s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Small Business Fair Dismissal Code

[1] Mr Adam Garnaut was employed as a Vessel Master V Skipper with Boundary Lane Pty Ltd from 15 May 2023 to 10 January 2025 when he was summarily dismissed for serious misconduct.

[2] At the time of Mr Garnaut's dismissal, Boundary Lane employed 12 employees. The parties agree - and I find - that Boundary Lane was a small business within the meaning of the Fair Work Act 2009 (Cth). Boundary Lane says that it complied with the Small Business Fair Dismissal Code when it dismissed Mr Garnaut and the dismissal was not unfair. Mr Garnaut disagrees.

[3] I heard the matter on22 August 2025. Mr Garnaut gave evidence on his behalf and called Mr Justin Bentink, an independent Marine Surveyor. I gave permission for Boundary Lane to be represented by Mr Sam Pack, of Counsel. Mr Peter Medich (Managing Director for Boundary Lane); Mr Magnus Higgs (General Manager); Mr Andre Kadletz (Head Chef); Ms Micah Jenner (Interior Manager and Relief Captain); and Mr Steven Mitchell (AMSA Accredited Marine Surveyor) gave evidence for Boundary Lane.

[4] After the hearing, Mr Garnaut sought leave to admit further evidence and submissions regarding Boundary Lane recommencing business activity in marine tourism. Mr Garnaut argued that this was relevant to the consideration of whether his dismissal was harsh, unjust and unreasonable, and with regards to remedy. I have denied Mr Garnaut's request as for the reasons set out in this decision, it was not necessary to consider the criteria under s 387 of the Act or remedy.

[5] Having considered the relevant evidence and submissions of the parties, I find that Boundary Lane complied with the Code when it dismissed Mr Garnaut. The dismissal was therefore not unfair and Mr Garnaut's application must be dismissed.

[6] My detailed reasons for my decision follow.

• [7] I must be satisfied of four threshold matters before considering the merits of Mr Garnaut's application.[1]

[8] I am satisfied that Mr Garnaut's application was made within the time prescribed in s 394(2) of the Act and his dismissal was not a case of genuine redundancy.

• [9] Mr Garnaut had completed the relevant minimum period, however, Boundary Lane raised a jurisdictional objection on the basis Mr Garnaut earned above the high-income threshold and was not covered by an award and so was not protected from unfair dismissal as per s 382 of the Act. This was dealt with as a preliminary issue, and I found that Mr Garnaut was covered by the Marine Tourism and Charter Vessels Award 2020 at the time he was dismissed and so was protected from unfair dismissal (Award Coverage Decision).[2]

[10] This decision deals with the last matter under s 396 of the Act - whether the Code was complied with, and if not, whether the dismissal was unfair under the criteria in s 387 of the Act.

[11] There was a total of seven witnesses in this matter. Much of the chronology leading up to Mr Garnaut's dismissal was uncontested, particularly the events in Mr Medich's and Mr Higgs' evidence. I do not need to comment on large parts of the evidence or the witnesses, bar the following two observations.

• [12] I found that during Mr Garnaut's cross-examination, he would evade questions or downplay the events that were not favourable to his case.[3] I appreciate that cross-examination is a stressful process, especially when you are the applicant. However, I found Mr Garnaut's responses to questions that were not favourable to him went beyond the usual hesitation and nervousness that is commonly seen from witnesses. This affected his credibility.

[13] In contrast, Mr Garnaut's witness, Mr Bentink, was highly credible. Mr Bentink is an independent Marine Surveyor and was engaged by Boundary Lane. Mr Bentink has been a marine surveyor since 2008. I found Mr Bentink to be extremely knowledgeable and forthright. His evidence is a sound-basis for fact-finding.

[14] I refer to the Award Coverage Decision and adopt paragraphs [8]-[18] of that Decision. In summary, Boundary Lane is the employing entity for the Boundary Lane group's hospitality and marine tourism activities.

[15] As per [12] of the Award Coverage Decision, Mr Garnaut was employed on or about Friday, 12 May 2023. Over the course of Mr Garnaut's employment, there were three employment contracts. Mr Garnaut's employment contracts specify the same responsibilities, which can be summarised as follows:

• Vessel operations: operate and navigate boats; monitor and maintain vessel systems; ensure compliance with relevant safety, emergency and maritime regulations and protocols; conduct regular maintenance inspections of the vessel and its equipment.

• Crew management: lead and manage a team of crew members; manage team rosters and timesheets; train crew members; promote effective teamwork and communication.

• Passenger safety and customer service: ensure the safety and well-being of passengers; provide exceptional customer services; communicate safety instructions and procedure to passengers.

• Navigation and communication: utilise navigational tools and technologies to navigate the vessel; plan safe routes; maintain regular communication with port authorities; other vessels and shore-based personnel.

• Emergency response: be prepared to respond effectively to emergencies, including medical incidents, fires and equipment failures; implement emergency procedures and coordinate with appropriate authorities as necessary.

• Detailing, cleaning and asset protection: ensure the vessel's interior and exterior is clean and tidy; coordinate with cleaning staff and third-party contractors; inspect and maintain onboard assets; train crew members on proper cleaning; manage cleaning supplies and equipment inventory.

• Premium hospitality services to guests: provide a high level of hospitality services to guests, including food and meal services.

• Finance and administration of operations: assist in managing the financial aspects of vessel operations, including budgeting, expense tracking and financial reporting; monitor inventories; coordinate with suppliers; complete weekly payroll approvals for boat staff; assist in recruitment and hiring processes for crew members; onboard and offboard crew members.

• [16] In understanding the events leading to Mr Garnaut's termination, it is helpful to set out some of the terminology in this area. I am grateful to Mr Bentink's expertise and evidence, which explained the following: [4]

• A "flag state" in relation to a vessel is the jurisdiction or administration that vessel is registered under. This dictates the laws and regulations that vessel must follow.

• Marine surveyors carry out marine surveys, which are inspections of a vessel to ensure compliance with the relevant flag state's legislation and codes. A survey will look at the vessel's structure, equipment, systems, and documentation.
• Where defects are found during the survey, the surveyor must inform the vessel owner and master and report it to the flag state. The surveyor's report to the vessel master will include a timeframe for rectification. The more severe the defect, the less time is granted for rectification.

• Rectification timeframes can range from immediate (with the vessel tied up) up to three months (while being allowed to trade).

• Identification, reporting and rectification of defects is essential to ensure the safety of people, vessels, and the environment.

• [17] The parties provided a great amount of detail regarding Boundary Lane's foray into marine tourism and the issues they encountered. In summary, at the time Mr Garnaut was hired, Boundary Lane had one charter vessel, the Quintessential. Shortly after Mr Garnaut was hired, he was tasked with finalising the survey of the Quintessential and was responsible for setting up operational and safety compliance systems.[5]

• [18] In or around July 2023, Mr Garnaut recommended that the Quintessential be registered under an international flag as there were benefits compared to domestic registration.[6]

• [19] From 24 August 2023, Mr Garnaut corresponded with the Maritime Authority of Jamaica regarding Boundary Lane's interest in registering its vessels in the Jamaican Ship Registry.[7]

[20] In early October 2023, Boundary Lane purchased another vessel - renamed to the Serendipitous - to expand its charter capacity. The Serendipitous had undergone a marine survey prior to purchase. On 26 October 2023, Boundary Lane engaged a marine surveyor to commence a survey of the Quintessential to progress its registration under the JSR.

[21] That survey turned up a list of defects. It is not contested that Mr Garnaut dealt with those defects.

[22] In November 2024, a survey was conducted for the Serendipitous. No defects were reported. It is not contested that the marine surveys conducted for the Serendipitous and Quintessential (Vessels) did not identify the relevant maritime code that applied to the Vessels.

• [23] On or around 25 November 2024, Mr Kadletz approached Mr Higgs regarding concerns that he had not undergone any safety or emergency training on board either vessel.[8]

[24] Mr Higgs and Mr Medich convened a skipper meeting on 29 November 2024. Mr Garnaut, Ms Jenner and two other skippers attended the meeting.

• [25] Mr Higgs' evidence is that they raised a recent incident on board the Serendipitous (involving the smell of smoke on a vessel during a paid charter) as a prompt to discuss safety procedures with the skippers. Mr Higgs' and Mr Medich's unchallenged evidence is that during the meeting they discovered that there were no formal procedures for emergency training and drills, and that none of the skippers present at the meeting had participated in onboard emergency drills relating to fire evacuation, man overboard, or abandon ship situations.[9]

• [26] Mr Higgs' unchallenged evidence is that prior to the skipper meeting, there had been 29 charters.[10]

[27] After the skipper meeting, Mr Higgs emailed Mr Garnaut and Ms Jenner directing them to undertake the urgent training that the staff needed.

• [28] On 4 and 7 December 2024, Mr Garnaut conducted training sessions with crew members on board the Vessels. Mr Kadletz's unchallenged evidence is that the session on 4 December 2024 involved Mr Garnaut talking through hypothetical emergency scenarios and discussing appropriate responses as the crew sat around the dining table onboard the Serendipitous. There were no physical drills, nor walk throughs.[11] Mr Kadletz's further evidence is that the session onboard the Quintessential on 7 December 2024 was a similar seated discussion.[12]

• [29] Mr Garnaut's evidence of the training sessions is that he conducted detailed 30-minute discussions with the crew of what to do in emergency situations. These discussions were conducted while sitting down and did not feature any practice of emergency responses.[13]

• [30] On 4 December 2024, the Australian Marine Safety Authority notified Mr Medich that the Vessels were required to undergo inspections as foreign vessels.[14]

• [31] On 5 December 2024, Mr Higgs emailed Mr Garnaut asking about the AMSA inspection process and compliance requirements. In that email, Mr Higgs highlighted items that related to safety, training, record keeping, and certification.[15]

[32] Mr Garnaut replied that same day stating that the AMSA inspection process was also new to him, but that he had spoken with a particular vessel manager who had told Mr Garnaut that the AMSA inspector would want to check off on all safety items to ensure compliance with relevant regulations, "which we do", even though the Vessels were not under AMSA jurisdiction. Mr Higg's evidence is that this was incorrect as AMSA maintains port State control over all foreign-flagged vessels operating in Australian waters.

• [33] Mr Higgs emailed Mr Garnaut asking whether Mr Garnaut believed AMSA would require records for crew training or drills. Mr Garnaut confirmed in writing, "Crew training, drills, and maintenance logs must all be in Offshore SMS as it's our Safety Management System. I've also discussed with Micah today to ensure that everyone has their inductions within the app. The training drill that I ran yesterday will be entered in their [sic] also".[16]

• [34] On 7 December 2024, Mr Medich and Mr Higgs met with the marine surveyor who had previously conducted surveys on the Vessels. This marine surveyor raised issues with the upcoming AMSA inspection and recommended transferring the Vessels back into private/commercial classification.[17] Mr Medich's evidence is that the possibility of the Vessels not being compliant for commercial use concerned them, and that it contradicted the impression and advice that Mr Garnaut had given them that effectively all was well. Mr Higgs' evidence is that he was concerned about the marine surveyor's judgment and unreliable advice.[18]

[35] As a result, Mr Medich asked Mr Garnaut to engage a new marine surveyor to undertake a full survey of the vessels. Mr Bentink was engaged.

• [36] Mr Bentink surveyed both vessels on 7 December 2024. Mr Garnaut, Mr Medich and Mr Higgs met with Mr Bentink onboard the Serendipitous. Mr Bentink outlined several issues, such as missing documentation, incorrect certificates, and safety concerns. Mr Bentink advised them that most of the matters could be fixed.[19]

• [37] After Mr Bentink had left, Mr Garnaut went to Mr Medich's office and apologised for the situation, stating that he took responsibility for the issues. Mr Medich told Mr Garnaut there was no point in getting upset and that they needed to focus on fixing the issues as quickly and professionally as possible.[20]

• [38] On 9 December 2024, Mr Garnaut emailed the Jamaican Registrar asking for clarification on what code applied to the Vessels.[21]

• [39] On 12 December 2024, Mr Bentink emailed through his survey report for the Serendipitous. This report included defects such as:[22]

• insufficient fire control measures on board such as the vessel not being fitted with sufficient pumps, hydrants, or fire hoses; no fire-fighters' outfits or breathing apparatus; no approved fire control plan; no fire and safety booklet on board; no general alarm system; the vessel did not comply with general emergency alarm or public address system; and

• insufficient life-saving appliances, such as no compliant lifejackets on board (for adult, crew, child or infant); insufficient life raft capacity on board; no compliant medical kit found on board; no line throwing devices on board; an incomplete set of emergency plans; no muster lists, emergency markings, or instructions for evacuation.

• [40] On 17 December 2024, AMSA inspected the Serendipitous. AMSA subsequently issued a formal Detention Notice on 19 December 2024 due to numerous deficiencies. These deficiencies included incorrect certificates; absence of a valid safety certificate; and absence of a compliant fire safety plan. Mr Medich's evidence is that as of the date of hearing this matter, the Serendipitous has not engaged in any further commercial operations since the Detention Notice was issued.[23]

• [41] On 31 December 2024, Mr Bentink provided his survey report for the Quintessential. This report included largely the same defects as those recorded for the Serendipitous.[24]

• [42] On 7 January 2025, Riviera Australia, the boat builder, formally notified Mr Medich that the Quintessential would not meet the relevant damage stability requirements to carry more than 12 passengers. Mr Medich's evidence is that Boundary Lane could have legally continued to operate under the exemptions granted by the JSR, and Serendipitous had been released from AMSA detention at that point. However, Mr Medich did not have confidence that the business could operate safely. Mr Medich consequently applied to the JSR to deregister both Serendipitous and Quintessential, returning the vessels to private use under Australia law.[25]

[43] In December 2024, Mr Medich and Mr Higgs reviewed Mr Garnaut's performance. This included reviewing the applicable regulatory obligations that apply to a master. Mr Medich's evidence is that from this review, they reached the view that the Mr Garnaut had not met his responsibilities until management had intervened, and only after significant issues had occurred.

• [44] On 21 December 2024, Mr Garnaut texted Ms Jenner asking her to work a cash, off-the-books charter on board another vessel. The charter was originally a booking scheduled to take place on Serendipitous. However, due to the AMSA detention, the booking with Boundary Lane was cancelled.[26]

• [45] Ms Jenner shortly advised Mr Medich of this and sent Mr Medich a screenshot of the messages. Mr Medich's evidence is that Mr Garnaut's actions of organising an off-the-books commercial charter using Boundary Lane staff would have exposed those staff members to serious legal and safety risks by operating on a vessel that was not commercially registered. Mr Medich's further evidence is that he saw this as Mr Garnaut profiting from a situation that had directly arisen from his own failures; a serious lapse in judgment; and fundamental breach of trust.[27]

• [46] Mr Higgs cancelled all booked charters from 5 January 2025 onwards. Mr Medich's evidence is that due to short notice, they did not cancel the charters scheduled between 22 December 2024 and 4 January 2025.[28]

[47] Mr Medich and Mr Higgs decided to remove Mr Garnaut's access to Boundary Lane's booking system to prevent him from organising any further off-the-books commercial charters.

• [48] On 8 January 2025, Mr Medich and Mr Higgs reached the view that Mr Garnaut had committed serious breaches of his duties and that it warranted dismissal.[29] They sent Mr Garnaut a Show Cause Letter on 8 January 2025 that relevantly provided:[30]

Re: Notice to Show Cause Regarding Workplace Misconduct

Following recent reviews of your performance and compliance as a Vessel Master, it has come to our attention that there have been serious lapses in fulfilling key responsibilities associated with your role. These lapses directly contravene safety protocols, emergency procedures, maritime regulations, and the terms of your employment contract.

1. Lack of Knowledge of Applicable Codes and Conventions: Demonstrated lack of understanding or awareness of the maritime code or conventions under which the boats were operated, indicating a significant gap in essential knowledge for the role.
2. Lack of Safety Compliance: Multiple instances of non-adherence to mandated safety protocols, compromising the operational safety of the vessel.
3. Deficient Crew Training: Failure to conduct or document necessary training for crew members, leaving the team ill-prepared for emergencies.
4. Regulatory Breach: Oversights resulting in non-compliance with JSR maritime regulations, exposing the business to significant legal and financial risks.
5. Emergency Response Preparedness: Insufficient implementation of emergency procedures, risking customer and crew safety. Emergency response preparedness is explicitly required by your contractual responsibilities.
6. Non-Adherence to Policies and Procedures: Clause 5(1) requires strict compliance with all employer policies and procedures. Deficient crew training and emergency preparedness indicate failure to adhere to these policies.
7. Endangering Passenger Safety and Failing Customer Service Standards: Clause 4.2€ and your responsibilities emphasize acting in the employer's best interests, ensuring passenger safety, and providing exceptional customer service.
8. Possible Breach of Non-Disparagement Obligations: Clause 18 prohibits any statements or actions that damage the employer's reputation. Any actions that led to reputational harm may constitute a breach of this clause.

These issues represent significant breaches of your contractual obligations, placing the company, its stakeholders, and its customers at risk both operationally and reputationally.

In light of these findings, you are required to respond to this letter in writing, providing a detailed explanation of:

• The reasons for the identified lapses.
• Any mitigating circumstances or corrective actions undertaken.
• Your plan to ensure future compliance with your responsibilities.

You are also invited to attend a formal meeting to discuss these matters further. This meeting will take place at Friday 10th January 2025 11am. You may bring a support person to the meeting.

Please provide your written response no later than Friday 10th January 2025 9am. Failure to respond or provide a satisfactory explanation may result in further disciplinary action, up to and including termination of employment, in accordance with the Fair Work Act 2009 and our company policies.

• [49] On 9 January 2025, Mr Garnaut provided a written response, which stated the following:[31]

Please see below my written response to your identified issues:

1. Lack of knowledge of Applicable Code and Conventions

In 2023, Sagar Marine's professional services were engaged by Boundary Lane Hospitality Pty Ltd (the 'business') to survey Quintessential and Serendipitous (ex Forever) to convert the vessels from a private vessel into JSR Commercial Survey. The Sagar Marine report does not mention the criteria and survey standards required to get into JSR commercial survey. At no point was any applicable code or convention identified to myself or the business. Subsequently on the 26th of November 2024, Sagar Marine then noted NIL defects for Serendipitous. Quintessential had NIL defects reported by Sagar Marine in early 2024 prior to receiving Permanent Registration with JSR. The numerous exemptions required for both vessels were not identified by Sagar Marine also. It wasn't until I contacted Justin Bendink and requested his services in December 2024 at the request of the business that Justin was able to advise myself and the business of the appropriate code for BOTH vessels that we should be complying with. Until such time, I was never previously advised of code or convention that the vessel was to comply with.

In my role as master, it is my responsibility to respond to all defects identified by the flag. Based on the reports provided by Sagar Marine, its reasonable for me to assume that all major defects were rectified.

I've worked with Justin over the past 4 weeks extensively to rectify all outstanding issues. I've engaged the required professional services of other businesses to help resolve these issues, even as recent as this past week where I asked for personal favours to get the required surveys completed in the fastest possible

I'm surprised that the business hasn't taken legal action taken against Sagar Marine for their lack of professionalism. This was also voiced to me personally by Justin Bendink.

In 2023, Sagar Marine's professional services were engaged by the business to survey Quintessential and Serendipitous (ex Forever) to convert the vessels from a private vessel into JSR Commercial Survey. A defect list was supplied, which included the Safety Compliance. Prior to the final survey for both vessels, all safety compliance items were rectified on the defect lists. On the 26th of November 2024, Sagar Marine noted NIL defects for Serendipitous, which included ALL Safety Compliance. Quintessential also had NIL defects reported by Sagar Marine in early 2024 prior to receiving Permanent Registration with JSR. It wasn't until I contacted Justin Bendink and requested his services in December 2024 at the request of the business that he was able to advise myself and the business the required Safety Compliance, based on the code. Until such time, I could only operate under the prior professional advice by Sagar Marine.

All Crew members prior to working onboard either vessel was inducted, which included emergency procedures, identification of all safety items, and review of the safety management system. It must be noted that some of these inductions were also carried out by Micah Jenner. Prior to Bryce Durrant working onboard the vessels, he was inducted appropriately by myself, and he made comment to me directing that this type of training was never completed with his previously employer and that he commended me on my professionalism. Group crew training was completed on the 11th of October on Quintessential and Brandon Mitchell also commented that he was impressed by the setup that I had implemented. After this crew training session, both Peter and Magnus were notified that this had been completed at 5.01 pm on the same day. Follow up crew training was completed on the 10th of December 2024. Further to this, Brandon Mitchell completed additional drills and training with his crew on the 29th of December and was documented at my request. All training records have since been documented in accordance with the code.

Prior to the 11th of December, we could only assume we were in full compliance with the JSR maritime regulations imposed on us by the surveyors at Sagar Marine. It wasn't until Justin Bendink's services were engaged at the request of the business that the appropriate code was identified. Until this time, I personally along with the business was never advised what code the vessels must in compliance with. Prior to the 11 of December 2024, all regulations as advised by JSR and Sagar Marine were being complied with. Since being made aware of the defects, I took prompt and appropriate action to rectify the issues and reported back to management as progress was made.

A Safety Management System has been in place since the 20th of June 2023 for Quintessential and the 22nd of July 2024 for Serendipitous. Within the SMS, Emergency Procedures are included. This was shown to Magnus Higgs on the 24th of July 2024 when asked about. Training had been completed and

documented regularly as mentioned above. Training and induction records were shown to the AMSA Port State representative of which Magnus Higgs was in attendance of.

The process of documenting drills and training has since changed and is reported in an improved format.

As above with Item 3 and 5, crew training and emergency preparedness has been complied with. Improvements have been made over time and will continue to into the future.

1. Endangering Passenger Safety and Failing Customer Service Standards

Passenger and Crew safety has not been compromised to my knowledge. Safety briefings have been held prior to every charter. As a team we discussed the content of the briefing and made changes to ensure all aspects of safety were covered. I've had my children onboard each vessel at different times and I wouldn't allow them to travel onboard if the right safety systems weren't in place. I've always acted in the best interests of business, and I've always promoted the business in a positive manner. So much so, guests have made comment and questioned if I personally owned the business, as the level of professionalism

was exceptional. Finally, I find it insulting being accused of providing nothing but exceptional customer service.

1. Possible Breach of Non-Disparagement Obligations

This allegation is not clear and has no substance. I have not made any statements or taken any action that would damage the reputation of the business. I've in fact done the complete opposite. I've protected the business that I've helped build over the past 18 months. If asked about the issues, I've adhered to the company statement that was shared with myself and all team members. I've acted as though business would return to normal service once all defects were resolved.

Prior to starting my employment with the business, my CV was supplied and at no point did I suggest that I was a professional marine surveyor. The Job of a marine surveyor is to inspect marine vessels, focusing on safety, quality and making sure the vessels comply with industry standards and specification

requirements. My role is to maintain the level of safety standards and ensure compliance that is applied to a vessel. Once the code was advised to us on the 11th of December, we were able to identify the gap in compliance. The response to the deficiencies identified was prompt. Until such time, I maintained

compliance that was applied to the vessels by Sagar Marine.

I regard my response as comprehensive and this should clear all issues that you have raised. To make it very clear, I wish to continue my employment with the business. I'm dedicated to our clients, all team members and the future of the business.

• [50] On 10 January 2025, Mr Garnaut met with Mr Medich and Mr Higgs. Mr Medich's evidence of that meeting is that Mr Garnaut acknowledged that he had not been aware of the relevant codes that applied to the Vessels.[32] Mr Higgs' evidence of the meeting is that Mr Garnaut could not explain what code applied to the vessels and blamed the contracted surveyor for not advising him of the applicable codes, conventions and regulations. Further, that Mr Garnaut confirmed that only one overboard drill had been conducted prior to the AMSA Inspection Notice.[33]

[51] Mr Garnaut was informed at the end of the meeting that his employment was being terminated, effectively immediately.

[52] Mr Garnaut was provided with a termination letter that effectively stated that Boundary Lane had found him guilty of the issues raised in the Show Cause Letter, and that he was dismissed due to serious misconduct.

[53] The Code provides that it is fair for a small-business employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. The Fair Work Regulations 2009 define serious misconduct for the purposes of the Act as including:

(a) Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.

(b) Conduct that causes serious and imminent risk to the health and safety of a person; or the reputation, viability or profitability of the employer's business.

(e) The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

• [54] In assessing whether the "summary dismissal" section of the Code has been complied with, the Full Bench of the Commission in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[34] set out the following guidance on how the "summary dismissal" section of the Code operates:

"[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the "Summary dismissal" section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the "Summary dismissal" section of the Code. All other types of dismissals by small business employers are to be considered under the "Other dismissal" section of the Code.

• (2) In assessing whether the "Summary dismissal" section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal, and second whether the employer's belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element."[35]

• [55] It is well-settled that the Commission does not have to make a finding, on the evidence, whether the conduct occurred.[36] The Commission's determination is whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal.[37] It is not necessary for the Commission to determine whether the employer's belief was correct,[38] or to be satisfied that there was a valid reason for the dismissal.

[56] In this case, Mr Garnaut was summarily dismissed. Boundary Lane submits that Mr Garnaut was dismissed for not knowing the applicable maritime code; not complying with mandatory safety protocols; failing to conduct or document crew training; exposing the business to significant legal and financial risks; failing to implement emergency procedures; and failing to adhere to company policies and procedures.

[57] It is not necessary for me to traverse all the grounds Boundary Lane relies upon. That is because based on the below, I find it was reasonable for Mr Medich and Mr Higgs to have believed that Mr Garnaut's conduct was serious enough to warrant immediate dismissal.

[58] Not knowing the applicable maritime code: by Mr Garnaut's own evidence, he did not know what the applicable maritime code for the Vessels was until Mr Bentink was engaged in December 2024. Mr Garnaut's submission that this was the fault of the prior marine surveyor for not specifying the applicable code in their survey reports ignores his responsibility as the vessels' master.

• [59] On this issue, I rely on the evidence of Mr Bentink. During cross-examination, Mr Bentink agreed that for a master to fulfil their responsibility every time they set off, they need to know what code they are operating under, and that if they didn't know what the applicable code was, they needed to find out.[39] There is no evidence that Mr Garnaut ever tried to find out prior to December 2024, despite undertaking a number of charters on the Vessels. Without knowing the applicable code for the Vessels, it is unclear how Mr Garnaut could be ensuring the Vessels complied with operational and safety requirements. This is a serious matter.

[60] Failing to conduct or document crew training: at its highest, Mr Garnaut's evidence is that he conducted safety training with staff during their inductions; during a training session on 11 October 2024; and in December 2024.

• [61] Putting to one side that there is no record in the SMS logs of training sessions conducted during crew inductions or on 11 October 2024, Mr Garnaut's statement that he had demonstrated he had properly trained the crew and ensured they were prepared to deal with an emergency[40] is at odds with his own evidence.

[62] Mr Garnaut's own evidence is that he never conducted physical drills or training exercises with the crew. It is well understood that a drill is effectively a practice-run of an event. A drill is not sitting around a table and discussing what to do in the case of a fire or emergency.

• [63] Mr Garnaut agreed during his cross-examination that there had been a real risk that crew members would not know how to properly respond to an emergency because they had not practised it. I do not agree with Mr Garnaut's characterisation of this as "an oversight".[41] This is an extremely serious safety issue. Mr Garnaut also conceded that it was a breach of his obligation as a master to set off without a properly trained crew, and that it was a safety issue.[42]

• [64] Mr Garnaut also concedes that he failed to document the safety training and drills.[43]

[65] Based on Mr Garnaut's evidence of the events alone, it was reasonable for Mr Medich and Mr Higgs to reach the view that Mr Garnaut had failed in his duty to conduct or document crew safety training.

• [66] As per Mr Bentink's evidence, safety drills such as fire drills and man overboard drills are safety critical.[44] I also refer to the following evidence from Mr Bentink's cross-examination:
  • PN298

Yes, and if they hadn't carried out any of those drills at all - so it wasn't just a case of not doing them with the right frequency but not carrying them out at all, is that potentially putting lives at risk?‑‑‑That would dictate a failure of the entire safety management system. Yes, there would be a top‑down failure that would have to be reviewed, yes (emphasis added).

Yes. And other than safety issues, there would also, of course, be a compliance issue?‑‑‑Absolutely.

There's also a requirement that drills not just be carried out but that they be properly recorded or documented in the SMS?‑‑‑Correct.

Yes, and is that a fairly universal requirement?‑‑‑That's pretty universal, yes.

[67] I appreciate that the marine surveys conducted prior to Mr Bentink's involvement did not identify the deficient training. However, Mr Garnaut did not need the advice of a surveyor to know how critical it was for the crew to be properly trained in safety and emergency situations.

[68] I find based on the above two issues, Mr Garnaut's conduct went against his explicit contractual obligations to ensure compliance with relevant safety regulations; to train crew members; ensure the safety of passengers; ensure that the vessel was prepared to respond effectively to emergencies. Mr Garnaut's conduct also posed a serious and imminent risk to the health and safety of the crew and passengers, as well as the reputation of Boundary Lane.

[69] In the Award Coverage Decision, I made the following finding:

[36] Though not explicitly articulated, Boundary Lane seemed to contend that because Mr Garnaut's duties in relation to safety, compliance and maintenance required action before he stepped onto the vessel to navigate it, that this was outside of the Master V classification.

[37] I do not accept this proposition. Duties of the Master V classification include ensuring the safe operation of the vessel as well as routine and preventative maintenance. The safe operation of a vessel does not start with when the captain or crew step onto the vessel. The marine tourism and charter vessel industry is highly regulated for good reason, which means that ongoing measures must be taken before any charter to ensure safe operation. Routine and preventative maintenance will also be undertaken while the vessel is not in operation.

[70] Safety is paramount in all workplaces. That is especially so in the marine tourism industry where lack of training and poor attention to detail regarding code compliance can be the difference between life and mass casualties.

[71] On the evidence, I am satisfied that Mr Medich and Mr Higgs believed that Mr Garnaut engaged in conduct that was serious enough to warrant summary dismissal. I am also satisfied that belief was reasonable - Mr Garnaut's own evidence supports Mr Medich's and Mr Higgs' findings regarding his ignorance of the relevant maritime code and deficient safety training, let alone the unchallenged evidence of Mr Medich's and Mr Higgs' inquiries and research into the relevant regulations that applied to Mr Garnaut and Boundary Lane.

[72] For completeness, I note Mr Garnaut made several arguments regarding whether there was a valid reason for his dismissal; whether the procedure undertaken was fair; and whether the dismissal was harsh in the circumstances. As I have found that Boundary Lane complied with the Code, it is not necessary for me to consider whether Mr Garnaut's dismissal was harsh, unjust or unreasonable as per s 387 of the Act. Mr Garnaut's unfair dismissal application is dismissed.

[1] Fair Work Act 2009 (Cth) s 396.

[2] Garnaut v Boundary Lane Pty Ltd [2025] FWC 1847.

[3] See: Transcript, 22 August 2025, PN433, PN563, PN565, PN582, PN585, PN599, PN684 - PN696, Transcript PN697- PN701.

[4] Witness Statement of Justin Bentink, Digital Court Book 38.

[5] Witness Statement of Peter Medich, DCB 156 [15].

[8] Witness Statement of Magnus Higgs, DCB 215 [11].

[9] Ibid [12]-[14]; First Witness Statement of Peter Medich, DCB 159 [28]-[29].

[11] Witness Statement of Andrew Kadletz, DCB 310 [19].

[13] Transcript, 22 August 2025, PN600-PN601.

[14] First Witness Statement of Peter Medich, DCB 159 [131].

[15] Witness Statement of Magnus Higgs MH4, DCB 248.

[16] Witness Statement of Magnus Higgs MH5, DCB 255.

[21] Witness Statement of Magnus Higgs MH7, DCB 267.

[22] Witness Statement of Magnus Higgs MH10, DCB 273.

[24] Witness Statement of Magnus Higgs MH11, DCB 278.

[34] [2015] FWCFB 5264.

[36] Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café [2010] FWA 7891 (Bartel DP, 14 October 2010) [60], [(2010) 204 IR 39]; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) [27], [29], [(2012) 219 IR 128]; Steri-Flow Filtration (Aust) Pty Ltd v Erskine [2013] FWCFB 1943 (Acton SDP, Smith DP, Roe C, 24 April 2013.

[38] Pinawin [29], [(2012) 219 IR 128].

[39] Transcript, 22 August 2025, PN818-PN822.

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