concerns had previously been put to Mr Nikora or the incident was clear. None of this material was put to Mr Nikora. Ms Murphy gave evidence that the Respondent would have put the allegations in more detail if Mr Nikora had asked for the Respondent to do so.
[65] In determining whether Mr Nikora's dismissal was harsh, unjust or unreasonable s.387 of the Act requires me to consider the following matters:
(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.
Was there a valid reason for the dismissal related to the Applicant's capacity or conduct (s.387(a))?
[66] Mr Nikora was summarily dismissed without receiving notice pay on the basis that he engaged in serious misconduct. To be considered a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. In assessing the validity of the reason(s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would have done in the same position.
[67] In Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26] (Hilder) the Full Bench summarised the well-established principles for determining such matters:
"The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:
(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee's dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).
(5) Whether an employee's conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee's contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).
(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.
(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).
(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.
(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable."
[68] The Respondent submits that Mr Nikora's actions in regard to speeding, the alleged conduct at Moranbah airport, and alleged urinating behind dongas at the camp were misconduct. As indicated in Hilder above, I must determine whether the conduct occurred and what it involved.
[69] In Rabbi Pinchas Ash v Chabad Institutions of Victoria Limited [2020] FWCFB 4448 at [30] the Full Bench observed:
"A valid reason under s 397(a) is one that provides a sound, defensible and well-founded rationale for dismissal. In order for conduct which has found to have occurred to constitute a valid reason, it must involve something more than a minor failing or trivial misdemeanour, and must be of sufficient gravity or seriousness to justify dismissal. Factually-established conduct which might, for example, justify the issue of a reprimand or a warning may not necessarily justify dismissal."
[70] In Hilder the Full Bench found at [29]:
"However, the Deputy President's consideration of whether there was a valid reason was affected by error of a more consequential nature, in that he did not address the material issues identified in the principles identified above but rather determined the issue by reference to a number of irrelevant matters. As the Deputy President recognised, there was no dispute as to the occurrence of the conduct which was the reason for Sydney Trains' dismissal of Mr Hilder. Nor was it in dispute that this conduct constituted a breach of the Policy. Mr Hilder conceded that he was aware of the Policy and its significance. The only question to be resolved therefore was whether the breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal. This required an assessment of the importance of the Policy in the context of Sydney Trains' operations and Mr Hilder's work duties."
[71] In Hilder the Full Bench noted that the Deputy President at first instance also made an alternate finding that Mr Hilder's dismissal was harsh on the premise that there was a valid reason for dismissal (at [38]), upheld the original alternate finding that the dismissal was harsh (at [41]) and dismissed the appeal (at [42]).
[72] The test is whether, on the evidence before the Commission, there was a valid reason for dismissal connected with the employee's capacity or conduct. As such, there is no barrier for the Commission to receive and consider evidence of facts not known to the employer at the time of the dismissal as long as the facts existed at the time of dismissal (per Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989 at [71]). The way in which such evidence might be considered will depend on the circumstances of the case. As Von Doussa J reasoned in Lane v Arrowcrest Group Ltd (1990) 27 FCR 427:
"... In my opinion it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer's state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred..."
[73] In Newton v Toll Transport Pty Ltd [2021] FWCFB 3457 the Full Bench said:
"[65] The Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal. Contrary to the Appellant's submission, in determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission."
[74] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination (per Edwards v Justice Giudice [1999] FCA 1836 at [7]). 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 (per King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 at [23]- [24], Print S4213).
[75] The CCTV footage of the incident at Moranbah airport establishes that contrary to the claim of Mr Theuerkauf, Mr Theuerkauf did sit down next to Mr Nikora in the airport. However, the CCTV footage also undermines Mr Nikora's claim that Mr Theuerkauf initiated an unprovoked and aggressive verbal confrontation with Mr Nikora.
[76] It is uncontested that Mr Nikora had been drinking immediately before he went to the airport and had had a number of drinks. The CCTV footage supports the conclusion that it was Mr Nikora that initiated the verbal altercation which included him attempting to grab his supervisor Mr Theuerkauf by the arm, and then placing his arm around Mr Theuerkauf several times during the exchange, as well as standing inside Mr Theuerkauf's personal space. I am satisfied it is more likely on the balance of probability that the exchange was not initiated by Mr Theuerkauf as Mr Nikora claimed, but instead was a continuation of a discussion between Mr Nikora and Mr Theuerkauf earlier that day concerning Mr Nikora's grandson being moved to another mine, and Mr Nikora's request to also be moved being rejected.
[77] Mr Nikora has submitted that the incident at Moranbah Airport is also not relevant as it happened outside work time and is not connected to his employment, referring to the well know decision in Rose v Telstra Corporation Ltd. I do not accept that is the case here. The evidence indicates that staff of the Respondent's client BMA witnessed and reported the incident to their employer BMA, who subsequently reported the incident to the Respondent, and the incident occurred in front of work colleagues at the Moranbah Airport where all employees who fly in and out must pass through. The incident was likely to cause damage to the Respondent's business or reputation, particularly with its client BMA, and also negatively affect other employees.
[78] On the balance of the evidence, I am satisfied that Mr Nikora engaged in misconduct at the Moranbah airport on 1 July 2025 by confronting his supervisor whilst under the influence of alcohol in an aggressive manner.
[79] The Respondent relied on an allegation against Mr Nikora that on 10 July 2025 he urinated behind a donga at the camp. Mr Nikora vehemently denies this allegation. There was no direct evidence in relation to the allegation other than that of Mr Nikora and witnesses in his case that attested to not having seen Mr Nikora engage in that conduct. On the state of the evidence the Respondent has not made out the allegation on the balance of probability, and therefore I am not satisfied on the evidence Mr Nikora engaged in the alleged conduct.
[80] The remaining issue concerns the allegation of speeding. I am satisfied from the evidence that on 27 June 2025, a client notified Mr Theuerkauf that he believed one of the Respondent's vehicles had been speeding, and Mr Theuerkauf determined that it was Mr Nikora who was speeding. This was based on GPS tracking information obtained by the Respondent. Mr Theuerkauf spoke to Mr Nikora about the matter the following morning and "told him that he had to watch his speed". The GPS information indicated Mr Nikora was speeding on 26 and 27 June 2025.
[81] On 11 July 2025, Mr Theuerkauf received a further complaint from a client alleging that one of the Respondent's vehicles, driven by Mr Nikora, had been speeding onsite. Mr Theuerkauf informed Mr Elves of this complaint.
[82] A substantial and wilful breach of a policy will usually constitute a valid reason for dismissal (per Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989 at [71]). Applying further the Full Bench's approach in Hilder, the next question to be resolved is whether these breaches of the Code were matters of sufficient gravity to constitute a sound, defensible, well-founded, and therefore, valid reason for dismissal.
[83] I am satisfied that the repeated instances of speeding on site by Mr Nikora are misconduct of a sufficiently serious nature to be a valid reason for dismissal. The conduct if continued unchecked after having already been warned about speeding, presents a potential risk to himself and others at the site. It is notable that Mr Nikora had already been warned about this conduct. The GPS records establish speeding, and I am satisfied on the balance of the evidence this conduct was repeated on 11 July 2025. The repeated instance of speeding supports the conclusion that this was a valid reason for termination.
[84] The conduct in relation to speeding and the misconduct at the Moranbah Airport taken together were a valid reason for dismissal.
Was the Applicant notified of the valid reason (s.387(b))?
[85] Section 387(b) of the Act requires me to consider whether the employee "was notified of that reason." Sections 387(b) and (c) of the Act direct the Commission's inquiry to matters of procedural fairness. In general terms, an employer should not exercise legal power over an employee to the employee's disadvantage without first affording the employee an opportunity to present a case (per Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [70] citing FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596).
[86] In context, the inquiry to be made under s.387(b) is whether the employee was "notified" of that reason before the employer made the decision to terminate (per Sydney Trains v Trevor Cahill [2021] FWCFB 1137 at [60]). The reference to "that reason" is a reference to the valid reason(s) found to exist under s.387(a) and the reference to being "notified" is a reference to explicitly putting the reasons to the employee in plain and clear terms (per Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19] and Sydney Trains v Trevor Cahill [2021] FWCFB 1137 at [60]).
[87] It is apparent from the evidence Mr Nikora was notified that speeding was one of the reasons for his dismissal. Mr Nikora was advised of the three issues on 14 July 2025 and provided a written response in relation to each of the three issues at the Show Cause meeting on 16 July 2025. Mr Nikora was then subsequently advised of the three separate allegations the Respondent relied upon to dismiss him.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct (s.387(c))?
[88] The opportunity to respond to which s.387(c) of the Act refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.
[89] The Applicant submitted he was not given an adequate opportunity to respond as he did not open the letter informing him of the meeting until the prior night. The evidence is he acknowledged receipt of the Show Cause letter on the afternoon of 14 July.
[90] The Show Cause letter lacked specificity in relation to each of the three allegations however the issues were discussed with him on 14 July 2025 with Mr Elves.
[91] Mr Nikora said he did not understand what a Show Cause process was or that he could be dismissed from this. He also said the investigation was rushed and unfair. However, the Show Cause letter he received on the afternoon of 14 July 2025 states the following in the final sentence:
"...Following the phone conference, a decision will be made regarding your employment with Black Cat Civil."
[92] Mr Nikora subsequently prepared and read out a statement at the Show Cause meeting. Ms Murphy's evidence was that Mr Nikora was given the opportunity to say anything additional in relation to the allegations at the meeting before the Respondent made a decision, and Mr Nikora confirmed he had nothing more to add.
[93] The Respondent submitted that Mr Nikora did not provide any names or indicate any witnesses that could corroborate his version of events. Mr Nikora said he did not provide them as he had not had time to contact any of the people that he would have provided the names of and did not want to do so without having spoken to them.
[94] I would agree with Mr Nikora that the investigation in relation to the incident at the Moranbah Airport was not thorough. Mr Nikora-Blythe and Mr Edwards were not asked to provide statements in relation to the event at the airport. The Respondent appears to have made limited efforts to explore who witnessed the incident. Equally it seems clear Mr Nikora did not propose to the Respondent during the meeting on 16 July 2025 which witnesses could have been interviewed.
[95] I am inclined to agree with Mr Nikora that the investigation was conducted in a hasty manner which deprived him of a proper opportunity to defend himself at the time. I have agreed with his position that the evidence could not sustain the Respondents conclusion in relation to him publicly urinating at the camp. The evidence that has subsequently come to light, however, make it very clear that the outcome would not have been different concerning the incident at Moranbah Airport.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal (s.387(d))?
[96] This factor is not a relevant consideration in this matter.
Was the Applicant warned about unsatisfactory performance before the dismissal (s.387(e))?
[97] As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances. The evidence establishes that the Applicant was warned about speeding at the worksite.
To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(f))?
[98] 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.
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 (s.387(g))?
[99] Neither, as the Respondent's enterprise does not lack dedicated human resource management specialists.
[100] Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.
[101] As referred to above in the principles stated in Hilder, the degree of seriousness of the misconduct and matters of mitigation are relevant matters to consider under s 387(h).
[102] The Respondent is entitled to take a strict approach in relation to breaches of the Code of Conduct in relation to speeding for obvious reasons.
[103] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
[104] I find that the dismissal was not harsh, unjust or unreasonable.
[105] Mr Nikora's conduct in relation to repeated speeding on site, and at the Moranbah Airport on 1 July 2025 was unacceptable and the Respondent was entitled to take action to prevent such behaviour occurring again.
[106] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of Mr Nikora was not unfair.
Printed by authority of the Commonwealth Government Printer
Jason Nikora
Black Cat Civil [2026] FWC 553
(2000) 98 IR 137
(1982) 151 CLR 342
(1985) 159 CLR 550
(1990) 170 CLR 596
(1990) 27 FCR 427