Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] On 31 January 2025, Ms Jamie-Lee Corless-Crane (Ms Corless-Crane) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Aurenne Management Services Pty Ltd (Aurenne).

• [2] Ms Corless-Crane was dismissed after an investigation into a loss of ore on 7 January 2025 (Incident) while she was employed as Pit Technician at Aurenne's Mt Ida mine site near Menzies in Western Australia (Site). The Incident occurred after the wrong mining location was marked out by three other members of the geology department in which Ms Corless-Crane was employed.

• [3] On 11 February 2025, Aurenne filed a Form F3 - Employer's response to unfair dismissal application stating that it had no jurisdictional objections to the Application.

• [4] On 20 February 2025, the parties participated in a conciliation conference. The matters in dispute could not be resolved.

• [5] Taking into account the parties wishes and circumstances, a determinative conference rather than a hearing, was determined to be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a determinative conference in Perth on 2 May 2025 (Hearing).

• [6] Directions for the filing of materials in advance of the Hearing were issued to the parties on 7 March 2025, 28 March 2025, 06 May 2025 and 22 May 2025 (Directions).

• [7] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]

• [8] Aurienne sought permission to be represented at the Determinative Conference.

• [9] Section 596 of the FW Act provides as follows:

"596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

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

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

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

• [10] Aurenne submitted that leave should be granted so that the FWC could be assisted by an experienced lawyer who specialises in employment and labour law who would have the capability and duty to ensure the impartial and efficient adducing of evidence and the making of properly informed submissions on the relevant law.

• [11] Aurenne submits that proceedings would be less efficient and unfair as a result if leave was not granted because it would be represented by Ms Simone McKeown (Ms McKeown). Aurenne say Ms McKeown is a human resource generalist who has no previous experience in presenting arguments or abducting evidence before any court or tribunal and therefore could not present the company's case effectively.

• [12] In reply, Ms Corless-Crane submitted that the matter was not complex and that as Ms McKeown was a human resource director, she was capable of effectively representing Aurenne. Ms Corless-Crane pointed out that Aurenne is not a small employer and its representative had no difficulty reading or writing.

• [13] Cambridge C in Karkamakar v Australian Campus Network Pty Ltd[2] made the following comments about section 596 of the FW Act:[3]

"[9] These provisions represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of Decisions of the Commission which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before the Commission as compared with the Australian Industrial Relations Commission. In this respect I refer in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board [2011] FWA 1520.

[10] Further, the legislative intention underpinning s.596 of the Act has been the subject of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton (Warrell) and I refer in particular to paragraph 25 of that Judgment.

[11] Upon examination of subsection 596(2) there appears to be three, and only three, criteria which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the Hearing of a claim for unfair dismissal. The three criteria which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability; and (c) fairness."

• [14] Having had the opportunity to observe Ms McKeown during a conciliation conference, I was satisfied that Ms McKeown was capable of representing Aurenne at the Determinative Conference. As a human resource professional with twenty years' experience in human resources and a post graduate qualification in psychology, Ms Mckeown could reasonably be expected to have greater capacity to articulate Aurenne's case than Ms Corless-Crane her own. In addition, Ms McKeown has the advantage of legal assistance in the preparation of the company's written submissions and in the preparation of her oral arguments, examination and cross examination of witnesses. In these circumstances, to have allowed Aurenne to be represented when Ms Corless-Crane was not, would have been unfair.

• [15] Leave to be represented was therefore denied. Ms McKeown competently conducted Aurene's case at the Determinative Conference and Ms Corless-Crane conducted her case on her own behalf.

• [16] The Directions required the parties to file their witness evidence in chief in advance of the Hearing.

• [17] Ms Corless-Crane filed two witness statements. One setting out her evidence in chief[4] and the other setting out the evidence of Mr Tom Le Neve-Foster (Mr Neve-Foster).[5] Mr Neve-Foster is currently employed by Aurenne as a mine geologist but at the time of the events which led to the dismissal of Ms Corless-Crane, he was employed as a Pit Technician.[6]

• [18] At the Hearing, Ms Corless-Crane and Mr Neve-Foster were cross examined by Ms McKeown.

• [19] Aurenne filed witness statements setting out the evidence in chief of the following witnesses:

• a. Ms McKeown - commenced employment with Aurenne in November 2023 as a Human Resource Manager. She was promoted to the role of Human Resource Director in July 2024.[7]
• b. Mr Braxton Conroy (Mr Conroy)[8] - Mr Conroy is the Senior Geologist at Mt Ida. He has been employed by Aurene since May 2024. His role is to oversee mineral extraction whilst guiding and mentoring the geology team.
• c. Mr Wayne Patterson (Mr Patterson)[9] - Mr Patterson is the Senior Mining Manager and Quarry Manager at Mt Ida. He has been employed by Aurenne since 9 July 2024. He is responsible for the short-term engineering on site, surveying team on site, geology team on site, mobile maintenance team, mining operations team and dewatering team

• [20] All of Aurenne's witnesses were cross-examined by Ms Corless-Crane.

• [21] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing date (DCB). The DCB was admitted at the Hearing as an exhibit and marked 'Exhibit DCB'.[10]

• [22] The following documents were admitted as exhibits during the course of the Hearing:

1. Exhibit R1 - Spotting Sheet dated 7 January 2025 - This is a pro forma document in which Ms Coreless Crane recorded the details of the mining she oversaw on the night of the Incident.
2. Exhibit A1- Termination Letter of Mr Fletcher La Brody McIver - Mr La Brody McIver was the pit technician who participated in the incorrect marking of the mining area.

• [23] Final written submissions were filed on behalf of Ms Corless-Crane on 6 June 2025. Final written submissions were filed by Aurenne on 23 May 2025.

• [24] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

• [25] Aurenne is a privately owned gold exploration and mining company. Aurenne operates the Mt Ida open cut gold mine in Western Australia (Site). [11]

• [26] Ms Corless-Crane commenced employment with Aurenne as a full time Pit Technician in the geology team on 3 October 2023.[12] During the course of her employment with Aurenne Ms Corless-Crane was covered by the Mining Industry Award 2010 (Award).

• [27] The geology team consists of a Chief Geologist, a Senior Geologist (Mr Conroy), a Mine Geologist and three Pit Technicians (Geology Team). The Chief Geologist is based in Perth. The remaining members of the Geology Team work on Site. The Geology Team reports to Mr Conroy. While on Site, Mr Conroy, and his team report to the Senior Mining Manager (Mr Patterson). [13] The Pit Technicians are the lowest in seniority and typically the least qualified members of Geology Team.[14]

• [28] The Geologists work day shift only, finishing at around 5:30pm. Two Pit Technicians work during the day shift and one Pit Technician works during the nightshift. At the conclusion of their shift the Geologists do a handover to the Pit Technician rostered on night shift. The Geologists remain contactable until around 9pm to answer any questions or deal with issues arise.[15]

• [29] The duties of a Pit Technicians include:[16]

"A clear understanding of the daily requirements for mining;

• Know where all diggers are at all times
• Knowing what ore classification is being sent to its designated ROM stockpile
• Knowing which dig block is being dug at any time
• Knowing when and where the next markup/spotting locations are
• Assisting with ore markups where required
• Progress and plans for next ditchwitching/grade control drilling - assisting with chipping, sampling and pegging lines
• Clear communication to the incoming shift about locations of the diggers and activities for the following shifts - Filing in the master flitch maps accurately.
• Recording of stockpiled tonnes and assisting with drone images"

• [30] A key role of a Pit Technician is to guide the excavator operators to ensure the correct location is mined and that the mined product is taken to the correct stockpile (Spotting). In order for the Pit Technician to perform their role, the relevant mining location is 'marked up' by the Surveyors and the Pit Technician is provided with a dig map produced by the Geologists (Dig Map).[17]

• [31] The Dig Map identifies the shape of the areas which contain ore (Block), the ore type and the depth the excavation is to occur (Relative Level). Each Block has a block identification number (Block ID).[18]

• [32] The marking up is done by spraying paint onto the ground and pegging the area with coloured ribbon. The colour of the paint and ribbon denotes the grade of ore. The boundaries of a Block containing low grade ore are coloured green. The boundaries of a Block containing medium grade ore are coloured orange. The boundaries of a Block containing high grade ore are coloured red. The boundaries of a Block containing mineral waste are coloured blue. The Block ID is sprayed with paint on the ground within the confines of the ribbon.[19]

• [33] According to Mr Conroy, the Pit Technician should take note in the pre-start meeting, of the locations to be mined, and cross reference those locations with the maps they are provided with at handover. Ms Coreless-Crane's evidence is that generally handover from the day shift to her, including handing over the relevant maps and paperwork, routinely occurred after her prestart meeting, either in the car park or on route as she drove the day crew back to their accommodation.

• [34] After the prestart meeting the excavator operators proceed directly to the Pit and commence excavation in the mining location. When the excavator operator nears a Block marked on the ground by paint and ribbons the excavator operator notifies the Pit Technician and the Pit Technician meets the excavator operator at the Block.[20]

• [35] Upon arrival at the mining location the Pit Technician is required to liaise with the excavator operator to confirm that the correct location is being mined, if a discrepancy is identified, mining should cease until the discrepancy is resolved.[21]

• [36] Pit Technicians can validate the mining of the ore is occurring in the correct location in a number of ways including:

• a. Comparing the Block ID marked on the ground by the Surveyor with the Block ID on the Dig Map.[22]

1. Comparing the shape of the area marked on the ground with the shape of the Block on the Dig Map.
2. Checking with the excavator operator the depth (or relative level) of the location using the GPS equipment on the excavator and comparing it with the relative level (RL) on the Dig Map.
3. Checking the excavator mining the location was the one nominated to mine the relevant location at the prestart meeting.

• a. The Block ID and markings may be obscured or removed by excavation nearby or difficult to see due to dust during the day or night and/or poor lighting at night.[23]
• b. Pit Technicians are not necessarily expected to check the RL with the excavator operator when they commence Spotting although this is desirable.[24]
• c. The GPS in the excavators is not always functioning.[25]
• d. The location of excavators may change during the course of a shift or may be different to the location nominated at the pre start meeting.[26]
• e. The radio signal is poor in some parts of the Pit making it difficult to communicate.[27]
• f. The mining location and RL communicated at the prestart meeting may change during a shift.[28]

• [38] After validating the mining of the ore is occurring in the correct location, the Pit Technician completes an ore spotting sheet which records inter alia: [29]

1. The Pit Technicians name.
2. The shift date.
3. The Block ID being minded.
4. The truck number removing the ore.
5. The time the truck departed the mining location.

• [39] On the morning of 7 January 2025, a Pit Technician rostered on day shift Mr Fletcher La Brody McIver (Mr La Brody McIver), the mine geologist Mr James Leaper (Mr Leaper) and a surveyor Ms Nicole Newman (Ms Newman) marked up mining location CAS-S01-473-004 in the Cascade Pit (Pit). The mark-up design Ms Newman used for CAS-S01-473-004 was the mark up design for a different mining location (CAS-S01-475-004). The Dig Map for CAS-S01-473-004 had not yet been created. Ms Newman mistakenly used the Dig Map CAS-S01-475-004 (the flitch or level of soil) between 2 - 5 metres directly above CAS-S01-473-004.[30] This level of soil had already been mined (Wrongly Marked Location).[31]

• [40] Excavation commenced in mining location CAS-473 during day shift under the supervision of the Pit Technician rostered on day shift.

• [41] The same day Ms Corless-Crane flew to Site in the afternoon to commence her roster. Her first rostered shift was a night shift on the evening she arrived on Site.[32]

• [42] Ms Corless-Crane attended a pre start meeting at the commencement of her night shift (Pre Start Meeting). At the Pre Start Meeting, a slide pack was displayed. One of the slides listed the relevant mining locations for the day shifts and night shifts and the associated excavator to be used for each location. The pre-start slide shows that excavator EX201 was allocated to mining location CAS 473 and excavator EX205 was allocated to mining location CAS 470.[33]

• [43] Ms Corless-Crane did not receive the paperwork, maps and handover sheet during the Pre-Start Meeting. She received the handover documentation after the Pre-Start Meeting at the front of the mining office located near the Pit. [34] This is corroborated by Mr Neve-Foster.[35]

• [44] According to Mr Conroy the handover sheet, Ms Corless-Crane was provided with informed her that the mining location to be mined was CAS_S01_473_003 and CAS_S01_473_004. The handover sheet was not tendered in evidence by Aurenne nor the actual Dig Map that Mr Conroy says Ms Corless-Crane was provided with. There is no dispute that Ms Corless-Crane was not provided with a Dig Map for CAS_S01_473_004.[36]

• [45] It appears that Ms Coreless-Crane was provided with the map for CAS 470, given this is what she recorded on her spotting sheet for that shift and in her incident report the following day[37]. Mr Conroy's evidence is that this area had already been mined and the map was obsolete. It is unclear why obsolete maps were handed over to Ms Corless-Crane. [38]

• [46] Mr Conroy conceded that the day crew (who handed over to Ms Corless-Crane) had, notwithstanding that they had participated in a pit familiarisation tour and a prestart meeting, failed to notice that they did not have a Dig Map for the area to be mined:[39]

"So when your oncoming crew came in and you were told you're going to mine - you're working in 003 and 004, and you got your maps for 003, why did someone in the rest of the team not say, 'Well, there's no map for 004', that, 'If that's where we're mining, we haven't got a map'?---Good question. All I can lead it down to is we didn't have the maps with us during the day shift. So we assumed what the oncoming crew - sorry - the leaving crew did was right and accurate. They didn't have a map supplied. The reason it wasn't picked up was because we didn't mine any of the ore that day shift."

• [47] Sometime in the early hours of the morning of 8 January 2025 an excavator operator contacted Ms Corless-Crane to inform her he was nearing what he believed to be a Block containing ore (the Wrongly Marked Location).[40]

• [48] When Ms Corless-Crane arrived at the Wrongly Marked Location to verify the correct location was to be mined, a significant amount of dirt had already been excavated during day shift. Upon inspection, she observed that a low-grade green block had been exposed and there was a bit of blue paint left from a mineral waste block.[41] Aurenne says that as ore had already been exposed this should have alerted Ms Coreless-Crane to the possibility that the ore location had been wrongly marked. I note the evidence that it is expected that excavator operators are to recognise the presence and type of ore and to cease mining if ore is exposed in an unmarked location.[42] This did not occur on this occasion.

• [49] Excavation had been occurring near the Wrongly Pegged Ore Location all day. Ms Corless-Crane says that this had disturbed the ribbons and painted markings making identifying the mining location difficult. She says that her efforts to accurately identify the location were further hampered by the poor light and the fact that it was the early hours of the morning of her first shift on Site.[43]

• [50] Mr Neve-Foster reports that being rostered as a Pit Technician at nighttime is more difficult than during the daytime because there is no one the same level or more senior to consult, the visibility is poorer, and the Pit Technician is usually more tired.[44]

• [51] Ms Corless-Crane says she had a discussion with the excavator operator and showed him the map she was using to confirm the Ore Location was correct. She says although the markings were difficult to read, she and the excavator operator agreed that the block ID marked on the ground matched the ID number on the map in the bundle of documents she was given at handover which led her to believe the mining location was correct. [45]

• [52] The Wrongly Marked Location was a narrow rectangle shape which should have been marked by green ribbons and paint located in the top half of the mining location. The DigMap for CAS_S01_470_003_LG03 used by Ms Corless-Crane shows the relevant Block as a longer thin rectangle which should have been marked with green paint and ribbons with a thin rectangular block adjoining it and an additional thin rectangular block further to the northwest. Both should have been marked with blue paint and ribbons.[46]

• [53] Ms Corless-Crane says that the thin rectangular shape and the remnants of some blue markings near the low-grade order further convinced her that map of CAS_S01_470_003_ she was using was the correct map.[47]

• [54] The excavator operator should have also had a copy of the Dig Map for the area that he was to remove ore from and should have been informed during the Pre Start Meeting of the location and relative level of the ore to be mined that shift.[48] Ms Corless-Crane says that on that evening the excavator operator did not have a map and did not have a working GPS.[49] The excavator operator was not interviewed in the course of the Investigation into the Incident.[50] Aurenne did not call the excavator operator as a witness. As her evidence in this regard is uncontested, I accept Ms Corless-Crane's evidence that she endeavoured to verify the mining location with the excavator operator, that he agreed the location was correct and that the GPS was not functioning to enable the RL to be cross referenced by either the excavator operator or Ms Corless-Crane.

• [55] Ms Corless-Crane says that without the GPS system functioning, it was difficult for her to verify the relative level or any deviations from the expected coordinates. She says that without the proper tools to cross-check the data; the map she received was the only resource available to her.[51]

• [56] The excavator allocated to mining location CAS470 according to the slide from the Pre-Start Meeting was EX205.[52] However on her spotting sheet and in her incident, report following the Ore Incident, Ms Corless-Crane recorded that the excavator at the Wrongly Marked Location was EX201. This excavator was allocated to mining location CAS470 according to the slide from the Pre-Start Meeting. Excavator EX201 is about 125 tonnes, whereas the EX205 is a lot larger. Aurenne says that Ms Corless-Crane should have recognised that the excavator was not the one scheduled to be in mining location CAS470 that night and that she was therefore relying on the wrong map.

• [57] The evidence of Ms Corless-Crane and Mr Neve-Foster is that there can be discrepancies between the allocation of excavators at the Pre-Start Meeting and the actual location of excavators during shifts. The evidence of both Ms Corless-Crane and Mr Neve-Foster is that a Pit Technician would not be expected to be able to identify different digger models. I also note Ms Corless-Crane's uncontested evidence that she confirmed the mining location with the excavator operator before he proceeded mining the ore.[53]

• [58] On the Spotting Sheet, Ms Corless-Crane recorded the number of trucks which removed ore. Aurenne says that the number of trucks exceeded what Dig Map of CAS_S01_470_003 suggested was the size of the ore body and this should have alerted Ms Corless-Crane to the possibility that the ore location was wrongly marked.

• [59] On the morning of 8 January 2025, Mr Neve-Foster, who was the rostered to train another employee, went to the Pit to train the other employee in spotting. Mr Neve-Foster radioed the excavator operator and requested that he confirm the current RL of mining. The RL communicated to Mr Neve-Foster did not match the RL which should have been mined. Mr Neve-Foster directed production to stop and informed Mr Conroy.[54]

• [60] When Mr Conroy was informed that mining location CAS_S01_473_004 had been mined the night prior, he endeavoured to locate the Dig Map for CAS_S01_473_004 and could not find one. When Mr Conroy investigated further, he consequently discovered that the Surveyor, Ms Newman, had used the wrong file to markup CAS_S01_473_004. [55]

• [61] As a consequence of the error in marking up the mining location, between the start of dayshift on 7 January 2025 and until production was stopped on 8 January 2025. An estimated 54 ounces of gold was taken to waste piles rather than being taken to the plant for processing. The estimated value of the lost gold is $200,000.

• [62] A portion of the lost ore was mined during the day shift before Ms Corless-Crane commenced her shift. [56]

• [63] The day after Mr Conroy discovered the wrong area had been mined, an investigation was commenced (Investigation). On 9 January 2025, Ms Corless-Crane was requested to provide an incident report in relation to her 7 January 2025 shift (Incident Report).

• [64] Ms Corless-Crane continued performing her normal duties until the last day of her roster on 13 January 2025 when Mr Pattison met with Ms Corless-Crane and told her she would be stood down on full pay pending the completion of the Investigation. Ms Corless-Crane then left site on her scheduled flight.[57]

• [65] Ms Corless-Crane was not sent an allegation letter until 5:44pm on 14 January 2025 (Allegation Letter).[58] Allegation letters were also sent to two other employees.[59]

• [66] The Allegation Letter which was emailed to Ms Corless-Crane described the allegations as follows:

"1. On the 7th January 2025, you did not take due diligence to ensure you had the right paperwork for 473-04. Instead of escalating, you assumed there was a mistake on the PSI board and proceeded.

2. On the same shift, you did not properly execute the duties of your role and failed to take control of the mining activity, in not recognising that the level the excavator operator was working did not match your flitch plans, and further he had commenced digging before you had clear communication with him.

3. On the 13th January 2025, in providing further information regarding the ore loss incident, stated that the excavator operator is hard to understand and not very approachable. This issue should have been raised with management earlier so it could be dealt with."[60]

• [67] The Allegation Letter directed Ms Corless-Crane to provide a response by 4pm Thursday 16 January 2025.[61]

• [68] On the 19 January 2025, Ms Corless-Crane emailed Ms McKeown informing her that she had been told that she would be contacted but had not and she had just discovered the Allegation Letter in her junk mail. Ms Corless-Crane indicated that she anticipated having the opportunity to participate in a face-to-face meeting. She requested that Ms McKeown call her to discuss the matter further.[62]

• [69] On the 20 January 2025, Ms McKeown telephoned Ms Corless-Crane to discuss the Allegation Letter and requested that Ms Corless-Crane provide a response to the letter by 4pm 21 January 2025.[63]

• [70] On 21 January 2025, Ms Corless-Crane requested additional time to respond. She provided her response at 4:05pm the same day.[64]

"1. The paperwork I received from the day shift crew contained inaccuracies, but I was not aware of this at the time. There is no supervisor from my department present on the night shift. I rely on the paperwork provided by my crew. When I arrived at Cascade to inspect the ore, I found only a low-grade block that had already been exposed, with the block number marked on the ground matching the number on my map. Mining operations on this RL had already begun prior to my arrival. I received my handover after the PSI meeting.

2. The operator did not have a flitch map that I was aware of, which led me to not recognise that the flitch was incorrect. As the least experienced member of my department, I rely on the information provided to me from my department and trust that it is accurate.

3. I haven't had a lot of practice working with this digger, Even though it's difficult to understand what he's saying, we managed to communicate about the codes sprayed on the floor that aligned with my map."

• [71] On the same date, investigations regarding the other two staff members were finalised. Ms Newman (the Surveyor who marked out the wrong mining location) was given a first and final written warning. The Pit Technician, Mr La'Brooy-McIver was dismissed for unrelated reasons. The geologist, Mr Leaper, who assisted Ms Newman mark out the wrong area had earlier resigned during the course of the Investigation.[65]

• [72] Ms McKeown says that upon receipt of Ms Corless-Crane's response she reviewed Ms Corless-Crane's performance history. Ms McKeown noted that Ms Corless-Crane had been issued with a written warning following an incident on 1 November 2024 when she was observed driving a vehicle in excess of the speed limit whilst driving past the maintenance bay (1 November 2024 Incident). Ms McKeown says she also took into account a meeting Mr Conroy reported to her that he held with Ms Corless-Crane in December 2024, during which he says that he raised performance concerns with Ms Corless-Crane.

• [73] Mr Conroy's evidence is that since October 2024 he had one formal and multiple informal conversations with Ms Corless-Crane with respect to performance issues. He identified these performance issues as follows:

1. 5 October 2024 - Failure to complete vehicle pre start check.
2. 30 November 2024 - Sending material without dig block or shot number.
3. 11 December 2024 - Unaware of location of excavator, no Dig Map and mining in unmarked up area
4. 13 December 2024 - Sitting in office not working for 1.5 hours
5. 25 December 2024 - Mining in wrong location.
6. 7 January 2024 - Provision of unusable data.

• [74] Ms Coreless-Crane was unable to recall each of these incidents occurring. However, to the extent that she did, she asserts that the matters were raised not as disciplinary matters, rather as coaching or guidance or she provided an explanation for why the incident occurred at the time to the satisfaction of Mr Conroy.[66]

• [75] The only documentary evidence of performance warnings given to Ms Coreless-Crane tendered by Aurenne was in relation to the 1 November 2024 Incident. The warning in template form marked 'Counselling/Written Warning'. The form provides for four types of disciplinary action:[67]

1. Counselling
2. Verbal warning
3. Written warning - First
4. Final Written Warning

• [76] The type selected for the 1 November 2024 incident is written warning - first.[68]

• [77] The form requires the person completing the form to indicate whether a further review of performance or conduct was required. The option 'no' is marked on the form.[69]

• [78] The form indicates it was signed by Mr Conroy on 12 December 2024 after three events he identified in his evidence as examples of poor performance. There is no reference to these events in the form or notably any requirement for further monitoring of performance.

• [79] Mr Conroy says that the formal conversion that he held with Ms Corless-Crane was held on 13 December 2024. Mr Conroy says that during this meeting he explained to Ms Corless-Crane the expectations for her role and provided a written copy of the duties of a Pit Technician. In a briefing email to Ms McKeown about his meeting with Ms Corless-Crane, Mr Conroy described the meeting as follows:[70]

"I am just letting you know that I had a sit down conversation with Jamie today (13/12/24) about roles and expectations as well as some performance based feedback. I also printed a copy of the above and handed it to her, I will follow up with an email.

Knowing when and where the next markup/spotting locations are

Feedback was centred around my concern that she was not meeting the expectations of

• [80] The email which Mr Conroy forwarded to Ms Corless-Crane following this discussion and attaching the list of Pit Technician roles, differs significantly in tone from the one Mr Conroy sent Ms McKeown. The email Mr Conroy sent to Ms Corless-Crane has the tone of a 'coaching session' only. The email does not specifically refer to performance deficiencies, it is not marked as a warning nor is there any mention of any potential disciplinary consequences in the event of a failure to improve performance.[71]

So you have this file as a soft copy, please find the attached document I printed for you.

To relay our conversation, one of the most important parts of your role is knowing where all diggers are, what shot they are mining and what ore is going to be mined for the day. To help with this, I think we need to strictly start keeping the flitch maps up to date and look at them as a team in the morning.

• [81] In addition to the above, Mr Conroy says that guidance was provided the Pit Technicians generically via emails and verbally. This correspondence suggests that Ms Corless-Crane was not alone with regards to having potential to improve the performance of her duties. See for example:

a. an undated email to the geology team regarding markup expectations which says:

"I am fairly sure I do not need to be reiterating this, however, there have been several instances where ore mark ups have not been executed to a good enough standard."[72]

b. An email dated 16 October 2024 to the geology team regarding spotting:

I have noticed that we have stopped spotting when facing up the ore."[73]

• [82] Notwithstanding the Aurenne's evidence that it had concerns with Ms Corless-Cranes performance on 30 July 2024, she was awarded a 23% increase in salary. The letter informing her of her pay increase contains a handwritten note:

"THX JL - Really Appreciate All You Do For Us!" [74]

• [83] Ms McKeown's evidence is that the amount of increase was discounted due to Aurenne's concerns about Ms Corless-Cranes' performance.[75] Ms McKeown says that the reason for the discount was explained to Ms Corless-Crane by the Chief Geologist. Ms Corless-Crane denies ever having such a conversation with the Chief Geologist and notes that she got a sizeable salary increase. [76] Ms McKeown concedes that other employees who had performance deficiencies were given no bonus.[77] The Chief Geologist was not called as a witness by Aurenne.

• [84] Ms McKeown says that ultimately:[78]

"The decision was made that Jamie-lee could not be trusted to carry out her duties appropriately, as such, the company no longer had faith and confidence in Jamie-lee's ability to perform her role to a satisfactory standard. Therefore, issuing her with another written warning would not be appropriate given the gravity of the incident"

• [85] Ms Corless-Crane was not provided with an opportunity to respond to these alleged performance deficiencies in the course of the show cause process.

• [86] On 22 January 2025, Ms Corless Crane was sent a letter informing her that she was dismissed effective that day.[79]

• [87] At the time of her dismissal, Ms Corless-Crane's annual salary was $100,000.[80]

• [88] Since her dismissal, she says she has actively applied for similar positions but has not been successful. She is a single parent with one dependent child, aged 8. She explained that it would take additional time for her to secure a similar job as she will need to complete medical tests and inductions. She says that if she does not secure a similar role by June 2025, she is at risk of losing her home.

• [89] Ms Corless-Crane conceded that she was a trained hairdresser and a DJ but says that she hasn't explored redeployment in these fields as she would not earn as much and would lose her home. She says that she is currently in the process of building this home and in the abovementioned roles she would not be able to care for her son in relation to whom she has shared custody arrangements.[81]

• [90] Ms Corless-Crane seeks an order for compensation.

Is Ms Corless-Crane protected from unfair dismissal?

• [91] An order for reinstatement or compensation may only be issued if Ms Corless-Crane was unfairly dismissed and Ms Corless-Crane was protected from unfair dismissal at the time of her dismissal.

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

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

1. an enterprise agreement applies to the person in relation to the employment; and
2. the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the Fair Work Regulations 2009 (Cth) (Regulations), is less than the high income threshold.

• [93] For the purposes of Part 3-2 of the FW Act an 'employee' means an employee of a national system employer. There is no dispute and I am satisfied that Aurenne is a national system employee and Ms Corless-Crane is therefore a national system employee.

• [94] If the employer is not a small business, the 'minimum employment period' is six months ending at the earlier of the following times:[82]

1. the time when the person is given notice of the dismissal; or
2. immediately before the dismissal.

• [95] There is no dispute, and I am satisfied, that Aurenne is not a small business employer for the purposes of section 383 of the FW Act.

• [96] Ms Corless-Crane commenced employment with Aurenne on 2 October 2023.[83] Ms Corless-Crane was dismissed on 22 January 2025. [84]

• [97] I am therefore satisfied that, at the time of dismissal, Ms Corless-Crane was an employee who had completed a period of employment of at least the minimum employment period.

• [98] There is no dispute[85], and I am satisfied, that the Mining Industry Award applied to her employment at the time of her dismissal.[86] Consequently, I am satisfied that Ms Corless-Crane was protected from unfair dismissal.

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

1. the person has been dismissed;
2. the dismissal was harsh, unjust or unreasonable;
   1. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
   2. the dismissal was not a case of genuine redundancy.

• [100] Section 386(1) of the FW Act provides that a person has been dismissed if the person's employment was terminated at the employer's initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.

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

• [102] There was no dispute[87], and I find, that Ms Corless-Crane' employment with Aurenne was terminated at the initiative of Aurenne.

• [103] I am therefore satisfied that Ms Corless-Crane has been dismissed within the meaning of section 385 of the FW Act.

Was Ms Corless-Crane's dismissal a case of genuine redundancy?

• [104] Pursuant to section 389 of the FW Act, a person's dismissal was a case of genuine redundancy if:

1. the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
2. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

• [105] It was not in dispute[88], and I find, that Ms Corless-Crane' dismissal was not due to Aurenne no longer requiring her job to be performed by anyone because of changes in Aurenne's operational requirements.

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

Was Ms Corless-Crane's dismissal consistent with the Small Business Fair Dismissal Code?

• [107] Section 388 of the FW Act provides that a person's dismissal is consistent with the SBFDC Code if:

1. immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and
2. the employer complied with the SBFD Code in relation to the dismissal.

• [108] It was not in dispute[89], and I find, that Aurenne was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of fourteen (14) employees.

• [109] As Aurenne is not a small business employer within the meaning of the FW Act, I am satisfied that the SBFD Code does not apply to Ms Corless-Crane's dismissal.

Was the Application made within the period required?

• [110] Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.

• [111] Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.

• [112] It is not disputed,[90] and I find, that Ms Corless-Crane was dismissed from her employment on 22 January 2025[91] and made the Application on 31 January 2025[92]. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.

Was the dismissal harsh, unjust or unreasonable?

• [113] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

".... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."[93]

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

1. 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);
2. whether the person was notified of that reason;
3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
5. if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal;
6. the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal;
7. 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
8. any other matters that the FWC considers relevant.

• [115] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.[94]

Was there a valid reason for the dismissal related to Ms Corless-Crane's capacity or conduct?

• [116] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[95] and should not be "capricious, fanciful, spiteful or prejudiced."[96] It is not the role of the FWC to stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.[97]

• [117] The employer carries the onus of establishing a valid reason.[98]

• [118] Where a dismissal relates to an employee's conduct, the FWC must be satisfied that the conduct occurred and justified termination.[99] The question of whether the alleged conduct took place and what it involved is to be determined by the FWC 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.[100]

• [119] The standard of proof to be applied by the FWC is that set out in Briginshaw v Briginshaw[101] as follows:

"The standard of proof remains the balance of probabilities but 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained' and such satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences' or 'by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion."

• [120] In its written submissions Aurenne asserts that it had a valid reason to dismiss Ms Corless-Crane because:[102]

"... during work on night shift on 7 January 2025 she failed check the mark up and ID of the flitch to be mined against the map she had been provided resulting in 54 ounces of gold being mined as waste and taken to the waste dump rather than the processing plant ROM."

• [121] The factual basis of the dismissal was not made out on the evidence at Hearing.

• [122] There is no dispute that Aurenne failed to provide Ms Corless-Crane with the correct map for the mining location intended to be mined. Aurenne chose not to file copies of the maps and handover sheet it says were provided to Ms Corless-Crane at handover notwithstanding that the evidence is that such documents are retained.[103] The Spotting Sheet was only filed after being directed to do so by the Commission in the course of the Hearing.[104]

• [123] Ms Corless Crane has a background in hairdressing and DJing. She has been employed in the mining sector for only 15 months. Her colleagues in the geology day shift (which included more senior, more qualified and more experienced employees) had undertaken a pit familiarisation tour the same day during day light hours and had been informed of the mining location failed to notice that the handover documentation they received and relied on in the course of their shift, then handed over to Ms Coreless-Crane, did not contain a map for the area to be mined.

• [124] The evidence is that Ms Corless-Crane did in fact check the markup and Block ID of the flitch or mining location against the Dig Map she was provided at handover and that she verified this with the excavator operator. The uncontested evidence is that the GPS on the excavator wasn't working and that Ms Coreless-Crane was unable to check the relative level of the mining. There is no evidence to the contrary. Aurenne chose not to call the excavator operator as a witness.

• [125] In its closing submissions, Aurenne sought to have adverse credibility findings made against Ms Coreless-Crane because in her oral evidence she was at time uncertain what maps she was provided with and the Block ID marked on the ground. I note:

1. Her evidence was consistent that the Block ID matched the Dig Map she was given.
2. There is no clear evidence from either party about what maps she did or didn't have.
3. Ms Corless-Crane was representing herself at the Hearing. Unlike Ms McKeown, she has no tertiary qualifications relevant to the proceedings and was clearly stressed by the formality and structure of the proceedings and the requirement to present her case herself.
4. Ms Corless-Crane was not initially taken to the relevant maps in the DCB when asked to clarify the relevant map and Block ID.

• e. Other witnesses experienced confusion when endeavouring to recall the codes of the relevant Blocks.[105]

1. A considerable period of time expired between the Incident and the Hearing

• [126] There is no dispute that the wrong mining location was marked up and that Ms Corless-Crane was not responsible for this error.

• [127] Aurenne say that Ms Corless-Crane should have noticed discrepancies in the shape of the Block on the Dig Map she was provided with and the paint and ribbon marking on the ground. They also say that the fact that low grade ore had been exposed before her arrival should have alerted her to the possibility that the ore location was wrongly marked. They say she should also have been alerted by the fact that a different excavator was operating at the mining location than specified at the Pre-Start Meeting.

• [128] Excavation had occurred close to the mining area all day. Ms Corless-Crane was not called to the mining location until the early hours of the morning. This was her first shift since flying to site early that day, so it is quite probable that she had been awake for many hours at that time. The evidence is that the mining area is dusty and the lighting poor at night. [106]

• [129] The mining location Ms Corless-Crane presumed was intended to be mined CAS_S01_470_003 _LG03 is a long thin rectangular shape located in the bottom middle of the mining area. The Block wrongly marked on the ground by others was also a thin rectangle. Although shorter and located slighter further towards the centre of the mining location. [107]

• [130] Those differences are discernible when one has the benefit of printed copies of both Dig Maps to compare in a well-lit court room. Ms Corless-Crane did not have benefit of two printed maps to compare or good light. Aurenne failed to provide her with the correct Dig Map. She had no reason to suspect that a markup had occurred without a Dig Map being created.

• [131] Ms Corless-Crane was not responsible for the loss of 54 bounces of gold. Ore had already been lost before she was called to the mining location.[108] The loss of ore occurred due to an error in the markup by people far more qualified than Ms Corless-Crane, the surveyor Ms Newman and the geologist Mr Leaper.

• [132] As Mr Conroy conceded:[109]

"So once it had been marked up wrong, it was going to be problematic?---It was - yes. Exactly right."

• [133] The opportunity to identify the error earlier was missed by the excavator operators and Geology Team members operating during day light hours with far better visibility and more experience than Ms Corless-Crane.[110]

• [134] The day shift geology team had the benefit of a mine familiarisation tour during daylight hours. They were aware that the intention was to mine two areas. But none noted that they had only been provided with one map in handover.[111]

"So when your oncoming crew came in and you were told you're going to mine - you're working in 003 and 004, and you got your maps for 003, why did someone in the rest of the team not say, 'Well, there's no map for 004', that, 'If that's where we're mining, we haven't got a map'?---Good question. All I can lead it down to is we didn't have the maps with us during the day shift. So we assumed what the oncoming crew - sorry - the leaving crew did was right and accurate. They didn't have a map supplied. The reason it wasn't picked up was because we didn't mine any of the ore that day shift."

• [135] As Mr Conroy conceded in cross examination, there was a succession of errors by other people before Ms Corless-Crane:[112]

"So you can confirm, like, it goes through a ladder of people until it gets to me for that mark-up to be correct?---Yes. Yes. The problem or the incident is definitely not entirely your fault. There were a lot of failures that occurred prior to you."

• [136] Ms Corless-Crane was the last line of defence in a chain of successive failures of systems and employees. Each of those failures contributed to the loss of the ore. These failures include:

1. A system of work which allowed a markup to occur without a Dig Map being created.
2. A system of work which allowed a surveyor, geologist and pit technician to participate in a markup without cross referencing the correct Dig Map.
3. A system of work which allowed a handover to occur during dayshift without the corresponding dig maps.
4. A system of work which allowed obsolete maps to be handed over.
5. A system of work which relied on accurate GPS measurements without consistent GPS service.
6. A system of work which allowed for handover materials which were required to be cross referenced with information provided at the Pre-Start Meeting to be provided separately after the meeting had occurred.
7. A system of work where the excavator drivers could commence mining in an area without a Dig Map and without noting a difference in relative level from that communicated at handover.
8. Failures on the part of the surveyor, geologist and pit technician.
9. Failures on the part of the day crew to ensure the correct maps were provided to Ms Coreless Crane.
10. Failures on the part of the geology day shift and excavator operators to identify with the benefit of day light that they were mining areas of ore body.
11. Failures on the part of decision maker who permitted handover of relevant documentation to occur after the Prestart meeting.
12. A failure by the excavator operator to note that he was mining at the wrong Relative Level and to identify he had uncovered ore in an unexpected location.

• [137] None of those abovementioned employees other than Ms Corless Crane were ultimately dismissed because of their involvement. A number appear to have never been subject to disciplinary action, coaching or investigation. The employee who was ultimately responsible for the loss of all the ore was given a written warning only.

• [138] Even if Ms Corless-Crane had been able to identify the error in markup, the loss of ore had already commenced occurring before she was called to the mining location.[113]

• [139] Aurenne have not established that as a matter of fact that Ms Corless-Crane failed to check the mark up and ID of the flitch to be mined against the map that she had been provided. Aurenne have also not established that as a matter of fact Ms Coreless-Crane's actions resulted in the loss of 54 ounces of ore.

• [140] While there might possibly have been an opportunity for Ms Corless-Crane to identify the error in the mining location, I am not satisfied that her failure to do so was sufficiently serious to constitute a valid reason for her termination in all the circumstances, particularly when considered in the light of the conduct of others who were not disciplined or dismissed and the systems of work which contributed to the loss of ore occurring.

• [141] I do not accept that Aurenne's submission that Ms Corless Crane demonstrated a lack of remorse or willingness to make adjustments to the performance of her duties by blaming the lack of the correct Dig Map in response to the Allegations. She simply responded to the Allegations. The fact is that the incorrect marking up and the lack of provision of the correct Dig Map was the cause of the ore loss.

• [142] Aurene says that in deciding to dismiss Ms Corless-Crane it took into account the record of Mr Conroy's concerns about her capacity to perform her role that were brought to her attention during her employment including by the issuing of a written warning.

• [143] The manner in which the alleged deficiencies were communicated to her and the payment of a bonus gave Ms Corless-Crane limited if any warning that Aurenne had concerns about her performance such that she had a reasonable opportunity to address these concerns.

• [144] Ms Corless-Crane was not provided with an opportunity to respond to these alleged performance deficiencies in the course of the show cause process.

• [145] Based on the evidence before me, and the submissions of the parties, for the reasons above, I find that a valid reason did not exist for Ms Corless-Crane's dismissal.

Was Ms Corless-Crane notified of the valid reason?

• [146] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[114] and in explicit,[115] plain and clear terms.[116]

• [147] The Allegations actually put to Ms Corless-Crane differ significantly to the grounds for dismissal as set out in the Termination Letter and from the reasons for dismissal relied upon in Aurenne's written submissions. In their Closing Submissions, Aurenne again sought to reformulate the reasons for dismissal.

• [148] The Allegation Letter which was emailed to Ms Corless-Crane described the allegations as follows:[117]

'1. On the 7th January 2025, you did not take due diligence to ensure you had the right paperwork for 473-04. Instead of escalating, you assumed there was a mistake on the PSI board and proceeded.

2. On the same shift, you did not properly execute the duties of your role and failed to take control of the mining activity, in not recognising that the level the excavator operator was working did not match your flitch plans, and further he had commenced digging before you had clear communication with him.

3. On the 13th January 2025, in providing further information regarding the ore loss incident, stated that the excavator operator is hard to understand and not very approachable. This issue should have been raised with management earlier so it could be dealt with."

• [149] The members of the Geology Team on day shift on Mr Conroy's own admission were equally guilty of item 1.

• [150] On the evidence before me the GPS was not working and Ms Corless-Crane was not provided with the correct map to ascertain that work was occurring at the wrong relative level. There was no evidence led at hearing as to Ms Corless-Crane's capacity to prevent the excavator operator excavating before he called her to the mining location so presumably this allegation was abandoned by Aurenne in the course of the Investigation. It is unclear how item 3 might form the basis for Ms Corless-Crane's dismissal, but it was not pressed at the Hearing.

• [151] The Termination Letter identified the reasons for dismissal as follows:[118]

"1.Whilst you were not given the correct paperwork, you failed to take the expected due diligence required to ensure you had the right paperwork.

2. The appearance of the blocks on the pit floor should have been a further indication that something was wrong, and not confirmation of the paperwork you had.

3. You failed to take control of the mining activity, in ensuring the excavator operator was working in the correct area.

4. You did not properly execute the duties of your role as a Pit Technician."

• [152] In its written submissions, Aurenne asserts that it had a valid reason to dismiss Ms Corless-Crane because:[119]

"... during work on night shift on 7 January 2025 she failed check the mark up and ID of the flitch to be mined against the map she had been provided resulting in 54 ounces of gold being mined as waste and taken to the waste dump rather than the processing plant ROM."

• [153] In their Closing Submissions Aurenne once again sought to reformulate the reasons for dismissal on this occasion identifying the reasons as a failure to "...check the location and classification of the ore being mined ...."[120]

• [154] The allegations to which Ms Corless-Crane was required to respond in the Show Cause process differ significantly from those relied upon in the Termination Letter, in Aurenne's Written Submissions and in Aurenne's Closing Submissions.

• [155] Furthermore as Ms McKeown did not take into Ms Corless-Crane's purported performance deficiency until after Ms Corless-Crane provided her response to the Allegations. Ms Coreless-Crane was not notified that her performance formed part of the reasons for her dismissal in the course of the show cause process.

• [156] For the reasons set out earlier in this Decision, I am not satisfied that Ms Corless-Crane had been put clearly on notice prior to the Incident that inadequacies existed in her performance that jeopardised her ongoing employment.

• [157] I am therefore satisfied that Ms Corless-Crane was not appropriately notified of the reasons for her dismissal before the decision was made to terminate her employment.

Was Ms Corless-Crane given an opportunity to respond to any valid reason related to his capacity or conduct?

• [158] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[121]

• [159] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[122] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[123]

• [160] The allegations to which Ms Corless-Crane was required to respond in the Show Cause process differ significantly from those relied upon in the Termination Letter and in Aurenne's written submissions.

• [161] Ms Corless-Crane was not notified that her performance formed part of the reasons for her dismissal until the Termination Letter and therefore she had no opportunity to respond to those reasons prior to the decision to dismiss her being made.

• [162] I am satisfied, that Ms Corless-Crane was not given an appropriate opportunity to respond to the reasons for her dismissal prior to the decision to dismiss being made.

Did Aurenne unreasonably refuse to allow Ms Corless-Crane to have a support person present to assist at discussions relating to the dismissal?

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

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

"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them." [124]

• [165] There is no evidence that Ms Corless-Crane requested that a support person be present during the meeting with Mr Patterson. At the meeting she was advised that she would be stood down pending the outcome of the disciplinary process.

• [166] The Allegations were communicated to Ms Corless-Crane in writing and she responded in writing.

• [167] I am satisfied that Aurenne did not unreasonably refuse to allow Ms Corless-Crane to have a support person present at discussions relating to his dismissal.

• [168] This consideration is therefore neutral in this Application.

Was Ms Corless-Crane warned about unsatisfactory performance before the dismissal?

• [169] A mere exhortation for an employee to improve their performance would not be a sufficient warning. A warning must:

1. identify the relevant aspect of the employee's performance which is of concern to the employer; and
2. make it clear that the employee's employment is at risk unless the performance issue identified is addressed.

• [170] I am not satisfied given that the manner in which the alleged deficiencies were communicated to Ms Corless-Crane (and in light of the payment of a bonus) that it was made clear to Ms Corelss-Crane that Aurenne had concerns about her performance such that she had a reasonable opportunity to address these concerns before her dismissal.

To what degree would the size of Aurenne's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [171] Where an employer is substantial and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.[125]

• [173] I am satisfied that the size of Aurene's business was not likely to impact on the procedures followed in effecting. This consideration is therefore neutral in this Application.

To what degree would the absence of dedicated human resource management specialists or expertise in Aurenne's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [174] The absence of dedicated human resource management specialists does not relieve an employer extending an appropriate degree of courtesy to its employees "even when implementing something as difficult and unpleasant as the termination of a person's employment."[126]

• [175] Aurenne's enterprise did not lack dedicated human resource management specialists and expertise.[127]

• [176] This consideration is therefore neutral in this Application.

• [177] Section 387(h) of the FW Act requires the FWC to take into account any other matters that the FWC considers relevant to determining whether the dismissal was harsh, unjust or unreasonable.

• [178] Ms Corless-Crane submits that the following matters are relevant to determining whether her dismissal was harsh, unjust or unreasonable:

1. She has only been employed in the mining sector for 15 months.
2. Ore had already been lost before she commenced her spotting duties.
3. At the time of the incident Ms Corless-Crane was caring for her elderly grandfather and young son while her grandmother was in a care facility.
4. None of the employees who were involved in the Incident were dismissed because of their involvement other than her and only was given a written warning.

• [179] Aurenne submit that the following matters are relevant to determining whether her dismissal was harsh, unjust tor unreasonable:

1. Ms Corless-Crane did not acknowledge a failure on her part to perform key requirements of her role.
2. Other employees were also disciplined in relation to the Incident.

• [180] I considered Ms Corless-Crane's limited experience of 15 months in the mining industry relevant to unreasonableness of her dismissal. Ms Corless Crane has a background in hairdressing and DJing. Her colleagues in the geology day shift (which included more senior, more qualified and more experienced employees) who had undertaken a pit familiarisation tour the same day during day light hours and been informed of the mining location failed to notice that the handover documentation they received and relied on in the course of their shift then handed over to Ms Coreless-Crane did not contain a map for the area to be mined. The excavator operator failed to identify he had exposed low grade ore or that he was mining at the wrong Relative Level. Yet Ms Corless-Crane an inexperienced employee with limited qualifications operating alone in the early hours of the morning without access to GPS in a business in which continuous production has primacy was held to account for not identifying she was not provided with the correct map or identifying that mining was occurring at the wrong Relative Level.

• [181] The loss of ore arose from a series of systems and employee failures of which Ms Corless-Crane was the last and potentially least experienced employee to have failed to identify the error in markup. None of these employees, other than Ms Corless Crane were ultimately dismissed because of their involvement. A number appear to have never been subject to disciplinary action, coaching or investigation. The employee who was ultimately responsible for the loss of all the ore was given a written warning only.

• [182] In deciding to issue only a written warning Aurene took into account the Surveyors performance record and the recent breakdown of her marriage. Aurenne do not appear to have extended to Ms Corless-Crane equivalent empathy notwithstanding that she was a junior inexperienced employee working in the early hours of the morning on her first night shift of swing, is a single mother, the income earner for herself and her young child, with caring responsibilities for her elderly grandparents.

• [183] In determining to impose a different disciplinary outcome on the surveyor (Ms Newman) than Ms Corless-Crane, Aurenne appear to have failed to give weight to the fact that Ms Corless-Crane has significantly less qualifications and experience in the industry than the surveyor, whose error on the evidence tendered, was far more fundamental and was the root cause of the ore loss. It was unfair to differentiate the treatment of Ms Corless-Crane based on her alleged performance deficiencies when the evidence suggests she was not clearly put on notice that her performance was such that her employment was in jeopardy.

• [184] Ms Corless-Crane's limited mining experience, her financial circumstances, her custody arrangements and her caring responsibilities make her dismissal harsh given these factors limit her capacity to mitigate her loss.

• [185] I do not accept Aurenne's submission that Ms Corless Crane demonstrated a lack of remorse or willingness to make adjustments to the performance of her duties by blaming the lack of the provision of the correct Dig Map in response to the Allegations. She simply responded to the Allegations. The fact is that the incorrect marking up and the lack of provision of the correct Dig Map was the cause of the ore loss. She asserts that she performed her duties by endeavouring to verify the mining area. Aurenne have not established as a matter of fact that she did not.

• [186] I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.

• [187] I have considered and given due weight to each factor as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.

• [188] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Ms Corless-Crane was harsh, unjust and unreasonable. It was harsh in its consequences given the personal and economic circumstances of Ms Coreless-Crane and the impact of those circumstances on her capacity to secure alternative employment. It was disproportionate given the human and systematic flaws which contributed to the Incident and as compared to the treatment of other employees.

• [189] The dismissal was unjust and unreasonable in the circumstances. This is unsurprisingly reflected in the difficulty Aurenne experienced in identifying valid reasons for the dismissal, reformulating them at each stage from the Allegation Letter to the Termination Letter and from the written submissions to their closing submissions. The dismissal was also particularly unreasonable given the lack of clarity provided to Ms Corless-Crane about her alleged performance deficiencies during the course of her employment, denying her a reasonable opportunity to improve her performance and the lack of opportunity for her to address them in the Show Cause process.

• [190] I am satisfied Ms Corless-Crane made an application for an unfair dismissal remedy, was protected from unfair dismissal pursuant to s.382 of the FW Act and that she was dismissed unfairly. Accordingly, I am required to determine whether to order her reinstatement or, in circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all the circumstances.

• [191] Ms Corless-Crane seeks compensation as the primary remedy. Regardless of the remedy sought by Ms Corless-Crane, s.390 of the FW Act requires I must first determine whether reinstatement is appropriate before I may consider an order for compensation.

• [192] Both Ms Corless-Crane and Aurenne agree that reinstatement would be inappropriate because the relationship of mutual trust and confidence between them has been lost.

• [193] In the circumstances I am satisfied that reinstatement is inappropriate.

• [194] Having decided reinstatement is not inappropriate in this case, I must decide the terms in which an order may be made.

• [195] Section 390(3)(b) provides I may only issue an order for compensation to Ms Corless-Crane if it is appropriate in all the circumstances.

• [196] Ms Corless-Crane submits that an order for compensation is appropriate in all the circumstances of this case because of:

1. the emotional and financial hardship resulting from her unfair dismissal;
2. the inconsistency in her treatment as compared to other employees; and
3. Aurenne's refusal to resolve the matter via conciliation.

• [197] Aurene submits that an order for compensation if made should be at the lower end of the range given that Ms Corless-Crane has not reasonably endeavoured to mitigate her loss.

• [198] I am satisfied that an order for compensation is appropriate in all the circumstances of this case.

• [199] Section 392(2) of the FW Act requires all of the circumstances of the matter to be taken into account when determining an amount to be paid as compensation Ms Corless-Crane in lieu of reinstatement including:

1. the effect of the order on the viability of Aurenne's enterprise;
2. the length of Ms Corless-Crane's service;
3. the remuneration that Ms Corless-Crane would have received, or would have been likely to receive, if she had not been dismissed;
4. the efforts of Ms Corless-Crane (if any) to mitigate the loss suffered by her because of the dismissal;
5. the amount of any remuneration earned by Ms Corless-Crane from employment or other work during the period between the dismissal and the making of the order for compensation;
6. the amount of any income reasonably likely to be so earned by Ms Corless-Crane during the period between the making of the order for compensation and the actual compensation; and
7. any other matter that the FWC considers relevant.

• [200] I have considered all the circumstances of the matter even if not expressly mentioned below.

• [201] As at the date of her dismissal Ms Corless-Crane's salary was $100,000 per annum.[128]

• [202] Her length of prior service is not so short or so great as to impact on any order for compensation.

• [203] While an opportunity may have existed for Ms Corless-Crane to potentially identify the error in marking up, I am not satisfied that her failure to do so constituted misconduct which would warrant a deduction in any compensation payable to her.

• [204] Aurenne made no submissions in respect to remedy asserting that Ms Corless-Crane would not have continued to be employed by Aurenne indefinitely. I note however, although not clearly expressed to Ms Corless-Crane, it appears that Mr Conway held some concerns about Ms Corless-Crane's performance of her duties. Given her personal and financial circumstances, I think it most likely if those concerns had been clearly articulated to her and she had been placed on a performance management program she would have addressed those concerns. I therefore find that Ms Corless-Crane would have continued to be employed by the Respondent for several further years had she not been unfairly dismissed.

• [205] Ms Corless-Crane's evidence is that she has not earned any remuneration for employment or other work during the period since her dismissal.[129]

• [206] There is no evidence to suggest that Ms Corless-Crane is reasonably likely to earn any in income during the period between the making of the order for compensation and the actual compensation.

• [207] I find it is not appropriate in the circumstances that a contingency be applied.

• [208] Aurenne did not seek to tender any evidence in relation to Ms Corless Crane's obligation to mitigate her loss. Instead Ms McKeown, from bar table, asserted that 79 hairdresser roles and 30 pit technician roles were currently advertised on Seek and that Ms Corless-Crane had not recently updated her Seek profile.[130]

• [209] Ms Corless-Crane acknowledged that she was qualified hairdresser but that the salary and roster did not accommodate her custody arrangements or her financial commitments which were based on a mining FIFO employment. Ms Corless-Crane gave evidence that she had applied for two roles but had been unsuccessful and that she was applying for roles directly rather than via Seek. [131]

• [210] There is no doubt that obtaining alternative employment is far more difficult if you have been dismissed from your prior employment. However, unemployment levels are currently very low and the demand for workers in the mining industry is high. In all the circumstances, I am of the view that Ms Corless-Crane should have been able to secure a comparable role in the mining industry and completed the necessary medicals and inductions in order to commence in new role within sixteen weeks of her dismissal.

• [211] I am satisfied that a remedy of compensation of sixteen weeks is appropriate. I note that this amount does not include a component for shock, humiliation or distress.

• [212] The amount which would have been earned by Ms Corless-Crane in sixteen weeks is less than the compensation cap contained in s.392(5).

• [213] There is no evidence to suggest that an order for compensation would affect the viability of the Aurenne's enterprise.

• [214] An order provided for a remedy of sixteen weeks compensation will be issued with this decision.[132]

[1] Warrell v Walton [2013] FCA 291; (2013) 233 IR 335, 341 [22].

[2] [2013] FWC 2340.

[3] Karkamakar v Australian Campus Network Pty Ltd [2013] FWC 2340 at [9]- [11].

[4] Digital Court Book (DCB) at 20-26.

[6] Transcript of proceedings, Corless-Crane v Aurenne Management Services Pty Ltd, (Fair Work Commission, U2025/1088, Binet DP, 2 May 2025) (Transcript) at PN42.

[18] Transcript at PN150, PN154, PN204-205, PN 236, PN312-321, PN316-318, PN860, PN863-869; DCB at 71.

[20] Transcript at PN262-272, PN281-PN285, PN860, PN871-874.

[22] DCB at 67 & 82; Transcript at PN299-300.

[23] Transcript at PN114, PN262, PN272-273, PN322.

[29] DCB at 71; Transcript at PN253-259, PN184-187.

[40] DCB at 71; Transcript at PN253-259.

[45] DCB at 24 and Transcript at PN154, PN483, PN429.

[53] Transcript at PN50-51, PN75, PN105.

[65] Transcript at PN642-PN648, PN1155-PN1156.

[82] Fair Work Act 2009 (Cth) s 383.

[93] (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).

[94] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), (Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].

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

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

[98] Culpeper v Intercontinental Ship Management Pty Ltd [2004] AIRC 261; (2004) 134 IR 243.

[99] Edwards v Justice Giudice [1999] FCA 1836; (1999) 94 FCR 561, 565 [7] (Moore J).

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

[101] [1938] HCA 34; (1938) 60 CLR 336 at 361-362.

[106] Transcript at PN154-PN155, PN322.

[114] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73].

[115] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[121] Crozier (n 97), 151 at [75].

[122] Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14 - 15 [26] quoting Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7 (Wilcox CJ).

[123] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7 (Wilcox CJ).

[124] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[125] Jetstar v Meetson-Lemkes [2013] FWCFB 9075; (2013) 239 IR 1, 21-22 [68].

[126] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].

[128] DCB at 9, Applicant's Closing Submissions dated 5 June 2025 at [23].

[132] PR788844.

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