• [231] I am satisfied based on the evidence before the Commission that on the morning of 27 June 2023:

• the Applicant was assigned to drive the grab forklift of which the unloaded weight is 11.33 tonnes;

• the Applicant was driving the forklift and transporting a butt reel when a red metal plate from the forklift's clamp fell off;

• the Applicant put the butt reel down, turned the forklift off and went to inspect the plate with Mr Williams;

• at this stage the forklift was parked approximately two to three metres from the yellow trolley in the top left hand corner of page 20 of the Respondent's Incident Report and was facing the direction of the blue and orange drum or slightly to the right of it;

• Mr Williams went over to see what had happened;

• Mr Williams told the Applicant that they should move the red metal plate to the side and call the control room to advise them that the plate had fallen off the grab;

• • Mr Williams picked up the red metal plate and lent it against a rubbish bin;[393]

• after the conversation with Mr Williams the Applicant got back in the forklift, reversed the forklift for approximately one or two metres and went to park the forklift near the boiler;

• the forklift travelled forwards and was not being driven at more than 10 kilometres per hour at this time;

• the forklift collided with the orange and blue drum causing the cylinder to bend around the yellow bollard shown at pages 20 and 21 of the Respondent's Incident Report;

• the forklift continued travelling straight into a pedestrian zone between the boiler and starch kitchen before colliding with other items of plant and equipment, including the gas feed line to the boiler;

• the forklift made contact with the roller door and fire safety door and stopped;

• the Applicant was not observed to be speeding or driving erratically before making contact with the blue and orange drum;

• the Applicant was not under the influence of drugs or alcohol at the time of the incident.

• [232] Mr Wilson's evidence was that when he inspected the incident he observed:

• there was a ruptured gas pipe next to the boiler, electrical equipment such as computers and monitors close by and the potential for a large explosion;

• the forklift had travelled between the boiler and the starch kitchen and this area is not much wider that the forklift itself;

• a 40 gallon drum had been crushed against a bollard;

• the bollard was partially dislodged from where it was bolstered to the floor of the factory and was also bent at its foot;

• a gas pipe attached to the boiler was ruptured;

• the fire door beyond the boiler and starch kitchen was knocked off its hinges and had landed a few metres from the doorway;

• • the roller door immediately to the left of the fire door was partially dislodged and dented, having been pushed outwards by the grab forklift.[394]

• [233] This was not disputed and the photographs within the Sporl Investigation Report appear to support this.

• [234] I am satisfied that the forklift incident resulted in extensive damage. Further, it is not in contention that the incident involving the forklift was of a serious nature and gave rise to a safety incident that may have resulted in injury and loss of life. The remaining element of Allegation 1 is whether the Applicant failed to operate the grab forklift in a safe manner.

• [235] The Respondent has not suggested that the incident itself was a deliberate act and Mr Ibrahim-Elgarhy, the person who made the decision to dismiss the Applicant, indicated he believed the incident was an accident. I accept that the Applicant did not deliberately drive a forklift in a manner that was unsafe.

• [236] The Applicant submitted that if the incident was an accident on the part of the Applicant it would not constitute a valid reason. However the Respondent submitted that the Applicant's submission proceeds on the basis that misconduct involves something more than mere negligence, error of judgement or innocent mistake and does not take into account:

• • the many cases which show that gross negligence may be grounds for a finding of misconduct justifying summary dismissal;[395]

• • the statutory definition of serious misconduct set out in Regulation 1.07 of the Fair Work Regulations 2009 (Cth) which states that serious misconduct includes conduct that 'causes serious and imminent risk to the health and safety of a person'. [396]

• [237] I accept the Respondent's submissions that conduct that constitutes 'gross negligence' amounts to serious misconduct, particularly if it causes serious and imminent risk to the health and safety of a person. However the Respondent did not allege 'gross negligence', rather it simply alleged that the Applicant failed to operate the grab forklift in a safe manner and inferred that the Applicant was at fault and alleged he had 'not been willing to accept any responsibility for the incident despite being given the opportunity to do so'. Mr Sporl, who was the investigator, reached the view that it was more likely than not that the brakes had not failed and that the accelerator may have been used by the Applicant in lieu of the brake. [397] I do not accept that accidental acceleration or any fault on the part of the Applicant would automatically be considered to amount to 'gross negligence'. I do however accept that conduct that causes serious and imminent risk to the health and safety of a person may constitute a valid reason for dismissal even if not wilful or deliberate.

• [238] If it were to be substantiated that the incident was the Applicant's fault and he lied about it, I would be satisfied that constitutes serious misconduct on the part of the Applicant. Where the alleged conduct involves serious misconduct, the principles established in Briginshaw v Briginshaw[398] will be relevant. In these circumstances 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'[399] 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.'[400] The strength of the evidence needed to establish a fact on the balance of probabilities 'may vary according to the nature of what it is sought to prove'[401] and more serious allegations may require stronger evidence.

Did the Applicant fail to operate the grab forklift in a safe manner?

• [239] Allegation 1 proceeds on the basis that the Applicant is at fault for the incident. The fact that a forklift has been involved in an incident does not automatically mean that the driver is at fault. There may be a range of reasons for an incident and in this case, the Applicant and Respondent have advanced competing arguments regarding the cause of the incident. The Respondent points to fault on the part of the Applicant. While it is unclear precisely what actions the Respondent believes the Applicant took to cause the incident the Sporl Investigation Report was finalised around two weeks after the incident[402] and stated 'Although it cannot be validated at this stage, it is plausible to assume given the technician's report that the accelerator may have been used in lieu of the brake which resulted in the incident". Mr Sporl, who was the Respondent's investigator but not the decision maker, ultimately reached the view that it was more likely than not that the brakes had not failed and that the accelerator may have been used by the Applicant in lieu of the brake, resulting in the incident.[403]

• [240] The Applicant points to a failure of the forklift's brakes, indicating that the brake pedal went soft when he went to apply it.

• [241] Mr Li's evidence was that the distance from where the forklift was parked (when the plate fell off) to the bollard to was more than 10 metres.[404] During cross examination Mr Deo's evidence was that the distance between where the forklift was parked when the plate fell off to the bollard was approximately 15 metres.[405]

• [242] Mr Ibrahim-Elgarhy said there is approximately 9 metres between the bollard that the forklift impacted and the roller door and safety door where the forklift finally stopped and that the forklift driven by the Applicant caused significant damage over an approximate 10 metre distance.[406] Mr Ibrahim-Elgarhy confirmed during cross examination that the reference to 10 metres was an approximation.[407]

• [243] The Applicant said that as he was driving he pushed down on the brakes approximately two meters before where he had intended to park the forklift (i.e. near the boiler).[408] The Applicant estimated the distance between where he pressed the brakes to the roller door to be eight to 10 metres.[409] Mr Li's evidence was that:

• • the distance from the bollard to where the forklift was parked was more than 10 metres;[410]

• • the distance between the back of the forklift (where it finally stopped) to the bollard was only three to four metres;[411]

• [244] Mr Sporl (who was responsible for the Respondent's investigation) said that the distance between the impacted bollard and roller door is 9 metres.[412] Mr Sporl confirmed this was an approximation.[413]

• [245] Mr Li said the distance from where the forklift was originally parked and where the plate fell off to the roller door was approximately 20 metres.[414] Mr Deo said the approximate distance between where the forklift was initially parked when the plate had fallen and once the forklift had rolled to a stop was approximately 15 metres.[415] This is inconsistent with his evidence during cross examination that the distance between where the forklift was parked when the plate fell off to the bollard alone was approximately 15 metres.[416]

• [246] It is apparent that the evidence regarding the distances between objects are estimations only and it is unfortunate that during the course of the investigation into such a serious safety incident no specific measurements were taken at the scene of the incident when it occurred.

• [247] Having considered the evidence and given that all of these measurements are approximations, it seems likely that:

• the forklift was driven by the Applicant from its parked position toward the boiler and this would have required the Applicant to apply the accelerator;

• the forklift had been travelling for at least 10 metres before it made contact with the orange and blue drum (which wrapped around the bollard) near the boiler;

• after making contact with the boiler, the forklift continued before coming to a stop when it hit the roller door;

• the distance between the bollard and the roller door was a distance of up to 9 metres;

• the total distance travelled by the forklift from its parked position to where it hit the roller door was at least 19 metres.

• [248] Mr Williams was the only employee (other than the Applicant) to see the whole incident. Mr Williams said he saw the forklift collide with the orange and blue drum before continuing between the boiler and the starch kitchen and eventually hitting the roller door where it stopped[417] however other than to say the forklift wasn't being driven fast his evidence was not specific around the speed that the forklift was moving when it hit the roller door. During cross examination Mr Williams confirmed that when he said the forklift wasn't being driven fast he was saying that it was not being driven at more than 10 kilometres per hour.[418]

• [249] Mr Deo said he saw the forklift (after it had hit the orange and blue drum) slowly rolling towards the roller door before it stopped.[419] Mr Li said he was not sure how fast the forklift was going, that he only saw the last one or two seconds of the Applicant on the forklift before it stopped and he did not see the forklift impact the blue and orange drum in the photo.[420]

• [250] While there were employees who were witnesses to the incident, it is unclear as to how fast the forklift was going when it hit the roller door and fire safety door.

• [251] During cross examination it was put to Mr Brennan that if the Applicant had travelled 10 to 12 metres that the Applicant would have been able to travel at least 10 km per hour and Mr Brennan agreed with this proposition. [421]

• [252] While it is not possible to determine the precise speed at which the forklift was travelling I accept that it would have been possible for the forklift to reach its maximum speed of 10km before it made contact with the first object, being the blue and orange drum that wrapped around the bollard.

• [253] Mr Paraskevopoulos' evidence was that:

• if the braking capacity is working as it should, the forklift will stop within 2 metres of the brake being applied;

• he tested the brake capacity by sitting in the forklift, bringing it up to maximum speed and applying the brakes;

• • when he carried out this test the forklift stopped within approximately 2 metres of the brake being applied;[422]

• [254] The forklift hit multiple objects before ultimately stopping when it hit the roller door. The Brennan Report suggests that the lack of braking marks in the photographs taken of the incident mean that actual braking did not occur.

• [255] I am satisfied there is no evidence of the forklift actually braking and the Applicant said the brakes went soft. This raises the question of whether the brake was either not applied or whether braking failed.

Could brake failure cause so much damage or was the Applicant accelerating?

• [256] Mr Ibrahim-Elgarhy said the forklift driven by the Applicant caused significant damage over an approximate 10 metre distance[423] and I have earlier found that the damage was extensive.

• [257] The Respondent submitted that the evidence establishes that had the Applicant taken his foot off the accelerator, the forklift would have slowed and stopped before travelling nine metres from the bollard and before hitting the fire door so hard that it knocked the fire door off its hinges.[424] The Respondent said that the forklift would have slowed further by hitting the bollard and gas main.[425]

• [258] Mr Sporl said that before the technician left to conduct the full inspection he explained to Mr Sporl that even if the forklift loses power (or cuts out) deceleration will occur at the same rate as if the forklift was powered and he understood this to mean that if there was a total brake failure or the forklift cut out it would decelerate (or slow down) at the same speed as if it were powered.[426] The Respondent's representative requested that Mr Brennan address whether this statement is correct. In this regard the Brennan Report explains:

• deceleration will occur naturally or by assistance from the braking system;

• deceleration will vary based on other factors such as the gradient of the surface;

• Adapt-A-Lift's statement is in essence correct in that it refers to the natural deceleration that will occur if the engine is shut off without using brakes;

• • deceleration may occur slightly quicker with the engine off due to friction and other forces. [427]

• [259] The Brennan Report goes on to state by way of summary:

• • after considering the supplied photos and documents, in the writers opinion there would need to be considerable velocity caused by momentum and/or acceleration of the forklift to cause the damage exemplified in the Safety Report;[428]

• • from observation of the photos the floor level appears to be within a 2 percent gradient and Mr Brennan did not consider that the forklift could move from a standing start and roll with enough velocity to cause the indicated damage.[429]

• [260] The Brennan Report states that in considering the Applicant's assertion that the brakes did not operate at all, in Mr Brennan's opinion a forklift of its weight:

• could not accelerate in 4 metres to more than an estimated 4-5km;

• would have started decelerating at the 4 metre mark (based on the Applicant's statement that he did not have his foot on the accelerator); and

• • could not travel 6 metres further without decelerating to almost a complete stop, especially after striking objects in its path;[430]

• • the removal of doors at the final stage would indicate that the terminal travel speed of the forklift was not in line with these assertions and the likelihood that this level of damage could have been caused if the brakes failed and/or the forklift lost power is on the very lower end of the scale and at best would be ranked "1".[431]

• [261] The Brennan Report goes on to state by way of summary:

• • after considering the supplied photos and documents, in the writers opinion there would need to be considerable velocity caused by momentum and/or acceleration of the forklift to cause the damage exemplified in the Safety Report;[432]

• • from observation of the photos the floor level appears to be within a 2 percent gradient and Mr Brennan did not consider that the forklift could move from a standing start and roll with enough velocity to cause the indicated damage.[433]

• [262] However, during cross examination it was put to Mr Brennan that:

• if the Applicant had travelled 10 to 12 metres (rather than the 4 metres referred to in the Brennan Report) that the Applicant would have been able to travel at least 10 km per hour; and

• if the brakes were not used and the Applicant was travelling at 10km per hour the forklift would be able to travel "well beyond 6 metres"

and Mr Brennan agreed with these propositions. [434]

• [263] As pointed out by the Applicant, Mr Brennan relied on the following assumptions in arriving at these findings:

• the forklift had sufficient speed and momentum to cause significant damage in a relatively straight line over an approximate 10m distance (Assumption 1);

• the forklift was tested post incident to determine the stopping distance at full speed and the distance was approx. 7m (Assumption 2);

• • the distance between the impacted bollard and the fire safety door is 9m (Assumption 3).[435]

• [264] The Applicant submitted that Mr Brennan has wrongly construed Assumption 1 as meaning the total distance the forklift travelled from start to finish and that this is demonstrated at paragraph 9.41(g) of his report that there is a 'travel distance of 10-12 metres from the commencement of forward travel to the final position of the broken door'[436] and it is apparent that this is the case. At paragraph 5.3 of his report Mr Brennan states '[s]should these assumptions be materially different, this may in turn affect the content of the Report, and conclusions therein'.

• [265] I have earlier found that the total distance traveled by the forklift was at least 19 metres. I consider that assumption made by Mr Brennan regarding the total distance travelled is materially different, especially considering that I have earlier found that the forklift could have been travelling at its maximum speed of 10km per hours when it hit the orange and blue drum. As a result, I do not consider that Mr Brennan's evidence turning to whether the damage could have been caused in the event of brake failure can be relied on.

• • he instructed Gary Corbet (Supervisor) to conduct a test on the forklift for the purpose of determining the stopping distance of the forklift when travelling at full speed, [437] the forklift had a capped speed of 10km per hour such that it could not exceed this speed;[438]

• • he instructed Mr Corbet to conduct the test in a clear, designated area outside the factory;[439]

• • the test involved another employee, Mr Quinn, travelling at full speed (10km per hour) in the forklift and then removing his foot from the accelerator but not activating the brake;[440]

• • the stopping distance was 7 metres; [441]

• he estimated the distance between the impacted bollard and fire safety door is 9 metres and believed the forklift would have had to be travelling at full speed at the time it hit the bollard and that the impact to the I-beam indicates that it was not a slow and progressive stop;

• even if there was a total brake failure or the forklift cut out, the forklift would decelerate (or slow down) at the same speed as if it were powered;

• • he believed that if the forklift's brakes failed it would not have travelled far enough and with enough velocity to hit the I-beam and impact it to the degree that it did.[442]

• [267] Mr Corbet and Mr Quinn were not called as witnesses to give evidence about the test. Neither Mr Sporl nor Mr Ibrahim-Elgarhy were there for those tests but both understood that video footage had been taken. That footage was not tendered as evidence. Mr Sporl indicated he couldn't be certain that the test was conducted under the same conditions as those present at the time of the incident.[443] While he was unspecific about the distance, Mr Brennan agreed during cross examination that if the brakes were not used and the Applicant was travelling at 10km per hour the forklift would be able to travel well beyond 6 metres.[444] In these circumstances, I am not persuaded that the evidence establishes that 7 metres is the precise distance within which the forklift should have stopped before hitting the roller door.

• [268] I do accept that hitting various objects should have slowed the trajectory of the forklift down to some degree. If the forklift did cause the fire safety door to 'fly off its hinges/frame' and land a few metres away this does suggest a significant impact would have been needed. However the final position of the fire door as shown in the photograph on page 23 of the Sporl Investigation Report is peculiar. If it did land in that position, it has landed on an angle in front of the roller door and mostly to the side of the walkway leading into the fire door. The building was evacuated immediately following the incident due to the gas leak and it is apparent that the fire door was used as a means of egress from the building. For example, Mr Deo's evidence was that he went outside the fire door next to the roller door as he was looking for a valve to turn gas off.[445] Given the building was evacuated due to the gas leak it seems more likely that the fire door had been knocked off its hinges but was moved to the side by someone evacuating the building to enable a safe and clear means of egress.

• [269] Based on the evidence before the Commission I cannot be satisfied that the moving forklift weighing in excess of 11 tonnes should have slowed enough between the bollard and roller door to stop or cause lesser damage in the event of brake failure.

Can the brakes of a forklift work again if soft pedal is encountered?

• [270] That the forklift was returned to operation the same night of the incident and the absence of any issues with the forklift since the incident, at face value, weighs in favour of the Respondent's theory that the cause of the incident was operator error.

• [271] Mr Paraskevopoulos was asked whether it was possible that soft pedal could have occurred and the brakes could have worked again because they hadn't heated sufficiently. Mr Paraskevopoulos' responses suggested that this was not possible because the issue would get progressively worse.[446] Mr Paraskevopoulos further clarified this during re-examination saying:

"Well, if you've got an issue with - say, with your master cylinder where it gets hot and the brake pedal, say, for instance, foot goes to the floor, over a period of time, that will get worse. It will happen more and more to the point where it will just sit on the floor, plus the machine should throw up error codes."[447]

• [272] However Mr Harris gave different evidence and said in his experience, if the brake failed to operate as alleged, this would constitute a complete failure of the brake system and it would not be possible for the brake to fail in that instance and then subsequently work.[448]

• [273] It not apparent that the evidence of Mr Paraskevopoulos and Mr Harris squarely addresses the question of contamination.

• [274] During cross examination Mr Brennan accepted that:

• if water is introduced to the system it reduces the boiling point of the fluid;

• this increases the risk that when the brakes are applied and heating it then boiling point would be reached;

• if the boiling point is reached with water in there that would then turn into gas;

• where there's a gas bubble and the brake is applied its compressible and that creates soft pedal;

• when the system then cools down it is possible that the gas could return to a liquid state;

• if returned to a liquid state when the brake is applied again it would appear to work normally;

• had the forklift technician tested for contamination he could have identified whether the oil was contaminated with water;

• • if there was a time between when the crash occurred and when the technician inspected the forklift, it could have sufficiently cooled so when he went to test the forklift it was working normally again.[449]

• [275] Mr Paraskevopoulos said he waited a 'considerable period of time' before he was told that SafeWork NSW was not coming on that day and he could remove the forklift from the crash area and undertake the inspection.[450] The forklift would have cooled down during this time. During re-examination Mr Brennan was asked to rate the likelihood of the scenario about water being in the brake system and then turning into gas and then back into water occurring using a scale of 1-10, 10 being very likely and 1 being very unlikely.[451] Mr Brennan assessed the likelihood as being in the 2 to 3 range.[452] While a 2 or 3 out of 10 does not indicate a high degree of likelihood, it does lead me to the view that the scenario is more than a remote possibility and it should not be considered in isolation of other relevant factors when identifying the likely cause of the incident on the balance of probabilities. Mr Brennan accepted that when the system then cools down it is possible that the gas could return to a liquid state and if returned to a liquid state when the brake is applied again it would appear to work normally.[453]

• [276] Having regard to the evidence of Mr Brennan it seems that a forklift impacted by soft pedal may work again normally when it cools down.

What did Adapt-A-Lift test for and did this include water contamination?

• [277] Mr Harris's covering email to Ms Afeaki states:

Upon conducting the inspection on the braking system, no faults identified with the performance, related components or total operation were detected.

An additional mechanical inspection was also conducted, by dismantling the brake assemblies to check internal componentry and serviceability, all components found correct as per manufacturers specifications.

Throttle operation also inspected - found ok."[454]

• [278] The first page of the Job Service Card states:

remove unit from crash area. carried out visual inspection of unit, strip and inspect brake system, found fluid and all adjustments correct as per manufacturers specifications. check operation of hand brake, ok. check operation of throttle, tested ok. operated unit and tested braking capability. no fault found with unit.

Liaised with Alistair Conway from Opal on my findings, concluding with suspected operator error."

remove unit from area strip and inspect brake system found fluid and all adjustments correct check operation of hand brake ok check operation of throttle test ok no fault found with unit."

"If low brake fluid levels or water is introduced to the system the likelihood of soft pedal or non-existent pedal pressure is high."[455]

• [280] Further, the Forklift Manual states:

"Small amounts of water in the brake system can cause reduced braking performance. DO NOT allow water entry. Ensure that the sealed reservoir lid is properly replaced."[456]

• [281] Mr Paraskevopoulos confirmed during cross examination that he did not test to see if the brakes were contaminated by water and only conducted a visual inspection.[457]

• [282] I accept that a visual inspection may be able to detect if brake fluid levels were low. Mr Brennan indicated that it is possible that low brake oil levels or the introduction of water to the system may cause soft pedal however among the reasons for his rating suggesting low likelihood were:

• low oil level is very unlikely to occur without a leakage occurring or the indicator appearing on the dash and according to page 16 of the Forklift Manual this warning light must be inspected by the operator at the daily inspection;

• • there was no evidence of leakage.[458]

• [283] I accept that it seems unlikely that the brake fluids were low. However I am satisfied that water contamination is also a cause of soft pedal and no testing of the brake fluids was undertaken to rule contamination out. I do not suggest that Adapt-A-Lift was trying to cover anything up but it seems that Mr Paraskevopoulos did not know about the soft pedal explanation that the Applicant had provided and did not think such testing was necessary.

Should the indicator light have shown if there was water contamination?

• [284] Mr Brennan rated the likelihood of the brake pedal going "soft", providing "no resistance" and causing the forklift to "keep moving in circumstances where the brake oil was not changed every 2000 hours or in the 12 months prior to the accident" as "1" on a scale of 1 to 10, with 1 being "very unlikely" and 10 being "very likely". Among the reasons for his rating suggesting low likelihood were that:

• low oil level is very unlikely to occur without a leakage occurring or the indicator appearing on the dash and according to page 16 of the Forklift Manual this warning light must be inspected by the operator at the daily inspection;
• checking the indicator light on the dash is an operator responsibility and in neither of the Applicant's written responses or any of the other documents provided to Mr Brennan is it raised that the warning light was lit.

• [285] During cross examination Mr Brennan was taken to his statement in the Brennan Report suggesting that if water is introduced to the system the indicator light on the forklift's dash would be on[459] and he agreed that this statement would be dependent on the make and model of the forklift and that he had not seen the particular forklift the subject of the incident.[460] It was put to Mr Brennan that the particular forklift involved in the incident would show if the fluid was too low but not necessarily whether it was contaminated with water to which Mr Brennan indicated he was not able to correctly answer.[461] Further, while I am satisfied that prior to operating the forklift the Applicant checked to make sure all the correct reels were set up from the night before,[462] there is insufficient evidence before the Commission to establish that he carried out a daily inspection of the forklift. While the Brennan Report suggests that such an inspection should have been conducted by the Applicant, there is no evidence that the Respondent required this of him. Indeed, Key Learning 3 of the Sporl Investigation Report states "Pre-operational checks are not conducted/recorded and the system is currently reliant on operator discretion".

• [286] In these circumstances I am unable to draw a conclusion that if contamination occurred the indicator light would have been on or that the Applicant would have seen it.

• [287] The Applicant gave uncontested evidence that as a result of a grab forklift being out of service the grab forklift involved in the incident had been used on the day, afternoon and night shift five days per week for the entire period the other forklift had been out of service.[463] It is apparent that the Respondent had increased reliance on the forklift in these circumstances, as evidenced by its initial reluctance to provide the forklift to Adapt-A-Lift in February 2023 and the resultant rebooking of the 4000 hour service in March 2023.

• [288] I am however satisfied that a 4000 hour service, albeit delayed, did ultimately occur in March 2023 and should have involved the service elements for a 4000 hour service as set out in the Forklift Manual. I also accept that a service history record may not exhaustively list all of the elements of a particular service, given that these are prescribed in the manual.

• [289] However the Brennan Report has identified some anomalies in the service history records that bring into question whether all elements prescribed by the manual were carried out in the servicing of the forklift. In particular, the Brennan Report indicates:

• in reviewing the Adapt-A-Lift service history it was not possible for Mr Brennan to state whether it was "deficient" or "not deficient";

• while it is industry standard not to list the full contents of any particular periodic service, but to rely on the Forklift Manual to provide such detail, he would expect to see parts and fluids listed that would match up with that specified in the Forklift Manual;

• • in this regard there did appear to be some anomalies in the Service History provided i.e. certain parts or lubricants required by the schedule set out in the periodic maintenance table in the Manual are not listed in the Service History.[464]

• [290] In his Second Response the Applicant specifically raised that there were no records of a brake oil change being performed in the service records and that this is required to occur every 2000 hours or annually. The Brennan Report indicates that a brake oil change is required as a part of the 4000 hour service and as the Service History stated that a 4000 hour service was completed on 9 March 2023 Mr Brennan assumed this occurred.[465] However the Brennan Report goes on to state that according to the Service History:

• • no brake oil has been charged for, with the Manual requiring use of a certain product for the brake oil change;[466] and

• • while wet brake drive axle oil is required to be changed[467] in five separate chambers of the wet brake system, requiring 25 litres in total, only 12 litres of HP GEAR OIL 80W/90 $L (PER LITRE) is shown in the forklift's service history[468] and this is a lower viscosity to the oils required in the left and right side wet brakes.

• [291] When Mr Paraskevopoulos inspected the forklift he was not able to tell from accessing the service history on his tablet if something had not occurred (including whether the brake oil had not been changed) and there was no evidence of any close examination of the service history.[469] Further, the technician who is said to have carried out the 4000 hour service, Mr Peria, was not called as a witness to the proceedings.

• [292] Mr Brennan's opinion was that even if the brakes had not been serviced in the 12 months prior to this the likelihood that this would cause the brake pedal to go "soft" and provide "no resistance", causing the forklift to "keep moving" was rated as "1" a scale of 1 to 10 with 1 being "very unlikely" and 10 being "very likely". The Brennan Report suggests this rating was provided for a range of reasons, including:

• because the forklift has "wet type" brakes which means they run in a hydraulic fluid environment and are much less susceptible to wear and tear;

• if there was a failure of the brakes' articulating system, hydraulics or wet brakes, there would be an oil trail and there was no evidence of this;

• if the brake master cylinder seals had failed they would not "unfail", there would have been evidence of this found during Adapt-A-Lift's inspection later on the day of the incident and the issue would have re-emerged with subsequent use;

• the Job Service Card in respect of Adapt-A-Lift's inspection stated that the brakes were working.

• [293] However it is not clear that the above relates to soft pedal caused by water contamination and while Mr Brennan relied on Adapt-A-Lift's Job Service Card, I have already found that Adapt-A-Lift did not test for this.

• [294] Further, during cross examination it was put to Mr Brennan that if the list of items that must be done as a part of a 4000 hour service were not performed this would increase the risk of brake failure and Mr Brennan agreed.[470] It was then put to Mr Brennan that there were a number of things he could not identify in the forklift history as being completed because they did not appear in the history including:

• whether the master brakes cylinder and rod were lubricated, to which Mr Brennan agreed;

• whether the brake oil change had been carried out, to which Mr Brennan agreed;

• whether the wet brake axle oil change had been carried out, to which Mr Brennan indicated there was no charge for this in the service history;

• • whether brake system accumulator had been serviced, to which Mr Brennan indicated it had not been specifically listed in the service history.[471]

• [295] It was put to Mr Brennan that if it was the case that none of the above had been carried out, the cumulative effect would significantly increase the risk of brake failure, including a temporary failure, and he agreed.[472]

• [296] I cannot be satisfied as to whether Adapt-A-Lift, in servicing the forklift carried out all of the elements of a service as prescribed by the Forklift Manual. Rather, there is evidence of anomalies, including evidence suggesting that the brake fluids may not have been changed in accordance with the Forklift Manual and this would likely increase the likelihood of brake failure.

• [297] I also note that there were three grab forklifts provided by Adapt-A-Lift to the Respondent and at the time of the incident one of these was out of service as it had stopped working while the Applicant was in the middle of driving it. The Applicant gave uncontested evidence that it had not been used for approximately four to six months prior to the time of the incident. While this forklift was not the forklift involved in the incident it does indicate that the grab forklifts, despite being serviced by Adapt-A-Lift, are not infallible to unexpected breakdown and the fact that the forklift involved in the incident did not have any reported brake issues prior to the incident does not mean issues could not have arisen.

• [298] It is apparent from its correspondence to the Applicant dated 16 October 2023 that the Respondent did not believe the Applicant's explanation for the incident because:

• • it considered the explanation was inconsistent with the outcome SafeWork NSW communicated via email 19 July 2023 to Mr Sporl and Mr Williams[473] stating:

'The decision has been made that as the forklift operator Mr Pece Calovski has already been suspended from using the forklift at the workplace since the incident that Safework NSW will allow the PCBU to continue to manage the incident and not use our powers under clause 110 of the WHS Act 2011

It is an expectation that the PCBU will ensure that Mr Calovski is able to operate high risk work competently and safety (sic) prior to being allowed to use forklifts in the premises;' and

• it considered the report provided to SafeWork NSW by Adapt-A-Lift on 25 July 2023 in response to a Notice to Give Information to SafeWork NSW issued to Adapt-A-Lift pursuant to section 155(2) of the Work Health and Safety Act NSW (2011) on 20 July 2023 confirmed the forklift brakes were in working order.

• [299] In this regard, on 20 July 2023 Ms Afeaki sent Adapt-A-Lift a notice to give information to SafeWork NSW including:

• the names of the employees who inspected the forklift on 27 June 2023;

• a list of all tests conducted on the forklift as a part of the service and the results of each of those tests; and

• confirmation as to whether any mechanical errors were identified during the inspection that may have contributed to the incident; and

• • detailed service reports and paperwork pertaining to Service Job Card (job. No 1544759).[474] This was the Service Job Card relating to the inspection undertaken by Adapt-A-Lift on 27 June 2023 following the incident.[475]

• [300] Mr Harris responded to that notice by email dated 25 July 2023, enclosing the job service card completed by the technician who inspected the forklift at the Respondent's site on 27 June 2023.[476] In his covering email to Ms Afeaki, Mr Harris said:

Upon conducting the inspection on the braking system, no faults identified with the performance, related components or total operation were detected.

An additional mechanical inspection was also conducted, by dismantling the brake assemblies to check internal componentry and serviceability, all components found correct as per manufacturers specifications.

Throttle operation also inspected - found ok."[477]

• [301] Ms Afeaki was asked whether she believed the Applicant's account to which she responded:

"Based on the evidence before me on the day it didn't seem that it would be an accurate account of what had occurred."[478]

• [302] It is apparent that SafeWork NSW relied on the representations of Adapt-A-Lift who I have found did not test for water contamination which creates a high risk of soft pedal.

What can be said about the Applicant's actions if the braking did fail due to soft pedal?

• [303] Mr Wilson made the following observations:

• the Applicant drove the forklift through a yellow and red shared pedestrian walkway at which point the forklift came to a stop after it had collided with a number of pieces of plant and equipment;

• driving a forklift through a shared pedestrian area presents a significant safety risk, there was a factory access door very close by and pedestrians walk along the marked path to get to the access door;

• • the photos in the Sporl Investigation Report show the final stopping point of the forklift on the yellow and red shared pedestrian pathway.[479]

• [304] There is no doubt that a moving forklift weighing in excess of 11 tonnes in a pedestrian area gives rise to a serious risk to safety. The Applicant said that as he was driving he pushed down on the brakes approximately two metres before where he had intended to park the forklift and when he pressed the brake it went all the way to the floor and had no resistance,[480] the forklift continued to move forward and he was aware that the boiler was on his left and that the forklift was going to hit something therefore he intentionally steered the forklift as straight as possible to ensure he went between the boiler and starch kitchen to minimise damage.[481]

• [305] Given the Applicant's lengthy experience driving forklifts there is also a question around why the handbrake was not applied by the Applicant if the foot brake did not work for him. The Brennan Report indicates that the handbrake would have stopped the forklift moving forward as it activates the same set of brakes as the foot brake by a separate mechanical activation.[482] The reason why the Applicant did not apply the handbrake is unclear. However the measures that should have been taken in the event of brake failure in the circumstances described by the Applicant were not the subject of focus during the Respondent's investigation or the proceedings. If the brakes did fail as the Applicant claims, I am not able to conclude that the Applicant's failure to apply the handbrake in reacting to the foot brake failure would justify his dismissal.

Was the incident the Applicant's fault or was it caused by soft pedal?

• [306] The Respondent has established that:

• the incident happened while the Applicant was driving the forklift;
• there is no evidence of effective braking;
• the brakes worked when Adapt-A-Lift tested them post incident;
• Adapt-A-Lift did not find any faults with the forklift's brakes (although it did not test for water contamination);
• the forklift was returned to service the night of the incident and no issues arose with the forklift's brakes once this happened.

• [307] These factors weigh in favour of a finding on the balance of probabilities that the accident was the Applicant's fault.

• [308] The Respondent has not established that:

• the forklift should have stopped or slowed so as to cause lesser damage if the brakes failed;
• the failure of the Applicant to engage the handbrake or actions otherwise taken were a valid reason for dismissal if the brakes did in fact fail.

• [309] The evidence does however establish that:

• the Applicant had 25 years' experience driving forklifts;
• the Applicant was not under the influence of drugs or alcohol or otherwise observed to be impaired or driving erratically prior to the incident;
• there had been increased reliance on the forklift the subject of the incident in circumstances where one of the three grab forklifts was out of service;
• the servicing of the forklift had been delayed from February to March as a result of the increased reliance on the forklift;
• the forklift travelled approximately 10 metres between where it was parked and where it hit the first object and would have been able to reach its full speed of 10 kilometres per hour across that distance;
• upon hitting the first object there was no evidence of braking but rather, the forklift travelled a further 9 metres, hitting multiple other objects along the way, into a pedestrian zone and roller door without stopping in circumstances where the forklift should brake within 2 metres if the operator applies a working brake;
• the forklift weighs in excess of 11 tonnes and Mr Brennan's evidence is that if the brakes were not used and the Applicant was travelling at 10km per hour the forklift would be able to travel well beyond 6 metres;
• no precise measurements were taken of any of the distances that the forklift travelled during the course of the investigation and I am not satisfied that a forklift, weighing in excess of 11 tonnes, would have slowed to a stop before hitting the roller door in circumstances of brake failure, despite hitting objects along the way;
• the Respondent called Adapt-A-Lift, the entity that leases and services the forklift, to inspect the forklift post accident and it was that entity that reported that it had found no issues with the forklift;
• the Respondent interviewed the Applicant to get his full account of events after Adapt-A-Lift has inspected the forklift;
• the Adapt-A-Lift representative was not told that the Applicant had alleged soft pedal and did not test for water contamination, which creates a high risk of soft pedal if it occurs;
• the Applicant has been consistent in his account that the brake went soft (soft pedal);
• while the service history states a 4000-hour service was completed on 9 March 2023, there are anomalies in the forklift's service history including evidence suggesting that:

• o no brake oil has been charged for, with the Manual requiring use of a certain product for the brake oil change;[483] and
• o while wet brake drive axle oil is required to be changed[484] in five separate chambers of the wet brake system, requiring 25 litres in total, only 12 litres of HP GEAR OIL 80W/90 $L (PER LITRE) is shown in the forklift's service history[485] and this is a lower viscosity to the oils required in the left and right side wet brakes;

• Mr Brennan acknowledged that there were a number of things he could not identify in the forklift history as being completed because they did not appear in the history and that if these had not been carried out, the cumulative effect would significantly increase the risk of brake failure, including a temporary failure;

• • the forklift's history was only obtained on 10 October 2023 (after the wrong service history was provided by Adapt-A-Lift to the Respondent)[486] and it does not appear that the anomalies identified by Mr Brennan in the service history were identified at that time or investigated;
• • it is possible that in the time between when the incident occurred and when the technician inspected the forklift, the system could have cooled down, the gas could have returned to a liquid state and if so the forklift would appear to work normally.[487]

• [310] I accept that the Adpat-A-Lift inspection would have ruled out some causes of brake failure. However the Applicant has not just simply said that the brakes failed but has consistently alleged the brake pedal went soft when he went to apply it. There are specific factors that cause soft pedal and as identified by Mr Brennan, water contamination results in a high likelihood of soft pedal.

• [311] The seriousness of the incident, in my view, warranted a more thorough investigation. The Respondent should have obtained the Applicant's account before the forklift was returned to service and, upon learning that soft pedal was alleged, it should have arranged for testing to conclusively rule out water contamination and given more careful consideration to the forklift's service history.

• [312] The Applicant has operated forklifts and grab forklifts for approximately 25 years.[488] The Applicant says the incident involving the forklift was the first time in his career that he had ever had a forklift accident.[489] There were no concerns regarding the Applicant's performance in his role before the incident.[490] While this does not in itself mean that the Applicant is immune from having an accident whilst driving a forklift, it does reduce the likelihood of the Applicant making such a serious error, whether it be applying the accelerator instead of the brake or otherwise.

• [313] I note that Mr Brennan and SafeWork NSW placed reliance on Adapt-A-Lift's findings as reflected in the Job Service Card in arriving at their findings. Adapt-A-Lift was the service provider that the Respondent called to inspect the forklift following the incident. The decision to do so may have been an intuitive one given Adapt-A-Lift leases and services the forklifts and would have a close working knowledge of the forklift and its condition. However in circumstances where a very serious and potentially life threatening safety incident occurred, the Applicant had indicated that the incident was caused by braking failure and Adapt-A-Lift provided and serviced the forklift involved, it would have been prudent to engage an expert independent of Adapt-A-Lift to inspect the forklift.

• [314] Having considered the evidence, two possible explanations for the incident are that:

1. the Applicant, in travelling from where he was stopped to the area where he intended to park near the boiler, failed to brake in time before hitting the first object (the blue and orange drum and bollard) and he panicked or went into a state of shock such that he did not brake at all or continued to accelerate such that the forklift kept travelling for a distance of 9 metres into the pedestrian zone and the roller door, hitting multiple objects along the way; or

1. the Applicant tried to apply the brake of a forklift that had been heavily used since its last service in March and had anomalies in its service history, the pedal went soft when he went to apply it and he was unable to brake effectively. In circumstances where he had the boiler to his left and starch room to his right, he steered the forklift down a pathway that would result in the forklift causing what he considered to be the least amount of damage.

• [315] While it is a combination of factors that make the explanation about soft pedal plausible and it appears that the incident happened within a matter of seconds[491], I consider it is no more likely that a forklift driver with 25 years' experience and who was not under the influence of drugs, alcohol or otherwise observed to be impaired, could make a combination of errors that would see him:

• apply the accelerator to move a forklift from its parked position toward the boiler for around 8 metres and then either brake late or accidentally accelerate into the first object, being the blue and orange drum; and

• then fail to brake, continue to accelerate or accidentally accelerate such that the forklift travelled a further nine metres into a pedestrian zone, hitting multiple other objects along the way, in circumstances where the forklift should have stopped within 2 metres had a working brake been applied.

• [316] The Applicant has been consistent in his account that when he went to apply the brakes the pedal went soft and the forklift failed to brake. This consistency has persevered through the Applicant's communications with his colleagues following the incident, the Respondent's entire investigation and disciplinary process and during these proceedings. The Applicant's consistency in his explanation persevered even after he became aware that SafeWork NSW were not going to suspend or cancel his licence and he was at risk of losing his job. Prior to the incident the Applicant did not have a history of being untruthful during his employment.

• [317] In all the circumstances and taking into account the flaws in the investigation, and the failure to undertake testing to rule out contamination, which creates a high risk of soft pedal, I am unable to be satisfied, on the balance of probabilities, about which of these two theories caused the incident, i.e. whether it was Applicant error or whether the brake pedal went soft as consistently claimed by the Applicant.

• [318] As noted above the Applicant has been consistent in his account that when he went to apply the brakes the pedal went soft and the forklift failed to brake and the Applicant did not have a history of being untruthful during his employment prior to the incident.

• [319] The allegations made by the Respondent about the Applicant's conduct are serious and it bears the onus of proving that the conduct on which it relies took place. In my view there needs to be sound evidence upon which a firm finding may be made, on the balance of probabilities, that the Applicant failed to operate the grab forklift in a safe manner, causing extensive damage and creating a safety incident that could have resulted in injury and loss of life; and that he lied or was dishonest about this. For the reasons set out above I am unable to determine the cause of the incident and I cannot be satisfied that the Applicant was dishonest or untruthful. Even if some accident did occur involving error on the part of the Applicant (which I am not satisfied is the case as I do not know what caused the incident) I cannot be satisfied, based on the evidence before the Commission and on the balance of probabilities, that the Applicant was dishonest or lied during the investigation and disciplinary process.

• [320] In all the circumstances, I find that there was no valid reason related to the Applicant's conduct.

Was the Applicant notified of the valid reason?

• [321] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[492]

• [322] As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[493]

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

• [323] As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[494]

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

• [324] 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.

• [325] 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."[495]

• [326] It was not in contention that the Applicant was afforded the opportunity to bring a support person to discussions regarding his dismissal.[496]

• [327] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

• [328] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

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

• [329] In relation to s.387(f) the Applicant submitted:

• • The Respondent is a large company with dedicated, experienced human resources and legal representatives and it can, and should be held to a high standard in terms of the procedures it can be expected to follow when dismissing an employee.[497]

• • Large employers are expected to have appropriate standards of conduct when dealing with an employee's dismissal and to follow policies and procedures.[498]

• • 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.[499]

• • To this end, the Respondent employs internal legal counsel as well as a dedicated Workplace Relations Specialist who conduct investigations into allegations of workplace misconduct.[500]

• • The Respondent simply inferred that the Applicant was guilty of misconduct without having regard to the incident considered in its complete context.[501]

• • The Respondent contravened its own policies by failing to provide the Applicant with all the materials and conferring him with five working days to respond to the allegations as required by the Investigation Guiding Principles.[502]

• • The deficiencies in the procedures followed in effecting the dismissal weigh in favour of a finding that the dismissal was unfair.[503]

• [330] The Applicant submitted that as the Respondent has dedicated human resources specialists nothing arises for consideration under s.397(g).[504]

• [331] The Respondent is substantial, employing approximately 3,500 employees across the group,[505] and has dedicated human resources personnel and access to legal advice and as such there is no reason for it not to follow fair procedures.[506] Further, I find that the size of the Respondent's enterprise was not likely to impact on the procedures followed in effecting the dismissal.

• [332] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [333] The Applicant submitted that the following matters point to the dismissal being unfair:[507]

• the forklift incident was an accident, whether it be due to faulty brakes, or otherwise;

• • there were no pre-operational checks in place for forklifts and issues were only reported on an ad-hoc basis as they occur,[508] despite pre-operational checks being a requirement of SafeWork NSW and the operation of forklifts constituting high risk work;

• the Respondent failed to implement adequate barricades to protect the boiler and other equipment from being damaged;

• the forklift was almost four months' overdue for a major service (at Opal's own election) which likely contributed to the incident;

• the lack of any prior disciplinary action taken against the Applicant;

• the financial impact of the dismissal on the Applicant in the current economic climate;

• the Applicant's age and difficulty he had in obtaining alternative employment, noting he made 59 unsuccessful applications.

• • the Respondent had already decided just a few hours after the incident that the Applicant had engaged in the alleged conduct and did not afford the Applicant a genuine opportunity to persuade the Respondent that there were reasons not to terminate his employment;[509]

• • a proper investigation was not carried out;[510]

• • the Respondent did not follow the investigation guiding principles in its enterprise agreement which require five business days to respond.[511] In this regard the Applicant submitted that:

• he was required to show cause as to why his employment should not be terminated by 13 October 2023;

• he had all the materials by 12 October 2023 including the forklift servicing history (which was just under 20 pages and the forklift service manual) which is over 100 pages;

• he was supposed to have these materials by no later than 6 October 2023;

• o he only had a day to review the materials and then provide a response and this was a clear breach of the investigation guiding principles and was procedurally unfair;[512]

• • even if the Commission was to find the Investigation Guiding Principles don't apply, the Respondent was nonetheless required to provide full disclosure in accordance with the principles of justice, which would entail having sufficient time to review those materials and respond.[513]

• the Applicant's submissions in relation to procedural fairness are without merit;

• the requirements of procedural fairness are that a person who may be adversely affected by a decision be informed of the case against them and be given a reasonable opportunity to answer it;

• the Applicant was on notice for three months of the allegations and was given repeated opportunities to respond;[514]

• in any event any issue or issues of procedural fairness may not be of such significance as to outweigh the substantive reason/s for an employee's dismissal, particularly in cases of misconduct where the proven misconduct is of such a gravity as to outweigh any other considerations such as age, length of service, contrition and issues of procedural unfairness generally.

• [336] In closing oral submissions, the Applicant submitted that:

• it was unfair and cruel that the Applicant was employed between 27 June 2023 and 3 October 2023 before receiving the show cause letter to respond to;[515]

• • Mr Ibrahim‑Elgarhy's explanation of the reason for the delay (being that he was waiting on the GIPA application outcome) was a farce because given the Respondent had a seven or eight year commercial relationship with Adapt-A-Lift, he could have sought the records directly from Adapt-A-Lift;[516]

• • if Mr Ibrahim‑Elgarhy genuinely considered that the incident needed to be dealt with swiftly and warranted termination, he wouldn't have allowed Mr Calovski to work for three and a half months, and he expressly conceded that if Mr Calovski simply accepted his version of events, he could have had his job back.[517]

• [337] The Respondent noted in closing submissions that the evidence of Mr Ibrahim‑Elgarhy was that if there had been a request to extend time he would have done so, he had done so in the past, and there was no such request.[518]

• [338] Procedural fairness is one factor that the Commission may take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.

• [339] In the context of administrative decision-making, the rules of natural justice are flexible and require fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise.[519] Ordinarily, procedural fairness requires that an allegation be put to a person and they be given an opportunity to answer it before a decision is made.[520]

• [340] I consider that the matters below are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.

• [341] While it is apparent that some of the employees of the Respondent including Mr Conway appeared to have formed the early belief that the Applicant had applied the accelerator instead of the brake, I am not satisfied that the decision maker Mr Ibrahim‑Elgarhy rushed to any conclusions because the Applicant's employment did in fact continue for over three months post-incident and Mr Ibrahim‑Elgarhy took the additional step of seeking to access the service history records for the forklift. While he could have requested the service history records from Adapt-A-Lift at an earlier stage he did not do so and instead directed that the GIPA application be made before he arrived at his decision. It seems likely that he considered that the forklift's service history may have also been a relevant factor in making the decision about the Applicant's employment and had sought to understand whether SafeWork NSW had relied on service history in deciding upon its outcome. Mr Ibrahim‑Elgarhy's evidence was that he assumed SafeWork NSW had a copy at the time of the GIPA application but this assumption was incorrect.

• [342] Mr Sayan's evidence was that at the meeting on 4 July 2023 between the Applicant, Mr Sayan, Mr Conway and Michael Kenny (Quality Assurance Manager) he requested a copy of the forklift service history records and asked whether Adapt-A-Life was independent in conducting the assessment given it was responsible for servicing the forklift.[521] On 3 October 2023 Mr Sayan also attended a meeting with the Applicant, Mr Conway and Mat Wilmore, during which the Applicant was provided with a letter containing allegations of misconduct and was requested to attend a meeting on 5 October 2023.[522] Mr Sayan requested that the Applicant be given an extension until 10 October 2023 to respond as the Applicant did not have the service records.[523] At approximately 7.30am on 10 October 2023 Mr Conway advised Mr Sayan that he had sent the service records and queried whether he still wished to have the meeting with the Applicant at 2pm, noting that not much notice had been given since the records were sent and Mr Sayan confirmed that he still wished for the meeting to proceed.

• [343] In that meeting of 10 October 2023 Mr Sayan raised that the serial number on the service history records provided did not match the serial number of the forklift provided to SafeWork NSW.[524] Service history records for the wrong forklift had been provided, Mr Conway obtained a copy of the correct service records and on 11 October 2023 sent an email to Mr Sayan and Mr Wilmore enclosing these records.[525]

• [344] On 11 October 2023 another meeting was held between the Applicant, Mr Sayan, Mr Wilmore and Mr Ibrahim-Elgarhy.[526] The following morning Mr Sayan requested a copy of the service manual for the forklift and a copy of the Respondent's Incident Report.[527] Mr Ibrahim-Elgargy indicated during cross examination that while he was unsure of the exact date he believed that the forklift manual was provided on 12 October 2023.[528]

• [345] On 13 October 2023 another meeting took place between the Applicant, Mr Sayan, Mr Wilmore and Mr Ibrahim-Elgarhy in which the Applicant provided his response to the allegations. On 18 October 2023 another meeting took place between the Applicant, Mr Sayan, Mr Ibrahim-Elgarhy and 'Sveto'.[529] On 19 October 2023 a meeting took place between the Applicant, Mr Sayan, Mr Wilmore and Mr Ibrahim-Elgarhy in which the Applicant was provided with a letter notifying him of the termination of his employment.[530]

• [346] It is apparent that the meeting of 13 October 2023 was the primary meeting in which the Applicant was provided with an opportunity to respond to the allegations made against him. I accept that a request to move this meeting could have been made by the Applicant and was not however he had no guarantee such a request would have again been granted and it is apparent that within the very limited time between receiving the correct service history records on 11 October 2023 and the forklift manual on 12 October 2023 the Applicant made a very serious attempt to respond to the allegations in his letter of 13 October 2023 in a way that explored whether the new material he had been given supported his account of what had occurred. However in my view, the delay between when Mr Sayan first asked for the service history records (being 4 July 2023) and when they were ultimately provided, being 11 October 2023 is unreasonable. This information was, in my view, of importance in understanding whether the Applicant's account of what had occurred was a plausible explanation for the incident. The Applicant is not a forklift technician and had he received that information earlier, he may have been able to give it closer consideration in putting his case to the Respondent that his employment should not be terminated. Once the service history was in the hands of the Applicant and the Applicant raised concerns about it, there is no evidence that the Respondent looked into these concerns in any meaningful way before making the decision to dismiss him and the Brennan Report authored post the Applicant's dismissal did in fact identify anomalies in the service history records.

• [347] More fundamentally, the Applicant had explained to the Respondent what he believed to be the cause of the incident, i.e. that the pedal went soft. There are known causes of soft pedal. It was within the Respondent's means and control to undertake an investigation into what was accepted by both parties to be a very serious safety incident and rule out the known causes of soft pedal and I have earlier found that the Respondent's investigation was deficient in this regard. The entity that provides and services the Respondent's forklifts was called out, it assessed its own forklift that it had serviced as being free from faults and it did not test for a cause of soft pedal. The accident site was cleared and the forklift was returned to service that night. The Respondent's approach in response to the incident means that it has lost the opportunity to know the probable cause of the incident and has meant that the Applicant's account was not fully explored before being dismissed as a lie.

• [348] The above factors are regrettable and weigh in favour of a finding that the dismissal was harsh.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

• [349] I have made findings in relation to each matter specified in s.387 as relevant.

• [350] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[531]

• [351] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh and unreasonable because the Respondent has not established that it has a valid reason for the dismissal, the forklift's service history records sought by Mr Sayan on behalf of the Applicant should have been provided sooner and the Applicant's account of the cause of the incident (being soft pedal) should have been properly investigated and there were deficiencies in this regard.

• [352] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.

• [353] Being satisfied that the Applicant:

• made an application for an order granting a remedy under s.394;

• was a person protected from unfair dismissal; and

• was unfairly dismissed within the meaning of s.385 of the FW Act,

I may, subject to the FW Act, order the Applicant's reinstatement, or the payment of compensation to the Applicant.

• [354] Under s.390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

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

Is reinstatement of the Applicant inappropriate?

• [355] While the Applicant's application indicates that he seeks reinstatement and/or compensation,[532] I understand that reinstatement is the Applicant's preferred remedy. In particular, the Applicant submitted, by way of summary that he seeks reinstatement with orders for continuity of service and restoration of lost pay[533] and that the following factors make reinstatement appropriate:

• the Applicant was a hard-working, loyal and diligent employee;

• the Applicant has no history of any prior disciplinary or safety issues at the Respondent or otherwise throughout his employment history;

• the Respondent is well able to accommodate the Applicant's reinstatement;

• there can be no sensible suggestion that the relationship of trust and confidence between the Applicant and Respondent has broken down such that the employment relationship cannot be re-established, particularly noting the Applicant continued to work for three and a half months between the date of the incident on 27 June 2023 and his suspension on 11 October 2023;

• • reinstatement is the primary remedy.[534]

• [356] The Respondent submitted during closing submissions that while employees have a duty to be truthful generally, in relation to safety breaches they have a particular duty to be truthful. The Respondent says it does not believe the Applicant, it continues not to believe him upon hearing the evidence, there is a breach of trust and reinstatement is impracticable.[535] The Respondent submits that in these circumstances it cannot be argued that it is safe for the Respondent to have the Applicant back in the workplace.[536] The Respondent referred to the findings of the Full Bench in Parlamat that:

"Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences...Clearly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity."[537]

• [357] The Applicant's evidence was that Mr Thornton was his direct supervisor and that Mr Thornton left the business shortly after the incident and was not replaced.[538] While Mr Thornton reported to Mr Conway, the Applicant said that he only occasionally received instructions from Mr Conway and neither Mr Ibrahim-Elgarhy, Mr Sporl nor Mr Wilson ever directed him to perform duties.[539] The Applicant also submitted that it was not clear that Mr Conway's evidence (that he did not believe the Applicant) was relevant to the issue of trust and confidence in that he was not his immediate supervisor. In this respect the Applicant referred to the statement of Gray J in AMIEU v G&K O'Connor Pty Ltd that:

"The law relating to the need for trust and confidence in an employment relationship was developed at a time when employment invariably involved a close personal relationship between employer and employee. The advent of corporate employers has diminished the importance of this element of the employment relationship. A corporation has no sensitivity. The crucial question must be what effect, if any, loss of trust by a manager in an employee is likely to have on the operation of the workplace concerned. It might be more significant, for instance, to know the name of Mr Voss's immediate supervisor and to know the attitude of that person towards him. If the immediate supervisor had no trust in Mr Voss, it might also be relevant to know whether it would be possible to place Mr Voss in another part of the workplace, under another supervisor, who did have such trust. It would also be relevant to know what effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct of operations in the workplace. There is no evidence as to any of these matters".[540]

• the Respondent's reluctance to shift from its view (that the Applicant caused the incident and lied about it) or the fact that it may be difficult or embarrassing for the Respondent to be required to re-employ the Applicant does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed;

• the employment relationship can plainly be restored and made viable and productive;

• the Respondent has not discharged its evidential onus of showing there has been a breakdown of trust and confidence.

• [359] Part 3-2 of the FW Act deals with unfair dismissal. Section 381(1)(c) of the FW Act provides that one of the objects of Part 3-2 is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement. Section 381(2) provides that the procedures and remedies referred to in paragraphs 1(b) and (c) of the FW Act and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

• [360] In Nguyen v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter[541]a Full Bench of the Commission summarised the propositions arising from the decided cases concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate:

• • 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.[542]

• • 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.[543]

• • 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.[544]

• • 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.[545]

• • 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[546]

"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."[547]

• [362] A difficulty arises in this matter in that two competing accounts have been put forward in relation to the incident's causation and I am unable to be satisfied as to which cause is the most likely account on the balance of probabilities. No valid reason was found in this matter because the Respondent bears the onus in establishing there was a valid reason due to the Applicant's conduct. There was another explanation (soft pedal) that, in all the circumstances, was no less plausible than the Respondent's belief that the incident was the Applicant's fault and the Applicant's explanation about what had happened was not properly investigated.

• [363] While I could not be satisfied on the balance of probabilities that the incident was the Applicant's fault, there is a potential that an error has been made involving a serious safety incident. It is trite to say that sometimes people make errors in the course of their employment and it does not necessarily mean that they should not continue in their role in all circumstances. However the Applicant is involved in high risk work and if the cause of the incident was operator error, which is unknown, the error was significant and could have had significant consequences. Had it been found that the cause of the incident was attributable to the Applicant and that he had lied, it is likely that the outcome of this matter would have been very different.

• [364] The inability to be satisfied about the cause of the incident is attributable to the deficiencies in the Respondent's investigation post-incident. The forklift was not tested for contamination (a known cause of soft pedal) and the deficiencies in the investigation cannot now be corrected.

• [365] In circumstances where the Respondent believes that the incident was the Applicant's fault some tension will likely arise because health and safety considerations must be taken seriously and as per the expectations communicated by SafeWork NSW, the Respondent will need to have confidence that the Applicant is able to competently and safely operate a forklift if it is to allow him to operate them in the future.[548] The Applicant said that he only occasionally received instructions from Mr Conway and neither Mr Ibrahim-Elgarhy, Mr Sporl nor Mr Wilson ever directed him to perform duties[549] and challenged the relevance of evidence of those who were not his immediate supervisor to the issue of trust and confidence. However in circumstances where work health and safety considerations arise and where the Respondent's management employees have an interest in how the Respondent meets its obligations, I consider the perspectives of the Respondent's management employees to be relevant in an assessment of whether there is a loss of trust and confidence in an employment relationship, notwithstanding that these individuals may not be the Applicant's direct supervisor.

• [366] There are however a number of factors that suggest reinstatement is not inappropriate. Firstly, the Applicant continued to work for a period of three and a half months post incident without issue, albeit in a capacity that did not involve forklift operation. The Respondent has never suggested that the incident in itself was a deliberate act however Mr Ibrahim-Elgarhy's evidence was that he wanted the Applicant to take responsibility for the incident, that this was very important in his capacity as decision maker, that he was disappointed that the Applicant did not, in his view, accept responsibility and if the Applicant had told him what he believed to be the correct version of events there may have been an alternative option to dismissal. [550 ]It seems likely that the reason that the Applicant was ultimately dismissed was not because of the incident itself but because the Respondent believed that he had lied about the cause of it. In closing submissions the Respondent confirmed that the basis upon which it says reinstatement would be inappropriate was because the Applicant lied.[551] The difficulty with the belief held by the Respondent is that it didn't undertake testing to rule out a known cause of what the Applicant said had caused the incident. Without properly investigating to rule out the factors that cause soft pedal, I do not consider that the Respondent's belief that the Applicant lied was soundly based. Prior to the incident, there were no disciplinary or performance issues arising during the Applicant's employment. The Applicant's evidence is that he has 25 years of experience in driving forklifts and he says this is the only incident he has been involved in and if the incident was an accident, it seems unlikely that an accident of such a gravity could happen again.

• [367] Further, SafeWork NSW communicated the following outcome via email dated 19 July 2023 to Mr Sporl and Mr Williams[552] stating:

"... The decision has been made that as the forklift operator Mr Pece Calovski has already been suspended from using the forklift at the workplace since the incident that Safework NSW will allow the PCBU to continue to manage the incident and not use our powers under clause 110 of the WHS Act 2011

It is an expectation that the PCBU will ensure that Mr Calovski is able to operate high risk work competently and safety (sic) prior to being allowed to use forklifts in the premises..."

• [368] SafeWork NSW did not however consider it necessary to suspend or cancel the Applicant's forklift licence and the statement above contemplates that the Applicant may return to driving forklifts. In circumstances where the Applicant continues to hold a licence, if he is not driving forklifts for the Respondent, he will be doing so somewhere else as he is in the casual position secured after his dismissal.

• [369] The Applicant's role immediately before his dismissal was the role of a corrugator floater that involved performing various tasks including driving forklifts and working on a cardboard stacker.[553] While the Respondent will need to take steps to meet the expectation of SafeWork NSW to "ensure that Mr Calovski is able to operate high risk work competently and safety (sic) prior to being allowed to use forklifts in the premises...", it seems likely the Respondent will be able to meet this expectation in circumstances where the Applicant is an experienced forklift driver who did not have a history of safety or performance issues prior to the incident. The Applicant accepted that the incident was serious[554] and indicated that even though he believed the brakes did not work he has always accepted that it was his responsibility for the incident as the driver, that he has tried to think about what he could have done to avoid the incident and has felt terrible about it ever since.[555] While he said the brake of the forklift went soft, it appears he is nevertheless open to drawing learnings from the incident. The Applicant also gave evidence that he loved his job, was keen to return to it and I do not consider that the viability of the employment relationship has been destroyed.

• [370] The Applicant's evidence is that he applied for 58 jobs and was unsuccessful in those applications.[556] On 18 December 2023 the Applicant did however commence employment as a casual forklift driver[557] and while it appears that his employment in this role is fairly regular[558] it is not guaranteed work[559] and he has submitted this results in some variation in his earnings.

• [371] Having regard to the matters referred to above, I consider that reinstatement is not inappropriate.

Reinstatement - to what position should the Applicant be appointed?

• [372] Section 391(1) of the FW Act provides that an order for the Applicant's reinstatement must be an order that the Applicant's employer at the time of the dismissal reinstate the Applicant by:

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

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

• [373] Section 391(2) of the FW Act provides that, if:

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

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

the order for reinstatement may be an order to the associated entity to:

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

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

• [374] As noted above, while the Respondent will need to take steps to meet the expectation of SafeWork NSW to "ensure that Mr Calovski is able to operate high risk work competently and safety (sic) prior to being allowed to use forklifts in the premises..." the Applicant has 25 years' experience in driving forklifts and there is no evidence to suggest that it will not be able to do so or that the Applicant will not work cooperatively with it in meeting this expectation. I am satisfied that it is open to me to make an order reappointing the Applicant within 21 days of the date of this decision to the position in which he was employed immediately before the dismissal.

Reinstatement - is it appropriate to make an order to maintain continuity?

• [375] Section 391(2) of the FW Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to maintain the following:

(a) the continuity of the Applicant's employment;

(b) the period of the Applicant's continuous service with the employer or, if applicable, the associated entity.

• [376] In all the circumstances, including that I am not satisfied that the forklift incident was the Applicant's fault or that the Applicant engaged in misconduct, I consider it appropriate to make an order to maintain the Applicant's continuity of employment and period of continuous service with the employer.

Reinstatement - is it appropriate to make an order to restore lost pay?

• [377] Section 391(3) of the FW Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.

• [378] Section 391(4) of the FW Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:

(a) the amount of any remuneration earned by the Applicant 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 Applicant during the period between the making of the order for reinstatement and the actual reinstatement.

• [379] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and may only make an order that the Commission considers appropriate.[560] Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.[561]

• [380] The Applicant submits that lost pay should be restored and the only amounts that should be deducted are the payment to the Applicant in lieu of notice and any income earned by the Applicant between the date of termination and the date of the orders.

• [381] I have earlier found that I am not satisfied that the forklift incident was the Applicant's fault or that the Applicant engaged in misconduct. The Applicant's evidence is that he had applied for 58 jobs and was unsuccessful in those applications.[562] Notwithstanding this the Applicant has been able secure casual employment at the rate of $31.73 per hour.[563] This compares to a base weekly wage of $1,528.55 paid by the Respondent (being $43.67 over a 35 hour week) resulting in a gap of $11.94 per hour between the Applicant's former and current rates of pay.[564] Notwithstanding the different in rates and mode of employment I am satisfied that the Applicant has taken steps to mitigate his loss. Having regard to these matters I consider it appropriate to make an order that the Respondent pay to the Applicant the amount that the Applicant would have earned in the period between his dismissal and the date of his reinstatement less the notice paid on termination and income earned since the time of his dismissal.

• [382] The Applicant proposed that the Commission make orders requiring that:

1. the parties confer in relation to quantum and advise the Commission's chambers whether the amount payable is agreed within two weeks from the date of the orders (noting that there is inherent uncertainty as to the Applicant's future earnings given his current casual role, and the amounts he may earn will likely vary as they have done over his period of employment);
2. if the calculation of the amount payable is agreed, the Respondent must pay the amount to the Applicant within three weeks from the date of the order; and
3. if the calculation of the amount payable is not agreed, the matter will be listed for directions to program the matter for determination of the quantum.

• [383] I consider that it is appropriate to make orders of the nature proposed by the Applicant. If the parties are unable to reach agreement on the quantum to be paid I will list the matter for determination of the amount to be paid.

Mr J Martin of the AMWU on behalf of the Applicant.

Mr I Latham instructed by Ai Group on behalf of the Respondent.

[1] Application filed 26 October 2023 at question 2.1.

[2] Application filed 26 October 2023, Attachment A.

[3] Application filed 26 October 2023, Attachment A.

[4] Application filed 26 October 2023, Attachment B.

[5] Application filed 26 October 2023, Attachment C.

[6] Application filed 26 October 2023, Attachment D.

[7] Application filed 26 October 2023, Attachment D.

[8] Warrell v Fair Work Australia [2013] FCA 291.

[10] Statement of Todd John Brennan dated 10 January 202 at [8].

[11] Statement of Todd John Brennan dated 10 January 202 at [8].

[12] Statement of Todd John Brennan dated 10 January 2024, TJB1.

[13] Statement of Todd John Brennan dated 10 January 202 at [4].

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

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

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

[20] Edwards v Justice Giudice [1999] FCA 1836, [7].

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

[22] Applicant's Outline of Submissions filed 22 December 2023 at [24].

[23] Applicant's Outline of Submissions filed 22 December 2023 at [22].

[24] Applicant's Outline of Submissions filed 22 December 2023 at [25].

[25] Transcript of proceedings, 30 January 2024 at PN 1909.

[26] Transcript of proceedings, 30 January 2024 at PN 1910.

[27] Transcript of proceedings, 30 January 2024 at PN 1926.

[28] Transcript of proceedings, 30 January 2024 at PN 1912.

[29] Transcript of proceedings, 30 January 2024 at PN 1909.

[30] Transcript of proceedings, 30 January 2024 at PN 1941.

[31] Transcript of proceedings, 30 January 2024 at PN 1914.

[32] Applicant's Outline of Submissions filed 22 December 2023 at [26].

[33] Transcript of proceedings, 30 January 2024 at PN 1938.

[34] Applicant's Outline of Submissions filed 22 December 2023 at [26].

[35] Transcript of proceedings, 30 January 2024 at PN 1910.

[36] Applicant's Outline of Submissions filed 22 December 2023 at [29].

[37] Transcript of proceedings, 30 January 2024 at PN 1935.

[38] Respondent's Outline of Argument filed 15 January 2024 at [3].

[39] Respondent's Outline of Argument filed 15 January 2024 at [4].

[40] Respondent's Outline of Argument filed 15 January 2024 at [6].

[41] Respondent's Outline of Argument filed 15 January 2024 at [7].

[42] Respondent's Outline of Argument filed 15 January 2024 at [6].

[43] Respondent's Outline of Argument filed 15 January 2024 at [11]

[44] Transcript of proceedings, 30 January 2024 at PN 1979.

[45] Transcript of proceedings, 30 January 2024 at PN 1980.

[46] Transcript of proceedings, 30 January 2024 at PN 1981.

[47] Transcript of proceedings, 30 January 2024 at PN 1981.

[48] Respondent's Outline of Argument filed 15 January 2024 at [23].

[49] Transcript of proceedings, 30 January 2024 at PN 1984.

[50] Respondent's Outline of Argument filed 15 January 2024 at [24].

[51] Transcript of proceedings, 30 January 2024 at PN 1993.

[52] Transcript of proceedings, 30 January 2024 at PN 1995.

[53] Transcript of proceedings, 30 January 2024 at PN 1986.

[54] Transcript of proceedings, 30 January 2024 at PN 1954.

[55] Transcript of proceedings, 30 January 2024 at PN 1954.

[56] Respondent's Outline of Argument filed 15 January 2024 at [25] with reference to Rankin v Marine Power International Pty Ltd 107 IR 117 at [330] - [340].

[57] Respondent's Outline of Argument filed 15 January 2024 at [26].

[58] Respondent's Outline of Argument filed 15 January 2024 at [26].

[59] Respondent's Outline of Argument filed 15 January 2024 at [27].

[60] Respondent's Outline of Argument filed 15 January 2024 at [28].

[61] Respondent's Outline of Argument filed 15 January 2024 at [29].

[62] Applicant's Outline of Submissions in Reply at [23].

[63] Applicant's Outline of Submissions in Reply at [24].

[64] Statement of Applicant dated 22 December 2023 at [4].

[65] Statement of Applicant dated 22 December 2023 at [26].

[66] Statement of Applicant dated 22 December 2023 at [2] - [4].

[67] Statement of Applicant dated 22 December 2023 at [5].

[68] Transcript of proceedings, 30 January 2023, PN 1636.

[69] Transcript of proceedings, 30 January 2023, PN 1637 - 1640.

[70] Statement of Applicant dated 22 December 2023 at [19].

[72] Statement of Applicant dated 22 December 2023 at [6].

[73] Statement of Rod Harris dated 11 January 2024 at [7] - [8].

[74] Statement of Rod Harris dated 11 January 2024 at [3].

[75] Statement of Rod Harris dated 11 January 2024 at [3].

[76] Transcript of Proceedings, 30 January 2024, PN 1321.

[77] Statement of Rod Harris dated 11 January 2024 at [11].

[78] Statement of Rod Harris dated 11 January 2024 at [12] - [13].

[79] Statement of Rod Harris dated 11 January 2024, RH1.

[80] Statement of Rod Harris dated 11 January 2024 at [15].

[81] Statement of Rod Harris dated 11 January 2024, RH2.

[82] Statement of Rod Harris dated 11 January 2024 at [17] - [18].

[83] Transcript of Proceedings 30 January 2024 at PN1335.

[84] Transcript of Proceedings 30 January 2024 at PNs1337 - 1350.

[85] Transcript of Proceedings 30 January 2024 at PN1355.

[86] Transcript of Proceedings 30 January 2024 at PN1357-1358.

[87] Statement of Rod Harris dated 11 January 2024 at [30].

[109] Transcript of Proceedings, 30 January 2024, PNs 1497 - 1500.

[110] Transcript of Proceedings, 30 January 2024, PNs 1501 - 1505.

[111] Transcript of Proceedings, 30 January 2024, PNs 1507 - 1508.

[112] Statement of Applicant dated 22 December 2023, PC-4.

[113] Statement of Applicant dated 22 December 2023 at [7].

[114] Statement of Applicant dated 22 December 2023 at [8].

[115] Statement of Applicant dated 22 December 2023 at [10].

[116] Statement of Applicant dated 22 December 2023 at [10].

[117] Statement of Applicant dated 22 December 2023 at [11].

[118] Statement of Applicant dated 22 December 2023 at [11].

[119] Statement of Applicant dated 22 December 2023 at [11].

[120] Statement of Applicant dated 22 December 2023 at [12].

[121] Statement of Applicant dated 22 December 2023 at [12].

[122] Statement of Applicant dated 22 December 2023 at [13].

[123] Statement of Applicant dated 22 December 2023 at [14].

[124] Statement of Applicant dated 22 December 2023 at [14].

[125] Statement of Applicant dated 22 December 2023 at [14].

[126] Statement of Applicant dated 22 December 2023 at [16].

[127] Statement of Applicant dated 22 December 2023 at [16].

[128] Statement of Applicant dated 22 December 2023 at [17].

[129] Statement of Applicant dated 22 December 2023 at [17].

[130] Statement of Applicant dated 22 December 2023 at [18].

[131] Statement of Applicant dated 22 December 2023 at [20].

[132] Statement of Applicant dated 22 December 2023 at [22].

[133] Statement of Applicant dated 22 December 2023 at [22].

[134] Statement of Applicant dated 22 December 2023 at [19].

[135] Statement of Applicant dated 22 December 2023 at [21].

[136] Statement of Applicant dated 22 December 2023 at [21].

[137] Statement of Applicant dated 22 December 2023 at [24].

[138] Statement of Applicant dated 22 December 2023 at [25].

[139] Statement of Adam Williams dated 22 December 2023 at [1] - [2].

[140] Statement of Adam Williams dated 22 December 2023 at [4].

[141] Statement of Adam Williams dated 22 December 2023 at [5].

[142] Statement of Adam Williams dated 22 December 2023 at [5].

[143] Statement of Adam Williams dated 22 December 2023 at [6].

[144] Statement of Adam Williams dated 22 December 2023 at [6].

[145] Statement of Adam Williams dated 22 December 2023 at [6].

[146] Statement of Adam Williams dated 22 December 2023 at [6].

[147] Statement of Adam Williams dated 22 December 2023 at [6].

[148] Statement of Adam Williams dated 22 December 2023 at [7].

[149] Statement of Adam Williams dated 22 December 2023 at [7].

[150] Transcript of Proceedings 29 January 2024 at PN395.

[151] Statement of Adam Williams dated 22 December 2023 at [8].

[152] Statement of Adam Williams dated 22 December 2023 at [8].

[153] Statement of Adam Williams dated 22 December 2023 at [9].

[154] Statement of Adam Williams dated 22 December 2023 at [9].

[155] Statement of Adam Williams dated 22 December 2023 at [10].

[156] Statement of Adam Williams dated 22 December 2023 at [10].

[157] Statement of Adam Williams dated 22 December 2023 at [11].

[158] Transcript of Proceedings 29 January 2024 at PNs 398 - 404.

[159] Transcript of Proceedings 29 January 2024 at PN 405.

[160] Statement of Rajic Deo dated 22 December 2023.

[161] Statement of Rajic Deo dated 22 December 2023 at [3] - [4].

[162] Statement of Rajic Deo dated 22 December 2023 at [4].

[163] Statement of Rajic Deo dated 22 December 2023 at [4].

[164] Statement of Rajic Deo dated 22 December 2023 at [4].

[165] Statement of Rajic Deo dated 22 December 2023 at [4].

[166] Statement of Rajic Deo dated 22 December 2023 at [5].

[167] Statement of Rajic Deo dated 22 December 2023 at [6].

[168] Statement of Rajic Deo dated 22 December 2023 at [7].

[169] Statement of Rajic Deo dated 22 December 2023 at [7].

[170] Statement of Rajic Deo dated 22 December 2023 at [10].

[171] Statement of Rajic Deo dated 22 December 2023 at [8].

[172] Statement of Rajic Deo dated 22 December 2023 at [8].

[173] Statement of Rajic Deo dated 22 December 2023 at [8].

[174] Statement of Rajic Deo dated 22 December 2023 at [9].

[175] Statement of Rajic Deo dated 22 December 2023 at [9].

[176] Statement of Rajic Deo dated 22 December 2023 at [9].

[177] Statement of Feng Li dated 22 December 2023 at [1] - [3].

[178] Statement of Feng Li dated 22 December 2023 at [3].

[179] Statement of Feng Li dated 22 December 2023 at [3].

[180] Statement of Feng Li dated 22 December 2023 at [3].

[181] Statement of Feng Li dated 22 December 2023 at [4].

[182] Statement of Feng Li dated 22 December 2023 at [4].

[183] Statement of Feng Li dated 22 December 2023 at [5].

[184] Statement of Feng Li dated 22 December 2023 at [6].

[185] Statement of Feng Li dated 22 December 2023 at [7].

[186] Statement of Feng Li dated 22 December 2023 at [7].

[187] Statement of Feng Li dated 22 December 2023 at [7

[188] Statement of Feng Li dated 22 December 2023 at [6].

[189] Statement of Glenn Wilson dated 15 January 2024 at [8] - [15].

[190] Statement of Glenn Wilson dated 15 January 2024 at [24].

[191] Statement of Glenn Wilson dated 15 January 2024 at [28].

[192] Statement of Glenn Wilson dated 15 January 2024 at [31].

[193] Statement of Alastair Conway dated 15 January 2024 at [1].

[194] Statement of Alastair Conway dated 15 January 2024 at [7].

[195] Statement of Adam Williams dated 22 December 2023 at [13].

[196] Statement of Alastair Conway dated 15 January 2024 at [21].

[197] Statement of Alastair Conway dated 15 January 2024, AC3.

[198] Statement of Alastair Conway dated 15 January 2024, AC3.

[199] Statement of Feng Li dated 22 December 2023 at [8].

[200] Statement of Alastair Conway dated 15 January 2024 at [20].

[201] Statement of Alastair Conway dated 15 January 2024, AC2.

[202] Statement of Rajic Deo dated 22 December 2023 at [11].

[203] Statement of Alastair Conway dated 15 January 2024 at [19].

[204] Statement of Alastair Conway dated 15 January 2024, AC1.

[205] Statement of Alastair Conway dated 15 January 2024, AC1.

[206] Statement of Alastair Conway dated 15 January 2024 at [7].

[207] Statement of Alastair Conway dated 15 January 2024 at [10] - [12].

[208] Transcript of proceedings, 30 January 2023, PN 1627.

[209] Statement of Alastair Conway dated 15 January 2024 at [13].

[210] Statement of Alastair Conway dated 15 January 2024 at [15].

[211] Transcript of proceedings, 30 January 2023, PNs 1628, 1629.

[212] Statement of Alastair Conway dated 15 January 2024 at [17].

[213] Statement of Alastair Conway dated 15 January 2024 at [18].

[214] Statement of Derek Sporl dated 12 January 2024 at [24] - [25].

[215] Statement of Derek Sporl dated 12 January 2024 at [26].

[216] Statement of Derek Sporl dated 12 January 2024 at [27] - [28].

[217] Statement of Adam Williams dated 22 De Statement of Rajic Deo dated 22 December 2023 at [7].

[218] Statement of Adam Williams dated 22 December 2023 at [12].

[219] Statement of Adam Williams dated 22 December 2023 at [13].

[220] Statement of Adam Williams dated 22 December 2023 at AW-3.

[221] Statement of Tom Paraskevopoulos at [3].

[222] Statement of Tom Paraskevopoulos at [4].

[223] Statement of Tom Paraskevopoulos at [3].

[224] Statement of Tom Paraskevopoulos at [5].

[225] Statement of Tom Paraskevopoulos at [5].

[226] Statement of Tom Paraskevopoulos at [6].

[227] Statement of Tom Paraskevopoulos at [7].

[228] Statement of Tom Paraskevopoulos at [8].

[229] Statement of Tom Paraskevopoulos at [10] - [11].

[230] Statement of Tom Paraskevopoulos at [12].

[231] Transcript of proceedings, 30 January 2024 at PN1226.

[232] Statement of Tom Paraskevopoulos at [12].

[233] Statement of Tom Paraskevopoulos at [13].

[234] Statement of Tom Paraskevopoulos at [16] - [17].

[235] Statement of Derek Sporl dated 12 January 2024, DS2.

[236] Statement of Derek Sporl dated 12 January 2024, DS2, Statement of Tom Paraskevopoulos, TP1.

[240] Transcript of proceedings, 30 January 2024 at PN1227.

[241] Statement of Derek Sporl dated 12 January 2024 at [13].

[242] Statement of Derek Sporl dated 12 January 2024 at [16].

[243] Statement of Derek Sporl dated 12 January 2024 at [17].

[244] Statement of Derek Sporl dated 12 January 2024 at [18].

[245] Transcript of proceedings, 29 January 2023 at PN949.

[246] Statement of Derek Sporl dated 12 January 2024 at [19] - [20].

[247] Statement of Glenn Wilson dated 15 January 2024 at [38].

[248] Statement of Glenn Wilson dated 15 January 2024 at [40].

[249] Statement of Derek Sporl dated 12 January 2024 at [8], DS1.

[250] Statement of Derek Sporl dated 12 January 2024 at [10].

[251] Statement of Derek Sporl dated 12 January 2024 at [32].

[252] Statement of Derek Sporl dated 12 January 2024 at [33].

[253] Transcript of Proceedings, 29 January 2024 at PNs 973 - 985.

[254] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [50].

[255] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [51].

[256] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [52].

[257] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [53].

[258] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [53].

[259] Transcript of proceedings, 30 January 2024 at PN1818.

[260] Transcript of proceedings, 30 January 2024 at PN1821.

[261] Transcript of proceedings, 30 January 2024 at PN1822.

[262] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [54] - [55].

[263] Transcript of Proceedings, 30 January 2024 at PN 1832 - 1836.

[264] Transcript of Proceedings 29 January 2024 at PN 988.

[265] Transcript of Proceedings 29 January 2024 at PNs 983 -995.

[266] Transcript of proceedings, 30 January 2024 at PN1227.

[267] Transcript of Proceedings 29 January 2024 at PN 432.

[268] Transcript of Proceedings 29 January 2024 at PN 433.

[269] Transcript of Proceedings 29 January 2024 at PNs 882 - 886.

[270] Statement of Rob Harris dated 11 January 2024 at [31].

[271] Statement of Glenn Wilson dated 15 January 2024 at [42].

[272] Statement of Glenn Wilson dated 15 January 2024 at [43].

[273] Statement of Adam Williams dated 22 December 2023 at [15].

[274] Statement of Adam Williams dated 22 December 2023 at AW-4.

[275] Statement of Adam Williams dated 22 December 2023 at [12].

[276] Statement of Adam Williams dated 22 December 2023 at AW-1.

[277] Statement of Adam Williams dated 22 December 2023 at [12].

[278] Statement of Adam Williams dated 22 December 2023 at AW-6.

[279] Statement of Adam Williams dated 22 December 2023 at AW-3.

[280] Statement of Rob Harris dated 11 January 2024 at [24], Statement of Adam Williams dated 22 December 2023 at AW-6.

[281] Statement of Rob Harris dated 11 January 2024 at [25], RH3.

[282] Statement of Adam Williams dated 22 December 2023 at [16].

[283] Statement of Adam Williams dated 22 December 2023 at AW-5.

[284] Transcript of Proceedings, 29 January 2024 at PNs 1029 - 1031, 1034

[285] Transcript of Proceedings, 29 January 2024 at PN 1040.

[286] Transcript of Proceedings, 29 January 2024 at PN 1033.

[287] Transcript of Proceedings, 29 January 2024 at PN 1066.

[288] Witness Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2023, AIE1.

[289] Transcript of Proceedings, 30 January 2024 at PNs 1744 - 1752.

[290] Transcript of Proceedings, 29 January 2024 at PN 1035.

[291] Transcript of Proceedings, 29 January 2024 at PN 1036.

[292] Transcript of Proceedings, 29 January 2024 at PN 1037.

[293] Transcript of Proceedings, 29 January 2024 at PN 1038.

[294] Transcript of Proceedings, 29 January 2024 at PNs 1041 - 1047.

[295] Transcript of Proceedings, 29 January 2024 at PN 1068.

[296] Transcript of Proceedings, 29 January 2024 at PNs 1069 - 1070.

[297] Transcript of Proceedings, 29 January 2024 at PNs 1084 - 1086

[298] Transcript of Proceedings, 29 January 2024 at PN 1088.

[299] Statement of Glenn Wilson dated 15 January 2024 at [45], GW5.

[300] Statement of Glenn Wilson dated 15 January 2024 at [46].

[301] Transcript of Proceedings, 29 January 2024 at PNs 1048 - 1049.

[302] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [34] - [35].

[303] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [36], AIE6.

[304] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [38].

[305] Statement of Ahmet Sayan dated 22 December 2023 at [1].

[306] Statement of Ahmet Sayan dated 22 December 2023 at [1].

[307] Statement of Ahmet Sayan dated 22 December 2023 at [3].

[308] Statement of Ahmet Sayan dated 22 December 2023 at [4].

[309] Statement of Ahmet Sayan dated 22 December 2023, AS-1.

[310] Statement of Applicant dated 22 December 2023 at [27], Statement of Alastair Conway dated 15 January 2024 at [22].

[311] Statement of Applicant dated 22 December 2023 at [27], Statement of Alastair Conway dated 15 January 2024 at AC4.

[312] Statement of Ahmet Sayan dated 22 December 2023, AS-3.

[313] Statement of Applicant dated 22 December 2023 at [28].

[314] Statement of Applicant dated 22 December 2023 at [29].

[315] Statement of Alastair Conway dated 15 January 2024 at [24].

[316] Statement of Alastair Conway dated 15 January 2024 at [25].

[317] Statement of Alastair Conway dated 15 January 2024 at [25].

[318] Statement of Alastair Conway dated 15 January 2024 at [28] - [29].

[319] Statement of Ahmet Sayan dated 22 December 2023 at [7].

[320] Statement of Ahmet Sayan dated 22 December 2023 at [7].

[321] Statement of Ahmet Sayan dated 22 December 2023 at 10, AS-7.

[322] Statement of Alastair Conway dated 15 January 2024, AC5.

[323] Statement of Ahmet Sayan dated 22 December 2023 at [10].

[324] Statement of Ahmet Sayan dated 22 December 2023 at [10].

[325] Statement of Ahmet Sayan dated 22 December 2023 at [11].

[326] Statement of Ahmet Sayan dated 22 December 2023 at [12], Statement of Alastair Conway dated 15 January 2024 at [33].

[327] Statement of Alastair Conway dated 15 January 2024 at [34] - [35].

[328] Statement of Alastair Conway dated 15 January 2024 at [36].

[329] Statement of Alastair Conway dated 15 January 2024 at [28].

[330] Statement of Alastair Conway dated 15 January 2024 at [28].

[331] Statement of Ahmet Sayan dated 22 December 2023 at [13].

[332] Statement of Ahmet Sayan dated 22 December 2023 at [14].

[333] Statement of Ahmet Sayan dated 22 December 2023 at [16].

[334] Transcript of proceedings, 30 January 2024, PN 1842.

[335] Statement of Ahmet Sayan dated 22 December 2023 at [17].

[336] Statement of Ahmet Sayan dated 22 December 2023 at [19].

[337] Statement of Ahmet Sayan dated 22 December 2023 at [20].

[338] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [41].

[339] Transcript of proceedings, 30 January 2023, PNs 1799-1800.

[340] Transcript of proceedings, 30 January 2023, PNs 1799-1801.

[341] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [6], [19].

[342] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [6] - [7].

[343] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [49].

[344] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [69].

[345] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [23].

[346] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [69].

[347] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [70] - [71].

[348] Transcript of proceedings 30 January 2024, PNs 1848 - 1858.

[359] Transcript of Proceedings, 30 January 2024, PNs1541 - 1544.

[362] Brennan Report, Parts 10.2 - 10.3.

[365] Brennan Report, Parts 10.8 - 10.18.

[367] Transcript of proceedings, 30 January 2024 at PNs 1232 - 1236.

[368] Transcript of proceedings, 30 January 2024 at PNs 1244 - 1250.

[369] Transcript of proceedings, 30 January 2024 at PNs 1251 - 1252.

[370] Transcript of proceedings, 30 January 2024 at PN 1255.

[371] Transcript of proceedings, 30 January 2024 at PNs1256.

[372] Transcript of proceedings, 30 January 2024 at PNs1259.

[373] Transcript of proceedings, 30 January 2024 at PNs1285 - 1288.

[374] Transcript of proceedings, 30 January 2024 at PNs 1260 - 1265.

[375] Statement of Tom Paraskevopoulos at [15].

[376] Transcript of proceedings, 30 January 2024 at PNs 1270 - 1278.

[377] Transcript of proceedings, 30 January 2024 at PN 1289

[378] Statement of Rod Harris dated 11 January 204 at [33].

[379] Transcript of Proceedings, 30 January 2024 at PNs1451 - 1452.

[380] Transcript of Proceedings, 30 January 2024 at 1462, Brennan Report, Part 9.14.

[381] Transcript of Proceedings, 30 January 2024 at PNs1466 - 1473.

[382] Transcript of Proceedings, 30 January 2024 at PNs1583 - 1584.

[383] Transcript of Proceedings, 30 January 2024 at PN1584.

[384]Transcript of Proceedings, 30 January 2024 at PN1477, Brennan Report, part 9.14(a).

[385] Transcript of Proceedings, 30 January 2024 at PNs1478 -1479.

[386] Transcript of Proceedings, 30 January 2024 at PNs 1484 - 1486.

[387] Transcript of Proceedings, 30 January 2024 at PN 1488.

[388] Transcript of Proceedings, 30 January 2024 at PN 1496.

[389] Edwards v Justice Giudice [1999] FCA 1836, [7].

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

[391] Respondent's Outline of Argument filed 15 January 2024 at [3] - [7], [11].

[392] Respondent's Outline of Argument filed 15 January 2024 at [13].

[393] Statement of Adam Williams dated 22 December 2023 at [6].

[394] Statement of Glenn Wilson dated 15 January 2024 at [24].

[395] Respondent's Outline of Argument filed 15 January 2024 at [25] with reference to Rankin v Marine Power International Pty Ltd 107 IR 117 at [330] - [340].

[396] Respondent's Outline of Argument filed 15 January 2024 at [26].

[397] Statement of Derek Sporl dated 12 January 2024 at [32].

[398] [1938] HCA 34, (1938) 60 CLR 336.

[399] Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336.

[400] Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336 at pp 362-3.

[401] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, (1992) 67 ALJR 170; cited in Guneyi v Melbourne Health T/A Royal Melbourne Hospital [2012] FWA 10270 at [14]. See also Budd v Dampier Salt Limited [2007] AIRCFB 797 at [15].

[402] Statement of Derek Sporl dated 12 January 2024 at [8], DS1.

[403] Statement of Derek Sporl dated 12 January 2024 at [32].

[404] Transcript of Proceedings, 29 January 2024, PN 771.

[405] Transcript of Proceedings, 29 January 2024, PN 857.

[406] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [54] - [55].

[407] Transcript of Proceedings, 30 January 2024 at PN 1832 - 1836.

[408] Statement of Applicant dated 22 December 2023 at [16].

[409] Statement of Applicant dated 22 December 2023 at [22].

[410] Transcript of Proceedings, 29 January 2024, PN 771.

[411] Transcript of Proceedings, 30 January 2024, PN 770.

[412] Statement of Derek Sporl dated 12 January 2024 at [33].

[413] Transcript of Proceedings, 30 January 2024 at PN 952 - 956.

[414] Transcript of Proceedings, 30 January 2024, PNs755 - 756.

[415] Statement of Rajic Deo dated 22 December 2023 at [10].

[416] Transcript of Proceedings, 29 January 2024, PN 857.

[417] Statement of Adam Williams dated 22 December 2023 at [8].

[418] Transcript of Proceedings 29 January 2024 at PN395.

[419] Statement of Rajic Deo dated 22 December 2023 at [7].

[420] Statement of Feng Li dated 22 December 2023 at [6].

[421] Transcript of Proceedings, 30 January 2024, PNs1541 - 1544.

[422] Statement of Tom Paraskevopoulos at [12].

[423] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [54] - [55].

[424] Transcript of proceedings, 30 January 2024 at PN 1993.

[425] Transcript of proceedings, 30 January 2024 at PN 1995.

[426] Statement of Derek Sporl dated 12 January 2024 at [27] - [28].

[434] Transcript of Proceedings, 30 January 2024, PNs1541 - 1544.

[436] Applicant's Outline of Submissions in Reply at [31].

[437] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [50].

[438] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [51].

[439] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [52].

[440] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [53].

[441] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [53].

[442] Statement of Derek Sporl dated 12 January 2024 at [33].

[443] Transcript of Proceedings 29 January 2024 at PNs 983 -995.

[444] Transcript of Proceedings, 30 January 2024, PNs1541 - 1544.

[445] Statement of Rajic Deo dated 22 December 2023 at [9].

[446] Transcript of proceedings, 30 January 2024 at PNs 1270 - 1278.

[447] Transcript of proceedings, 30 January 2024 at PN 1289

[448] Statement of Rod Harris dated 11 January 204 at [33].

[449] Transcript of Proceedings, 30 January 2024 at PNs1466 - 1473.

[450] Statement of Tom Paraskevopoulos at [8].

[451] Transcript of Proceedings, 30 January 2024 at PNs1583 - 1584.

[452] Transcript of Proceedings, 30 January 2024 at PN1584.

[453] Transcript of Proceedings, 30 January 2024 at PNs1466 - 1473.

[454] Statement of Rob Harris dated 11 January 2024 at [25], RH3.

[455] Transcript of Proceedings, 30 January 2024 at 1462, Brennan Report, Part 9.14.

[456] Transcript of Proceedings, 30 January 2024 at PNs1451 - 1452.

[457] Transcript of proceedings, 30 January 2024 at PNs 1251 - 1252.

[459]Transcript of Proceedings, 30 January 2024 at PN1477, Brennan Report, part 9.14(a).

[460] Transcript of Proceedings, 30 January 2024 at PNs1478 -1479.

[461] Transcript of Proceedings, 30 January 2024 at PN 1488.

[462] Statement of Applicant dated 22 December 2023 at [10].

[463] Statement of Applicant dated 22 December 2023 at [6].

[469] Transcript of proceedings, 30 January 2024 at PNs 1260 - 1265.

[470] Transcript of Proceedings, 30 January 2024, PNs 1497 - 1500.

[471] Transcript of Proceedings, 30 January 2024, PNs 1501 - 1505.

[472] Transcript of Proceedings, 30 January 2024, PNs 1507 - 1508.

[473] Statement of Adam Williams dated 22 December 2023 at AW-5.

[474] Statement of Adam Williams dated 22 December 2023 at AW-6.

[475] Statement of Adam Williams dated 22 December 2023 at AW-3.

[476] Statement of Rob Harris dated 11 January 2024 at [24], Statement of Adam Williams dated 22 December 2023 at AW-6.

[477] Statement of Rob Harris dated 11 January 2024 at [25], RH3.

[478] Transcript of Proceedings, 29 January 2024 at PN 1040.

[479] Statement of Glenn Wilson dated 15 January 2024 at [].

[480] Statement of Applicant dated 22 December 2023 at [16].

[481] Statement of Applicant dated 22 December 2023 at [17].

[486] Statement of Rod Harris dated 11 January 2024 at [12] - [13].

[487] Transcript of Proceedings, 30 January 2024 at PNs1466 - 1473.

[488] Statement of Applicant dated 22 December 2023 at [4].

[489] Statement of Applicant dated 22 December 2023 at [26].

[490] Transcript of proceedings, 30 January 2023, PN 1636.

[491] Statement of Applicant dated 22 December 2023 at [18].

[492] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[493] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[494] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

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

[496] Applicant's Outline of Submissions at [43].

[497] Applicant's Outline of Submissions filed 22 December 2023 at [45].

[498] Applicant's Outline of Submissions filed 22 December 2023 at [46] with reference to Curtis v Transit Australia Pty Ltd [2014] FWC 8679, [20]; Emery v City of Stirling [2018] FWC 6853, [249]-[252] (this decision was overturned on appeal but not on this point, see Emery v City of Sterling [2019] FWCFB 4015).

[499] Applicant's Outline of Submissions filed 22 December 2023 at [46] with reference to Jetstar v Meetson-Lemkes [2013] FWCFB 9075, [68].

[500] Applicant's Outline of Submissions filed 22 December 2023 at [46].

[501] Applicant's Outline of Submissions filed 22 December 2023 at [47].

[502] Applicant's Outline of Submissions filed 22 December 2023 at [47].

[503] Applicant's Outline of Submissions filed 22 December 2023 at [47].

[504] Applicant's Outline of Submissions filed 22 December 2023 at [48].

[505] Form F3 - Employer response to unfair dismissal application, q. 1.7.

[506] Jetstar v Meetson-Lemkes [2013] FWCFB 9075, [68].

[507] Applicant's Outline of Submissions filed 22 December 2023 at [48].

[508] Statement of Applicant at [10] and Annexures PC-4.

[509] Applicant's Outline of Submissions filed 22 December 2023 at [34] - [42].

[510] Transcript of proceedings, 30 January 2024 at PN 1914.

[511] Transcript of proceedings, 30 January 2024 at PN 1918.

[512] Transcript of proceedings, 30 January 2024 at PN 1918.

[513] Transcript of proceedings, 30 January 2024 at PN 1191.

[514] Respondent's Outline of Argument filed 15 January 2024 at [34] - [38].

[515] Transcript of proceedings, 30 January 2024 at PN 1188.

[516] Transcript of proceedings, 30 January 2024 at PN 1190.

[517] Transcript of proceedings, 30 January 2024 at PN 1191.

[518] Transcript of proceedings, 30 January 2024 at PN 1991.

[519] Kioa v West [1985] HCA 81, [11] (per Gibbs CJ).

[520] Kioa v West [1985] HCA 81, [22] (per Wilson J).

[521] Statement of Ahmet Sayan dated 22 December 2023 at [7].

[522] Statement of Ahmet Sayan dated 22 December 2023 at [10].

[523] Statement of Ahmet Sayan dated 22 December 2023 at [10].

[524] Statement of Ahmet Sayan dated 22 December 2023 at [12], Statement of Alastair Conway dated 15 January 2024 at [33].

[525] Statement of Alastair Conway dated 15 January 2024 at [34] - [35].

[526] Statement of Ahmet Sayan dated 22 December 2023 at [13].

[527] Statement of Ahmet Sayan dated 22 December 2023 at [16].

[528] Transcript of proceedings, 30 January 2024, PN 1842.

[529] Statement of Ahmet Sayan dated 22 December 2023 at [19].

[530] Statement of Ahmet Sayan dated 22 December 2023 at [20].

[531] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

[532] Application filed 26 October 2023 at question 2.1.

[533] Applicant's Outline of Submissions filed 22 December 2023 at [52].

[534] Applicant's Outline of Submissions filed 22 December 2023 at [53] - [54].

[535] Transcript of Proceedings 30 January 2024, PN

[536] Respondent's Outline of Argument filed 15 January 2024 at [45].

[537] Respondent's Outline of Argument filed 15 January 2024 at [46] with reference to Parlamat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 at [18] - [19].

[538] Applicant's Reply Statement at [9].

[539] Applicant's Reply Statement at [9].

[540] Applicant's Outline of Submissions in Reply filed 25 January 2024 at [52], [2000] FCA 627 at [42].

[541] [2014] FWCFB 7198 at [27].

[542] Tenix Defence Pty Ltd v Galea [2003] AIRC (11 March 2003) at [7]-[8].

[543] Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15; (1997) 72 IR 186 at 191.

[544] Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15; (1997) 72 IR 186 at 191.

[545] Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15; (1997) 72 IR 186 at 191.

[546] Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15; (1997) 72 IR 186 at 191.

[547] [2014] FWCFB 7198 at [27].

[548] Applicant's Reply Statement at [9].

[549] Applicant's Reply Statement at [9].

[550 ]Transcript of proceedings 30 January 2024, PNs 1848 - 1858.

[551] Transcript of proceedings 30 January 2024, PN 2001.

[552] Statement of Adam Williams dated 22 December 2023 at AW-5.

[553] Statement of Applicant dated 22 December 2023 at [5].

[554] Transcript of Proceedings, 29 January 2024 at PN295.

[555] Statement of Applicant dated 22 December 2023 at [23].

[556] Statement of Applicant dated 22 December 2023 at [44] - [45]

[557] Statement of Applicant dated 22 December 2023 at [46].

[558] Transcript of Proceedings, 29 January 2024 at PN 322.

[559] Transcript of Proceedings, 29 January 2024 at PN 321.

[560] Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].

[561] See, for example, Regional Express Holdings Ltd v Richards [2010] FWAFB 8753, [29].

[562] Statement of Applicant dated 22 December 2023 at [45], PC-13.

[563] Statement of Applicant dated 22 December 2023 at [46].

[564] Respondent's Outline of Argument filed 15 January 2024 at [49] - [50].

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