[216] I determine that Ms Odgers was notified that the reason for her dismissal was her misconduct in the airport incident and the photo incident. Where the respondent tied her misconduct to breaches of its Charter Values and to its Code of Conduct, I determine that Ms Odgers was notified prior to the dismissal that her misconduct resulted in a finding by the respondent that she breached the Charter Value of respect, and the Code of Conduct, but without any appropriate specificity.

[217] I determine that Ms Odgers was not notified that the reason for her dismissal included a finding that she had breached the Charter Value of Integrity until she received the termination letter.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[218] Ms Odgers was provided an opportunity to respond to the matters stated in her show cause letter. She did so in her show cause response noting the above criticisms that I have made that she was not aware that the respondent would make other findings relevant to the breaches it determined when it dismissed her.

[219] I have determined that Mr Brown used the September 2018 bus incident as a persuasion to dismiss Ms Odgers relevant to the airport incident and the photo incident. He did not address these matters with her, yet he did address her aggression towards Mr Hill in September 2018. I consider it inappropriate for Mr Brown to have taken into consideration the bus incident in September 2018 when weighing up his decision whether or not to terminate Ms Odgers.

[220] Of incredible concern to me is the abject failure of the respondent, through Mr Brown, to adhere to its obligations to follow the BMA Guideline to Fair Play policy (Fair Play Guidelines). As I explained to the parties during the hearing, in other BMA or other associated entity matters that have been before me, it has often been presented that the Fair Play Guidelines are a "bible". Most concerning was during the first day of hearing when it was suggested by Mr McLean that the respondent is not obligated to follow the Fair Play Guidelines.

[221] It was established during the hearing that the relevant enterprise agreement, the BMA Caval Ridge Mine Enterprise Agreement 2015 [2015] FWCA 3376 contains the following provision:

"27.4 In matters where disciplinary action is a possible consequence, the parties agree to follow the process outlined in the Caval Ridge "Guideline to Fair Play". A more detailed disciplinary policy will be developed by the Company prior to the commencement of operations."

[222] In the BMA Caval Ridge Mine Enterprise Agreement 2018 [2019] FWCA 1586, approved by the Commission on 12 March 2019 and in effect from 19 March 2019, just weeks before the dismissal, the same clause exists.

[223] The disciplinary procedure outlined in the Fair Play Guidelines is as follows:

Except for instances of serious misconduct, the following four step disciplinary process will be applied.

The application of the Just Culture Decision Tree together with the particular circumstances and severity will determine the appropriate disciplinary action Step to be taken with respect of an Employee. The relevant Septs are as follows:

Step 1 An Employee will be verbally counselled by their Supervisor. Where requested by the Employee, a Supervisor will conduct the counselling in the presence of an Employee Representative. Written notice of the verbal counselling will be provided to the Employee and a copy placed on the Employee's file; or

Step 2 An Employee will be counselled by their Supervisor in the form of a formal warning. Where requested by the Employee, a Supervisor will conduct the counselling in the presence of an Employee Representative and have the warning confirmed in writing. A copy of the formal warning will be provided to the Employee and also placed on the Employee's file; or

Step 3 An Employee will be issued a final warning by their Supervisor or Department Manager or Superintendent. Where requested by the Employee, the Company representatives will conduct the counselling in the presence of an Employee Representative, and have the final warning confirmed in writing and the Employee will be advised that dismissal may result from any further act of misconduct. In addition, the Company can stand down the Employee without pay for up to 21 calendar days. A copy of the formal warning will be provided to the Employee and placed on the Employee's file; or

Step 4 Disciplinary action, which is commensurate with the severity and/or frequency of the act(s) of misconduct, will be taken.

As a general guide the disciplinary procedure will work on a sequential basis e.g. first breach results in Step 1, an additional breach within a 12 month period results in Step 2, etc. However, where a Supervisor and Department Manager/Superintendent deem that the circumstances warrant the action, an Employee may be placed on a Step that is not sequential.

Where an Employee who is in receipt of a warning under Steps 1, 2 or 3 above, receives no further warnings under Steps 1, 2 or 3 in the proceeding 12 month period, the current warning will revert to the previous Step (if any) e.g. Step 3 reverts to Step 2, Step 2 reverts to Step 1, etc.

For the avoidance of any doubt, a stand down period at Step 3 does not limit the Company's ability to suspend an Employee without loss of pay during a disciplinary investigation."

[224] The Fair Play Guidelines state the following:

Prior to commencement of the Just Culture process, an objective investigation should be conducted to gather the facts necessary to complete the Just Culture Decision Tree."

[225] The Just Culture Decision Tree depicts two limbs of the tree - unintentional and intentional. The flow down from intentional is violation, and then the manager is tasked with choosing if the violation is cultural or deviant. A cultural deviation is described as an intentional error by a person because it is perceived by that person that it is the expectation action in their work group. A deviant violation is described as an intentional error by a person even though they know it is not the approved/tolerated action.

[226] Appendix 2 requires the appropriate manager to complete a form. It states:

"Where an investigation reveals a breach/infringement of a policy, procedure, process or contractual arrangement (safety or non-safety related), the application of the Just Culture Decision Tree together with the particular circumstances and severity of the behaviour of each case will determine the appropriate step(s) to be taken with respect to an Employee.

Has an Investigation been completed in regards to this event/incident YES/NO

If Yes, please complete all 7 parts of this form. If No, please ensure you complete an investigation prior to proceeding with this form."

"Step 4 - Discussion with Employee (this is a record of discussion, please ensure completion)

Does the Employee agree with the alleged breach? YES/NO

Record of discussion with Employee regarding breach."

[228] The form then requires the appropriate manager to record the actions to be taken. The actions are headed:

• No action

• Training

• Coaching

• Possible Discipline

• Possible Termination

[229] Mr Brown did not implement the Fair Play Guidelines for Ms Odgers at all. In cross-examination he said the following:[268]

"...And that then requires you to fill in the forms at appendix 2, doesn't it, of that document? If you go to the back?

But this document says that that's what you do, doesn't it?

But it's part of the enterprise agreement that you comply with it, isn't it?

An EA - the parties agree to follow the process outlined in the Caval Ridge guidelines.

Not necessarily the document line for line. As in, like, in a - the document as I read it here, whilst there is an appendix there where you can, I guess, basically put information in, that is just - I guess that is - assist people at times to ensure that they follow - gather all the information, and follow the steps involved to have a thorough investigation, fair and just.

So can you show me in here where it says that that's optional?

[230] In re-examination the following exchange occurred:[269]

"In your experience is there always an Appendix 1 completed in relation to a Just Culture Decision Tree?

In all - in most of the - in all the ones - anything that I was involved in I generally would have used that document.

Okay. Would you always complete - so we're looking at Appendix 2 - Just Culture Decision Tree. Would you always given in this document?

And can you just clarify again, for the Commission, your understanding of the purpose which this document serves?

The guideline to how we conduct and I conduct investigations. I make sure that we follow steps that are fair and just and ensure the outcome is just that - fair and just.

And in this case do you believe that your process was fair and just?

Steps one through to four - my friend took you to this under point five of the decision tree. Took you to steps one through to four?

Are they all step - or alternative disciplinary outcomes?

Okay. So if you were to form the view that a particular course of action warranted a step four would you, prior to issuing the step four, have to issue a step one?

So your understanding of the policy is you can go straight to step four?

And if you were to go straight to step four would there still be verbal counselling of an employee by their supervisor as per step one?

Sorry? Your question was when can you go to step - when can you jump them?

Effectively, Commissioner, if you form the view that step four was an appropriate disciplinary outcome if you need to complete a step one or complete a step two or complete a step three?

But what step four says "Disciplinary action which is commensurate with the severity and/or frequency of the acts of misconduct will be taken." What does that mean?

Yes. So in relation to the severity we were dealing with a very serious safety breach where health and safety of coal miner workers have been compromised. We would - that potentially goes straight to a step four to a show cause.

So your evidence is there are alternative outcomes that you can land on?

Well, how does that work with the first line, under five?

Except for instances of serious misconduct the following four step is a process that would be applied.

So under five of the policy. So you go to the first standing page? Yes?

It says, "Except for instances of serious misconduct the following four-step disciplinary process will be applied."

Excuse me - you're looking at that page of the tree wasn't it?

So you've got (1) Purpose and Scope, (2) Scope - - -?

Oh, right. Sorry. Disciplinary procedure five? That's the one you're talking about?

Except for instances of serious misconduct the following four-step process will be applied. Yes. And you're asking me - sorry?

Is it your view that normally, excluding serious misconduct, employees would typically go - one, two, three, four - but you can jump ahead?

You - it's case by case, Commissioner. Depending on it say - if we have a serious safety breach it may go straight to - for example - it might go to a final warning or it might go to a show cause, depending on the severity of it.

And you decided to land on a final warning is that you would make a determination that it was not an instance of serious misconduct because you've got the first line there of this clause that says, "If it's serious misconduct you don't have to go to steps one to four."?

No. And misconduct can be - so it can be behaviour or it can be safety related.

It does read "Serious Misconduct". So if we're talking - and the section 39 of the Act states that "All coal miner workers with example must abide by the health and safety system of the coal mine they work at." And misconduct may be breaching the policies and which is underpinned by the Health and Safety Management System. So misconduct, for example, could be operating a piece of equipment unsafely or outside of its parameters there to be misconduct or viewed as misconduct.

So step four allows you to do whatever you need to do?

Step four if you think that - step four allows you to go straight to - allows you to go to a show cause as an example and if you feel that the breach or the misconduct is serious enough to end up there to be there with, I guess, the person involved as having to explain why their employment should not be terminated.

You can - yes - depending on the severity - yes, you can. You can. If you deem that the - what the - we'll call it the event. An event has happened and you deem that they're serious enough that's when a person needs to show cause why he should be remained employed on that mine site, yes you can go to step four.

All right. But the first line of that five then says that, except for instance in the serious misconduct.

Commissioner, I think in fairness the witness should be taken to the paragraph after step four.

Yes. So you move from - you typically move from step one to two. However, where a manager deems that the circumstances warrant the action an employee may be placed on a step that is not sequential. Right?

But four is the - four is the doing, isn't it? It's giving you a license. Four allows you to do whatever you think is commensurate with the severity of the - or frequency of the misconduct?

Four allows you to make - I guess - make a decision to ask the employee to show cause or be terminated immediately. So depending on the severity of the event or the behaviour at the time or if you think that that is not allowing everybody else in that - say that mine site to work safely.

So my question is taking into account the first sentence of five and the step four process?

Are they to be read - can they be read together at all or are they exclusive of each other?

I think they can be read individually because it's - - -

Well, are they exclusive? Because the word "except" is used in the first line.

Commissioner, I'm struggling to follow. Perhaps if you can rephrase for the witness?

You've got a lot of considerations here. Is it misconduct? Is it serious misconduct? The company has paid five weeks' notice under the EBA it doesn't have to pay notice if it's wilful and serious misconduct. So why did you dismiss her?

Because I didn't believe that - I believed at the time that that was an appropriate outcome because I thought her conduct in relation to the photo and also the - at the time - I was just finishing the investigation in relation to the airport event.

I'd done all the interviews in relation to the airport investigation and I had all the evidence before me and - - -

So you interviewed other people in relation to the airport incident, did you?

I interviewed people that worked at the airport. Worked on the security area of the airport that were on duty that night when the - when the bag went through the - - -

I went and interviewed the supervisor that was on that night and also two of her co-workers that were at that station at the security point, yes."

[231] I questioned Mr Brown as to whether he has utilised what I understand to be the stand-down without pay provisions within the enterprise agreement. Clause 6.4 of the 2015 agreement allows the respondent to stand an employee down for misconduct (clause 6.4(a)), and without pay (clause 6.4(d)). I am aware of other BMA agreements which provide a cap of 21 days of stand down without pay. The following was discussed with Mr Brown relevant to the airport incident:[270]

"You wouldn't have dismissed her for that incident alone?

And you didn't stand her down. You let her continue working and two days later we've got the photo incident?

I mean you've got a very unique provision in your enterprise agreement that allows you to do that. Most people don't have that.

To stand people down without pay, Commissioner, you mean?

Not at the time I've been employed with BHP - no. Not for my best recollection.

It's quite a unique and effective penalty, isn't it?

[232] Mr McLean volunteered that Mrs James, as a consequence of her actions was issued a final written warning and a 21-day unpaid suspension. I questioned Mr Brown if that was the first time he had suspended an employee without pay. He answered, "It is. To the best of my recollection that would be the first time."[271] Mr McLean stated that Mrs James received the maximum penalty.

[233] Curiously, the first and final written warning for Mrs James provided to the Commission and dated 28 March 2019 states:

"I refer to discussions with you on 12 March 2019 regarding the investigation into your conduct on 2 March 2019 (Investigation). I note that you elected to have a support person present. You were stood aside on full pay effective 13 March 2019 pending the investigation.

I have taken all relevant matters into account and have elected to issue you with a Final Written Warning.

[234] There is no mention of Mrs James receiving a sanction of a 21-day unpaid suspension. If the letter to Mrs James is correct, she was suspended during the investigation and show cause process with pay.

[235] In consideration of s.387(c) of the Act, I find that Ms Odgers was provided an opportunity to respond to some reasons put by the respondent to her relevant to her conduct. I determine that Ms Odgers was not afforded the opportunity to respond to the bus incident of September 2018, and this incident factored in part of Mr Brown's decision making to terminate her.

[236] I determine that where Ms Odgers had an expectation that the respondent would meet its enterprise agreement obligations to apply the Fair Play Guidelines, it failed to do so without any adequate explanation. Mr Brown simply did not utilise them. His evidence is that he usually does, but he also gave evidence that he considers them to be a guideline only, and not a requirement. Whilst Mr Brown did, in the show cause letter cite that he considered her conduct to be intentional, he didn't explain the context of such finding.

[237] Ms Odgers, and any employee employed by the respondent and covered by the agreement is owed an opportunity to influence the decision maker. It is a strict obligation, agreed to by the respondent and in place for many years. In fact the Fair Play Guidelines are dated November 2013. There is no adequate explanation as to why the Superintendent, as Mr Brown was, chose to follow them or not. There is an obligation to follow them.

[238] Given that Mr Brown was of the view that the airport incident did not warrant dismissal with the information that he had before him at the time, it was appropriate in all of the circumstances for Mr Brown to discuss with Ms Odgers following the investigation, (by telephone, if necessary), and determine which step within the Guidelines he would determine was the appropriate step. He did not assert that pursuant to clause 5 of the Fair Play Guidelines that it was "serious misconduct", even if it was later asserted that it could amount to serious misconduct. It was certainly misconduct, but Mr Brown never determined that it was serious misconduct to warrant an excuse not to follow the disciplinary procedure within the Fair Play Guidelines. He just did not do it.

[239] Where it was submitted that the photo incident could amount to serious misconduct, the Fair Play Guidelines were not carried out for any of the employees involved. Mr Brown never asserted that the reason why he didn't complete the Fair Play Guidelines for all five employees was because he considered for each of them the misconduct amounted to serious misconduct. He just did not do it.

[240] In consideration of s.387(c) of the Act, I determine that Ms Odgers was not provided with an opportunity to effectively influence or encourage Mr Brown in his decision making relevant to the reasons for the dismissal. She did not, as is required, have the opportunity to discuss the various steps within the Fair Play Guidelines, or to address Mr Brown on the potential of a final written warning and/or being suspended for a period of time without pay. It is true that she had an opportunity within the written show cause response to advance mitigation, but Mr Brown, it seems, did not ever turn his mind to the potential of an unpaid stand down.

s.387(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

[241] Ms Odgers did not submit that there was an unreasonable refusal by the respondent to allow her a support person, and I find accordingly.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[242] Ms Odgers was dismissed for misconduct, and accordingly, this consideration is not entirely relevant. I do take into account the earlier verbal conversation that Mr Brown had with Ms Odgers in September 2018 relevant to her inappropriate addressing of Mr Hill. I have not had regard to the earlier incident of drinking while on the plane given it was issued in 2015, and according to the Fair Play Guidelines, it would have been extinguished after a period of 12 months.

s.387(f) - Whether the respondent's size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[243] This is a neutral consideration given the size of the respondent.

[244] As noted by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd:[272]

"Relevantly advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a "fair go all round."

[245] Ms Odgers was employed for a period of approximately five years. This is not a long period of time, nor is it an insignificant period of time. As stated above, Ms Odgers was aged 49 at the time of the dismissal.

[246] It was submitted that Ms Odgers had received an invitation to be part of the women in mining trajectory as part of her achievements and tenure in the mining industry. Yet no evidence was led in relation to this. I do not consider it appropriate to take into consideration this submission, given that I do not think anybody would find it appropriate for a candidate promoting women in mining to be involved in the unsavoury incidents Ms Odgers was involved in, and for which I have determined there was a valid reason for the dismissal.

[247] I have also taken into consideration the information that became available to the Commission during the hearing relevant to Ms Odgers' false statement to Mr Brown on 28 February 2019 that she was the only person involved in recording the airport incident, and her theft of the butter knives from the respondent.

[248] I confirm that for the purposes of s.387 of the Act, I have not taken into account what I consider to be her falsified statement to the Commission that she held a discussion with Mr Hill prior to the airport incident occurring.

[249] In no uncertain terms, Ms Odgers' misconduct was unacceptable. On being alerted that Mr Brown was investigating her and the investigation was still on foot, Ms Odgers decided to partly undress in the workplace just two days later and allow a photograph to be taken of her and others. If she did not think the respondent was serious about the first incident because it had occurred so many months before, she should have done what she said she would do, and "keep to herself".

[250] Without any regard for how precarious her employment might be, she stood on a table and participated in the photo incident. Her foolishness in being involved in both incidents is demonstrated by her evidence before the Commission that she did not regard the photo as inappropriate. She agreed during the show cause process that she was remorseful and she should not be dismissed over the incident, but during the hearing attributed the posing for the photo as nothing more than cleavage. Her suggestion that sometimes women walk from the camp gym to their camp rooms in gym gear is not comparable at all to the behaviour she engaged in during the photo incident.

[251] As stated earlier, however, I am deeply troubled by the respondent's failure to meet its lawful obligations to comply with the enterprise agreement it has entered into. The Fair Play Guidelines are a requirement to follow; they are not just something that can be completed whenever a manager decides he or she will do so.

[252] The size of the respondent and its obligation to its employees warrants a firm position on this matter by the Commission as currently constituted. The respondent was obliged to consult with Ms Odgers and inform her of its decision relevant to the Just Culture Decision Making Tree. She was entitled to be informed that following the investigation, the respondent considered her conduct to be intentionally deviant. I agree that for both incidents it was intentionally deviant and in breach of the reasonable Charter Values and the Code of Conduct.

[253] If Mr Brown had met his obligations, Ms Odgers may have discovered that Mr Brown was, in part, also relying on her purported conduct in September 2018 relevant to the bus incident. She might have had the opportunity to convince him of a lesser step, or an unpaid suspension. She might have convinced Mr Brown to issue to her a first and final warning as he did for Mrs James.

[254] I accept that a respondent, any respondent, may not always procedurally ensure it meets its obligations to ensure that a dismissal is valid and procedural fairness has been appropriately afforded to a dismissed employee. In considering whether a dismissal is unfair, a respondent won't be required to meet every obligation; it is a balancing act, hence the fair go all 'round. It is important in this case to note that while the substance of the incidents was put to Ms Odgers consistently in the investigation and show cause letters, and the conduct was accepted by Ms Odgers, the respondent ultimately dismissed Ms Odgers for additional breaches of the Charter Values and Code of Conduct. As stated by me during the hearing, if a respondent the size of this respondent can't appropriately marry its investigation findings with its termination letter, what hope do smaller employers have?

[255] Commissioner Cirkovic recently held in Michael Scott v Latrobe Regional Hospital 2019 [FWC] 5680:

"Failure to follow Enterprise Agreement disciplinary procedure

[83] The Applicant submitted that I should have regard to an alleged failure of the Respondent to follow the investigation and disciplinary procedures in the Enterprise Agreement. The Respondent submitted that it had complied with the relevant procedures. Clause 8.4 of the Enterprise Agreement is set out below.

[84] Based on the material before me, I am satisfied that the letter to the Applicant dated 18 July 2019 is unequivocally part of an investigation process; not a written record of the outcome of the investigation. The written outcome of the investigation, including findings and the bases of the Respondent's conclusions, was provided to the Applicant in the letter of termination dated 6 August 2019. Pursuant to clause 8.4, the Respondent was required to "meet with the employee" before taking the disciplinary action that it did. Based on the above, I am satisfied that the Respondent failed to follow the disciplinary process set out in the Enterprise Agreement, and in the circumstances, this contributes to the unreasonableness of the dismissal."

[256] I wish to reiterate that each time this respondent has a matter before me I will not hold it to the highest standard of ensuring every inch of procedural fairness has been afforded to a dismissed employee. In every matter the circumstances of each dismissal will be given appropriate consideration.

[257] However, for the respondent to have no regard at all to its obligations in this matter of applying the Fair Play Guidelines pursuant to the relevant enterprise agreement, means that despite there being a valid reason for the dismissal, and despite Ms Odgers knowing the context of the respondent's findings in relation to each of the incidents, I conclude that for the reasons above, the dismissal was unjust and unreasonable.

[258] Accordingly I determine that Ms Odgers' dismissal was unfair.

[259] Section 390 of the Act reads as follows:

"390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

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

Note: Division 5 deals with procedural matters such as applications for remedies."

[260] Ms Odgers is a person from unfair dismissal for the Act's purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether she can be reinstated. Ms Odgers seeks reinstatement.

[261] Section 391 of the Act provides as follows:

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement."

[262] I have found Ms Odgers was unfairly dismissed; however it is not axiomatic that reinstatement or reappointment follows such a finding. In a Full Bench decision in Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198 (Nguyen) it was held:

"[35] The appellant's submissions appear to proceed on the basis that reinstatement automatically follows from a finding of unfair dismissal. This is not correct. There is no right to reinstatement consequent upon a finding that an applicant has been unfairly dismissed. The commission has a discretion as to whether a remedy will be awarded in a case where a dismissal has been found to be unfair. Reinstatement will only be awarded if the commission is satisfied that is appropriate to do so."

[263] It is common for respondents in unfair dismissal matters to argue that it is inappropriate to reinstate an employee who has been found to be unfairly dismissed because of a loss of trust and confidence. In Nguyen, the Full Bench examined the relevant principles concerning an alleged loss of trust of confidence in the context of an application for reinstatement. It held:

"[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

(a) Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

(b) Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

(c) An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

(d) The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

(e) The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party."

[264] In Perkins [](http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FWC/2016/107.html?stem=0&synonyms=0&query=perkins#disp0 "")v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186at 191-192, the Full Court of the Industrial Relations Court said:

"... We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

[265] I have had regard to the period of time that Ms Odgers had off work before she commenced with another employer at the same mine site. Ms Odgers is currently permitted to work at the same workplace, albeit employed by another employer, but working alongside her earlier colleagues. I confirmed during the hearing that she also might share meals with such employees.

[266] I have also taken into consideration the considerable expense in money and time Ms Odgers experiences working at the site and paying for her own airfares and off-site accommodation, and the delay in commercial flights as opposed to charter flights.

[267] Where Ms Odgers has asserted some things detrimental or disparaging to some respondent employees, this does not appear to be a concern given she is working at the site without apparent incident.

[268] I also have taken very seriously the discussion during the hearing that the respondent may consider, in light of evidence during the hearing whether it would allow Ms Odgers to continue to be allowed to work on site with the other employer. An adjournment occurred to encourage the parties to discuss such a scenario.

[269] I instructed the respondent to inform my Chambers, during the period the decision was reserved, whether it did take any action to remove Ms Odgers from the site. To-date, no communication has been received from either party informing the Commission that Ms Odgers has been removed from the site at the initiative of the respondent.

[270] I have also taken into consideration the additional evidence given during the hearing. It has become clear that Ms Odgers told Mr Brown an untruth during the investigation meeting of 28 February 2019. She said she did so because she did not want to get other employees into trouble.

[271] Further, it was discovered that Ms Odgers had taken the butter knives belonging to the respondent without authorisation. I accept that they are of nominal value, but she still decided to misappropriate them.

[272] Most alarming is my finding that Ms Odgers fabricated evidence to point the finger at Mr Hill and allege that Mr Hill knew about the airport incident some time before it occurred, and encouraged her to use spoons or knives.

[273] I do not consider it appropriate to reinstate Ms Odgers to her former position. I accept that the respondent has lost trust and confidence in Ms Odgers to be an honest employee employed by it.

[274] I now turn to consideration of compensation.

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

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

(b) the length of the person's service with the employer; and

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

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

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

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

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

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

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

(6) The amount is the total of the following amounts:

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

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

[276] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul's Licensed Festival Supermarket.[273] That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;[274] Jetstar Airways Pty Ltd v Neeteson-Lemkes[275] and McCulloch v Calvary Health Care (McCulloch).[276]

[277] I have had regard to the above authorities, and I have considered the submission of each party.

The effect of the order on the viability of the respondent

[278] Given the size of the respondent this is a neutral consideration.

[279] Ms Odgers had approximately five years' service. I have had regard to the decision of SDP Richards in Davidson v Griffiths Muir's Pty Ltd [2010] FWA 4342. His Honour determined at [140]:

"As an employee for a short period of time, the length of Applicant's service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum)"

[280] I consider that Ms Odgers' service of five years is a reasonable period of time.

The remuneration that Ms Odgers would have received, or would have been likely to receive, if she had not been dismissed

[281] I have determined that given Ms Odgers' track record, and her promises to not engage in misconduct even in light of a serious investigation, Ms Odgers' employment would have ended after a further ten weeks. It took a great deal of cross-examination for Ms Odgers to agree that the airport incident could have been an offensive incident, and she was not really remorseful over the photo incident, concluding that it was "just cleavage".

[282] The 2018 Agreement came into effect at around the time of Ms Odgers' dismissal. I understand that the annualised salary for Ms Odgers would have been $136, 241.01, being an amount of $2,620.02 per week. Ms Odgers was paid five weeks' notice on termination being an amount that should equal $13,100.10.

The efforts of Ms Odgers (if any) to mitigate the loss suffered because of the dismissal

[283] I am satisfied that Ms Odgers took appropriate measures to mitigate the loss suffered because of the dismissal.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[284] Ms Odgers gave evidence that she did some painting for a friend, but then said that she was paid in kind.

The amount of any income reasonably likely to be so earned by Ms Odgers during the period between the making of the order for compensation and the actual compensation

[285] This factor is not relevant in the circumstances of this matter.

[286] I do not consider that there are any other relevant matters to consider that I have not already addressed above.

[287] Section 392(3) requires that if the Commission is satisfied that the misconduct of a person contributed to the employer's decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[288] The section requires that consideration be given by the Commission, amongst other things, as to whether a person's misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person's dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission's decision as to the appropriate amount by which the amount of compensation should be reduced.[277]

[289] Ms Odgers most certainly engaged in misconduct. Having regard to the material before me, I consider it appropriate to make a reduction of 50% to the amount of compensation I would otherwise order on account of Ms Odgers' misconduct.

[290] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Ms Odgers by the manner of the dismissal.

[291] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[292] The high income threshold immediately prior to the dismissal was $145,400, and the amount for 26 weeks was $72,700. The amount of compensation the Commission will order does not exceed the compensation cap.

[293] This is not an appropriate consideration given the size of the respondent.

[294] I have determined that the respondent is to pay to Ms Odgers the following amount of compensation less tax as required by law within 14 days of the date of this decision:

[295] In addition, the respondent is to pay superannuation on the amount of $6,550.10 at the rate of 9.5% into Ms Odgers' superannuation fund within 14 days of the date of this decision.

[296] An Order [PR713396] to that effect will be issued with this decision.

T Spence, counsel, with C Van Oeveren, solicitor, for the applicant.

Submission in reply of the applicant, 12 July 2019.

[114] PN363 to PN365; PN354; PN644 to PN653.

[128] See discussion at PN891 to PN988.

[152] Ibid at paragraph 6 and annexure LB-1.

[154] Ibid at paragraph 12; Annexure LB-2.

[156] Ibid at paragraph 13; Annexure LB-3 at page 14.

[157] Ibid at paragraph 14; Annexure LB-3 at page 15.

[158] Ibid at paragraph 18; annexure LB-6.

[168] Ibid at paragraph 26; Annexure LB-10.

[171] Ibid at paragraph 28; Annexure LB-11.

[173] Ibid at paragraph 33; Annexure LB-12.

[189] PN1322 to PN1330; PN1359 to PN1360.

[198] Exhibit R2 at Annexure LB-4 at page 9.

[213] PN1490 to PN1491; PN1543 to PN1550.

[216] PN1466; PN1472 to PN1477; PN1482.

[231] PN2031 to PN2045; PN2059 to PN2065.

[248] PN1885 to PN1886; PN1909; PN1937 to PN1938.

[257] Sayer v Melsteel [2011] FWAFB 7498 at [20].

[259] [2016] FWC 2921.

[266] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

[272] (2003) unreported, PR931440 at [30].

[273] (1998) 88 IR 21.

[274] [2013] FWCFB 431.

[275] [2014] FWCFB 8683.

[276] [2015] FWCFB 2267.

[277] Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] - [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].

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