[2025] FWC 2031
General information, not legal advice.
Fair Work Commission
2025-07-15
Original judgment source is linked above.
s.394 - Unfair dismissal.
Application for unfair dismissal remedy - Applicant organised fundraiser for ill colleague - fundraiser for the sale of work shirts authorised by Mine management - management guidance not provided ; email in relation to the fundraiser released employee email addresses Applicant carbon copied and not blind carbon copied the personal employee email addresses - dump truck operator established fundraiser - terminated for 'serious misconduct' over fundraiser email - alleged breach of privacy and confidentiality policies - comparatively different treatment of Applicant to other more senior managers; same conduct/breach more sensitive information released - lack of guidance and training from Employer on policies - no valid reason - dismissal harsh, unjust and unreasonable - reinstatement Ordered.
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's enterprise; and
(b) the length of the person's service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
(1) For the purposes of the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee:
(a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business;
(c) engaging in theft, fraud, assault or sexual harassment in the course of the employee's employment;
(d) being intoxicated at work;
(e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(3) Paragraphs (2)(c) to (e) do not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
The Email to Employees using their Email Addresses
"Also, would there be a way that I could send the poster, order form & deduction form via email to everyone?
(Then they can print, scan and send back to me that way) - I'm thinking of all the people that are "off" with sick / annual leave. Happy to send to you first for approval of course."
My name is Bec Callow, and I am the organiser of the Mackellar Work shirt Fundraiser. I'm sending this out to everyone to show our support and to raise much needed funds for our chosen charities and to support [redacted], who is going through [redacted] Cancer.
Unlike last time, I am doing things a bit differently this year as we are NOT DEDUCTING THIS FROM YOUR PAY, you will need to pay for your shirts yourself. In saying that though, I have built an online ordering platform and have created a payment gateway to accommodate most payment types, and to simplify the ordering process for everyone, whilst keeping up with the times! ...
> Online Kiosk (Bec's phone only - great for those paying cash!)
> Via an App - ask Bec to set up your own kiosk on your phone!
> Via a QR Code - ask Bec for this! (also attached to this email!)
> Emailed / Text Message / Facebook / Messenger / WhatsApp / Printed
> Square Card Reader (B/D Prod/Mait Crews only +OTers)
> Square Tap to Pay (on Bec's phone) (B/D Prod/Mait Crews only +OTers)
A massive thanks to Mackellar for sponsoring the purchase of the shirts and for covering the embroidery costs. Your generosity is greatly appreciated, and we thank you for your ongoing support.
If you have any dramas with the order form, receiving your donation receipt or any of the payment types, or need help with anything, I am happy to assist! Please don't hesitate to text BEC CALLOW on [redacted] or via email: [redacted]
I hope everyone can get behind me and help support [redacted] and the chosen charities. (National Breast Cancer Foundation and Prostate Cancer Foundation of Australia) With your support and donation/s, we can make a difference! You are awesome and we are all grateful for your contribution towards our Work shirt fundraiser. I can't wait to see everyone in their new flash shirts! Let's make this go bigger than Ben Hurr!!!
I have also included the online donation page for [redacted] that includes an online card if anyone wants to donate to this as well. I've also included the poster for this as an attachment. There is a virtual card you can sign and leave a message for [redacted].
"Majority of our team have received the below email to their personal email address.
Can you investigate this email and provide feedback. Looking to decipher if the email is a scam and how our personal email addresses were available to the sender.
I understand that this may have been done for a good cause, my team have some concerns over the security of their personal information. I would like to provide them with feedback sooner rather than later.
"I wish to note that this email, whilst for a good cause is very distressing to my wife and I. I work with the people listed in the email, they are not my friends are now privy to my personal email which is the first step in identity theft. I am also extremely concerned that suppliers that I have nothing to do with also now have my personal email. This email is linked to my social media, financial accounts, payroll, Dept of Transport, local council and the list goes on.
My other concern is that this information has come from a payroll/HR data base. What other information has Ms Callow been privy to?
Is Mackellar going support me if the worst happens with identity theft etc? What happens if this email list is added to 'suppliers' lists? What happens if a colleague decides to email me in a not appropriate manner?
This is also particularly disturbing in that I have only just signed and agreed to the Privacy Policy? Does this now not apply? Is this a free for all now? Can photographs now be posted on social media of incidents on the mine site.
Can I now go in to the office and ask to send out a mass email to all staff, contractors and suppliers for a 'good cause'?
Many personal emails are also share accounts between families and spouses, so it not just me or my colleagues affected in this type of incident.
Are you aware of how easy it would be for me with minimal IT skills to hack a colleagues facebook account just with an email address?
I am trying to express my concern and displeasure as civilly and politely as possible, but believe my personal privacy has been breached and my human right as a right to privacy has been breached.
I would like to see initially, strategies forwarded to all people on the email list on measures that can be taken to protect the ourselves. What will support from Mackellar look like?
I would like this to be recorded as a formal complaint and would hope their would be no retribution towards me and my employment because I am making a complaint.
As you may know, we received a request to support a fundraiser for Mackellar work shirts recently, this initiative was to support one of our workers who is battling cancer as well as other like-minded initiatives. It has come to our attention that, unfortunately personal email addresses may have been inadvertently released last night whilst launching this initiative.
Be aware M People is taking this matter very seriously and will investigate this potential breach.
We apologise for any inconvenience, and will provide a further update once we determine what has occurred."[20]
[45] On 13 November 2024, the Applicant had a phone meeting with Mr Cann, Mr Leigh Smith (Production Superintendent of the Respondent) and Mr Troy Jeppesen (the Applicant's support person). At that time, the Applicant's usual supervisor was on leave, and so her then supervisor was Mr Smith.[21] During the meeting, the Applicant was provided a Show Cause Letter. The Show Cause Letter set out as follows:[22]
We are writing to bring your attention certain matters regarding your conduct that require an explanation. On Wednesday 6 November at approximately 10:12pm, you sent an email regarding MacKellar's Work Shirt Fundraiser from your personal email account [redacted] to CCMP employee's personal email accounts. The content of the email and the disclosure of personal email addresses was not authorized. We note that during the meeting with Leigh Smith (Production Superintendent) and James Cann (HR Business Partner), you chose to bring Troy Jeppesen as your support person.
You requested access to personal email accounts from Mick Schafferius (Project Manager), the request was denied and you proceeded to obtain the confidential information via another employee.
M People consider this behaviour to be improper conduct and very serious in nature. Specifically, this amounts to a breach of:
For these reasons, M People is considering appropriate disciplinary action, up to and including termination of your employment.
Before making a final decision, M People would like to give you the opportunity to respond to the proposed disciplinary action and present any information you consider relevant.
You are invited to provide your response in writing by 5pm Friday 15th November 2024, by email to James Cann [redacted].
This letter confirms you have been stood down from work duties pending the outcome of the show cause proceedings. Until further notice, you are required to remain at camp.
Suspension is a neutral act and the suspension period does not affect your employment-related benefits and will, in all other respects, be treated by us as normal paid working time.
I remind you that you are required to maintain confidentiality at all times about this matter, and therefore must not discuss any part of this investigation, findings, or outcomes with any person, including any current or former employees. You can, however, discuss the matter with a professional advisor to obtain advice. Any such advisor is also required to maintain confidentiality.
Should you require any counselling support, please be reminded that you have access to our Employee Assistance Program (EAP), [redacted]. The EAP is a free and confidential service, available 24 hours a day, and can be contacted on [redacted].
I am writing to you today in response to the Show Cause issued to myself on 13 November 2024. In that letter you have alleged that I "requested access to personal email accounts from Mick Schafferius (Project Manager), the request was denied and you proceeded to obtain the confidential information via another employee". You have alleged that this amounts to a breach of MacKellar's Privacy Policy and Confidentiality Agreement.
I fully understand the severity of this mistake and I want to express my sincerest apologies for the oversight and any distress or privacy breaches that this may have caused. However, I assure you that I did not deliberately obtain confidential information or share this information with others. I was not aware that it was a breach of privacy to obtain the email addresses, and I did not mean to share these email addresses with anyone else. I have learned from my mistake and I assure you it will never happen again.
The situation arose when I organized a fundraising initiative to support our colleague, [redacted] by offering work shirts for sale. My intent was purely to contribute positively to the team and to provide a gesture of support during a challenging time. Unfortunately, in my eagerness to coordinate the efforts, I inadvertently included personal email addresses in a group email, without gaining the correct authorisation to proceed. This was a genuine mistake. I intended to BCC all the recipients of the email but I accidentally added them to the CC box instead where they were visible. I deeply regret not checking the BCC box on the recipient list before sending.
In relation to requesting the email addresses, my initial request for this information from Mick Schafferius was not denied as alleged. I had received permission to conduct the fundraising activity from my manager. After receiving permission, I emailed Mick to ask if a group email could be sent either by the Company or by me. I did not receive a response to this request.
Not knowing how long [redacted] had to live, I felt that I needed to send the email as soon as possible, so I asked another colleague for the email addresses. At the time, I did not know that this was a breach of privacy.
I acknowledge that this was the wrong thing to do and that I should have followed up with Mick instead. I understand that by signing the privacy policy that personal information can only be disclosed with Mackellar's authorisation, and that the confidentiality agreement states that I would not copy, reproduce or record any confidential information, and to prevent the unauthorized use or disclose any of this confidential information. Unfortunately, I did not realise at the time that obtaining the email address of my workmates was a breach of privacy, I had thought that it would be okay as long as I did not share the email addresses with anyone. I have made a mistake and have realized that I breached my contract agreement.
It was an honest mistake and I am very remorseful and deeply sorry for my actions. I honestly did not mean to breach these policies as I was eager to inform people of our work shirt fundraiser, to help those in need during a time of difficulty, helping to raise much needed funds for people and the chosen charities. This will never happen again, and for the inconvenience / embarrassment of this unfortunate event, I am truly sorry and take full ownership over my honest mistake.
I take full responsibility for this error and have already taken steps to ensure that such a mistake does not happen again.
I have reviewed company protocols regarding email communications and privacy, and I am committed to adhering to all policies moving forward. Additionally, I would be more than happy to participate in any training or review sessions to further improve my understanding of the company's privacy and communication practices/ policies.
As a kind hearted employee of Mackellar, I always go out of my way to help others, and to make sure they feel appreciated, respected and valued. Prior to organizing the work shirt fundraiser, I previously ran this fundraiser (with only the pink and blue shirts) back in 2022. This was a great success and was a good marketing opportunity for Mackellar. The publicity that this fundraiser gave to our workforce, to help build up the team morale was unreal. People felt as if they belonged to something and played their part to help out charities, fundraising money, and raising awareness - all while being decked out in a pink and blue shirt that they could wear proudly to say that "I helped make a difference." This is why I wanted to take on the fundraiser again, not for the money but for the respect so I could help build up our broken team morale, to help raise funds for one of our own workers who is struggling with [redacted] cancer, and to raise awareness and to be able to support charities.
I have been working out here with Mackellar since June 2021, (over 3 ½ years) and have made friendships that will last a lifetime, and have seen this mine grow from 3 diggers to 11, from 1 dump to 5, from 10 trucks to 48, built the ROM, the CHPP and watched it grow from early developments. I have worked well over 50+ days of overtime within the 3 ½ years, and have always gone above and beyond for the company, helping out with production, ROM and sometimes helping out the maintenance department with some admin duties. It has been a pleasure watching the mine grow and thinking back to how it was when I first started. I was the first operator to bring TK10 out brand new and was the first operator to get a load from EX10. It's the little wins for me!
I am a hard worker and generally don't have sick days, unless there has been a sudden family issues / sick children / close deaths at home and I am needed to be at home for these instances. I am always reliable and honest, and will help anyone with anything at anytime.
Alongside my husband (who is a leading hand on B Crew) We have recently built our dream house, and this unfortunate incident will have a devastating effect on us and our family if I lose my job, and I regret to inform everyone that rely on us that this will absolutely shatter us, our marriage, our extended family and our children's uncertain future. I'd like to think I made an impact on people out here, and I will use this scenario as a learning curve, to try and work out the best possible way to make ends meet and to keep our heads above water. Losing my job will have huge financial consequence for us, our family and will create a bad reputation within the entire Mackellar workforce.
Our family is our number one priority and having both parents working away from our children, it is already hard enough for them and this will be the straw that breaks the camel's back.
Please have some compassion when thinking of the outcome, as I believe this event was just a simple mistake that could've been avoided. I have learned a valuable lesson, and it will never happen again. I can be relied on to continue to be a hardworking and honest employee with a commitment to privacy.
Once again, I apologize for my mistake of breaching the privacy and confidentiality agreements, and will not let this happen again. I'm taking responsibility for my actions and apologies to everyone affected by this. Should the opportunity arise for more fundraising endeavors within the future, I would like to offer my services and offer a helping hand if needed.
I value my role at Mackellar, and at the Carmichael Coal Mine and the opportunities I've had to contribute to our team. I am dedicated to making things right and continuing to support the organization in a responsible and professional manner. I kindly ask for your understanding and consideration in allowing me to remain in my position, as this mistake does not reflect my usual attention to detail or my commitment to upholding the values of our workplace.
Thank you for taking the time to review this matter. I am available for further discussion if needed, and I appreciate your understanding as I work to prevent similar issues from occurring in the future.
I await your response for the outcome of disciplinary action.
"The investigation concluded that you knowingly disregarded instructions to refrain from obtaining employee information, leading to a significant breach of privacy. Despite being directed not to obtain or disseminate this information on 17 October 2024 by Mick Schafferius (Project Manager), you chose to disregard that instruction and proceed otherwise. As a result, your actions have caused reputational harm and complaints to the Company."[27]
"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."[35]
Whether there was a valid reason for the dismissal related to the person's capacity or conduct - section 387(a)
"....you sent an email regarding MacKellar's Work Shirt Fundraiser from your personal email account [redacted] to CCMP employee's personal email accounts. The content of the email and the disclosure of personal email addresses was not authorized.
...you attended a show cause meeting with Leigh Smith (Production Superintendent), James Cann (HR Business Partner) you were asked to explain your actions regarding the disclosure of personal contact information of our employees and contractors.
The investigation concluded that you knowingly disregarded instructions to refrain from obtaining employee information, leading to a significant breach of privacy. Despite being directed not to obtain or disseminate this information on 17 October 2024 by Mick Schafferius (Project Manager), you chose to disregard that instruction and proceed otherwise. As a result, your actions have caused reputational harm and complaints to the Company.
After considering your response, the Company has decided to terminate your employment effective today due to serious misconduct. Specifically, your actions breached:
We will make payment of three (3) weeks to you in lieu of notice in accordance with clause 32.3 of the M People Enterprise Agreement 2022. Any other entitlements owed to you will be included in your final pay.
Just chasing up whether you got a chance to chat with Gerri from payroll about the work shirt deduction forms? Today is our last day, and we were hoping to have order forms / posters out in the crib huts this week. [Redacted] from maintenance admin said she can print them out for me if needed. I did send you the PowerPoint slides for the RTW this week, and a copy of the posters (should've been sent from Ratty's email) - could you let me know if this all good to proceed? (I need the deduction forms) and a copy of the poster -I sent this to you too! Cheers Mick.
"Bec
Some good news we have approval to progress with the shirts.
You can start your order forms as of tonight so we can get the numbers and get the order under way.
There is one thing that we will need to do and this is from my end and that is have our procurement team get a quote as well they may get them cheaper from another supplier but they doo (sic) all the work.
Can you send me the posters / order forms - because I had sent them through to you from Wratty's email. I didn't think to send it to me. Oops!
I can forward onto Lisa at Maintenance admin and she can print out posters / order forms etc. (She already said she could help me with that!) Then I can pick up some coloured folders so that everyone can leave them in the crib huts for me to collect.
Also, would there be a way that I could send the poster, order form & deduction form via email to everyone?
(Then they can print, scan and send back to me that way) - I'm thinking of all the people that are "off" with sick / annual leave. Happy to send to you first for approval of course.
I've just come off nightshift so am heading to bed, but I'll probably be up around lunchtime so I can come into the office then and see how you went.
"11. Prior to my employment, I was also provided with a Confidentiality Agreement to sign. I have been provided with a copy of this after my dismissal which indicates that I signed this on 7 June 2021. I otherwise have no recollection of signing this document and I do not recall this document ever being explained to me.
12. I am aware that the Respondent has a Code of Conduct. I do not specifically remember if and when I was provided with a copy of this prior to my dismissal but I was aware of its existence. I have never had the Code of Conduct explained to me nor have I received any training in relation to the code of conduct.
13. I was never told during my employment that email addresses were confidential or personal information that should not be accessed or shared."
MacKellar will only collect personal information that is reasonably necessary for its business functions and activities, and as permitted by law.
MacKellar respects the privacy of our employees, contractors, and suppliers.
1. 1 In consideration of the Employee receiving Confidential Information and obtaining the benefits as an employee of the Company, the Employee must:
(a) keep the Confidential Information strictly confidential;
(b) not divulge the Confidential Information to any person other than as permitted by the terms of this agreement or as directed in writing by the Company;
(c) take all necessary or appropriate steps to prevent the unauthorised use or disclosure of the Confidential Information;
(d) notify the Company immediately in writing if the Employee becomes aware of any unauthorised disclosure of the Confidential Information or any breach of this agreement, whether by another employee, contractor, office or professional advisor of the Company or a third party, and take all steps required to prevent that breach;
(e) not copy, reproduce or record any Confidential Information except in accordance with this agreement, in the ordinary course of their employment, or the written consent of the Company;
(f) not use any Confidential Information to the commercial, financial or competitive disadvantage of the Company or a Related Company; and
(g) not do any act or thing involving the use or disclosure of the Confidential Information which may cause loss or damage to the Company or a Related Company." (emphasis added)
"Confidential Information means any information recognised by the general law as capable of protection as confidential to the Company's business including, without limitation:
(a) any information marked as "confidential" or to like effect;
(b) any information the Company tells the Employee is confidential or the Company tells the Employee is to be kept confidential;
(c) any information disclosed to the Employee in circumstances which would, to a reasonable person, indicate that the information is sensitive commercial information or information of a kind which, if disclosed to third parties, could or might cause the Company, or any of its Associated Entities, loss or damage (including damage to reputation);
(d) financial information regarding accounts rendered, income, debts, profits, salaries and wages paid, assets and liabilities and bad debts;
(e) supply and service information regarding goods or services supplied, the name and address of clients and customers to whom goods or services were or are being supplied;
(f) terms of supply or service contracts or particular transactions;
(g) marketing information regarding details about the Company's position in the market place or segments of the market place, the Company's competitors' position in the market place or in segments of the market place, marketing plans and strategies;
(h) personnel information regarding personal or medical histories, compensation, or terms of employment;
(i) information about past, existing or prospective clients, customers or referrers, including their identity, details of past, current or proposed transactions with any of them, or the state of any of their accounts with the Company;
(j) personal information about any of the Company's past, existing or prospective clients, customers or referrers, including their personalities, likes, dislikes and foibles, and special requirements;
(k) strategic information about the Company's business goals and plans including but not limited to target markets, target segments of markets, or plans about premises;
(I) tender information regarding the methods the Company uses to calculate the amounts contained in its tenders, the methods the Company uses to prepare tenders and the information contained in its tenders;
(m) personal identification numbers, passwords, passcodes or similar used in the Company's business to access or operate devices, software or 'cloud' based software services;
(n) procedures, processes, systems or documents relating to the operation of the Company's business that contribute to the sustainable competitive advantages of the business, including any Intellectual Property; and
(o) information confidential to any of the Company's Associated Entities."
And if I can please ask you to go to page 84 of the court book? There's a heading there that says, 'Confidentiality', do you see that?‑‑‑Yes.
And when you've signed the acknowledgement you'd read this part of the Code of Conduct, correct?‑‑‑Yes.
And when you read that, you would have understood that you had a requirement to maintain confidentiality and not reveal the confidential information to any person, unless permitted in writing by the company, correct?‑‑‑Mm‑hm.
That you were to take all steps to prevent unauthorised sue or disclosure of confidential information, correct?‑‑‑Yes.
That you would not copy, reproduce or record any confidential information, except as authorised in the ordinary course of your employment engagement, with the consent of MacKellar, correct?‑‑‑Yes.
And that you would also not do any act or thing involving the use or disclosure of confidential information which may cause loss or damage to MacKellar or a related company?‑‑‑Yes.
And you understand, don't you, that the disclosure of 150 email addresses of personal information of employees of MacKellar could have exposed MacKellar to potential claims of loss or damage for breaches of privacy. Do you agree with that?‑‑‑Yes.
And you'd also agree, wouldn't you, that the disclosure of the personal email addresses, or email addresses of employees of contractors, could also potentially expose MacKellar to loss or damage?‑‑‑Yes.
And you also agreed, when you signed the Code of Conduct, that you would only use the confidential information as authorised by MacKellar, correct?‑‑‑Yes.
And that you'd safeguard all of MacKellar's confidential information by properly, adequately and securely storing all documents and materials which are considered to contain confidential information, correct?‑‑‑Yes.
And you would also understand, wouldn't you, your obligations relating to confidentiality also continued after your employment with MacKellar, correct?‑‑‑Yes."
"13. Under cross-examination, the applicant made admissions about her actions in her signing the respondent's Contract of Employment, Code of Conduct, Confidentiality Agreement and Employee Handbook.
14. She further agreed that her signature meant she understood obligations under the policies and that her actions constituted a breach of these policies and procedures.
15. Regarding this evidence, the applicant submits that the Commission should strongly consider placing too much reliance upon any admission the applicant made about understanding what these policies and procedures were and how she breached them for the following reasons:
a. The applicant's responses did not convey her knowledge of these policies, only an acknowledgement of questions that were put to her. The questions as posed gave the applicant no chance to explain in her own words how she understood these policies to work at the time she signed the document, when she sent the email, during her dismissal or subsequently and gave no insight into the applicant's understanding of how the policies related to her conduct.
b. Mr Cann and Mr Schafferious (sic)[45] gave evidence that operators, including the applicant, are provided no direction or training in these policies.
c. They also gave evidence that other employees at the mine who were required to handle confidential information, such as [redacted] were provided further specific training in these policies and the handling of confidential information and private information.
d. The applicant both in her statement and in reexamination, maintained that she does not understand what the definitions of "confidential information" or the privacy agreement were or how they operated in relation to the employee emails.
e. As outlined below, Mr Cann, the manager responsible for determining the alleged breaches of policy that were relied upon in the show cause letter, also struggled under cross-examination to adequately explain to the Commission what terms such as "confidential information" and how the applicant's actions were a breach of the respondent's policy and procedure. If Mr Cann struggled to articulate this position under cross examination, it would be unfair to expect that the applicant, an operator with training or a requirement to use these policies in their normal role to understand these meanings." (footnotes omitted) (emphasis added)
The confidentiality agreement. Now, just on where - is that supposed to be read in conjunction with any other documents, or is this a standalone document?‑‑‑My understand is that it's a standalone.
Standalone document. So there's a strict definition of what confidential information is upfront. Can you please just point out to the section that you believe identifies any personal employee email addresses as confidential information?‑‑‑Sure. Under part C of the definitions where it says any information that could or might cause the company or any of its entities or people loss or damage, and emails can be a message for having that kind of thing take place, in my view.
That's sensitive commercial information, correct? Commercial information of a sensitive nature?‑‑‑Yeah, or information of the kind, yeah.
So what's the loss or damage that would be resolved from an email breach?‑‑‑The main concern that individuals had when it occurred was that their colleagues, now having access to the information, could contact them about things that potentially cause some kind of financial harm or - - -
Yes, but that's about employees. That's about causing the company loss or damage. How is the company suffering loss or damage?‑‑‑(Indistinct response.)
How does a personal email cause the company damage? How does someone else having an employee email get the company to suffer loss or damage?‑‑‑Sorry. I thought you were referring to individuals.
Yes, individual emails. So how does the disclosure - how was the disclosure of those emails fit within this definition? How would the company be caused loss or damage - could suffer loss or damage with a private employee email?
MR NEWMAN: Yes, within the definition of subsection (c)?‑‑‑Reputationally, it could have been affected.
Was there reputation affected?‑‑‑It was our view that, yes, it was.
How was the reputation affected?‑‑‑Because people developed a view that based on the breach, but we were not handling the information in the proper way that it should have been handled.
So did anybody make a formal complaint about that?‑‑‑Yeah, there were complaints about - - -
No, a formal complaint to the privacy commissioner?‑‑‑Not that I'm aware of.
Did any contracts get lost as a result of this?‑‑‑Not that I'm aware of. I'm not privy to that.
Did anybody stop buying coal from - that was mined from MacKellar? Did any business partner cease their dealings with MacKellar as a result of this?‑‑‑Not privy to that.
So in what conceivable loss or damage could they have been - could the company have suffered as a result other than a few complaints?‑‑‑Complaints were the main - - -
Just a few complaints. Okay. And you think that that's sufficient to cover subsection (c). You also gave evidence that you didn't follow up any of those complaints, did you? You didn't specifically address any of those complaints, did you?‑‑‑No.
So you didn't check afterwards to make sure that anybody was comforted by MacKellar's actions, did you? No. So you had no idea what these people that allegedly made complaints - how they felt?‑‑‑No.
I put it to you that subsection (c) doesn't apply to this at all, does it?‑‑‑No."
Lack of Response and Guidance Provided by Mr Schafferius
"24. Firstly, Mr Schafferious made several conflicting statements about his knowledge of the conversations he alleges he had with payroll employees using payroll deduction for fundraising:
a. In his statement at Paragraph 8, he states that he first checked with payroll and was aware that Payroll could not deduct payments on 21 October 2024.
b. Under cross-examination he stated that he had a conversation with Gerrie McCartney "a few weeks" after the first meeting.
c. However, the email from Gerrie McCartney shows that she was not made aware of fundraiser and Payroll deduction request until 31 October 2024.
d. Further still, Mr Schafferious sent an email on 2 November 2024 to Ms McCartney stating that he had not asked payroll about deductions at all." (footnotes omitted)
"a. His statement, at paragraph 7, claims that during the meeting of 17 October 2024, when he was asked about sending emails, he stated "...staff emails are private."
b. The applicant's email of 30 October 2024 outlined a request for access to the email the fundraising forms to employees. It makes no sense for the applicant to make such a request to Mr Schafferious had already stated that he had not agreed to this request on 17 October.
c. He claims, in an email of 7 November 2024 to Mr Cann, after the release of emails, that this conversation occurred, but provided Mr Cann with no statement about the conversation.
d. Mr Cann made a finding that he stated that emails were private based solely on the email of 7 November and never spoke to the applicant about her recollections of the events that day.
e. The applicant, in her reply statement, denies that Mr Schafferious made such a comment on this date.
f. When this evidence was put to him, Mr Schafferious maintained this was correct."
Sorry, just to finish the question just to confine a bit more. You talked about not getting any assistance. Can you explain to the Commission what you meant by that?‑‑‑So I had done it all off my own back, in my own time. When I went and asked if anyone could help me from the office, I pretty much got told when they done the last fundraiser that it was - you know, it was a pain, it was terrible, it was a - you know, they had to store it. They had to distribute it. They - basically a pain in the arse, excuse my French. And they sort of were a bit negative around that they had to do that again, and then I had the issues with the payroll deduction form and where - - -
THE COMMISSIONER: Because last time, they did the payroll deduction?‑‑‑Last time, they did the payroll deduction which was just on the back of an order form on a paper form in the crib hut. You fill it in both sides, put it back in the folder. I'll take them, scan them and send them off. This time, we couldn't do that because payroll said that they weren't going to do that and take it out of the payroll.
(Indistinct). I thought it was - coincided with Christmas and there was (indistinct)?‑‑‑And it was bad timing.
That's what I understood?‑‑‑And they had no idea of that. I didn't get told that. I went in to see Mick in his office, but he was on leave. So I spoke to the payroll lady, and she had showed me an email on her computer from James Cann, Gerrie Macartney, the payroll lady Jodie - I'm not sure what her last name is - and Mick Schafferius saying that they would not do the payroll system, they wouldn't do the form, they weren't happy to set it up or the new payroll system or whatever, and when I asked her if she could send me the email so that I could know, she told me that that was not for me, and she just showed me on her computer in her office, and I had no communication to - as why they wouldn't do payroll deduction, and, therefore, I opted to do another way where I created an app to do an online order. So anyone could download it, anyone could scan a QR code to get that app, and it had all various payment gateways, all legit, all set up. So Apple Pay, Afterpay, credit card, any of those. They would get sent to a separate bank account that was set up in my name, but was strictly for fundraising only. So all the Square payments that went through, that would literally go into that bank account, and then I would cover all the fees. So if they paid $50 for a shirt, I would get 47 of it. So I would make up the $3 which, you know, doesn't sound like much, but when you've got 300 shirts at 3 to 4 dollars each, then I was looking about $600 out of pocket, and the - - -"
MR NEWMAN: What directions were you getting from Mr Schafferius around this time about how to do all of this?‑‑‑So all I had from Mick was, 'Yep, good to go, roll them out.' He was going to check with another supplier to see if he could get prices lower, or something, but I didn't think that was an issue that concerned me.
How many times did you try to seek an update from him about how to handle the rollout?‑‑‑So there would have been - I was on nightshift and I went to his office. He wasn't there, he was on leave. He had gone on leave a couple of days before he was supposed to leave. So I thought I'll just catch him next week. That's when there's an email from Lisa Williams asking HR if we could use the form from the previous years for the deduction form, and that went for a couple of days back and forwards to HR with no response, and payroll. So I was kind of at a standstill going we need to get these order forms out, but I figured there was no point putting an order form in a crib hut without any type of payment form, otherwise you're just chasing people around, 'Yes, I've got an order form in, but how are they going to pay for it?' So I took it upon myself to create the art and an online ordering system and the payment gateways, and it was all set up all legit.
And of course you needed an avenue to send that material out?‑‑‑Correct. Yes.
And you requested to use emails from Mr Schafferius?‑‑‑I had asked him if he could send a group email out, asking if he could send them out. I also created a slideshow with the MacKellar banner, logo, that Mick had sent to me, that I had used the supervisor's computer in the crib hut, like in his office, and I had put the posters, the order forms, the donation page all in this return to work. So before you start your shift for that swing you'll go through all incidents, accidents, where the diggers are, the pit, everything, and everyone receives that return to work. So I had put it in a slideshow, so all they had to do was just put it in there to inform everyone, so to get the word out."
Would it be fair to say that you had very little interest in this fundraising opportunity?‑‑‑Yes, correct.
Yes, you've said that. You're an important man, we understand that. So the next thing you've come along is the - turn back to your statement - is the emails have come out on 6 November, that's correct?‑‑‑Seventh."
THE WITNESS: So he was our digger driver as well. He's also a close mate, and he was the one that rang us and said like, 'This is what's happened.' He went in for a check-up and they come back and said, 'You've got [redacted] cancer. We're not sure how long you have left to live.' And that sort of hit home a bit, having relatives and that that have gone through cancer, or we've lost through cancer, and that touched just about every one of us and we're like, you know, what can we do to like try and help. So at first we started an online donation page.
MR NEWMAN: This was at the beginning, but at the point of around - the beginning of November you said that you felt that he had not long to live?‑‑‑Yes. So that's what he told us when he rang us, and he said like he's got to go to the doctor's and they're going to give him a timeframe on how long he has left to live, and he was starting chemo I think that Friday, like a week or two weeks later.
That was at the beginning of November?‑‑‑That was at the beginning of November, yes."
So when you say, 'I did not deliberately obtain confidential information', that's not right, is it?‑‑‑I just had little assistance. I had no direction, no guidance, no communication and given the time limit of [the ill colleague - redacted], our mate, we weren't sure how long he had left to live, and we needed to get out and rolling. I admit that I've made a mistake. I am very remorseful for that mistake. It was just a simple mistake. I am deeply sorry and I should have waited and not rushed into it full steam ahead and just waited for the correct authorisation and approval."
And in your show cause response you also acknowledged that it was the wrong thing to do and that you should have followed up with Mick instead, correct?‑‑‑Yes.
So, once again, that's a recognition that you absolutely knew the seriousness?‑‑‑I knew it was wrong and I should have just waited and not rushed into it. I was just eager to, you know, help our mate out, try and get some funds together. He was starting chemo, I think, that week and that sort of took a bit of a hard effect on us and it was more of a personal trying to get it out to get the funds in to start the work shirts.
This is entirely off your own back, correct?‑‑‑And entirely in my own time."
Work email is available for communications of matters directly concerned with legitimate business of the employer or employees.
And that what you had emailed people about, on 6 November, wasn't something that directly related to your employment, was it?‑‑‑No. It was like for work colleagues, for one of our work colleagues that had [redacted] cancer, therefore, you know, actually as a personal emails as it wasn't a work concern.
You would have understood, when you read this document, Ms Callow, that you are not to use emails as substitutes for face‑to‑face communication, correct?‑‑‑Correct.
And you would have also understood, having read this document, that the employer would not tolerate the use of work email for unofficial or inappropriate purposes. Now, whilst you've characterised the email and the purpose in your previous answer, you'd certainly agree that it was an unofficial purpose, correct?‑‑‑It was an unofficial purpose. It was just trying to include everyone so those that were off shift, annual leave, or sick leave could have the chance to be involved, to show, you know, MacKellar, we're behind our work colleague that had cancer."
As you may know, we received a request to support a fundraiser for Mackellar work shirts recently, this initiative was to support one of our workers who is battling cancer as well as other like-minded initiatives. It has come to our attention that, unfortunately personal email addresses may have been inadvertently released last night whilst launching this initiative.
Be aware M People is taking this matter very seriously and will investigate this potential breach.
We apologise for any inconvenience, and will provide a further update once we determine what has occurred."
Comparative Differentiation - Management Engaged in Similar or More Serious Conduct
Fairness of Termination Process, Proportionate Response, and Serious Misconduct
Whether the person was notified of that reason -section 387(b)
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person -section 387(c)
I just want to take you to a few other bits and pieces that my friend took you through. In relation to the warnings that were provided that you were taken to and questions were asked, I believe they're at 358 and 359. So you recall that my friend asked you some questions in relation to your statement at 359 in relation to paragraph 3?‑‑‑Mm‑hm.
And you gave an explanation about whether or not - you were not sure about how the SOP worked?‑‑‑Yes.
What was that specific concern that you had?‑‑‑So that was in - so it was just in the footprint of the truck where it says like in my understanding I was certain I was not in the footprint. So when - I was approached by two safety blokes that had come over and like seen me walk around the truck without a hard hat on. One of them was a Bravis SSE, which I wasn't sure because they had no name badges on their shirts, and he sort of come straight over in my face, started abusing me saying I should know better, what are you doing, all of that, and he said, 'You're in the footprint of a machine.' I said, 'No, I'm not.' And I said like, 'Can you bring up your SOPs and state where it's actually written to say what the actual footprint of the truck is, which they couldn't comply with, and I said if they were saying that I was in the footprint of the truck both of them were in the footprint of the truck if they were saying I was, and neither of them had a hard hat either.
Okay. And when you're talking about the SOP, if we could just go back over the page at 358, when you're arguing about the SOP you talk about SOP011, personal protective equipment, aren't you?‑‑‑Yes. No. No, it was the mine traffic rules, but it's not actually written in black and white on what the footprint of the truck is. Therefore it was unclear on what - you know, hearsay or what everyone was saying what the footprint of the truck was.
So they might have got this correct, but what I want to draw your attention to, the second sentence in the paragraph underneath it, and to save time I will read it out. It says here:
We have accepted your representations that you are not required to wear head protection at the material times, therefore did not breach SOP11 for personal protective equipment.
That statement is in relation to the bunk out?‑‑‑Yeah.
Okay. Thank you. Now, just for clarity in relation to the other two matters you took responsibility for each - - -?‑‑‑Yes, correct. I didn't have my glasses on. They were hanging on my bag. I had my bag on the step, and just common practice just forgot to put them on, and I take full responsibility for that. When I went to put my lock on I noticed my key had jammed. I still isolated my truck, and I thought I'll grab another key and a lock when I go back over for crib, and did a walkaround around the truck. I didn't go underneath it. Therefore I didn't have a hard hat on, but then I acquired another lock and a hard hat straight off top.
Now, the two record of discussions at JC10 and JC11 starting at 355, when you were being cross-examined on this you asked a question in relation to a further statement that you believe should have been provided?‑‑‑Yes.
What was that in relation to?‑‑‑So that was regarding JC11 where I displayed offensive and unacceptable behaviour. So in the rest of that statement - that's where I was looking for before - it states that for four months we were - so my husband and I were like targeted, and with our rooms we would go in, they would either be dirty, they would be occupied, the air cons wouldn't work, the showers wouldn't work, and when we went to make a maintenance request to try and get it fixed we got abused, we got yelled out, we got just treated really bad and disrespectful, and we'd just had enough of copping the abuse for four months straight. Some nights after nightshift, like we'd check in sort of like 11 o'clock, sometimes we wouldn't get a room until 1 or 2 o'clock, and when we had a broken air con we got told that, 'Put up with it, we'll deal with it when we can, and I think you're lying, there's nothing wrong with it.' And then when maintenance come and check about the third day after we had left both rooms open, and mine was a lot cooler than my husband's, and he got called a liar and got made to move rooms, and he had, I think, four rooms in a matter of like six, seven days. We were copping abuse and we just sort of lost it, because we'd had enough of getting treated disrespectfully because we had a maintenance request to fix an air con, and we were basically - it was like we were victimised and targeted every week because our rooms would just be flagged and there was always a problem.
THE COMMISSIONER: Just in terms of the statement you provided a statement back on - - -?‑‑‑So we had a written, written discussion, and we had written out two pages of statement to go with - that's only like the front page of it, or like - - -
But you prepared the written statement, or that arose when the company prepared that after the discussion; who prepared the statement?‑‑‑So we - they come and gave us a statement form. We filled it in and gave it back to them.
MR NEWMAN: And that was supposed to have been appended to your record of discussion?‑‑‑Yes, and that was why, yeah, we displayed offensive and unacceptable behaviours. We didn't swear at them. We raised our voice, because we were just fed up with the abuse that we were copping from the other side.
And when you received that record of discussion was there anything else mentioned in relation to what happened there?‑‑‑No. So in our statements it both says that, you know, we apologise for lashing out, but we'd just had enough of it, like the last four months.
In relation to JC10 is that a correct representation as well, or was there something you (indistinct)?‑‑‑JC10. No, that one was just failure to complete a Take 5. I'm not too sure on the failure to report an incident when it occurred, not to my recollection. I can remember what happened there.
Now, during the show cause letter and show cause process, let's call it the process, or even the investigation (indistinct) beforehand, did anybody from MacKellar raise these two records of discussion or your formal warning?‑‑‑No.
Did anyone state that they would be considered as part of your dismissal?‑‑‑No.
Prior to seeing the statement from Mr Cann has anybody mentioned anything about these - - -?‑‑‑No."
"[188] Section 387(c) focuses on provision of an opportunity to respond to a reason for dismissal prior to the dismissal. The valid reason for dismissal upheld by the Deputy President was not notified to Mr Newton before dismissal and he was not afforded an opportunity to respond to the assertion that he had been dishonest, misleading and had engaged in sinister conduct.
[189] The Deputy President took into account an irrelevant consideration in concluding that any unfairness was ameliorated in the Commission proceedings. Any opportunity to respond to a reason for dismissal must be afforded prior to the dismissal occurring. It was not reasonably open to the Deputy President to conclude that the failure to provide Mr Newton an opportunity to respond to the valid reason as found by the Commission was a neutral consideration. Plainly it was a matter which sounded in favour of a finding that the dismissal was harsh, unjust or unreasonable. The weight accorded to a failure to comply with s 387(c) may hinge on whether an employee was deprived of the possibility of a different outcome." (emphasis added)
"23. The Applicant submits that records of discussion do not constitute disciplinary action. A record of discussion is an informal account of a discussion between an employee and their supervisor in relation to a matter that is not considered serious enough to warrant formal disciplinary action. It is not subject to the same level of investigation and procedural fairness that is required before formal disciplinary action may be taken.9 The Commission should not take these into account pursuant to s 387(h) of the Fair Work Act 2009 (the Act).
24. The formal warning issued to the Applicant on 9 September 2024, was for safety related matters and did not involve privacy or confidentiality breaches. The warning involved a technical breach of the Respondent's isolation requirements due the Applicant's failure to put her lock on her vehicle. The Applicant explained that this was due to the fact that her key got stuck in the lock and she could not use it. She also momentarily forgot to put on her safety glasses when approaching a vehicle.
25. The Applicant heeded these warnings and did not engage in any further safety breaches before the termination of her employment.11 This warning does not establish a pattern of behaviour or a disregard for the Respondent's policies. No weight should be given to this warning pursuant to s387(h) of the Act." (footnotes omitted).
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal - section 387(d)
If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal - section 387(e)
The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal -sections 387(f)-(g)
Okay. Again - and you've agreed with this earlier - you were a material witness in this investigation, weren't you?‑‑‑Yes. I am now, yes.
Yes. You've got direct knowledge of the events, haven't you?‑‑‑Correct.
Do you think it's appropriate for you to be liaising that closely during an investigation process, given your proximity to the investigation?‑‑‑Yeah, depends on how you look at it. Because that's part of my role as project manager.
Would it be fair to say that one could look at it as a conflict of interest?‑‑‑Possible, depending on how you look at it.
THE COMMISSIONER: Just explain to me, when you say it's part of your role, what do you mean by that?‑‑‑So what I mean by that, Commissioner, is whenever we have an investigation underway, I get kept in the loop about where we're up to with the investigation, and the next steps for it. That's basically all it is.
All right. And did you have any misgivings about this one?‑‑‑No.
Given you weren't particularly interested in (indistinct)?‑‑‑No, not at all.
You had a definite interest in it, then, the outcome?‑‑‑The outcome, no. Because I stepped away from the outcome.
Right?‑‑‑I got to a point where - that's why Leigh Smith's in there. That was when Michael and James and Leigh Smith took over.
Okay. And when you say you stepped away from it, why do you say that?‑‑‑Because I wasn't part of the outcome of that disciplinary process.
Would you normally be?‑‑‑No. I get advice from my HR superintendent as to where they're going with that. But, yes, that's as much as I get at." (emphasis added)
And you gave that to Mick Schafferius, and whose decision was it then to subsequently terminate Ms Callow's employment?‑‑‑Mick Schafferius made the ultimate decision.
So Mick was the ultimate decision maker?‑‑‑Yeah. So I provide advice on the situation." (emphasis added)
Any other matters that the FWC considers relevant - section 387(h)
"76. The applicant has admitted a sense of overzealousness in commencing her fundraising opportunities. Her emails and evidence presented show a person eager to commence the fundraising due to her concern about the seriousness of [redacted] condition.
77. It is further clear that Mr Schafferious' emails and evidence that he and others did not share her eagerness for the fundraiser and for it to commence as soon as possible.
a. Mick Schafferious stated that he had no interest in the fundraiser;
c. He was asked to arrange deductions from payroll in each occasion by the
d. He tried to distance the company from the fundraising or being work related;
e. He took no responsibility for the collection of the money;
f. He either did not check with or refused to tell the applicant that payroll would not deduct money for the fundraiser.
78. Crucially, Mr Schafferious never spoke to the applicant and stated that she was not to use personal emails on 17 October 2024 or any other time.
79. The actions of Mr Schafferious and payroll left Ms Callow feeling that she was not receiving any assistance and was left with the responsibility of planning and executing the fundraising project by herself and without assistance from the company.
80. From 1 November 2025 (sic), it is clear that Ms Callow has made mistakes in her execution of the fundraising project.
81. The applicant is a coal mine operator qualified to operate a rear dump truck. Organising fundraisers is outside her role description. Whilst she had previously organised fundraisers, it was in conjunction with management providing her with the necessary administrative and other support." (footnotes omitted)
"390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies."
(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's enterprise; and
(b) the length of the person's service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
(3) If the FWC is satisfied that the misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."
"[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing remedies if a dismissal is found to be unfair, which is one element of the object of Part 3-2. Section 381(2) of the Act requires as part of the object that a "fair go all round" is accorded to both the employer and employee concerned in deciding on and working out remedies under Part 3-2. Section 390(3) of the Act provides that the payment of compensation should not be ordered unless the Commission is satisfied that reinstatement of the person is inappropriate (and an order for compensation is appropriate).
[31] The approach of the Deputy President is consistent with that of the Full Bench in Regional Express Holdings Limited trading as REX Airlines v Richards which stated:
"[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate. Seen in the proper context the Commissioner's statement that reinstatement is the presumptive remedy is not indicative of any error in the decision. The section provides that compensation must not be ordered unless reinstatement has been found to be inappropriate. There is no basis for concluding that the Commissioner interpreted the section differently. Rex's first submission on remedy must fail.
[24] In relation to remedy, therefore, the first question is whether reinstatement is appropriate." [63]
"In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability.
We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.
In Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15; (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:
"... We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.
While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case." [64]
"[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
● 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.
● 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.
● 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.
● 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.
● The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party."

[1] M People Employment Agreement 2022 [2022] FWCA 4440.
[6] R's Form F3, Para [1]-[3] Pg 202 of the DHB; Exhibit 1 Statement of Rebecca Callow Pg 38 of the DHB [3].
[7] A's Form F2 Para [2], Pg 7 of the DHB; Exhibit 1 Statement of Rebecca Callow Pg 41 of the DHB [32].
[8] Exhibit 1 Statement of Rebecca Callow Pg 41 of the DHB [24]-[31].
[9] Exhibit 1 Statement of Rebecca Callow Pg 41 of the DHB [27]-[31].
[10] R's Form F3 Para [15], Pg 204 of the DHB; A's Form F2 Para [4], Pg 7 of the DHB.
[11] A's Form F2 Para [4], Pg 7 of the DHB.
[12] R's Form F3 Para [15], Pg204 of the DHB.
[13] A's Form F2, Pg 7 of the DHB Para [5]; A's Subs; RC-13, Pg 132 of the DHB.
[14] A's Form F2, Pg 7 of the DHB Para [5]; A's Subs; RC-13, Pg 132 of the DHB.
[15] A's Form F2, Pg 7 of the DHB Para [6]; RC-14, Pg 146-149 of the DHB.
[16] R's Form F3 Para [18], Pg 205 of the DHB
[17] R's Form F3 Para [18], Pg 205 of the DHB
[18] R's Form F3 Para [19], Pg 205 of the DHB; Exhibit 5 Statement of James Cann Pg 316- 317 of the DHB [4]-[5].
[19] Exhibit 5 Statement of James Cann Pg 318 of the DHB [9].
[20] Exhibit 1 Statement of Rebecca Callow Pg 46 of the DHB [65]; RC-15 Pg 150 of the DHB.
[21] Exhibit 5 Statement of James Cann Pg 320 of the DHB [12]; Exhibit 1 Statement of Rebecca Callow Pg 46 of the DHB [68].
[22] Exhibit 1 Statement of Rebecca Callow Pg 46 of the DHB [68]; RC-16 Pg 151-152 of the DHB; Annexure JC-07 Pg 345-346 of the DHB.
[23] Exhibit 5 Statement of James Cann Pg 320 of the DHB [13].
[24] Exhibit 1 Statement of Rebecca Callow Pg 47 of the DHB [70]; RC-17; Exhibit 5 Statement of James Cann Pg 320 of the DHB [14]; Annexure JC-08 Pg 347-352 of the DHB.
[25] Exhibit 1 Statement of Rebecca Callow Pg 47 of the DHB [70]; RC-17; Exhibit 5 Statement of James Cann Pg 320 of the DHB [14]; Annexure JC-08 Pg 347-352 of the DHB.
[27] RC-18 Pg 159 of the DHB; Annexure JC-09 Pg 353 of the DHB.
[28] Exhibit 4 Statement of Mr Michael (Mick) Schafferius para [2] [3] and [5], Page 397 of the DHB.
[29] Exhibit 4 Statement of Mr Michael (Mick) Schafferius para [6], Pg 398 of the DHB.
[31] Exhibit 5 Statement of Mr James Cann para [1], Pg 316 of the DHB.
[32] Exhibit 5 Statement of Mr James Cann para [2], Pg 316 of the DHB.
[33] Exhibit 5 Statement of Mr James Cann para [2], Pg 316 of the DHB.
[36] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373
[38] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373.
[39] Exhibit 5 Statement of James Cann Pg 322 of the DHB [17].
[40] Exhibit 1 Statement of Rebecca Callow Pg 47 of the DHB [71]; RC-17 Pg 153-158 of the DHB; Exhibit 5 Statement of James Cann Pg 322 of the DHB [17];
[41] Exhibit 1 Statement of Rebecca Callow Pg 47 of the DHB [71]; RC-18 Pg 159-160 of the DHB; Exhibit 5 Statement of James Cann Pg 322 of the DHB [18]; Annexure JC-09 Pg 353-354 of the DHB.
[42] RC-18 Pg 159 of the DHB; Annexure JC-09 Pg 353-354 of the DHB.
[44] Exhibit 5 Statement of James Cann para [10(b)] Pg 319 of the DHB.
[45] It is noted that in the Applicant's Final Submissions that Mr Schafferius has been incorrectly spelt.
[46] Applicant's Outline of Submissions, Pg 34 of the DHB.
[48] Applicant's Outline of Submissions, Pg 33-34 of the DHB.
[49] RC-21 Pg 165-173 of the DHB; RC-22 Pg 174-182 of the DHB.
[50] Applicant's Outline of Submissions, Pg 34 of the DHB.
[51] Office of the Australian Information Commissioner, 'Your personal information' (Web page) ; Office of the Australian Information Commissioner, 'What is personal information?' (Web page) .
[52] Office of the Australian Information Commissioner, 'What is personal information?' (Web page) .
[53] Miller v University of New South Wales [2003] FCAFC 180 at [13].
[54] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].
[56] Applicant's Reply Submissions Pg 191-192 of the DHB. The Respondent submitted (Pg 314 of the DHB) that the Applicant's disciplinary history should be taken into account pursuant to s.387(h) of the Act.
[57] Fair Work Act 2009 (Cth) s.387(d).
[58] Fair Work Act 2009 (Cth) s.387(e).
[59] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
[60] Fair Work Act 2009 (Cth) s.387(f).
[61] Fair Work Act 2009 (Cth) s.387(g).
[62] Exhibit 5 Statement of James Cann Pg 321 of the DHB.
[64] AIRC Print Q1625, 5 June 1998, per Ross VP, Polites SDP and Hoffman C.
[66] Blackadder v Ramsay Butchering Services Pty Ltd [2005] HCA 22, see in particular McHugh J at par 14.
Printed by authority of the Commonwealth Government Printer
Rebecca Callow
[2025] FWC 2031
(1997) 72 IR 186
(1995) 185 CLR 410
(1995) 62 IR 371
(2000) 98 IR 233