(e) There is no basis whatsoever on the evidence to find that the Respondent's actions in raising Allegation 2 with the Applicant occurred because of his union membership, role as a union delegate, attendance at bargaining meetings, him raising safety issues in the past, him being disliked or targeted by Mr Arefin, him making a complaint to Mr Akhter, or for reasons of differential treatment. Indeed, it would have been wrongful for the Respondent, having regard to its non-transferrable obligations under Divisions 1 to 4 of the WHS Act, to not raise Allegation 2 with the Applicant; and

(f) Allegation 2 is a serious safety breach that falls directly at the feet of the Applicant. It is, in and of itself, a valid and stand-alone reason for the Applicant's dismissal.

Allegation 3: Recording of employees handling freight contrary to policy[93]

• [52] The Respondent's workplace is a secure facility, and subject to video monitoring and recording. There is no basis for employees to be taking video or photographs of the workplace, or other workers working at the workplace, for any reason. If there is a genuine safety or other concern about something occurring in the Respondent's workplace, it can be brought to the Respondent's attention, with video recordings obtained via the Respondent's video recording system.[94]

• [53] I reject the Applicant's contention that he was videoing or photographing employees handling freight for reasons of safety, whether that be to report such safety concerns to management, raise them at a consultative meeting, or to otherwise improve safety at the workplace. The Applicant made no report to management about any alleged 'safety' incident on 10 December 2024, and has not shown videos or photographs of safety issues at the workplace previously to management.[95]

• [54] I accept the following evidence of Mr Arvind Kumar as to Allegation 3:

"17. Towards the end of my shift that same evening at approximately 10:30PM, I was sorting the remaining afternoon freight with 6 or 7 other afternoon shift team members. We were sorting it between interstate and local freight. We had moved the freight outside, up against the wall of the facility, as the night shift team had moved into the facility and were setting up for their shift. This is a regular occurrence for us. We do this on most shifts to allow night shift to set up for their shift and allow afternoon shift to finish sorting the remaining freight.

18. We were sorting the freight together as a team when Mr Kumar came out and asked me what we were doing. I responded to Mr Kumar with words to the effect of "we are trying to sort all of the remaining freight so that night shift only induct their freight, not our freight from the afternoon shift". Mr Kumar laughed and said something like: "don't waste your time, it is the night shift's duty". We continued to sort through the freight despite Mr Kumar's comment and that is when I saw Mr Kumar take out his phone and started videoing us.

19. I didn't feel comfortable being videoed without my consent. Shortly after I saw a team member from night shift team whose name I do not know, approach Mr Kumar and ask him why he was videoing us. Shortly after this interaction, Mr Kumar stopped videoing us.

20. There was no reason to film us. We were emptying the remaining freight as we usually would and so I do not understand why Mr Kumar would be filming us. It is common knowledge that you are not allowed to film in the facility."[96]

• [55] Consistent with the evidence of Mr Arvind Kumar, I find that the Applicant was engaging in the conduct set out in Allegation 3 because he took it upon himself, or felt entitled, to make an issue of employees sorting freight at the end of their shift because he did not consider that such employees should have been sorting such freight (and engaging in useful and productive work) close to the end of their shift.[97] Despite the Applicant's assertions as to the reasons for, or purpose of, him taking photos or video recordings of other employees in the workplace, such reasons or purpose are not to the point. The Applicant was not authorised to be taking photos or video recordings of other employees in the workplace, full stop.[98] His actions in doing so are a clear and blatant breach of the Respondent's workplace policies and procedures.

• [56] Again, even if it be accepted that Allegation 3, in and of itself, is not a valid reason that justifies the Applicant's dismissal, this is not to the point. I find that Allegation 3 is a valid reason for dismissal because of the Applicant's wrongful attempts to justify his conduct (including breach of policy) on the basis of 'safety'.

Summary of findings in relation to 'valid reason' for dismissal

• [57] Having regard to my findings in relation to Allegations 1 to 3, on the issue of 'valid reason' for dismissal, I conclude that:

(a) each of Allegations 1, 2 and 3 are separately, or in and of themselves, valid reasons for dismissal;

(b) combined, Allegations 1 to 3 are valid reasons for dismissal;

(c) Allegations 1 and 3, in terms of being valid reasons for dismissal, are more about the Applicant's responses to his conduct, as opposed to the conduct itself; and

(d) Allegation 2, in term of being a valid reason for dismissal, is as much about the conduct itself, as it is the Applicant's responses to or explanations for that conduct.

• [58] Given that the Respondent did have valid reasons for dismissing the Applicant, this weighs against a finding that the Applicant's dismissal was harsh, unjust, and unreasonable (i.e. unfair).

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

• [59] 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.

• [60] Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a) of the Act.[99] 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,[100] in explicit, plain and clear terms.[101]

• [61] I accept that the evidence discloses that the Applicant was notified of the reasons for his dismissal, and given an opportunity to respond to same. 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

• [62] 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 their conduct so as to enable them to respond to the allegations, and have the opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra:[102]

"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."

• [63] I accept that (on the evidence) the Applicant was made aware of the Allegations that were being made against him, and was provided with an opportunity respond to (and defend himself against) such allegations prior to the decision being made by the Respondent to terminate his employment. I find that the Respondent followed a procedurally fair show cause process in the lead up to making its decision to dismiss the Applicant.[103] I also find that the Respondent did not make a definite decision to dismiss the Applicant prior to first obtaining relevant responses from him, and taking those responses into account.[104]

• [64] I reject the Applicant's contention that his responses to the Allegations put to him during the disciplinary process leading up to his dismissal, are to be differentiated from the conduct that he engaged in (giving rise to the Allegations). The Respondent's ultimate conclusion was that the Applicant had not only engaged in the conduct alleged, but that his responses to that conduct were unacceptable (and he showed no genuine responsibility or remorse for his behaviour).[105] The Applicant had an opportunity to respond to the conduct allegations made against him. His responses to that conduct are directly relevant to the decision made to terminate the Applicant's employment. From a factual perspective, I observe that:

(a) at the hearing, the Applicant maintained and relied upon the same responses he gave at the 20 December Meeting; and

(b) the Show Cause Letter itself identifies the Respondent's "Minimum Standards" as to "ethics" that the Applicant needed to engage with in making his Show Cause Response.[106]

• [65] 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

• [66] The Applicant was provided with the opportunity to have a support person present during discussions relating to his dismissal. He was represented by the TWU throughout 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

• [67] This case does not involve unsatisfactory performance, but dismissal because of conduct. 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))

• [68] 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 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

• [69] The Applicant has raised the following matters as "other relevant matters" to be considered by the Commission when determining whether his dismissal was harsh, unjust or unreasonable:

(a) his age (55 years), and limited skillset, giving rise to limited job prospects, and difficulty in obtaining future employment;

(b) his length of service with the Respondent (12 years);

(c) his previous employment on a labour hire basis with the Respondent between 2004 and 2013;

(e) the deleterious financial impact upon him, and his family (including as to the Applicant being the sole "bread winner", and his wife's illness and treatment needs);

(f) the psychological impact of the dismissal upon him;

(g) his differential treatment as compared to other employees who have engaged in similar behaviour or acts of misconduct; and

(h) the sanction of dismissal being disproportionate to the gravity of the Applicant's conduct.[107]

• [70] I have had regard to and taken into account the matters set out in sub-paragraphs (a) to (f) of the foregoing paragraph. I do not consider these matters, in the facts and circumstances of this case, to weigh against a finding that the Applicant's dismissal was harsh, unjust, and/or unreasonable.[108] I do not accept that subparagraph (g) (as to differential treatment) has been made out on the evidence, or that the comparisons made are 'like for like' comparisons.[109] Nor do I accept, having regard to the findings I have made in relation to Allegations 1 to 3, that the sanction of dismissal was disproportionate to the Applicant's conduct.

• [71] For completeness, it is also appropriate to squarely engage with the Applicant's contention that he was singled out, targeted, or treated differently or unfairly because he:

(a) raised concerns with Mr Arefin (about Mr Arefin's treatment of him) on 10 December 2024;

(b) raised concerns with Mr Akhter, Mr Arefin's treatment of him, on 10 December 2024; and/or

(c) was a TWU member and delegate (and participated in enterprise bargaining meetings).

• [72] In my view, there is no evidential foundation to support the foregoing contentions of the Applicant.[110] None of these contentions explain why the Applicant engaged in the conduct that he did on 10 December 2024. Mr Duck was the ultimate (and sole) decision-maker who made the determination to dismiss the Applicant,[111] and there is no evidence to suggest that Mr Duck's decision-making process (or his ultimate decision) was infected with any of the Applicant's contentions. Indeed, Mr Duck was not asked during cross-examination about the Applicant's union status or activities impacting upon his decision to dismiss the Applicant. Mr Arefin considered it necessary (especially due to the pallet jack incident) to report the Applicant's conduct on 10 December 2024 to Mr Akhter (including to find out if he needed to report the conduct to anyone else in the business).[112] This is wholly unextraordinary. The Respondent considered the veracity of the Applicant's contentions as to his treatment prior to dismissing him, and found them to be baseless.[113] I agree with the Respondent's conclusions in this regard.

• [73] All in all, I find that the "others matters" raised by the Applicant under s.387(h) of the Act are neutral considerations, that weigh neither for nor against any finding as to unfairness.

• [74] 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.[114]

• [75] 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 in favour of a finding that the Applicant's dismissal was harsh, unjust and unreasonable; and

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

• [76] 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).

• [77] Section 381 of the Act is a significant overarching object of Part 3-2 of the Act. It is expressed as follows:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in Re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95."

• [78] In my view, the outcome in this case is consistent with the object of Part 3-2 of the Act, particularly s.380(1)(a).

• [79] I will issue an order [PR792202] dismissing the Applicant's unfair dismissal application, which will be published contemporaneously with this decision.

Ms Isabella Wisniewska, Legal Officer at the Transport Workers' Union of Australia, appeared for Mr Vixon Kumar (Applicant).

Mr Adam Batagello, Partner, Lander and Rogers lawyers, appeared (with permission) for Star Track Express Pty Limited (Respondent).

[1] Duck Statement, at [32], Digital Hearing Book (or Court Book) (CB), p.247.

[2] CB, p.270. The reason for this appears to be for security and customer requirements. For example, Apple has a concern that if its goods (or the delivery details of those goods) are compromised via video or photograph, it may open up avenues for criminal behaviour.

[3] Vixon Kumar Statement, 8 April 2025, at [27]-[46], and [113].

[4] Applicant's Submissions in Reply, 6 May 2025, at [38]. CB, p. 284.

[8] Ibid. Note: A further allegation was raised, but later not pressed by the Respondent, due to the Respondent finding it did not breach any of the company's policies and procedures: Duck Statement, Annexure JD-2; CB, pp.216 and 250. Allegation 3 is referred to in the evidence filed by the parties as Allegation 4. I reject the Applicant's contentions surrounding any asserted 'imprecision' in the Allegations made by the Respondent against him. The Applicant was being asked to respond to his conduct on 10 December 2024, which is set out in video footage that was viewed by the Applicant himself. The outcome of this case does not rise or fall based upon the manner in which the Allegation 1 to 3 were drafted or framed. The 20 December 2024 Meeting went for around three hours. If there was any issue or concern as to the manner in which the Allegations were drafted or framed, there was more than ample time and opportunity for the Applicant to clarify things.

[9] Duck Statement, Annexure JD-4. CB, pp.258-262.

[11] Duck Statement, Annexure JD-2; CB, p.250.

[13] Vixon Kumar Statement, at [152]-[155]. CB, p.97.

[14] Termination Letter dated 28 January 2025. CB, pp.58-60. Note: The Respondent determined that the Applicant's misconduct amounted to a breach/es of its policies and procedures. CB, pp.198-202, and 264.

[15] When a decision-maker makes findings of credit concerning a witness, elaborate detail for such findings are not required, and a detailed explanation for a decision to prefer the evidence of one witness over that of another is not required: Sweeney v He [2023] NSWCA 68, at [182] per Brereton JA, applying Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

[16] [2018] FCCA 933.

[17] Ibid, at [19]-[23], footnotes omitted.

[18] (1964) 38 ALJR 293.

[20] 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.

[21] 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).

[22] 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).

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

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

[25] 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].

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

[27] Applicant's Closing Submissions, 4 June 2025, at [3]-[11]. Respondent's Closing Submissions, 18 June 2025, at [18]-[23]. Applicant's Closing Reply Submissions, 25 June 2025, at [17]-[21].

[28] Arefin Statement, at [16]-[20], CB, p.231, and [33]-[36], CB, p.233. See also CB, pp.234-235.

[29] Mr Rawal was not a "floater" on 10 December 2024. He had been directed to work on the blue cages. Transcript, PN718-PN723. In any event, whether or not Mr Rawal was or was not a floater on 10 December 2024 is of no real significance given that he had been directed (by his supervisor) to work on blue cages. See also, Arefin Statement, at [16]-[20], CB, p.231, and Respondent's Closing Submissions, 18 June 2025, at [14].

[30] Arefin Statement, at [16]-[20], CB, p.231.

[31] Ibid, at [21]-[23], CB, p.232.

[33] Ibid, p.236. Transcript, PN690-PN699.

[34] Being Arefin Statement, at [16]-[20], CB, p.231, and at [21]-[23], CB, p.232, and Transcript, PN690-PN699.

[37] Applicant Statement, at [121]-[125]. CB, p.95.

[38] Applicant Reply Statement, at [19], and [30]-[32]. CB, p.287-288.

[39] Applicant's Submissions, at [29]. CB, p.81. See also Applicant's Closing Submissions, 4 June 2025, at [3]-[11].

[40] Applicant's Reply Submissions, at [2]-[16]. CB, pp.279-280. See also Applicant's Closing Reply Submissions, 25 June 2025, at [14]-[21].

[41] Transcript, PN89, PN91, PN123, and PN131-PN132.

[42] Ibid, Transcript, PN106-PN107. See also, PN120.

[43] Ibid, PN150, PN153, PN165, PN168 and PN173.

[47] Arefin Statement, at [21]-[23], CB, p.232.

[48] Duck Statement, Exhibit 2 (video footage of throwing freight incident) of Exhibit R1.

[49] Transcript, PN150-PN153, and PN165.

[50] Ibid, PN728-PN732, PN738-PN740, PN781-PN782, and PN839.

[51] See Respondent's Closing Submissions, 18 June 2025, at [20(b)-(d)].

[52] Arvind Kumar Statement, at [12]-[13]. CB, p.272. Mr Arvind Kumar was a Team Leader on the 10 December 2024 afternoon shift (he was not a floater on that shift); Transcript, PN803-PN806. See also, Transcript, PN837-PN840.

[53] Arefin Statement, at [21], CB, p.232, and first paragraph of p.235 "noise could be heard from 100 [metres] away".

[54] Transcript, PN492, and PN781-PN782.

[57] Transcript, PN488-PN494, and PN600-PN606,

[59] Ibid, PN619, PN621, and PN780-PN782.

[60] Duck Statement, at [10]-[14] "my intended approach [to Allegation 1] changed". CB, p.243.

[61] Respondent's Closing Submissions, 18 June 2025, at [13].

[62] See also Applicant's Closing Reply Submissions, 25 June 2025, at [9].

[63] Applicant's Closing Submissions, 4 June 2025, at [12]-[22]. Respondent's Closing Submissions, 18 June 2025, at [24]-[30]. Applicant's Closing Reply Submissions, 25 June 2025, at [22]-[28].

[64] Transcript, PN292. Duck Statement, at [26]-[27]. CB, pp.246-247.

[65] CB, p.263. Duck Statement, at [15(b)]. CB, p.243.

[67] Mr Duck's evidence is that these principles encompass the statement "What's in your hand?": Transcript, PN622.

[69] Duck Statement, at [15(c)], CB, p.244. See also CB, p.264: "Plan your work".

[72] CB, pp.266-269. Duck Statement, at [26]-[27], and [29]. CB, pp.246-247.

[73] Transcript, PN254, PN257 and PN320.

[74] Ibid, PN614. See also PN554, PN622-PN623, and PN749.

[76] The Applicant himself accepts this: Transcript, PN272 and PN277.

[78] Arvind Kumar Statement, at [15]-[16], CB, p.272.

[79] Arefin Statement, at [24]-[26], CB, p.232.

[80] Lemalu Statement, at [10], CB, p.276.

[81] Compare, Applicant's Submissions, 4 June 2025, at [16]-[17].

[82] Note ss.12A and 14 of the Work, Health and Safety Act 2011 (NSW),

[83] Applicant Statement, at [126]-[132], CB, pp.95-96. Applicant's Show Cause Response, CB, pp.71-73. Applicant Reply Statement, CB, pp.285-290. Transcript, PN182-PN183, PN217, PN287-PN328.

[87] Applicant Reply Statement, at [37], CB, p.288.

[88] Ibid, at [34], CB, p.288. Transcript, PN182-PN183, PN217, PN287-PN328.

[89] Duck Statement, at [23]-[25], [30]-[31], [34] and [38], CB, pp.245-248.

[90] Duck Statement, Exhibit 1 (video recording of pallet jack incident) of Exhibit R1.

[91] Applicant's Show Cause Response, CB, p.71 (last paragraph).

[92] Transcript, PN612-PN613, and PN778.

[93] Applicant's Closing Submissions, 4 June 2025, at [23]-[27]. Respondent's Closing Submissions, 18 June 2025, at [31]-[35]. Applicant's Closing Reply Submissions, 25 June 2025, at [29]-[31].

[94] Duck Statement, at [33]. CB, p.248.

[95] Ibid, at [32]. CB, p.247. The fact that Mr Duck did not attend all consultative meetings is not to the point. The Applicant himself produced not documentary evidence that he had previously shown videos or photos to management, or shown them at consultative meetings.

[96] Arvind Kumar Statement, at [17]-[20], CB, pp.272-273.

[97] Daniel Dewildt Statement, at [9], CB, p.239.

[99] 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.

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

[101] 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].

[102] [1996] IRCA 568.

[103] Duck Statement, at [10]-[22]. CB, pp.243-245.

[105] Applicant's Submissions, 4 June 2025, at [15] and [21].

[107] Transcript, PN25-PN27. Applicant's Submissions, at [38]-[42], CB, pp.82-83. Applicant Statement, at [1]-[26], CB, pp.86-88.

[108] I note that this is the same conclusion that the Respondent arrived at when making its decision to dismiss the Applicant: see Termination Letter dated 28 January 2025, CB, pp.58-60.

[109] Duck Statement, at [34]-[38]. CB, p.248. See also paragraphs [42] and [51(e)] of this decision, which I also apply for the purposes of s.387(h).

[110] Transcript, PN528-PN530, PN677-PN687, PN694-PN717, and PN764-PN766, PN774

[112] The fact that the Applicant also contacted Mr Javid Akhter, Star Track Production Supervisor, to complain about Mr Arefin does not sustain the Applicant's contention that Mr Arefin was harassing him. Indeed, the Applicant's contact with Mr Akhter came after the Applicant had engaged in the conduct giving rise to Allegations 1 and 2 (which the Applicant fails to make mention of or otherwise acknowledge in his evidence: Applicant Statement, at [56]-[65]). It is also noted that there is no evidence that Mr Arefin was aware that the Applicant had made a complaint about him, before Mr Arefin (himself) reported the Applicant's conduct to Mr Ahkter.

[113] See Termination Letter. CB, pp.58-60.

[114] 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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