s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy -- whether dismissal due to employee's capacity - engagement of employee to work for third party - removal of employee's site clearance by third party - no alternative work for employee - - whether valid reason for dismissal - dismissal found to be unfair - compensation awarded

• [1] On 19 September 2024, Mr Ricki Quayle lodged an application with the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Redpath Contract Services Pty Ltd (Redpath).

• [2] Redpath is an international mining contractor operating in 14 countries, providing services to various clients, including Peak Gold Mines Pty Ltd (Aurelia).

• [3] Mr Quayle was employed as a Driller from 17 August 2023 until his dismissal on 12 September 2024. Mr Quayle was assigned to work at the 'Peak Project' in Cobar, New South Wales, which was operated by Aurelia.

• [4] Mr Quayle was dismissed for serious misconduct following the revocation of his site clearance by Aurelia due to performance and attendance issues. The dismissal occurred shortly after Mr Quayle was absent from work due to sick leave and bereavement leave.

• [5] Mr Quayle argued that his absence was approved following the sudden death of his close cousin and that no performance concerns were raised with him prior to the dismissal. Mr Quayle also criticised Redpath for failing to provide details of the allegations or consider redeployment options.

• [6] In summary, I have found that Mr Quayle was dismissed after Aurelia revoked his site clearance and Redpath was unable to find suitable alternative work for him, and that these matters, when considered together, were a valid reason for dismissal based upon Mr Quayle's capacity. However, due to other factors which include Redpath's failure to notify Mr Quayle of its concerns about performance and attendance when these issues first arose and to manage these in accordance with the relevant policies and procedures, I have found that Mr Quayle's dismissal was harsh and unreasonable and that an order for compensation is appropriate.

• [7] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

• [8] After taking into account the views of Mr Quayle and Redpath, and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing pursuant to s.399 of the FW Act.

• [9] At the hearing, Mr Quayle was represented by Mr Daniel Garan, Lawyer. Redpath was represented by Ms Megan Brooks of Counsel. I granted permission to both parties to be legally represented pursuant to s.596(2) of the FW Act as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter

• [10] Mr Quayle gave evidence on his own behalf and was cross-examined by Ms Brooks

• [11] The following witnesses gave evidence on behalf of Redpath and were cross-examined by Mr Garan:

1. Mr Mitch Gowland, General Manager - Mining
2. Mr Nick Staite, Superintendent
3. Mr Thomas Howard, Human Resources Manager

• [12] Mr Quayle filed submissions in the Commission on 19 November 2024 and Redpath filed submissions in the Commission on 3 December 2024. I have considered the submissions made by the parties and all of the evidence before me in my determination of this matter and the conclusions I have reached.

• [13] Mr Quayle is 41 years old and has seven children aged between 1 and 17 years. Mr Quayle resides with his partner and six of his children in rented accommodation.[1]

• [14] On 17 August 2023, Mr Quayle commenced full time employment with Redpath as a Driller, on a 'drive in drive out' basis earning a gross weekly salary of $3,024.00, excluding superannuation.[2]

• [15] The terms and conditions of Mr Quayle's employment with Redpath were in accordance with a contract of employment dated 17 April 2023[3] which included the following terms:

• a. Mr Quayle was covered by the Redpath Contract Services National Enterprise Agreement 2022 (the Enterprise Agreement);[4]
• b. Mr Quayle was assigned to work at the 'Peak Project' located at The Peak Way, Cobar, New South Wales;[5]
• c. Mr Quayle's rostered hours were 12 hour shifts on a continuous rotation of days and nights, with 14 days on and 14 days off;[6] and
• d. Mr Quayle's employment was conditional on receiving and maintaining 'site clearance' from the Contract Client and that failure to maintain this and other conditions of employment could result in discipline action, up to and including termination of employment.[7]

• [16] The Enterprise Agreement provides at clause 20 in relation to Performance Review:

[Redpath] operates an Employee evaluation and performance review system. The system covers issues such as on the job performance as well as future development needs. Employees should expect to have their performance reviewed by their supervisor or manager typically at 6-monthly intervals, however, an Employee may request more frequent reviews.

• [17] The Peak Project is operated by Aurelia, who is the 'Contract Client' for the purpose of Mr Quayle's contract of employment.[8]

• [18] Clause 7.3 of the Contract between Peak Gold Mines and Redpath provides:

(a) object to any person that the Contractor or a Subcontractor proposes to use in performing the Services, before the person comes on-Site and direct the Contractor that any such person is not permitted on the Site; or

(b) direct the Contractor to promptly procure the removal from the Site and replacement of any Contractor's Personnel (including the Contractor Representative), who, in the opinion of the Company Representative, is not properly performing their duties, is for other reasons detrimental to the proper performance of the Services, is incompetent, unqualified or negligent or is responsible for a violation of a Health and Safety Requirement, Environmental Requirement or any other applicable policy or procedure on-Site.

The Contractor is not entitled to a Variation or compensation as a result of a direction under this clause 7.3.[9]

• [19] Mr Mitch Gowland is Redpath's General Manager-Mining. Prior to commencing in this role, Mr Gowland was the Operations Manager - Metalliferous and was responsible for managing Redpath's delivery of services under its contract with Aurelia.[10] As Redpath does not have a Project Manager at the Peak Project, Mr Gowland has been more involved in that project. Mr Gowland worked closely with Mr Nick Staite, Superintendent at the Peak Project. Mr Staite is the most senior Redpath employee at that site.[11]

• [20] Mr Quayle said that on 30 August 2024, he received a call from a family member informing him that his close cousin had suddenly passed away. Mr Quayle was shocked and upset and was not in a state of mind to attend work.[12]

• [21] Mr Quayle said that he called Mr Staite, and they had a conversation to the following effect:

Mr Quayle: I just received news that my close cousin has passed away. I can't go to work today. Am I able to take the rest of the swing off?

Mr Quayle: Thank you. Do I need to fill out any forms to take this time off?

Mr Staite: No need, I will complete the necessary forms.[13]

• [22] Mr Staite agreed for Mr Quayle to take leave for the remainder of the swing period, so Mr Quayle was required to return to work on 18 September 2024.[14]

• [23] As Superintendent, Mr Staite is responsible for overseeing Redpath's personnel at the Peak Project, the maintenance of supply and scheduling. Aurelia has its own mine management team and overarching control of the Peak Project. It is responsible for the day-to-day planning of work on site. Generally during a shift, there will be two to three Redpath drillers and one fitter who report to Mr Staite.[15]

• [24] Mr Staite said that the performance of a driller can be measured by the number of production metres drilled per shift, taking into account the driller's safety performance and mitigating risk to the equipment or themselves.[16]

• [25] Over a period of time, Mr Staite said that Mr Bjay Sonter, Leading Hand Fitter at the Peak Project and Mr Staite noticed that Mr Quayle's performance and output was not matching that of other Redpath drillers. Mr Staite explained that Mr Sonter acts in the Superintendent role when Mr Staite is not at site.[17]

• [26] When Mr Staite looked into Mr Quayle's drilling and attendance rates, Mr Staite recalls that Mr Quayle was consistently drilling approximately 25 to 35% less than other drillers and there was starting to be a trend in Mr Quayle being absent at the start and end of his swings.[18] During the hearing, Mr Staite said that he initially identified this issue in around May 2024.

• [27] During the hearing, Mr Gowland confirmed that the records which showed the drilling rates of employees, including Mr Quayle, were records produced by Aurelia.

• [28] In or around the end of August or early September 2024, Mr Staite had a conversation with Mr Riaan Smith, Underground Mine Manager at Aurelia, in relation to Mr Quayle. Mr Staite recalls that Mr Smith said words to the effect that Aurelia was not happy with Mr Quayle's output and that he needed to improve his performance.[19] During the hearing, Mr Staite said that he explained to Mr Smith that he was intending to manage Mr Quayle's performance by commencing a performance improvement plan (PIP).

• [29] During the hearing, Mr Staite said that what was concerning about Mr Quayle's sick leave is that it was always at the start or end of a roster. Mr Staite was not able to say whether Aurelia's decision to revoke Mr Quayle's access was triggered by Mr Quayle's absence on bereavement leave. From Mr Staite's perspective, Mr Quayle's absence on bereavement leave was 'the straw that broke the camel's back.' Mr Staite said that Mr Quayle's three days of bereavement leave was followed by two days of sick leave, which Redpath had approved so that Mr Quayle could see a specialist in relation to a 'Health Management Plan' that he was on as part of his employment.

• [30] Mr Staite said that he was not concerned about Mr Quayle's absence on sick leave on 2 and 3 September 2024. However, Mr Staite was concerned about Mr Quayle's bereavement leave because he asked Mr Quayle for a certificate of some sort as Redpath requires evidence in support of an application for bereavement leave. Mr Quayle said he did not feel comfortable asking for a certificate, so Mr Staite suggested he see the funeral director. Mr Quayle was reluctant to do this and said he would take annual leave instead. Mr Staite said that in his career, he has never come across a person having a problem producing a certificate for bereavement leave and that this led him to have concerns about the genuineness of the leave.

• [31] Mr Staite said that in light of Aurelia's feedback, around the time that Mr Quayle had completed his roster which ended on 3 September 2024, Mr Staite decided to start preparing a PIP for Mr Quayle to help improve his performance. The PIP was never issued as Mr Quayle was dismissed before Mr Staite had a chance to complete it. If the PIP had been prepared it would have allowed for a period of time, probably several months, for Mr Quayle to show improvement.[20]

• [32] Mr Staite believes that Mr Sonter had spoken with Mr Quayle and told him that Aurelia

• [33] Mr Quayle disputed this and said that he did not receive any warnings (including informal warnings) during the course of his employment, from Redpath or Aurelia in relation to his performance or conduct prior to the termination of his employment.[22]

• [34] Mr Gowland said that a few weeks prior to Mr Quayle's dismissal, he was made aware by representatives of both Redpath and Aurelia that Mr Quayle's attendance had been a concern.[23]

• [35] Mr Gowland said that he suggested that Mr Staite collate Mr Quayle's absences and seek support from Mr Thomas Howard, Redpath's Human Resources Manager. Mr Gowland said this was to allow Redpath to understand the extent of the performance concerns and provide it with the opportunity to consider placing Mr Quayle on a PIP or take other disciplinary steps.[24]

• [36] On 31 August 2024, Mr Staite sent an email to Mr Gowland setting out Mr Quayle's absences between 15 November 2023 to 3 September 2024 as follows:[25]

• [37] On 1 September 2024, Mr Gowland forwarded this email to Mr Howard and sought Mr Howard's support to manage Mr Quayle's attendance. Mr Gowland followed up this email with a phone call to Mr Howard the following day. Later that day, Mr Gowland received an email from Mr Howard confirming he had spoken to Mr Staite and given Mr Staite some options for managing Mr Quayle. Mr Gowland understood that Mr Staite would address the issues with Mr Quayle and Mr Quayle would remain working on the Peak Project while this happened.[26]

• [38] On 7 September 2024, Mr Gowland was copied into the following email from Mr Clive Jones, Mining Projects Manager at Aurelia, advising that Mr Quayle's access was revoked:

As discussed, I am revoking site access for this man.

Ricky has proven too unreliable with his attendance and also the quality of his drilling has been as well.

We need Redpath to provide an operator that will assist us in achieving our budget so we need him replaced by someone we can rely upon.

Peak Gold Mines Pty Ltd | Aurelia Metals Ltd[27]

• [39] Mr Gowland sent this email to Mr Howard so that Mr Howard could determine what to do about Mr Quayle's employment, including managing any show cause termination process that was required.[28]

• [40] Mr Howard said that after he was notified that Mr Quayle's site access had been revoked, he spoke to Mr Staite about possible redeployment to Federation Mine in central-west New South Wales which was the next closest mine where Redpath operated. Mr Howard said that he made inquiries with Redpath's recruitment team but was advised that there were no vacancies for drillers. Mr Howard said that he did not think that there were any other suitable sites to redeploy Mr Quayle to, taking into account that he worked on a drive in, drive out, basis. Mr Howard had not considered redeploying Mr Quayle to Olympic Dam in South Australia because this would have increased Mr Quayle's commute by more than two hours. However, Mr Howard has since made further inquiries with the recruitment team and has been advised that there were no driller roles available at Olympic Dam at the time that Mr Quayle's site access was revoked.[29]

• [41] Mr Quayle said that on 11 September 2024, he received a call from Mr Staite and they had a conversation to the following effect:

Mr Staite: On 7 September 2024, Aurelia advised us that they are revoking your site clearance due to absenteeism and poor quality of work.

Mr Quayle: I do not understand what's going on. I have not been advised of any concerns

Mr Staite: We do not have any other roles available. I will send you a show cause letter after this call and we would like to hear your response to the proposed termination of your employment tomorrow at 2pm via mobile phone.[30]

• [42] Mr Quayle said that Redpath did not consult him regarding the possibility of reassignment to another client or project, despite operating as a mining contractor in 14 countries and having 43 clients.[31]

• [43] Mr Quayle subsequently received the show cause letter by email. The covering email stated:

Please see attached letter confirming your access removal by Aurelia and Redpath's show cause. If you wish to discuss show cause with myself and HR, please respond to this email and I will arrange the meeting as outlined in attached letter. Alternatively, you can email me if you do not wish to show cause. Redpath has run a check with Federation to see if a drillers position is available, but currently there is no opening

• [44] The Show Cause Letter relevantly provided:

Redpath Contract Services (Redpath) has recorded an incident on the 7th of September 2024 where Redpath's client Aurelia Metals has revoked your site access due to absenteeism and poor quality of work.

1. On the 7th of September 2024, the client formally advised us that they are revoking your site clearance due to ongoing concerns with reliability and quality of work.
2. You have also failed to fulfil the obligations in your employment contract 'Conditions of Employment' section. In this section, it states that site clearance is maintained from the contract client and that failure to maintain the conditions of employment Failure to maintain any of the above conditions of employment may lead to termination of employment. [sic]

Show cause as to why Redpath should not terminate your employment

Redpath is extremely concerned with the breach of policy.

Redpath has a responsibility to comply with policy. By failing to follow Redpath's policy, you have failed to adequately perform the duties of your position, failed to meet the responsibilities of a Driller and any other impact. Your breach and failure to perform the duties of your position has eroded the trust and confidence that underpins your employment relationship with Redpath. As such, Redpath is considering terminating your employment.

• [45] On the same day, Mr Quayle sent the following email to Mr Staite:

I do accept to have a meeting tomorrow Thursday 12th September at 11:00am as I feel and think that I haven't done anything wrong.

As such I can do up a letter via email but doing a letter will be a bit hard to do as I really don't know or understand what I have done wrong for Aurelia to revoke my site access and truly doesn't make any sense to me at all.[34]

• [46] On 12 September 2024, Mr Quayle attended a meeting via a phone call with Mr Staite and Mr Howard. According to Mr Quayle, he said words to the following effect:

b. He did not understand the allegations as the letter provided no details;

c. He has not been previously advised of any issues regarding his performance or conduct; and

d. His absence from work was approved.[35]

• [47] Mr Staite said that he recalled Mr Quayle saying that he had done nothing wrong but not the other matters referred to above.[36] Mr Howard said that he recalled Mr Quayle saying that he had done nothing wrong but that Mr Quayle did not otherwise provide any new information during the meeting.[37]

• [48] Mr Quayle said that neither Mr Staite nor Mr Howard provided particulars of the allegations. Mr Quayle was also advised that Redpath could not assign him to another client as they did not have any 'openings', and that his employment was terminated with immediate effect. Following the meeting, on the same day, Mr Quayle received a termination of employment letter by email.[38]

• [49] The letter of termination issued to Mr Quayle relevantly provided:

On the 11 September 2024, you were issued with a letter requesting you to show cause as to why you should not be terminated following an incident on the 7th of September when the client formally advised us that they are revoking your site clearance due to ongoing concerns about reliability and quality of work.

Taking into account all of the information including your responses, a decision was made to terminate your employment for misconduct.[39]

• [50] Mr Howard said that he prepared the termination letter and described the reason for termination as 'misconduct' which was a reference to Mr Quayle being unable to comply with the conditions in his contract to maintain access for the Peak Project. Mr Howard said that he described it this way because Redpath's Discipline Procedure includes 'failing to fulfil the obligations in the employment contract' as an example of serious misconduct. Mr Howard said that the reason Mr Quayle's employment was terminated was because he was unable to perform work at the Peak Project in accordance with his contract due to the removal of site access and there were no other suitable positions Redpath could offer him. After termination, Mr Howard became aware that the termination letter incorrectly referred to the reason for dismissal as 'misconduct' instead of 'serious misconduct' in line with Redpath's Discipline Procedure. On 24 September 2024, Mr Howard sent Mr Quayle an email providing an amended termination letter noting it should have stated 'serious misconduct' so that it aligned with Redpath's Discipline Procedure.[40] During the hearing, Mr Howard confirmed that Mr Quayle's employment had been terminated summarily.

• [51] Following Mr Quayle's termination from Redpath, Mr Quayle actively looked for employment on a daily basis via employment sites. On 4 October 2024, Mr Quayle commenced employment with a new employer as an Underground Production Long Hole Driller with a weekly gross salary of $2,982.00, (excluding superannuation). This role is located in Kambalder, Western Australia. Each time Mr Quayle travels to work from his home in Melbourne, he is required to pay his own travel costs and incurs a loss of approximately $616.03 per fortnight compared to his role at Redpath.

• [52] To understand why Redpath characterised the reason for Mr Quayle's dismissal as 'serious misconduct,' it is necessary to examine the Redpath Disciplinary Procedure. The Redpath Disciplinary Procedure distinguishes between 'serious misconduct' and 'misconduct'. 'Serious misconduct' is defined as:

Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and conduct that causes serious and imminent risk to:

(ii) the reputation, viability or profitability of the employer's business[41]

• [53] The Disciplinary Procedure provides the following examples of serious misconduct:

• Blood alcohol level at work of >0.05
• Confirmed non-negative drug reading
• Failure to submit for an alcohol/or drug test
• Breach of cardinal rules
• Insubordination
• Asleep on the job
• Wilful misconduct
• Abuse of or threatening a workmate, staff or client/partner/alliance representative
• Consumption of alcohol or illegal drugs at work
• Possession of illegal drugs or firearms at work or in the camp
• Physically assaulting another person within the bounds of a mining lease or special lease, accommodation, village, company or client workplace or company or client function.
• Breaches of statutory requirements which may be life threatening or result in serious damage and/or serious injury.
• Fraud or falsifying records.
• Theft or removal of company property for personal use or gain
• Unauthorised use of company vehicles
• Breach of isolation procedures
• Serious environmental breach
• Interfering with a safety device or fire and rescue equipment
• Commuting or airline incident
• Wilful damage to/misuse of company equipment
• Serious breach of code of conduct
• Unauthorised absence from duty/abandonment of duty
• Excessive use of personal leave/unpaid leave without acceptable supporting documentation
• Dishonesty
• Misrepresentation of your qualifications or employment history
• Wilful disobedience of Redpath's lawful directions
• Failing to fulfil the obligations in the employment contract
• Being charged with a criminal offence that is punishable by imprisonment that affects suitability for a position
• Inappropriate conduct at a work function
• Neglect or incompetence in the performance of duties
• Conduct at work or otherwise which in Redpath's reasonable opinion may injure Redpath's reputation or bring Redpath into disrepute
• A breach of Redpath's confidential information

• • Serious breach of Redpath's policies and/or procedures or the Project site's policies or procedures.[42]

An act done wilfully with a wrong intention of a less serious nature.[43]

• [55] The Disciplinary Procedure provides the following examples for minor or moderate misconduct:

• Not wearing issued personal protective equipment (PPE) in a Designated Area
• Breach of safety or regulations
• Breach of Basic safety rules or restrictions
• Persistent bad time keeping or poor attendance
• Minor/moderate breach of camp or accommodation rules
• Minor/moderate environmental breach
• Failure to complete a pre-start check
• Failure to notify of taking personal leave within acceptable time
• Taking annual leave without prior approval
• Failure to follow direction from supervision
• Inappropriate use of company property
• Neglect of duty
• Uncontrolled When Printed
• Moderate damage to/misuse of company equipment
• Failure to notify supervisor of absence
• Not conducting a JSA/Take 5 or equivalent as required

• • Minor/moderate breach of code of conduct[44]

• [56] The Disciplinary Procedure states that Redpath reserves the right to exercise discretion in the discipline process where circumstances warrant legal intervention, and that Redpath may undertake an alternative process or not follow every step in the discipline process as permitted by the law.[45]

• [57] The Disciplinary Procedure provides for the following steps:

• After an incident has occurred or an employee's behaviour or performance has become unacceptable, the manager/supervisor must investigate and determine if the disciplinary process should be applied.
• If none of the allegations are substantiated from the preliminary investigation, then the investigation will be finalised and documented.
• If some or all of the allegations are substantiated from the preliminary investigation, then the disciplinary process will be applied.
• The serious misconduct disciplinary process should only be conducted by the Project Manager/Manager or their delegate. The Project Manager/Manager must consult with the appropriate Operations Manager, General Manager and Human Resources Representative for advice and support during the process.

• • From the investigation, the Project Manager/Manager will have the facts to determine if the misconduct is of a serious classification. Where there is a conflict between a minor/moderate misconduct and serious misconduct classification then the more serious misconduct shall be adopted.[46]

• In the case of serious misconduct, a show cause letter will be issued to the employee which includes specific details about the allegations and that the employee's employment is at risk of termination.
• From the show cause meeting, if disciplinary action is to be taken, then the employee is to be advised of the nature of this action.
• Disciplinary action for serious misconduct can be:
  • A final warning, or warning. The final warning needs to be put into writing.

• • When an employee's behaviour or performance does not meet the required standards and/or an incident has occurred that could be classified as a minor or moderate misconduct, then the minor/moderate disciplinary process should be followed.[48]
• • If the concern is substantiated and disciplinary action is appropriate, then the employee is to be advised and the Disciplinary Action Form can be used to cover the behaviour/performance of concern, the disciplinary action taken, any assistance or support to be provided (if relevant) and that failure to address the behaviour or performance of concern may result in termination of employment.[49]

• Disciplinary action for performance issues or minor/moderate misconduct can be:
  • Counselling, which includes the expected level of performance and/or behaviour and steps the employee needs to implement to achieve the required standards (including training if appropriate).
  • Written warning, which includes reasons for the warning is being given and steps the employee needs to implement to achieve the required standards and/or avoid the situation occurring again.

• o A PIP, which can include areas where improvement is required, what the satisfactory performance standards are, the actions and timeframe necessary to achieve satisfactory performance standards and coaching or other assistance/support that will be provided (if appropriate).[50]

When can the Commission order a remedy for unfair dismissal?

• [58] Section 390 of the FW Act provides that the Commission may order a remedy if:

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

• [59] Both limbs must be satisfied. I am therefore required to consider whether Mr Quayle was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr Quayle was so protected, whether Mr Quayle has been unfairly dismissed.

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

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

• [61] There is no dispute, and I find that Mr Quayle was dismissed within the meaning of s.386 of the FW Act.

• [62] Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

• [64] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

• [65] Both parties submitted that the termination took effect on 12 September 2024. On 19 September 2024, Mr Quayle filed an Unfair Dismissal application with the Commission. I am therefore satisfied that the application was made within the period required in s.394(2).

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

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

(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.

• [67] It was not in dispute, and I find, that at the time of dismissal, Mr Quayle completed at least the minimum period of employment with Redpath, and that an enterprise agreement applied to Mr Quayle in relation to the employment.

• [68] I am therefore satisfied that, at the time of dismissal, Mr Quayle was a person protected from unfair dismissal.

• [69] It was not in dispute, and I find, that Mr Quayle's dismissal was not a case of genuine redundancy and that the Small Business Fair Dismissal Code does not apply.

• [70] Having considered each of the initial matters, I am required to consider the merits of the application.

Was the dismissal harsh, unjust or unreasonable?

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

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

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

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

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

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

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

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

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

• [72] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[51]

• [73] I set out my consideration of each of these criteria below.

Was there a valid reason for the dismissal related to Mr Quayle's capacity or conduct?

• [74] In order to be a valid reason, the reason for the dismissal should be 'sound, defensible or well founded'[52] and should not be 'capricious, fanciful, spiteful or prejudiced.'[53] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[54]

• [75] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[55] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[56]

• [76] Mr Quayle submitted that there was no valid reason for the dismissal and relied upon a number of procedural matters which are more appropriately considered under ss.387(b), (c) and (h). I have therefore dealt with these procedural matters in my consideration of ss.387(b), (c) and (h) below.

• [77] Redpath submitted that Aurelia's revocation of Mr Quayle's site access and his subsequent inability to fulfil the obligations of his employment contract, coupled with Redpath's inability to engage him elsewhere, was a valid reason for Mr Quayle 's dismissal.

• [78] Redpath submitted during the hearing that previous decisions of this Commission dealing with similar circumstances to the current application establish that the following matters are relevant to whether there was a valid reason for the dismissal:

• Whether the removal of access was in accordance with the contract between employer and client;
• If access was removed due to conduct, whether the employer took steps to investigate whether the conduct occurred;
• Whether the employer independently assessed the alleged conduct and whether it warranted dismissal in the employer's view;
• Whether the employer explained to the employee that they had their right to access the site removed; and
• Whether the employer adequately investigated options for redeployment.

• [79] In respect of each of these matters, Redpath submitted that:

• The removal of Mr Quayle's access was in accordance with the contract between Redpath and Aurelia;
• Redpath took steps to investigate whether the conduct occurred which led to the revocation of access, namely Mr Quayle's attendance and performance issues;
• Redpath independently assessed that conduct and determined that it warranted a performance improvement plan rather than dismissal;
• Redpath explained to Mr Quayle that he had his right to access the site removed; and
• Redpath adequately investigated options for redeployment

Was there a valid reason for the dismissal related to Mr Quayle's conduct?

• [80] Mr Quayle's employment was summarily terminated on the grounds of 'misconduct', which was later corrected to 'serious misconduct', following an 'incident' on 7 September 2024 where Aurelia formally advised Redpath that Aurelia was revoking Mr Quayle's access due to ongoing concerns about Mr Quayle's reliability and quality of work. Mr Howard explained that he described the reason for termination as 'serious misconduct' as this referred to Mr Quayle being unable to comply with the conditions in his contract to maintain access to the Peak Project. Mr Howard said that he described it this way because Redpath's Discipline Procedure includes 'failing to fulfil the obligations in the employment contract' as an example of serious misconduct.

• [81] At the outset, I note that 'failing to fulfil the obligations in the employment contract' is an example of serious misconduct, however 'serious misconduct' is defined in the Disciplinary Procedure as 'wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and 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.'

• [82] Based upon the plain and ordinary meaning of the words of the Disciplinary Procedure, I believe that it is necessary to first establish that the conduct falls within the definition of 'serious misconduct' to be considered as such. In my view, Redpath's reliance on the examples of serious misconduct without reference to the definition of this term is not the correct way to apply the Disciplinary Procedure. There may well be some instances where 'failing to fulfil the obligations in the employment contract' would constitute serious misconduct because they are regarded as wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment. However, I do not accept that every failure to fulfil the obligations in the employment contract is automatically regarded as serious misconduct under the Disciplinary Procedure. This is particularly so where failure to fulfil the obligations in the employment contract is not deliberate and does not involve safety issues.

• [83] In Mr Quayle's case, the matters that both Aurelia and Redpath were concerned about related to performance rather than conduct. Under the Disciplinary Procedure, poor performance could result in warnings, counselling or a PIP. Termination of employment is not available until such steps have been taken, unless the employee has engaged in serious misconduct.

• [84] I note Mr Staite's evidence that 'it was his understanding that at some point' that Mr Sonter had a conversation with Mr Quayle and told Mr Quayle that Aurelia was not happy with his performance. Mr Quayle denied that such a conversation took place. Mr Staite was not involved in the alleged conversation, so his evidence does not establish that any conversation between Mr Sonter and Mr Quayle occurred. Mr Staite and Mr Gowland both confirmed that Mr Sonter continues to be employed by Redpath. As Redpath could have called Mr Sonter to give evidence to refute Mr Quayle's assertion that he has never been provided with any formal or informal warnings and did not do so, there is no basis for me to reject Mr Quayle's evidence in this regard. I therefore find that the first time that Mr Quayle was aware of any performance concerns was on 11 September 2024 when he was advised of the show cause meeting. I also find that Redpath did not follow the Disciplinary Procedure in relation to its concerns about Mr Quayle's performance.

• [85] It appears that Redpath characterised Mr Quayle as engaging in 'serious misconduct' as this is the only way that the termination of his employment could be effected in a way which was consistent with the Disciplinary Procedure. Unsurprisingly, this caused a great deal of confusion for Mr Quayle who was told that Redpath was considering terminating his employment because he failed to follow Redpath's policy, failed to adequately perform the duties of his position and failed to meet the responsibilities of a driller, in circumstances where he was unaware of any concerns about his performance or conduct. The show cause letter also conveyed that these matters had eroded the trust and confidence that underpins Mr Quayle's employment relationship with Redpath, which was at odds with Redpath's evidence during the hearing that it was intending to place Mr Quayle on a PIP and maintain his employment. In my view, it was inappropriate and unreasonable for Redpath to label Mr Quayle's actions as 'misconduct' when there was no basis to do so.

• [86] There is no evidence to support a finding that Mr Quayle was removed from the site because he engaged in misconduct or serious misconduct. As such there was no valid reason for the dismissal based upon Mr Quayle's conduct.

Was there a valid reason for the dismissal related to Mr Quayle's capacity?

• [87] The Commission is not required to confine itself to determining whether the reason provided by the employer is a valid one. Rather, the Commission must consider whether there is a valid reason for the termination and that inquiry is not limited to the reason given by the employer for the termination.[57]

• [88] The terms of the contract between Redpath and Aurelia permit Aurelia to remove an employee from site if Aurelia forms the opinion that the employee 'is not properly performing their duties, is for other reasons detrimental to the proper performance of the Services, is incompetent, unqualified or negligent or is responsible for a violation of a Health and Safety Requirement, Environmental Requirement or any other applicable policy or procedure on-Site.'

• [89] The evidence shows that on 7 September 2024, Mr Quayle's site access was revoked because Aurelia formed the opinion that Mr Quayle was unreliable in relation to his attendance and the quality of his drilling. These are matters pertaining to whether an employee is properly performing their duties and as such it appears that Aurelia was permitted by the contract to remove Mr Quayle's site access.

• [90] In DA v Baptist Care SA (Baptist Care),[58] the Full Bench said:

The concept of "capacity" in s 387(a) as a basis for a valid reason for dismissal goes beyond the physical or skill capacity of the employee, and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job. Where an employee cannot perform the inherent requirements of their job and there is no reasonable scope for the employee to be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee's capacity.[59] [footnotes omitted]

• [91] The Full Bench went on to say that in a situation where an employee's capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly.[60] Considerations which may arise in an assessment of whether the employer has acted fairly towards the employee in such situations may include the extent to which the employer has the power to alter, modify or challenge the outcome determined by the third party, the extent to which the employer has exercised that power, and the capacity of the employer to redeploy the employee to a position where the employee's capacity is not affected by the third party's conduct.[61]

• [92] The Full Bench cited other decisions of the Commission which the parties also referred me to including Kool v Adecco Industrial Pty Ltd,[62]which was expressly approved by Full Benches in Pettifer v MODEC Management Services Pty Ltd (Pettifer)[63] and Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee (Tasports).[64]

• [93] In Pettifer, there was evidence before the Full Bench which demonstrated that the respondent, which was a labour hire employer, was bound by its contract with the host employer to remove an employee from the worksite when instructed to do so by the host employer. The respondent did not agree that the employee's conduct justified his removal from the worksite but was nevertheless bound to comply with the host employer's direction. As the employee was no longer capable of performing the inherent functions of his role, the respondent sought to find alternative employment for the employee. Only after exhausting these inquiries did the respondent rely on this reason to dismiss the employee. In these circumstances the Full Bench concluded that the respondent had a valid reason relating to the employee's capacity to terminate his employment and only exercised this reason because it genuinely was unable to find suitable alternative employment for him.[65] In that case the Full Bench arrived at the same conclusion as the Commission at first instance and found that the termination was not harsh, unjust or unreasonable.[66]

• [94] In Tasports, the employer did not provide the Commission with a copy of the contract between it and the client, so it did not establish that the client in fact had a legal right to require the employee's removal from the worksite or that the employer had no recourse to preserve the employee's employment at the site once that step had been taken. The employer did not form its own independent conclusion as to whether the employee had committed misconduct but instead essentially adopted the outcome of the client's procedurally unfair investigation. Finally, the employer failed to adequately investigate options for Mr Gee's redeployment.[67] In that case the Full Bench upheld the Commission's decision at first instance that the dismissal was unfair.[68]

• [95] In Adecco, the terms of the contractual relationship between the labour hire company and the host employer were not in evidence before the Commission. The labour hire employer simply acquiesced in the host employer's contention that the worker had engaged in misconduct without forming any independent view about whether this allegation was substantiated, in circumstances where the Commission found, on the evidence before it, that it was not. Further, the Commission found that a failure on behalf of the applicant's employer to explore redeployment opportunities for the applicant constituted an element of unfairness in the circumstances of the applicant's dismissal. Taking into account these and other matters, Deputy President Asbury, as she then was, found that there was no valid reason for the applicant's dismissal related to her capacity or conduct[69] and that the dismissal was unfair.[70]

• [96] In the application before me, the evidence establishes that Aurelia was permitted by the contract between Aurelia and Redpath to remove Mr Quayle's site access, and that there was no redress available to Redpath under the contract in respect of this action once Aurelia formed the subjective view that Mr Quayle was not properly performing his duties. The evidence also demonstrates that Redpath conducted its own inquiries in relation to Mr Quayle's performance and attendance issues and did not simply adopt Aurelia's findings.

• [97] In relation to finding alternative employment opportunities, Mr Howard said that after he was notified that Mr Quayle's site access had been revoked, he investigated possible redeployment to Federation Mine in central west New South Wales which was the next closest mine where Redpath operated, however there were no roles available. More recently, Mr Howard has made further inquiries with the recruitment team about Olympic Dam in South Australia and has been advised that there were no driller roles available there.

• [98] Mr Quayle submits that Redpath's efforts in relation to redeployment have not been sufficient, as Redpath operates in 14 countries and has 43 clients. It appears that Redpath's identification of redeployment opportunities was confined to locations which it believed Mr Quayle could readily travel to from his home. Mr Quayle has not pointed to any specific locations which he claims that Redpath should have considered. As there is no evidence before me that Mr Quayle could have travelled to other Redpath locations in addition to Federation Mine and Olympic Dam, I am satisfied that Redpath genuinely was unable to find suitable alternative employment for him.

• [99] Taking all of these matters into account, and applying the principles identified by Full Benches of this Commission in Baptist Care, Pettifer and Tasports, I find that Mr Quayle was dismissed after Aurelia revoked his site clearance and Redpath was unable to find suitable alternative work for him, and that these matters, when considered together, were a valid reason for dismissal based upon Mr Quayle's capacity.

• [100] Proper consideration of s.387(b) requires a finding to be made as to whether Mr Quayle 'was notified of that reason'. Contextually, the reference to 'that reason' is the valid reason found to exist under s.387(a).[71]

• [101] Although the termination letter was rather clumsily worded, it referred to the letter of 11 September 2024 which requested that Mr Quayle show cause as to why he should not be terminated after formal advice was received from Aurelia that Aurelia was revoking Mr Quayle's site clearance due to ongoing concerns about reliability and quality of work.

• [102] In my view, the termination letter establishes that Mr Quayle was notified that the reason for dismissal was revocation of his site clearance and as such I find that Mr Quayle was notified of the valid reason.

Was Mr Quayle given an opportunity to respond to any reason related to his capacity or conduct?

• [103] Mr Quayle submitted that Redpath failed to provide particulars of the allegations and had already decided to terminate his employment prior to the meeting on 11 September 2024.

• [104] Redpath submitted that it both notified Mr Quayle it was considering the termination of his employment on 11 September 2024 and gave him the opportunity to respond in writing and in person to a show cause notice before doing so.

• [105] As noted above, I believe that Mr Quayle would have been very confused when he was notified verbally and in writing on 11 September 2024 that his employment was at risk of termination given that he was unaware that Redpath had any concerns about his performance.

• [106] I accept that Redpath did not provide any particulars of the allegations to Mr Quayle in that it did not provide Mr Quayle with the list of absences and the data which showed that Mr Quayle's drilling performance was below that of other employees. However, in my view, the provision of such information would not have changed the outcome for Mr Quayle at the show cause meeting on 12 September 2024. By the time that Redpath issued the show cause letter, it was too late for Mr Quayle to address any of the concerns about his performance as his site access had already been revoked and in the absence of any suitable redeployment opportunities, termination was inevitable.

• [107] I find that Mr Quayle was given an opportunity to respond to the reason prior to the termination as the evidence establishes that Redpath both notified Mr Quayle it was considering the termination of his employment and gave him the opportunity to respond in writing and in person to a show cause notice before doing so. However, the opportunity for Mr Quayle to influence the outcome was extremely limited given that the revocation of Mr Quayle's site access was, by that stage, outside of the control of both Mr Quayle and Redpath.

Did Redpath unreasonably refuse to allow Mr Quayle to have a support person present to assist at discussions relating to the dismissal?

• [108] Mr Quayle submits that he was not provided with the opportunity to bring a support person to the show cause meeting but this is plainly incorrect on the face of the letter from Redpath to Mr Quayle dated 11 September 2024 which states,

I would like to meet with you on the 12th of September 2023 via mobile phone. You are welcome to bring a support person to that meeting if you feel this would be of benefit to you.

• [109] Based on the contents of the letter, I find that no unfairness arises with respect to s.387(d).

Was Mr Quayle warned about unsatisfactory performance before the dismissal?

• [110] Although the reason for dismissal was misconduct rather than unsatisfactory performance, this matter is relevant given that the reason that Mr Quayle's site access was revoked was due to unsatisfactory performance.

• [111] I find that Mr Quayle was not warned about unsatisfactory performance before the dismissal and that this is a matter which weighs in favour of a finding of unfairness.

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

• [112] Mr Quayle submitted that considering the size of Redpath's business, it should have had effective and fair procedures for effecting dismissals. Mr Quayle submitted that Redpath did, in fact, use Human Resources expertise during the disciplinary process; however, it failed to discharge its duties in a manner that demonstrated procedural fairness.

• [113] Redpath submitted that it has staff with human resources expertise and relied upon that expertise in effecting the termination of Mr Quayle's employment.

• [114] As indicated above, I have concerns about Redpath's characterisation of the dismissal as being for 'misconduct' then 'serious misconduct,' however I have considered this matter under s.387(h) rather than s.387(f). Apart from this issue, the procedures followed in effecting the dismissal were unlikely to have created any specific unfairness as Mr Quayle's site access had already been revoked. I therefore find the matters in ss. 397(f) and (g) to be neutral considerations.

• [115] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. A number of matters raised by the parties are potentially relevant to my consideration under this provision.

• [116] Mr Quayle submitted that Redpath took adverse action by terminating his employment due to taking approved leave.

• [117] Mr Quayle further submitted that the Commission should take into account that he is 41 years old, lives in rental accommodation with his de facto partner, and has six children, all of whom are under the age of 18. Mr Quayle pays $623.76 per week in rent, has another child who lives with their mother, for whom he is required to pay $287.00 per month in child support and has a debt of approximately $19,700, with interest accruing.

• [118] Mr Quayle also submitted that the disciplinary process was procedurally flawed including but not limited to the following reasons:

1. Redpath commenced the disciplinary process during Mr Quayle's approved leave of absence;
2. Redpath's Show Cause letter was procedurally flawed as it failed to provide particulars of the allegations;
3. Redpath failed to respond to Mr Quayle's email of 11 September 2024, which was essentially requesting particulars to enable him to understand the allegations;
4. Redpath had already decided to terminate Mr Quayle's employment prior to the meeting on 12 September 2024, as indicated in the email of 11 September 2024, which stated that other roles were not available;
5. The Termination Letter failed to explicitly state the reason for termination; and
6. Redpath failed to redeploy Mr Quayle to another client.

• [119] The reason that Aurelia revoked Mr Quayle's site clearance was due to attendance and performance issues and it may be that the timing of the revocation was influenced by Mr Quayle's absence on bereavement leave then personal leave several days earlier. However, this is not the reason that Redpath terminated Mr Quayle's employment. I have already found that the reason for Mr Quayle's dismissal was revocation of his site clearance. There is no evidence to support a finding that Redpath would have terminated Mr Quayle's employment for taking leave if Aurelia had not revoked his site clearance.

• [120] I note that most of the procedural matters which Mr Quayle raised have been dealt with in my consideration of other subsections of s.387. I have examined Mr Quayle's concerns about Redpath's failure to provide particulars in my consideration under s.387(c). I have also found that although the termination letter was clumsily worded, it conveyed the reason for termination to Mr Quayle in accordance with s.387(b).

• [121] In relation to the allegation that Redpath commenced the disciplinary process during Mr Quayle's approved leave of absence, I note that Mr Quayle was on rostered days off during this period and this was after the period of bereavement leave and personal leave. Ideally, a disciplinary process should occur when an employee is on duty and in the workplace, however Mr Quayle was no longer able to access his workplace and he lived hundreds of kilometres from that location. Requiring Mr Quayle to attend the workplace in these circumstances is just as undesirable as conducting a disciplinary process during Mr Quayle's rostered days off. In the particular circumstances of this case, I do not accept that this is a matter which weighs in favour of a finding that the dismissal was unfair.

• [122] In relation to the allegation that Redpath had already decided to terminate Mr Quayle's employment prior to the meeting on 12 September 2024, it appears to me that Redpath was committed to following the Disciplinary Procedure which provided Mr Quayle with an opportunity to respond before a final decision was made. However, as I have already found, such an opportunity was unlikely to change the outcome as Mr Quayle's site access had already been revoked and in the absence of any suitable redeployment opportunities, termination was inevitable.

• [123] It my view, the procedural issues which weigh in favour of a conclusion that the dismissal was unfair commenced well before Mr Quayle's site clearance was revoked on 7 September 2024

• [124] The contract between Aurelia and Redpath did not give Aurelia an unfettered right to remove site access from an employee of Redpath for any reason. This could only occur under the terms of the contract if Aurelia formed the opinion that the employee 'is not properly performing their duties, is for other reasons detrimental to the proper performance of the Services, is incompetent, unqualified or negligent or is responsible for a violation of a Health and Safety Requirement, Environmental Requirement or any other applicable policy or procedure on-Site.'

• [125] The circumstances in which Aurelia could remove an employee from its site are not referred to in Mr Quayle's contract and there is no evidence before me that Redpath had made Mr Quayle aware of these circumstances.

• [126] Mr Staite had access to records produced by Aurelia that showed that Mr Quayle's drilling rates were below that of other employees from about May 2024. Redpath was therefore aware that Mr Quayle could be regarded by Aurelia as 'not properly performing [his] duties' and at risk of removal from the site. Despite this, Redpath took no steps to address Mr Quayle's performance until Aurelia expressed concerns about this to Mr Staite in late August or early September 2024. Redpath had an obligation under clause 22 of the Enterprise Agreement to provide Mr Quayle with a performance review, covering on the job performance as well as future development needs in or about February 2024, however there is no evidence before me that it undertook this review.

• [127] On one view, it is hardly surprising that Aurelia became frustrated and removed Mr Quayle from the site when it could see no improvement in his performance over four months after records first started showing that Mr Quayle's performance was inferior compared to other workers. This was an outcome which Redpath should have foreseen, and taken proactive steps to address, based upon the terms of its contract with Aurelia.

• [128] I believe that Redpath should have alerted Mr Quayle of its concerns about Mr Quayle's performance as soon as it became aware that his output was lower than other drillers on site. There is no evidence which shows that Mr Quayle was privy to the records that indicated his output was less than other drillers so it is difficult to see how he could be expected to improve his performance when he was not aware that there were any issues. There is a clear mechanism in the Disciplinary Procedure for dealing with a situation 'when an employee's behaviour or performance does not meet the required standards' which includes counselling, written warning and/or a PIP.

• [129] In relation to Mr Quayle's attendance, there is no suggestion that Mr Quayle was not entitled to the leave he took and was paid for. Although an employer may be inconvenienced by unplanned leave, an employee should not be regarded as unreliable because they take leave that they are entitled to. However, situations may arise where an employee's attendance causes concerns about the genuineness of the reasons for the leave or the employee's capacity to perform the inherent requirements of their role. If an employee is taking leave that they are not entitled to take, this may be regarded as a conduct issue. If an employee is taking excessive leave (albeit for genuine reasons) or they cannot perform the inherent requirements of the job, this is likely to be a capacity issue.

• [130] Although there was no evidence before me which established that the reasons Mr Quayle took personal leave were not genuine, there are aspects of both the Enterprise Agreement and the contract of employment which enabled Redpath to manage any concerns it had about Mr Quayle's leave. Firstly, clause 8(c) of the Enterprise Agreement requires, as a condition of employment, that an employee maintain fitness for work and undertake any employment-related medical examination upon request by Redpath. Further, clauses 16.6(a) and (b) provides that when taking sick leave or carers leave, a medical certificate or statutory declaration may be required as evidence of illness or injury. Similarly, Mr Quayle's contract of employment contains the following provision:

If, at any time, [Redpath] has any doubts about your fitness for work, or [Redpath] considers it appropriate to ensure compliance with its occupational health and safety obligations, [Redpath] may request that you undergo, at [Redpath's] expense, an examination by a medical practitioner nominated by [Redpath]. In these circumstances, you agree that a written authority enabling [Redpath] to discuss your fitness for duty with the examining medical practitioner will not be unreasonably withheld.

• [131] Redpath had the capacity to deal with any concerns about Mr Quayle's attendance under both the contract of employment and the Enterprise Agreement. Mr Staite gave evidence during the hearing that Mr Quayle was on a Health Management Plan. Neither party informed the Commission about the health issues that underpin the Health Management Plan and whether these led to Mr Quayle taking the sick leave that caused concerns about his attendance. Nevertheless, there is no evidence before the Commission about whether Redpath was managing its concerns about Mr Quayle's attendance under the Health Management Plan or through other mechanisms available to it under the contract of employment and the Enterprise Agreement.

• [132] I believe that if Redpath had notified Mr Quayle of its concerns about his performance and attendance when these issues first arose and managed these in accordance with the Disciplinary Procedure, contract of employment and Enterprise Agreement, this would have given Mr Quayle the opportunity to address these matters and potentially avoided the revocation of his site access on 7 September 2024.

• advise Mr Quayle of the conditions under which his site clearance could be revoked;
• advise Mr Quayle and of its concerns about his performance and attendance; and
• and provide Mr Quayle with an opportunity to address these concerns by following the relevant provisions of the Disciplinary Procedure, contract of employment and Enterprise Agreement

are all matters which weigh in favour of a finding of unfairness.

• [134] My finding that it was inappropriate and unreasonable for Redpath to label Mr Quayle's actions as 'misconduct' then 'serious misconduct' when there was no basis to do so and Redpath's actions in terminating Mr Quayle summarily are also matters which weigh in favour of a finding of unfairness.

• [135] I accept Mr Quayle's evidence in relation to his personal circumstances and find that the termination of his employment without notice had the potential to cause Mr Quayle financial hardship, particularly with regard to his financial and family responsibilities. This is a matter which weighs in favour of a finding of unfairness.

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

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

• [137] I must consider and give due weight to each of these matters as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[72]

• [138] I have found that there was a valid reason for the dismissal and that Mr Quayle was notified of that reason. These are matters which weigh in favour of a finding that the dismissal was not unfair. I have found that Mr Quayle was given an opportunity to respond to the reason prior to the termination, however, the opportunity for Mr Quayle to influence the outcome was extremely limited given that the revocation of Mr Quayle's site access had already occurred. The matters in ss.387(f) and (g) are neutral considerations.

• [139] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Quayle was harsh and unreasonable because the validity of the reason for dismissal is outweighed by the following matters:

• Redpath failed to advise Mr Quayle of the conditions under which his site clearance could be revoked;
• Redpath failed to advise Mr Quayle of its concerns about his performance and attendance when these issue first arose;
• Redpath failed to provide Mr Quayle with an opportunity to address these concerns by following the relevant provisions of the Disciplinary Procedure, contract of employment and Enterprise Agreement;
• Redpath inappropriately and unreasonably characterised the dismissal as 'misconduct' then 'serious misconduct' when there was no basis to do so;
• Redpath summarily dismissed Mr Quayle when there was no basis to do so; and
• The dismissal had the potential to cause Mr Quayle hardship having regard to his personal and financial circumstances.

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

• [141] Being satisfied that Mr Quayle 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 Mr Quayle's reinstatement, or the payment of compensation to Mr Quayle.

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

(a) I am satisfied that reinstatement of Mr Quayle is inappropriate; and

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

Is reinstatement of Mr Quayle inappropriate?

• [143] Mr Quayle does not seek reinstatement as he submits that there has been a deterioration of the relationship between himself and Redpath. Redpath submits that it would have re-engaged Mr Quayle, and managed his performance and attendance issues if a suitable driller role became available. Given Mr Quayle's reluctance to return to employment with Redpath and in the absence of evidence that there is a driller position available at a work location which Mr Quayle can readily travel to, I find that reinstatement of Mr Quayle is inappropriate.

Is an order for payment of compensation appropriate in all the circumstances of the case?

• [144] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, '[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one...'[73]

• [145] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[74]

• [146] The evidence established that Mr Quayle has suffered financial loss as a result of the dismissal in that he was unemployed for three weeks following the dismissal, he is earning less in his new job and that his new job involves travelling interstate and he is required to meet the costs of that travel. Having regard to all of these circumstances, I consider that an order for payment of compensation is appropriate.

Compensation - what must be taken into account in determining an amount?

• [147] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Mr Quayle in lieu of reinstatement including:

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

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

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

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

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

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

• [148] I consider all the circumstances of the case below.

Effect of the order on the viability of Redpath's enterprise

• [149] There is no evidence before me about this matter so I am unable to conclude that an order for compensation will have an effect on the viability of Redpath's enterprise.

• [150] Mr Quayle's length of service was almost thirteen months.

• [151] I consider that Mr Quayle's length of service does not support reducing or increasing the amount of compensation ordered.

Remuneration that Mr Quayle would have received, or would have been likely to receive, if Mr Quayle had not been dismissed

• [152] As stated by a majority of the Full Court of the Federal Court:

[i]n determining the remuneration that the applicant would have received, or would have been likely to receive... the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.[75]

• [153] During the hearing, Mr Quayle submitted that it was likely that the employment would have continued for at least a year, if his employment had not been terminated. Redpath submitted that it is unlikely Mr Quayle would have remained employed for any longer than six months with Redpath given Mr Quayle's performance and difficulties with attendance. Given Mr Quayle's short period of service and that Redpath was about to place him on a PIP, I think that it is unlikely that Mr Quayle would have remained employed for an extended period if he had not been dismissed. Even if Redpath's concerns were addressed by the PIP, Mr Quayle may have been unhappy about being on the PIP and looked for employment elsewhere. I therefore prefer Redpath's submission in relation to Mr Quayle's anticipated period of employment and have determined that the period that Mr Quayle would have continued to work for Redpath if he had not been dismissed is six months that is, until 12 March 2025.

• [154] There is no dispute that Mr Quayle received an annual salary of $157,248. I find, based upon this evidence, that the remuneration that Mr Quayle would have received, or would have been likely to receive, if Mr Quayle had not been dismissed is the gross amount of $78,624.

Efforts of Mr Quayle to mitigate the loss suffered by Mr Quayle because of the dismissal

• [155] Mr Quayle must provide evidence that he has taken reasonable steps to minimise the impact of the dismissal.[76] What is reasonable depends on the circumstances of the case.[77]

• [156] Mr Quayle gave evidence that following his termination by Redpath, he was actively looking for employment on a daily basis via employment sites. He then commenced employment as an Underground Production Long Hole Driller with a new employer based at Kambalder, Western Australia on 4 October 2024. Mr Quayle's rostered hours are 12 hour shifts on a continuous rotation of days and nights, with 14 days on and 14 days off. I find that Mr Quayle has made efforts to mitigate his loss by obtaining this employment.

Amount of remuneration earned by Mr Quayle from employment or other work during the period between the dismissal and the making of the order for compensation

• [157] Mr Quayle's evidence is that he is receiving a gross weekly salary of $2,982 from his new employer. Each time Mr Quayle attends work he is required to pay his own travel costs and incurs a loss of approximately $616.03 per fortnight compared to his role at Redpath. The amount of remuneration earned by Mr Quayle from employment or other work during the six month period between the dismissal and the making of the order for compensation is $60,432 which I have calculated by:
  • Converting Mr Quayle's weekly gross salary of $2,982 into a fortnightly figure of $5,964;
  • Subtracting Mr Quayle's fortnightly travel expenses of $616.03 from this amount which gives an amount of $5,347.97; and
  • Multiplying $5,347.97 by 11.3 which takes into account that Mr Quayle commenced employment on 4 October 2024 and therefore worked approximately 22.6 weeks during this period.

Amount of income reasonably likely to be so earned by Mr Quayle during the period between the making of the order for compensation and the actual compensation

• [158] As the period between the making of the order for compensation and the actual compensation is after the six month period of anticipated employment, I am not required to determine the amount of income reasonably likely to be so earned by Mr Quayle during this period.

• [159] Redpath submitted that any compensation awarded to Mr Quayle should be discounted significantly for Mr Quayle's conduct in failing to maintain his site access, as required under his employment contract.

• [160] I have already noted that the circumstances in which Aurelia could remove an employee from its site are not referred to in Mr Quayle's contract and there is no evidence before me that Redpath had made Mr Quayle aware of these circumstances.

• [161] Further, I have found that Mr Quayle was unaware the Redpath and Aurelia had any concerns about his performance or attendance until he was advised on 11 September 2024 that Redpath was considering terminating his employment. In these circumstances, it is difficult for me to understand what actions Redpath expected Mr Quayle to take to maintain his site access. For this reason, I will not discount the compensation awarded for the reasons advanced by Redpath.

How is the amount of compensation to be calculated?

[t]he well-established approach to the assessment of compensation under s.392 of the FW Act... is to apply the "Sprigg formula" derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[78] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[79].[80]

• [163] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination. Workers' compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

• [164] I have estimated the remuneration Mr Quayle would have received, or would have been likely to have received, if Redpath had not terminated the employment, to be $78,624 on the basis of my finding that Mr Quayle would likely have remained in employment until 12 March 2025. This estimate of how long Mr Quayle would have remained in employment is the 'anticipated period of employment'.[81]

• [165] I have found that the amount of remuneration earned by Mr Quayle from the date of dismissal was $60,432.

• [166] Only monies earned since termination for the anticipated period of employment are to be deducted.[82] I therefore deduct the sum of $60,432 from $78,624 which leaves an amount of $18,192.

• [167] I now need to consider the impact of contingencies on the amounts likely to be earned by Mr Quayle for the remainder of the anticipated period of employment.[83]

• [168] There is no evidence before me which establishes the occurrence of contingencies which might have brought about some change in earning capacity or earnings by Mr Quayle during the anticipated period of employment. I therefore do not consider there to be any evidentiary basis or that it is otherwise appropriate to deduct any amount for contingencies.

• [169] I have considered the impact of taxation but have elected to settle a gross amount of $18,192 and leave taxation for determination. As a large portion of the amount is in respect of reimbursement of travel expenses, it may be that no taxation is payable on that portion.

• [170] Having applied the formula in Sprigg, I am nevertheless required to ensure that 'the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,'[84] including my findings that:

• It is likely that Mr Quayle would have remained employed by Redpath until 12 March 2025 if he had not been dismissed;

• Mr Quayle has taken steps to mitigate his loss by obtaining alternative employment; and

• Mr Quayle is currently earning less than he would if he was still employed by Redpath and is incurring travel expenses each fortnight that he travels to and from work.

• [171] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act and that it does not include a component compensating for shock, distress and humiliation.

Is the amount of compensation to be reduced on account of misconduct?

• [172] If I am satisfied that misconduct of Mr Quayle contributed to the employer's decision to dismiss_,_ I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.

• [173] I am satisfied that misconduct of Mr Quayle did not contribute to the employer's decision to dismiss. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.

• [174] Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(a) the amount worked out under section 392(6); and

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

• [175] The amount worked out under section 392(6) is the total of the following amounts:

(i) received by Mr Quayle; or

(ii) to which Mr Quayle was entitled;

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

(b) if Mr Quayle 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 Mr Quayle for the period of leave in accordance with the regulations.

• [176] Mr Quayle was not on leave without pay or without full pay during the 26 weeks immediately before the dismissal.

• [177] Based on the evidence of Mr Quayle, I find that the total amount of the remuneration received by Mr Quayle during the 26 weeks immediately before the dismissal was $78,624. This is less than half the high income threshold which applied immediately before the dismissal.[85] The amount of compensation ordered by the Commission must therefore not exceed $78,624. I have determined the amount of compensation as $18,192 gross plus superannuation on any portion of that amount which is ordinary time earnings, which is below this amount.

• [178] I have found that Mr Quayle's dismissal was harsh and unreasonable for reasons which include that Mr Quayle was deprived of an opportunity to address performance and conduct issues and avoid revocation of his site clearance because Redpath failed to notify Mr Quayle of its concerns when these issues first arose and to manage these in accordance with the Disciplinary Procedure, contract of employment and Enterprise Agreement. I have also found that there was no basis for Redpath to label Mr Quayle's actions as 'misconduct' then 'serious misconduct' and to summarily dismiss Mr Quayle.

• [179] I have determined that an order for compensation is appropriate, and that Redpath should pay compensation to Mr Quayle in the sum of $18,192 gross plus superannuation on any portion of that amount which is ordinary time earnings less taxation as required by law in lieu of reinstatement within 14 days of the date of this decision.

• [180] An order giving effect to this decision has been separately issued in PR785109.

Mr D. Garan, legal representative from Berrigan Doube Lawyers, for the Applicant

[1] Witness Statement of Ricki John Quayle dated 19 November 2024 [19]-[21], Digital Hearing Book (DHB) 25

[3] Witness Statement of Thomas Howard dated 3 December 2024 [7], DHB 107

[8] Witness Statement of Mitch Gowland dated 3 December 2024 [6], DHB 78

[15] Witness Statement of Nick Staite dated 3 December 2024 [6]-[8], DHB 94

[22] Witness Statement of Ricki John Quayle dated 19 November 2024 [5], DHB 22

[23] Witness Statement of Mitch Gowland dated 3 December 2024 [12], DHB 79

[26] Witness Statement of Mitch Gowland dated 3 December 2024 [17], DHB 79

[28] Witness Statement of Mitch Gowland dated 3 December 2024 [20], DHB 80

[29] Witness Statement of Thomas Howard dated 3 December 2024 [18]-[23], DHB 108-109

[30] Witness Statement of Ricki John Quayle dated 19 November 2024 [9], DHB 23

[36] Witness Statement of Nick Staite dated 3 December 2024 [35]-[36], DHB 96-97

[37] Witness Statement of Thomas Howard dated 3 December 2024 [29], DHB 109

[38] Witness Statement of Ricki John Quayle dated 19 November 2024 [16]-[17], DHB 24

[40] Witness Statement of Thomas Howard dated 3 December 2024 [33]-[34], DHB 109

[51] 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].

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

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

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

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

[57] MM Cables (A Division of Metal Manufacturers Limited) v Zammit (Print S8106, 17 July 2000), [42]; recently applied in Pecker Maroo Verano Pty Ltd v Linda Margaret Stevens, Matthew Kenneth Stevens [2024] FWCFB 147, [61]

[58] [2020] FWCFB 6046

[62] [2016] FWC 2278

[63] [2016] FWCFB 5243

[64] [2017] FWCFB 1714

[65] [2016] FWCFB 5243, [37]

[67] [2017] FWCFB 1714, [41]

[69] [2016] FWC 925 [65]-[73]

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

[72] 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].

[73] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

[74] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

[75] He v Lewin [2004] FCAFC 161, [58].

[76] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

[77] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

[78] [1998] AIRC 989; (1998) 88 IR 21.

[79] [2013] FWCFB 431.

[80] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].

[81] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].

[83] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].

[84] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].

[85] The high income threshold which applied immediately before the dismissal was $175,000.

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