s.394 - Application for unfair dismissal remedy

• [1] On 26 July 2025, Mr Brandon Mathis (the Applicant/Mr Mathis) lodged an application (the Application) in the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), against Load & Go Pty Ltd (the Respondent).

• [2] The Applicant was employed by the Respondent from 24 July 2024, until he was dismissed on 14 July 2025, for serious misconduct.

• [3] Directions were issued to program the manner in which the Application was to proceed to hearing. In response to those Directions each party filed materials, and the materials relied upon by the parties at the Hearing were:

(a) On 13 October 2025, following an email of non-compliance from my Chambers, the Applicant filed an email submission;

(b) On 24 October 2025, the Respondent filed an Outline of Submissions and a Statement from George Saad, as well as three media files showing the footage of the relevant driving incidents;

(c) An Order to Produce was issued on 30 October 2025 and the Applicant produced the material in compliance with the Order; and

(d) On 4 November 2025, the Respondent filed a Statement from Taniela Taukoi.

• [4] The Hearing of the Application occurred on 6 November 2025 (the Hearing).

• [5] Mr Brandon Mathis commenced employment with the Respondent as a full-time "TD Driver" (truck with dog trailer) on or about 23-24 July 2024. A Letter of Offer set out the terms and conditions of his employment. Relevantly it included:

12.1 In the course of your employment with Load and Go Pty Ltd, you are required to do the following.

a. Carry out all lawful and reasonable instructions given to you in relation to your employment.

b. Perform your duties and responsibilities in a proper, ethical, diligent, professional, and efficient manner, including always acting in good faith and in best interest of Load and Go Pty Ltd.

c. Use your best endeavours to protect, enhance and promote the interest, welfare, profitability, growth and reputation of Load and Go Pty Ltd business.

d. Not engage in any business or activities which may conflict with or be harmful to the business interests of Load and Go Pty Ltd, or any of its officers, employees, agents, contractors or consultants.

e. Perform your duties in a safe manner, respecting all workplace health and safety laws and policies (despite the fact these do not form part of your contract)

• [6] Prior to commencement, the Applicant was provided with the Heavy Vehicle Driver Code of Conduct (HVDCC) and, on 17 July 2024, signed an acknowledgment that he had read and understood it. The HVDCC relevantly included:

1. Drivers must comply with all State and territory Road Laws and regulations including:
   • - Holding a current and appropriate license for the class of vehicle they are operating
   • - Complying with speed limits on all roads including road work speed limits
   • - Complying with construction traffic signs and devices
   • - Complying with mass, dimension, and loading limits, and complying with sign posted (road) load limits
   • - Complying with vehicle standards in accordance with scheduled servicing requirements
2. Drivers are to practice safe driving and behaviour including:

• [7] The Respondent's operations were overseen by its director, Mr George Saad. Load & Go employed approximately 48 staff and did not have a dedicated HR team. HR functions were undertaken by Mr Saad and the Operations Manager, Mr Taukoi.

• [8] During the employment, there were several incidents involving the Applicant and vehicle damage, including events on 21 October 2024 (tarp damage, incident report completed, approximately $8,000 cost) and 20 November 2024 (dog trailer damage, approximately $2,500 to repair).

Events of 10 July 2025 and warning on 11 July 2025

• [9] On 10 July 2025, an incident of dangerous driving involving the Applicant occurred while operating a heavy vehicle. The incident involved the Applicant crossing double unbroken lines, despite not having a clear view of the road ahead and despite being within close proximity to a curve in the road. Following review of camera footage and a complaint, the Respondent convened a meeting with the Applicant on 11 July 2025, and issued a first and final written warning, which the Applicant signed to acknowledge.

• [10] That written warning relevantly stated:

I am writing to you about your performance during your employment with Load and Go Pty Ltd.

On the 10/07/2025 you were involved in an incident where you were in control of a company asset and driving dangerously. As a result Load and Go received a complaint from a member of the community. You met with Taniela Tuakoi. At this meeting you were advised that your performance has been unsatisfactory, and that immediate improvement is required.

Your dangerous driving could have caused injury or fatality. As a heavy vehicle driver you are expected to conduct your daily allocations in a safe manner.

Thus we have decided to take disciplinary action, this will be a first and final written warning, which outlines the consequences of any further occurrences of poor performance. This warning will be placed on your employee file and will remain for 12 months. Furthermore, if any further occurrences are reported, further disciplinary action may follow which could lead to a potential suspension without pay or termination.

You have the right to appeal this decision, however any appeal must be lodged within 10 working days. If an appeal is lodged a meeting ill be arranged with yourself and Taniela Tuakoi to discuss the matter further.

We trust that this disciplinary action will serve as a reminder that future conduct must be improved and all policies and procedures are adhered to in the future. Employment requires reliability and the ability to fulfil the required position offered to you.

If you wish to respond to this formal warning letter, please do so by contacting me on [redacted] or reply in writing.

• [11] On 14 July 2025, a member of the public reported the Applicant for dangerous and erratic driving. The Respondent reviewed dash-camera and side-camera footage from the Applicant's truck which showed the Applicant cutting in front of a car and almost crushing that car into the tunnel wall of the M4 Motorway. This footage was viewed during the Hearing. The Applicant contends that it was an accident, however when later pressed at Hearing he conceded that he knew it was illegal and took full responsibility.

• [12] Mr Saad gave evidence that the Respondent's client conducted its own investigation and issued a non-compliance notice as a result of the Applicant's driving on 14 July 2025, placing the contract in jeopardy.

• [13] Mr Saad formed the view that the Applicant's conduct created a serious and imminent risk to the Respondent's reputation and contractual obligations, and that it breached the Code of Conduct and road rules.

• [14] Later on 14 July 2025, the Applicant attended a meeting where he was advised of termination for serious misconduct, effective immediately. The termination letter handed to the Applicant at that meeting recorded the prior first and final warning (11 July 2025) and identified the 14 July 2025 driving as substantiated by dash camera review, posing "a significant risk to public safety". It stated that the Respondent had determined the conduct constituted serious misconduct warranting instant dismissal.

• [15] The letter also set out final pay arrangements, including payment of outstanding wages and accrued entitlements.

• [16] Despite the scarcity of material filed by the Applicant, even after multiple prompts from my Chambers, in his Form F2 application lodged on 26 July 2025, the Applicant says the Respondent is "treating an illegal driving move and a complete accident as the same thing," that "nobody was hurt," and that he "accidentally cut someone off when changing lanes and said [he] was sorry."

• [17] The Applicant referred to what he described as mental health issues but presented no medical evidence.

• [18] Section 385 of the Act defines when a dismissal is unfair. It provides as follows:

A person has been unfairly dismissed if the FWC 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;

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

• [19] Section 396 of the Act requires the Commission to determine a number of preliminary

matters, before considering the merit of the Applicant's claim. The section provides as follows:

'396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under

Division 4 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.'

• [20] In relation to those preliminary matters, there was minor jurisdictional issue traversed at the Hearing. The issue of whether the Applicant met the minimum employment period.

• [21] In the Statement of Taniela Tuakoi (filed 2 days prior to the Hearing of the matter), he asserted that the Applicant resigned in about February 2025 and was subsequently re-employed. An email provided to Commission during the Hearing relevantly showed that the Applicant did not in fact resign but rather went on a period of leave without pay. That email importantly states:

Good morning brother sorry it's taken me so long to email you i was hoping to hear about a surgery date by now I spoke with the hospital yesterday hopefully hear from them this week..

But for the moment I'll be taking leave without pay if i could, could I please be paid out my annual leave.

• [22] The only remaining question is whether the Applicant's dismissal was "harsh, unjust or unreasonable" and therefore an unfair dismissal. I must direct attention to s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair. It is trite to observe that each of the matters must be considered, and a finding made on each of them, including whether they are relevant or not. For example, whether a person was refused an opportunity to have a support person present may be irrelevant, if the request was not made, or the employee declined to take up the offer.

• [23] Section 387 of the Act sets out each of the matters the Commission is required to take into account when determining whether the dismissal was unfair. Section 387 provides:

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

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

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

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

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

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

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

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

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

• [24] I address each of the above considerations below.

• [25] As noted above, the Respondent contends the Applicant engaged in dangerous driving twice in four days (10 and 14 July 2025), the second incident occurring after receipt of a first and final warning, and that both incidents were corroborated by dash and side camera footage. The Respondent says the incidents created serious risk to public safety and client relations and breached the Code and road rules.

• [26] The termination letter identifies the 14 July event as "dangerous and erratic driving," states the allegations were substantiated by footage, and records the earlier warning.

• [27] The Applicant's case, on the F2 and 'Statement of Events filed on 30 October 2025, is limited. He characterises the event as an "accident," accepts he cut someone off when changing lanes, and notes that no one was hurt. That is not inconsistent with an objective safety breach. He relevantly submitted:

On 10 July 2025, I was given a first and final warning for overtaking on double white lines. The lines were very faded, and I had a clear view of the road and the vehicle in front of me, which was travelling at approximately 30 km/h in a 70 km/h zone. On 11 July 2025, at around 12:00 p.m., I sent my employer a text message to apologise and to explain that I had been experiencing mental health issues at the time.

On 14 July 2025, I was terminated from my employment. The reason I was told for my dismissal related to an incident that occurred earlier that day while I was exiting the M4 eastbound on my way to Cammeray for my fourth load at around 1:00 p.m. Upon exiting the tunnel, a vehicle travelling well below the speed limit merged into my lane without using its indicators. After checking my mirrors and believing it was safe to do so, I began to merge. Just as I started to move across, I saw the other car in my mirror at the very last second. In the side video footage, you can see that I put my hand out to apologise for the incident.

After returning to the yard at around 6:00 p.m., while fuelling my truck after a 15-hour shift, I was approached by my employer and handed a letter of termination. I was not given the opportunity to have a support person present, although I was told I could finish out the remainder of my shift.

I believe my dismissal was harsh, unjust, and unreasonable because:

• I was not given a fair opportunity to respond to the allegations before being terminated.

• I was not provided with a support person during the termination meeting.

• The incident did not result in any damage, harm, or danger to others.

• I had been open with my employer about experiencing mental health difficulties, as shown in my message on 11 July 2025.

• I was performing my duties after a long 15-hour shift and had been doing my best under challenging circumstances

• [28] "Serious misconduct" is defined in the Fair Work Regulations 2009 (Cth) to the Act. Regulation 1.07 sets out the definition as follows:

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(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:

(ii) the reputation, viability or profitability of the employer's business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

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

• [29] In Sharp v BCS Infrastructure Support Pty Limited a Full Bench of the Commission said at [33]-[34]:[1]

"[33] The relevance of the definition of "serious misconduct" in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of "serious misconduct" for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression "serious misconduct" is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression "serious misconduct" is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is "satisfied that the misconduct of a person contributed to the employer's decision to dismiss the person". However, it is clear that conduct may constitute "misconduct" for the purpose of s.392(3) without necessarily being "serious misconduct". The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee's conduct met a postulated standard of "serious misconduct". In Rankin v Marine Power International Pty Ltd Gillard J stated that "There is no rule of law that defines the degree of misconduct which would justify dismissal without notice" and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. "Serious misconduct" is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

"[48] The terms 'misconduct', 'serious misconduct' and 'serious and wilful misconduct' are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term 'serious misconduct' is under consideration an evaluation of what conduct represents 'serious' misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).""

• [30] The onus of proof in relation to misconduct rests with the Respondent. The standard of proof is the balance of probabilities, with the more serious the allegation, the higher the burden on the Respondent to prove the allegation.[2]

• [31] The Commission itself must be satisfied that the misconduct occurred. In King v Freshmore,[3] a Full Bench of the AIRC said at [24], [26], [28] and [29]:

"[24] 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.

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission's obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King's employment."

• [32] I find that the alleged misconduct regarding the Incidents, as outlined in the letter of 11 and 14 July 2025, took place. Regarding those Incidents, the CCTV footage shows beyond any doubt that the Incidents occurred. The Applicant even conceded at the Hearing that the incidents he engaged in were "illegal" and that he "take[s] full responsibility".

• [33] The incidents on both 10 July 2025 and 14 July 2025 were witnessed, and reported, by members of the public who notified the Respondent of the Applicant's actions. The truck driven by the Applicant not only displayed the Respondent's signage, but also the signage of the client. The Applicant's conduct created a serious and imminent risk to the reputation, viability and profitability of the Respondent's business.

• [34] On the available evidence, including viewing of the clear CCTV footage, there was a sound, defensible and well-founded reason for termination related to conduct and safety. I therefore find that there were valid reasons for the dismissal

• [35] The reason was notified on 14 July 2025, at the meeting that occurred and in the written termination letter given that day. The letter particularised the conduct and its risk consequences.

• [36] The Respondent submits the opportunity to respond need not be formal. In context, the Applicant was aware of the precise nature of the concerns following the 11 July warning and had full opportunity at the 14 July meeting, which he did not meaningfully contest.

• [37] The Respondent does not contend there was a request for a support person, nor is there evidence of an unreasonable refusal. While the Applicant submits that he was not provided with support person, the Applicant did not request one. I consider this a neutral factor.

• [38] The Respondent is a small-to-medium sized transport business of about 48 staff and without dedicated HR personnel. The resources of the Respondent did not have a negative impact on the procedures followed in effecting the dismissal. I therefore consider this a neutral factor.

• [39] The Applicant's length of service was just under one year, with a break of months when on leave without pay. The termination occurred after a final warning and shortly following the second safety event.

• [40] The Applicant candidly accepts cutting in when changing lanes and emphasises that no one was hurt. However, for heavy vehicle operations, near-miss events of this kind are significant and need not eventuate in injury to amount to serious safety breaches, particularly post-warning and with client repercussions.

• [41] Having considered each of the matters specified in s.387, I find that the Applicant's dismissal was not harsh, unjust or unreasonable. The Application is dismissed.

[1] [2015] FWCFB 1033.

[2] Briginshaw v Briginshaw (1938) 60 CLR 336; s.140 Evidence Act 1995.

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