s.394 - Unfair dismissal

Application for an unfair dismissal remedy - where dismissal due to applicant's incapacity to perform the inherent requirements of his role - employer is a specialist maintenance contractor - applicant worked for employer's client on the client's site - employer's client removed the applicant's site clearance due to the applicant's unsafe conduct in carpark - ordinary principles applied - valid reason for dismissal - no alternative work for applicant - procedural fairness present - no unfairness in dismissal - application dismissed

• [1] Mr Samuel Panebianco (Applicant) has filed an unfair dismissal application (Application) with the Fair Work Commission (Commission) alleging that he was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by his employer, Kalmar Equipment (Australia) Pty Ltd (Respondent).

• [2] The Respondent denies that it unfairly dismissed the Applicant. Rather, it says that the Applicant was dismissed because he could no longer fulfil the inherent requirements of his job, in that:

a) the Applicant was prohibited from accessing or attending upon the workplace of the Respondent's client (Patricks) at the Patricks' Terminal Site (PTS) in Port Botany, Sydney, New South Wales (where the Applicant was employed to work); and

b) the Respondent had no other suitable and available roles (or work) to transfer the Applicant to perform at another workplace or worksite.

• [3] The decision to deny the Applicant access to the PTS was made by Patricks (as client of the Respondent, and occupier of the PTS), after Patricks became aware of the Applicant being involved in (or initiating) two dangerous driving incidents in the public carpark next to the PTS (utilised by persons who attend upon the PTS, including for work).

• [4] A hearing was conducted to resolve whether or not the Applicant was unfairly dismissed. At the hearing, Mr Kirk Bond, National Legal Officer, of the Maritime Union of Australia (MUA) appeared for the Applicant, and Mr Andrew Denton, of Counsel, instructed by Mr Chris Gardner, Partner, and Ms Emma Tullberg, Senior Associate, Seyfarth Shaw lawyers, appeared with permission on behalf of the Respondent.

• [5] For the purposes of this decision, I make the factual findings set out in paragraphs [6] to [22] below.[1]

• [6] The Respondent is a provider of cargo handling solutions and services to ports, terminals, distribution centres, and heavy industry across Australia, New Zealand, and the South Pacific region. Its service offering includes the on-going maintenance and upkeep of the Respondent's proprietary equipment that is used by its clients. Such maintenance services are performed by the Respondent's direct employees, either as part of the Respondent's mobile workforce (based out of sites across Australia, travelling to customer workplaces), or by workers based onsite at a customer site (performing specialist maintenance and equipment upkeep at that specific customer site only). The Applicant was of the latter categorisation of employee, and worked (and was based solely) at the PTS.

• [7] The PTS is leased to Patricks by Port Botany Lessor Pty Limited under a fixed term lease that is set to expire in the year 2043. Based upon the evidence, I find that Patricks is the lawful occupier of the PTS, and has full management and control of the PTS. In this regard, Patricks has ultimate legal authority to decide who is, or who is not, or who continues to be, granted access to the PTS. Patricks is lawfully able to refuse or revoke access rights to the PTS of any person, at any time, and for any reason.[2] On the evidence before me, any contract (written or unwritten) between the Respondent and Patricks does not alter Patricks' position (i.e. as it concerns Patricks' right to exclude any person (including a person employed by the Respondent) for any reason from the PTS).[3]

• [8] Pursuant to legislation,[4] the PTS (located at an Australian International Shipping Port) is also classified as a secure facility, and has extensive security measures in place. Some of these security measures include:

a) access to the PTS is only able to occur via a security gate to the PTS, which requires either a pre-authorised valid Patricks' issued access card, or a formal sign in (whereby Patricks' security checks and authorises access, and escorts the individual through or around the PTS);

b) PTS attendees (who are not escorted) must hold a valid Maritime Security Identification Card (MSIC) to enter the PTS;[5] and

1. Patricks security monitor the PTS 24/7 (including via CCTV).[6] This extends to CCTV monitoring of the public carpark located next to the PTS.

• [9] The Applicant was employed by the Respondent as an Electrical Technician to work at the PTS, commencing on 3 January 2022, and ending on 23 August 2024 (when his employment was terminated). In his role, the Applicant was charged with performing specialist repair and maintenance on straddle carriers (i.e. large pieces of mechanical equipment) at the PTS.[7]

• [10] The public carpark (located next to the PTS) is monitored by Patricks, and used by persons working at the PTS.[8] The Applicant does not dispute that the carpark is a relevant workplace, or place of work.[9]

• [11] On 5 July 2024, an employee of the Respondent (Complainant) made a complaint against the Applicant, alleging that the Applicant had been driving carelessly/dangerously/aggressively (on two occasions) in the carpark (Complaint). These incidents were alleged to have taken place on 28 May 2024, and 3 July 2024 (Driving Incidents).

• [12] Following the Complaint, the Respondent obtained CCTV footage of the carpark (from Patricks) in respect of the dates of the alleged Driving Incidents. This CCTV footage clearly shows that:

a) on 28 May 2024, the Applicant got into his vehicle (a white Toyota Hilux) and accelerated through the carpark across various unoccupied parking bays, and cut off the Complainant's vehicle (a maroon hatchback), as well as another ute;

1. parked his vehicle in a parking bay marked as 'disabled' for the entirety of his shift; and

1. got into his vehicle (with another employee in the car with him) and drove on the wrong side of the road in the carpark, and reversed at speed towards the Complainant's car.[10]

• [13] On 9 July 2024, the Applicant was suspended on full pay pending the outcome of an investigation by the Respondent into the Driving Incidents (and the Complaint).

• [14] On 22 July 2024, having become aware of the Driving Incidents, Patricks informed the Respondent that it had revoked the Applicant's access to the PTS until further notice.[11]

• [15] The Respondent's investigation into the Driving Incidents found that the allegations of careless/dangerous/aggressive (made against the Applicant) were substantiated. On 26 July 2024, the Applicant was issued with a written warning in relation to the Driving Incidents, including a do not do this again directive). The Respondent thereafter informed the Applicant and Patricks that the Applicant would be returning to work on 5 August 2024 (with a warning to the Applicant constituting the outcome (and the ending) of the Respondent's investigation into the Applicant's conduct). I note that the Applicant agreed that he had engaged in Driving Incidents, and put forward various matters in mitigation of his conduct. In other words, there is no dispute that the Applicant did engage in careless/dangerous/aggressive driving in the carpark on 28 May 2024 and 3 July 2024. Nor is there any dispute that a lawful, and procedurally fair, investigation and disciplinary process was followed by the Respondent prior to issuing the Applicant with a warning about the Driving Incidents.

• [16] On 1 August 2024, Patricks wrote to the Respondent, advising it that the Applicant was no longer welcome at the PTS, and that he was no longer approved by Patricks to step foot on the PTS again, effective immediately (Patricks' Prohibition Notice).[12] In short, Patricks considered that the Applicant had engaged in a pattern of unsafe behaviour which justified Patricks (including from an on-going risk elimination perspective) in removing the approval for the Applicant to enter or otherwise access the PTS.[13] Patricks' position in this regard, as occupier of the PRS, was final.

• [17] The Respondent advised the Applicant on 2 and 3 August 2024 that in its preliminary view, based upon Patricks' Prohibition Notice, he is (and would be) unable to perform the inherent requirements of his role given he was no longer able to access the PTS.

• [18] On 5 August 2024, the Applicant attended a meeting with the Respondent to consider his redeployment options, however, it was resolved that no suitable redeployment options existed.[14] The Applicant did not identify any 'specific' suitable and available redeployment options (that existed at or around the time of his dismissal) in his evidence before the Commission.

• [19] On 16 August 2024, the Respondent sent the Applicant a show cause letter (Show Cause Letter), advising him that the Respondent was considering terminating his employment on the basis that:

a) he had been refused entry to the PTS (occupied and controlled by Patricks) to perform his job;

b) the Respondent had made efforts to have Patricks reverse its decision (to deny him entry to the PTS), but Patricks had advised that it would not be reversing its decision under any circumstances;

1. his employment had become frustrated by virtue of him being unable to fulfil the inherent requirements of his job (i.e. to attend upon (or be authorised by Patricks to attend upon) the PTS to perform his work); and

d) suitable redeployment options had been considered by the Respondent, and were either not available, or not viable.

• [20] The Applicant was invited to respond in writing to the Show Cause Letter, including to each and every point set out in subparagraphs (a) to (d) of the foregoing paragraph. The MUA provided a reply (on the Applicant's instructions) on 20 August 2024.

• [21] Having considered the Applicant's response, the Respondent determined that none of the matters raised by the Applicant changed (in any way) the position set out in the Show Cause Letter. Further, there was nothing further that the Applicant could meaningfully add to his circumstances.[15]

• [22] The Respondent terminated the Applicant's employment on 23 August 2024, for the reason that, due to Patricks' Prohibition Notice, the Applicant could not perform the inherent requirements of his role, and no suitable alternative roles were available. The Applicant was paid three weeks' pay in lieu of notice. The Applicant had also been on full pay from 9 July 2024 (when he was first suspended) until his termination date of 23 August 2024.

• [23] I adopt the following Hornbrook law principles in relation to an 'occupier' of premises:

a) an occupier of premises (or land) has possession, and ultimate custody and control, of such premises (Donaldson v Bottroff [1965] SASR 145; Wheat v E Lacon & Co Ltd [1966] UKHL 1; [1966] AC 552);

b) occupation does not require ownership, i.e. a lease or license grants occupation in the same way that ownership does (Bulong v Cohn [1901] WALawRp 13; [1901] 3 WALR 74);

1. an occupier's control of premises necessarily includes the lawful ability to exclude (for whatever reason) others from entry or access to the premises (R v Fox [1986] 2 Qd R 402; R v Tao [1976] 3 All ER 65);

d) the legal responsibility of an occupier extends to visitors who have lawfully and unlawfully entered the premises, i.e. the general duty of care of an occupier of premises extends to all classes of entrants onto the premises (Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614). It follows that an occupier can be discerning and strict about who it does, and does not, allow to enter upon or otherwise access its premises; and

e) any change to (a) to (d) above would need the express consent or authorisation of the occupier (in this case Patricks). In other words, absent such express consent or authorisation by the relevant occupier, the position in (a) to (d) above is absolute or unimpeachable.

• [24] Section 385 of the Act qualifies a claim for unfair dismissal:

A person has been unfairly dismissed if the FWC 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

• [25] The parties are not in dispute as to the following:

(a) the unfair dismissal application was made within the period required by s.394(2) of the Act;

(b) the Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act;

(c) the Applicant was "dismissed" by the Respondent within the meaning of s.386 of the Act;

(d) the Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply; and

(e) the Applicant's dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.

• [26] I accept and make findings consistent with the foregoing position of the parties. It follows that the Applicant is an employee protected from unfair dismissal in respect of his employment with the Respondent, and has filed a valid unfair dismissal application.

Whether the Applicant's dismissal was harsh, unjust, and/or unreasonable

• [27] Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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".

• [28] The terms "harsh", unjust" and "unreasonable" are to be given their ordinary meaning.

• [29] An Applicant (employee) carries the onus to prove that his or her dismissal was unfair.

• [30] It is well settled that a statutory requirement to 'have regard to' or 'take into account' requires the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne v Abel:[16]

"Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634."[17]

s.387(a) - Whether there was a valid reason for the Applicant's dismissal which is related to his capacity or conduct

• [31] An employer bears the persuasive onus of establishing or proving that there was a valid reason for an employee's dismissal.[18] The level of proof is on the balance of probabilities, at a reasonable level of satisfaction.[19] The fact that serious allegations are made does not alter the position in civil proceedings that the level of proof is based upon the balance of probabilities.[20]

• [32] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded", and should not be "capricious, fanciful, spiteful or prejudiced".[21] Further, 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.[22]

• [33] Where a dismissal relates to conduct, the reason for the dismissal may be valid because the conduct occurred and justified dismissal. However, the reason may not be valid because the conduct did not occur, or it did occur but did not justify dismissal.[23]

• [34] 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.[24]

• [35] Whilst the Applicant engaged in misconduct in respect of the Driving Incidents, the reason for his dismissal in this case relates to capacity, i.e. the Applicant's capacity (or incapacity) to undertake his job in the face of Patricks' Prohibition Notice.[25]

• [36] For the purposes of this decision, I adopt of the summary of the applicable case law and legal principles set out by Wright DP in the case of Ricki Quayle v Redpath Contract Services Pty Ltd,[26] as follows (footnotes omitted):

"[90] In DA v Baptist Care SA (Baptist Care), 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.

[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. 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.

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

[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. 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.

[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. In that case the Full Bench upheld the Commission's decision at first instance that the dismissal was unfair.

[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 and that the dismissal was unfair."[27]

• [37] Applying the foregoing legal principles to the evidence before me, I make the following ultimate findings:

a) the extent to which the Respondent had the 'right', 'power', or ability to alter or modify the outcome determined by Patricks (per Patricks' Prohibition Notice) was non-existent at law. This issue does not concern Patricks having a contractual right to exclude the Respondent's employees from the PTS. Patricks' right to exclude persons from the PTS arises from it being the legal occupier of the PTS, full stop (see paragraph [23] of this decision);

b) notwithstanding (a), the Respondent endeavoured to have Patricks withdraw the Patricks' Prohibition Notice, which was unambiguously refused by Patricks. This is despite the Respondent conducting an investigation and forming its own view as to the Applicant's misconduct (which the Respondent determined only required a warning);[28]

1. the Respondent had no ability (or capacity) to redeploy the Applicant to another suitable job or role (at a worksite or workplace) outside the PTS. Despite extensive cross-examination of the Respondent's witness on this issue, there was no evidence (or concession) of any actual role that was suitable and available for the Applicant to be redeployed into at or around the time of his dismissal;[29] and

d) in view of (a) to (c) above, the Applicant was treated fairly by the Respondent in terms of the manner in which Patricks' Prohibition Notice was brought to his attention, and otherwise dealt with.

• [38] In view of the foregoing findings, I conclude that the Respondent did have a valid (sound, defensible, or well founded) capacity reason for dismissing the Applicant, and that the criteria under s.387(a) of the Act weighs against a finding that the Applicant's dismissal was harsh, unjust, and/or unreasonable (i.e. unfair).

s.387(b) - Whether the Applicant was notified of the valid reason

• [39] Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant "was notified of that reason" and given an opportunity to respond to same.

• [40] Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a) of the Act.[30] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[31] and in explicit, plain and clear terms.[32]

• [41] Given my finding that there was a valid reason for the Applicant's dismissal which he was notified of as part of the show cause process leading up to his dismissal, I consider that the criteria under s.387(b) of the Act is a neutral consideration that weighs neither for nor against any finding as to unfairness.

s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct

• [42] In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee's conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra:[33]

"the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That... does not constitute an opportunity to defend."[34]

• [43] I accept that (on the evidence) the Applicant had an opportunity to defend himself prior to the decision being made by the Respondent to terminate his employment. He was provided with proper notice of the allegations being made against him, and adequate time to properly prepare his responses (which were made on his behalf by the MUA). Whilst the Respondent was of the view that if the Applicant could not attend upon the PTS it would likely result in the Applicant's termination, this was more pragmatism than pre-judgement. I find (on the evidence) that the Respondent did not make a definite decision to dismiss the Applicant prior to:

a) confirming that the Patricks' Prohibition Notice would not be withdrawn by Patricks;

b) obtaining the Applicant's response to the Show Cause Letter; and

1. determining that the Applicant could not be redeployed.

• [44] I consider that the criteria under s.387(c) of the Act is a neutral consideration that weighs neither for nor against any finding as to unfairness in this case.

s.387(d) - Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal

• [45] The Applicant was represented by the MUA during the dismissal process. I consider that the criteria under s.387(d) of the Act is a neutral consideration that weighs neither for nor against any finding as to unfairness in this case.

s.387(e) - Whether the Applicant was warned about that unsatisfactory performance before his dismissal

• [46] A warning for the purposes of s.387(e) of the Act must clearly identify:

• the areas of deficiency in the employee's performance;
• the assistance or training that might be provided;
• the standards required; and
• a reasonable timeframe within which the employee is required to meet such standards.[35]

• [47] In addition, the warning must "make it clear that the employee's employment is at risk unless the performance issue identified is addressed."[36] In order to constitute a warning for the purposes of s.387(e), it is not sufficient for the employer merely to exhort their employee to improve their performance.[37]

• [48] Ultimately, this case does not involve unsatisfactory performance, but dismissal because the Applicant was denied access to the PTS. I consider that the criteria under s.387(e) of the Act is either an irrelevant or a neutral consideration (that weighs neither for nor against any finding as to unfairness in this case).

The degree to which the size of the Respondent's enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); 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 (s.387(g))

• [49] The Respondent does employ dedicated human resources management specialists. There is no evidence to suggest that the size of the Respondent's enterprise impacted upon the procedures it followed in effecting the Applicant's dismissal. Neither party put forward any substantive or relevant submissions that go directly to either of the criteria under ss.387(f) and (g) of the Act. I consider it appropriate to treat both of the criteria under ss.387(f) and (g) of the Act as neutral considerations in this case (that weigh neither for nor against any finding as to unfairness).

s.387(h) - Any other matters that the Commission considers relevant

• [50] I reject the Applicant's contention in these proceedings that unfairness arises in this case because other employees of the Respondent or Patricks, who have been involved in safety or driving incidents, have or have not been sanctioned or dismissed. This submission is not to the point. This case concerns the denial of site access, as it concerns the Applicant, not comparisons with others.

• [51] Nor does this case give rise to a question of priorities between rights under contracts or other arrangements, as those rights interact with the provision of services by the Respondent to Patricks, and the employment relationship between the Applicant and the Respondent. This is especially so in circumstances where the terms of any contract between the Respondent and Patricks is not in writing (and not before me), and Patricks is the undisputed 'occupier' of the PTS. To put it another way, the Respondent in this case need not advance proof of some form of contractual right by Patricks to do what it has done. Rather, it is for the Applicant to prove that the Hornbrook law principles applying to an occupier do not apply in this case (see paragraph [23] of this decision).

• [52] In his written and oral submissions, the Applicant raised various issues and contentions as to the Respondent failing to fulfill its obligations to the Applicant by not standing up to Patricks. The difficulty with this submission is that the Applicant is not able to point to anything that would have actually had the effect of changing Patricks' position. There is no point in engaging in hypotheticals around if this or that was done, this or that 'might' have been the result. Rather, the test surrounding a submission that an employer should have done 'more' needs to identify an actual result that would have been different, not the possibility that a result could have been different. In this case, there is no evidence that Patricks, as occupier, would have done (or would have been obliged to do, by law or contract) anything different, no matter what action the Respondent took. Further, on the evidence, this is not a case in which the Respondent has had a knee jerk reaction to Patricks' Prohibition Notice, or done nothing (and simply acquiesced) to a third party (i.e. Patricks).

• [53] I concur with the Respondent's submissions that the Applicant's employment history and family circumstances are matters that do not bear any impact upon the fairness of the Applicant's dismissal in this case (i.e. the Applicant was dismissed for capacity, not conduct).[38]

• [54] I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion therein as a fundamental element in determining whether the Applicant's dismissal was harsh, unjust or unreasonable.[39]

• [55] In relation to the criterion set out under s.387 of the Act, I have found that:

(a) the presence of a valid reason for the Applicant's dismissal weighs against a finding that the Applicant's dismissal was harsh, unjust and unreasonable; and

(b) other relevant criterion are either not relevant, or neutral considerations.

• [56] In view of the findings and conclusions set out in this decision, I find that the Applicant's dismissal was not harsh, unjust and unreasonable (i.e. unfair). In coming to this decision, I have taken into account all of the evidence and submissions of the parties, and also had regard to the object stated at s.381(2) of the Act to ensure that a "fair go all round" is accorded. An order (PR788783) dismissing the Application in this case will be issued contemporaneously with this decision.

Mr Kirk Bond, National Legal Officer, of the Maritime Union of Australia (MUA), appeared for Mr Samuel Panebianco (Applicant).

Mr Andrew Denton, of Counsel, instructed by Mr Chris Gardner, Partner, and Ms Emma Tullberg, Senior Associate, Seyfarth Shaw lawyers, appeared with permission on behalf of Kalmar Equipment (Australia) Pty Ltd (Respondent).

[1] In making the factual findings set out in this decision, I adopt and rely upon the aide-mémoires (labelled A, B and C), as handed up by the Respondent at the hearing, containing a chronology and evidentiary references in relation to "The Applicant's Access to the Patricks Port Botany Site", "Kalmar's Internal Investigation", and "Redeployment".

[2] Transcript, PN160 and PN166. See also PN464.

[4] Maritime Transport and Offshore Facilities Security Act 2003 (Cth).

[6] Respondent's Submissions, CB p.36. Scanlan Statement, 19 November 2024, at [14], CB, p.149.

[8] Stapylton Statement, 20 November 2024, at [40]-[42], CB, pp.393-394.

[10] Stapylton Statement, 20 November 2024.

[11] Respondent's Submissions, at [16]-[19], CB, p.37.

[13] Scanlan Statement, 19 November 2024, at [26]-[33], CB, pp.151-152. The Applicant was of course free to continue to attend upon the carpark next to the PTS (as it is a public carpark), but not the PTS itself.

[14] Stapylton Statement, 20 November 2024, at [69]-[90], CB, pp.399-403.

[16] (1964) 38 ALJR 293.

[18] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, at 412; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, at 204.

[19] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at 361-362 (per Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).

[20] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).

[21]Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.

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

[23] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7]; Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092, at [117]; Titan Plant Hire Pty Ltd v Van Malsen [2016] FWCFB 5520, 263 IR 1, at [28].

[24] King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019, Print S4213, at [23] to [24].

[25] Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243, at [25]-[33].

[26] [2025] FWC 702.

[28] Transcript, PN202-PN203, and PN219-PN240; Stapylton Statement, 20 November 2024, at [67]-[90], CB, pp.399-403. Scanlan Statement, 19 November 2024, at [26]-[33], CB, pp.151-152.

[29] Transcript, PN14-PN16, PN63, PN158, and PN380. Stapylton Statement, 20 November 2024, at [67]-[90], CB, pp.399-403. Scanlan Statement, 19 November 2024, at [34]-[37], CB, pp.152-153.

[30] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.

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

[32] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). See also Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), at [41]; Read v Gordon Square Child Care Centre Inc [2013] FWCFB 762 (Acton DP, Deegan C and Gregory C), at [46] to [49].

[33] [1996] IRCA 568.

[35] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, at [32].

[36] Fastidia Pty Ltd v Goodwin, Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), at [43] to [44].

[38] Respondent's Submissions, at [44]-[46], CB, p.41.

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

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