Alistair Byrom v Veris Australia Pty Ltd [2024] FWC 2865

1 Fair Work Act 2009 s.394—Unfair dismissal Alistair Byrom v Veris Australia Pty Ltd (U2023/11279) COMMISSIONER HUNT BRISBANE, 16 OCTOBER 2024 Application for an unfair dismissal remedy – cash jobs performed by subordinate with knowledge of applicant – failure to report conduct – misconduct – employer’s failure to adhere to its policies – lack of procedural fairness – finding of unfair dismissal – pro rata long service leave payable – compensation with reduction for misconduct ordered. [1] On 15 November 2023, Mr Alistair Byrom made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act). Mr Byrom alleged that he was dismissed from Veris Australia Pty Ltd (the Respondent), and that his dismissal was harsh, unjust or unreasonable. [2] In its Form F3 – Employer Response, the Respondent initially objected to the application on account of Mr Byrom’s earnings exceeding the high-income threshold. The Respondent later conceded, and I agree, that Mr Byrom’s employment was covered by the Surveying Award 2020 and therefore he is a person protected from unfair dismissal. [3] The matter was listed for a two-day hearing on 17 April and 18 April 2024. Mr Byrom was granted permission to be represented by Ms Megan Brooks of Counsel, instructed by Mr Matthew Woods of Woods Prince Lawyers. The Respondent was granted permission to be represented by Ms Madeleine Stone of Counsel, instructed by Ms Vishmitha De Alwis of Gadens. [4] The following people gave evidence and were cross-examined: • Mr Byrom; • Ms Alene Conneely, Para-Surveyor; • Mr Michael Zahl, Former Surveyor of the Respondent; • Mr Michael Shirley, Managing Director and Chief Executive Officer; • Mr Michael Howard, Regional Manager – Queensland; and • Ms Sonya Gomes, General Manager People and Culture. [2024] FWC 2865 DECISION -- 1 of 75 -- [2024] FWC 2865 2 Relevant Legislation [5] Section 394 of the Act provides: “394 Application for unfair dismissal remedy (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal. Note 2: For application fees, see section 395. Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part. (2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3). (3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position.” [6] Further, ss.385 and 387 provides as follows: “385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and -- 2 of 75 -- [2024] FWC 2865 3 (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.” “387 Criteria for considering harshness etc. 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.” [7] There are no jurisdictional issues preventing the Commission determining if the dismissal was unfair. The application was made in time. Mr Byrom has been dismissed and has met the minimum employment requirements. The Respondent is not a small business, and the dismissal was not a case of genuine redundancy. Accordingly, it is necessary to determine if the dismissal was unfair having regard to the considerations in s.387 of the Act. -- 3 of 75 -- [2024] FWC 2865 4 EVIDENCE OF THE APPLICANT Evidence of Mr Byrom [8] Mr Byrom holds a Bachelor of Applied Science (Surveying) and a Graduate Diploma in Surveying. His service with the Respondent is recognised from 1 November 2016. He was employed as a Principal Surveyor. [9] His duties included surveying documents on behalf of the Respondent as a registered / cadastral Surveyor or as a delegate of the Respondent. At the time of his dismissal, Mr Byrom’s annual salary was $189,000, exclusive of superannuation. [10] At 5:00pm on 1 November 2023, Mr Byrom was on a phone call when he received two missed calls in quick succession from Mr Michael Howard, Queensland Regional Manager and to whom Mr Byrom reported to. Mr Byrom returned Mr Howard’s call at 5:20pm. Mr Howard requested Mr Byrom attend a meeting at 1:00pm on 2 November 2023 to discuss breaches of the Respondent’s Vehicle Policy by a team member. He asked Mr Byrom if he’d like a support person to attend the meeting with him. [11] Mr Byrom questioned the need for a support person as he rides a scooter and does not have a company vehicle. Mr Byrom sought clarification if Mr Howard meant Mr Byrom might be attending the meeting as a support person for the team member that may have breached the Vehicle Policy. Mr Howard did not directly answer this and said something to the effect that Mr Byrom should consider having a support person. [12] Mr Howard sent Mr Byrom the following text message: “Alistair Also sending text in addition to email to confirm our meeting time for 1:00pm tomorrow in the Board Room to go through some potential issues that look to be a breach of our policies and also to provide you the opportunity, should you wish, to have an external support person with you in the meeting.” [13] Mr Byrom gave the text message no further consideration as at face value, it appeared to confirm their earlier discussion. [14] At 12:45pm on 2 November 2023, Mr Howard entered Mr Byrom’s office and enquired if he was free for a meeting in the Boardroom. Mr Michael Shirley, CEO, and Ms Gomes, General Manager, People and Culture were present in the Boardroom and they presented Mr Byrom with a series of allegations. Benobble allegation [15] It was put to Mr Byrom that Mr Zahl had undertaken a survey for cash and that Mr Byrom had been aware of this survey, including a payment of $300 cash. Mr Byrom responded as follows: -- 4 of 75 -- [2024] FWC 2865 5 • Mr Zahl had undertaken the work for $300 cash, which was now in Mr Byrom’s office drawer. Mr Byrom offered to obtain the money and Mr Shirley said there was no need. • Mr Zahl had informed Mr Byrom that an adjoining owner on the true Benobble job had approached him about confirming the location of his property corners and had offered cash to have Mr Zahl locate any existing pegs. Mr Byrom told Mr Zahl not to do anything until he got back to him. • Mr Byrom then explained that he had discussed this with Mr Howard and that he provided confirmation to the effect that if pegs were there and there was no additional effort required by the Respondent, other than to basically walk past the corners that they were already required to do in respect to the work being undertaken for an adjoining land owner, that a fee of $300 would be appropriate and that if paid in cash, it would be held as a contribution to the “Surveyor’s Social Fund”. • Mr Byrom subsequently phoned Mr Zahl and informed him that he could proceed on that basis. [16] Mr Byrom noted that during the meeting, Mr Howard did not make any comment about his involvement in the matter and the conversation quickly turned to the second allegation. Aralwen (Gympie) allegation [17] It was alleged that Mr Zahl had undertaken a job in the Gympie area over a weekend and had been paid in cash, and that Mr Byrom had then executed a plan as a result of the survey undertaken by Mr Zahl. [18] Mr Byrom responded to the Gympie allegation as follows: • “If it is the one I think you are referring to, it was for [Mr Zahl’s] brother, brother- in-law or a good friend but I could not remember which one”. • Mr Byrom informed the managers present that he was advised by Mr Zahl that it was a job for someone in his family, or who he took to be family, and Mr Byrom treated it like all other family jobs that had been undertaken over the years. • Mr Byrom also referred to the policy providing for a surveyor to undertake a survey in their own time for a family member that any costs incurred by the Respondent are to be suitably invoiced, i.e. his time to execute the plan, the QA process by an independent surveyor and search costs. It was Mr Byrom’s understanding that this is what had occurred in this instance and he had no knowledge that Mr Zahl had received any payment for the job. Nikenbah (Hervey Bay) allegation [19] Management present alleged that Mr Zahl had undertaken work in Hervey Bay for cash. Mr Byrom responded as follows: -- 5 of 75 -- [2024] FWC 2865 6 • His memory was unclear, however he recalled that Mr Zahl was working away but he did not have an exact recollection of the type of job or the client. • He confirmed that Mr Zahl had attended his office some considerable time after the event and had given Mr Byrom an envelope that contained cash. Mr Zahl informed Mr Byrom that he had recently collected the cash from Mr Kevin Jordan, another staff member. Mr Byrom advised that he did not count the money as he had no idea of the agreement which had been made. He placed the money with the other money held in his drawer. [20] Mr Shirley asked if anyone in the office knew about the arrangement or the cash in the drawer. Mr Byrom stated that Mr Zahl knew, as did Mr Howard and Ms Conneely. He stated that Ms Conneely had arranged for two cartons of beer and approximately ten pizzas to be purchased from the monies for a surveyors meeting that had occurred. [21] At about this point, Mr Howard advised that on reflection, he now remembered the discussion he had earlier had with Mr Byrom and was aware of the $300 cash from the Benobble job. [22] Mr Byrom was then asked to leave the room. He returned to his office and continued to work. It appeared to him that Mr Zahl had already left the building. [23] At approximately 1:45pm, Mr Shirley called Mr Byrom back into the meeting room, at which time Mr Howard was not present. Mr Shirely then said that he acknowledged that due to discussions with Mr Howard, “it now appears that we now have three wrongdoers not just two.” Mr Shirley asked Mr Byrom what he thought Mr Shirley should do. Mr Byrom went back through the allegations. [24] In respect of the Benobble allegation, Mr Byrom explained to Mr Shirley and Ms Gomes that he was originally concerned when he first discussed it with Mr Zahl, so he took the matter up with Mr Howard. The approach was agreed and it was executed accordingly. Mr Byrom admitted that the precedent that had been set may be wrong and cannot continue, and it may be appropriate for him to receive a verbal or written warning. [25] In respect of the Gympie allegation, as far as he was aware, it was a family job and undertaken in accordance with a previously adopted approach, i.e. the work undertaken, time being booked and an invoice being raised for costs incurred by the Respondent. Mr Byrom said he was unaware of any monies paid to Mr Zahl for his services and accordingly did not believe there had been any wrongdoing on his own part. [26] In respect of the Hervey Bay allegation, he informed the managers that he had received an envelope containing cash from Mr Zahl some considerable time after what he believed was the date of the incident. He could not immediately remember the details of the situation but acknowledged that this should not have occurred and that the cash received had either been spent at the surveyors meeting or remained in his drawer. -- 6 of 75 -- [2024] FWC 2865 7 [27] Mr Shirley then again requested Mr Byrom leave the meeting. When Mr Byrom returned to his desk at approximately 2:15pm, it became apparent that he had been locked out of the Respondent’s computer system. He spoke with Mr Howard in his office regarding computer access and whether he should approach IT. Mr Howard suggested that he should not as access had been denied. Mr Byrom continued to undertake work tasks which did not require computer access. [28] At approximately 3:00pm, Mr Byrom was again summoned into the Boardroom by Mr Shirley. Mr Shirley informed him that his employment was being terminated and that he should leave the building immediately. Mr Byrom was told there would be no notice period and he would only be paid his entitlements. He was then handed a letter of termination and directed to collect his personal belongings. It was apparent to Mr Byrom that the letter, dated 2 November 2023, had been prepared prior to the commencement of the initial meeting. The letter is produced in full below. “Dear Alistair, I refer to the meeting today between yourself, Michael Howard- Regional Manager, Sonya Gomes – General Manager People and Culture and Michael Shirley – CEO. The purpose of the meeting was to raise the following serious concerns with you and give you the opportunity to respond. • On 21st February 2023 you were copied in an email from M Zahl to an external party Lachlan Wearing regarding survey works to be performed where the payment would be made in cash. The email contained the following “If the marks are present, we can find them and re-stake them for $300 cash.” • On examination of Michael Zahl’s timesheet entries for the following day, Wednesday, 22 February 2023, 11.0 hours of chargeable time only was recorded to sub jobs of Job 402262. Job 402262 is close in proximity to DSK Benobble Heights Estate of which M Zahl was the Project Manager. You approved this timesheet as his Manager. • On 23 February 2023, Lachlan Wearing sent an email requesting advice on the Reconfiguration of Lot process. This enquiry was passed on by email to Greg Connors, Madeleine Benders and Caitlin Sippel as a lead and a Quote (Q044700) was created. In a subsequent email Madeleine Benders replied including CC’ing Greg Connors and Michael Zahl. There is no record of reply, and the quote is indicated as Closed – Lost. • On 26 May 2023, Michael Zahl sent instructions in an email with the subject heading, New quote Number ∙ FW: Development Application – RoL – 18 & 28 Bon Vista Road, ARALUEN, to Caitlin Sippel requesting a quote to be created. The email also included yourself as a CC and included in the contents was the sentence “AB – this is the job we spoke about yesterday evening, just keeping you in the loop.” An earlier email between Michael Zahl and the client included “I expect that the total works should come to around $1,250. $500 ex GST Invoiced by Veris which covers the -- 7 of 75 -- [2024] FWC 2865 8 senior plan QA, disbursements (barcode & allocation) and plan signing; and $700 for my time which is the calculations, travel, field work, plan drafting and surveyors QA.” • A quote, Q046414 was opened as instructed by Michael Zahl on 29 May 2023 with a Quote value of only $500.00. On Saturday, 3 June 2023, Michael Zahl’s vehicle has been recorded as travelling from his home address to [address] (in the town of Gympie) then staying in Gympie for the night and returning to home the next morning. On Monday 12 June 2023 M Zahl sent you a request to sign the Survey Plan for Q046414 JM Plumbing – [address]. Which you sighed later that day. You also recorded 0.25 hours of chargeable time to the quote job (429005-Q046414) that day and included in notes “Execute SP etc”. This appears to be the only time this year you have signed a Survey Plan while still a Quote Job only. On 28 June 2023, the Q046414 Quote was converted to job number 402484 and the Quote Job (429005-Q046414) that time had been recorded to as made a sub job of 402484. On 29 June 2923 an invoice (VI077781) was created for the amount of $450 ex GST. The invoice description included “Attend site & connect into existing survey control and Re-instate subject boundaries and mark external corners.” The transaction file does not indicate any time by Michael Zahl for attendance to site on the day noted earlier above. This appears to be the last email correspondence between the parties and no other reference fees. From the evidence gathered it has been proven to our satisfaction that you are aware and facilitating providing services on behalf of Veris and obtaining cash as payment from various clients, resulting in tax fraud and putting the Company at serious risk and reputational damage. Furthermore, you are signing Survey Plans in your official capacity as an employee of Veris for services part paid for in cash and not recorded in the Veris system. These actions are considered serious and wilful misconduct. We confirm that your demonstrated actions and deceitful behaviour have led to a breach of trust resulting in the employee/employer relationship being irretrievably broken. Having considered your responses your conduct cannot be condoned and constitutes a breach of your duties as a senior leader, the Veris Code of Conduct and the Veris Values, your employment contract. Your conduct has therefore damaged the necessary trust and confidence for any on going employment relationship and will result in termination effective immediately. Your accrued entitlement and any hours worked until today will be processed along with your final payment into your nominated bank account. Should you require any further information please contact Sonya Gomes- GM People and Culture on [email] or [mobile]. Your sincerely Michael Howard Regional Manager QLD” [29] Mr Byrom questioned how he could access emails, for example, from industry bodies etc. Mr Shirley advised that ICT would work out a way as to how these should be forwarded to -- 8 of 75 -- [2024] FWC 2865 9 him. Mr Byrom then requested that he be allowed to discuss a future work matter, to which Mr Shirley stated it would not be necessary. Mr Byrom then collected his bag from the office and was escorted to the basement by Ms Gomes and left the building at approximately 3:15pm. [30] With respect to personal belongings, Mr Byrom was informed there would be arrangements made for him to collect them. [31] Mr Byrom said he was given no advance notice in respect of the allegations and had very little time or opportunity to consider them or his recollection of the events referred to. In his witness statement in these proceedings, he set out further facts and circumstances in respect of the three allegations. Benobble allegation [32] On 21 February 2023, while Mr Zahl was attempting to gain access to land for the true, contracted Benobble job, the nearby landowner was keen to understand the development potential of the land and the location of existing corners. Given the last surveyor of the site had visited the corner of the land in 2021, it was Mr Zahl’s opinion that the pegs would still be there, and it was just a matter of them being obscured by vegetation. Mr Zahl informed Mr Byrom that it would take him only half an hour or less to locate them. [33] Mr Byrom discussed the situation with Mr Howard on 21 February 2023 and it was agreed that if the pegs were there, charging the client more than a few hundred dollars would be unreasonable and that “to set up a job would cost more than the job was worth”. Mr Byrom was to inform Mr Zahl that if the pegs were there and they received any payment it would be used for the Survey Team Social Fund. [34] To the best of Mr Byrom’s recollection, there was an informal policy in place to the effect that the Respondent would not undertake jobs/transactional projects for which the fee was under $3,000. However, there was discretion for the Regional and Senior Managers to approve such jobs. Mr Byrom explained the scenario to Mr Howard, his Regional Manager who is also a Chartered Accountant and had financial governance expertise. It is Mr Byrom’s evidence that he was happy to take Mr Howard’s ‘advice and direction’. [35] Mr Byrom understood that a general rule applied to the effect that if it was a ‘repeat client’, a suitable training exercise or if it could be grouped with other tasks to ensure that the inefficiencies of the administration “set up” could be offset, such discretion could be granted. [36] At the time of the incident, Mr Byrom considers that there were numerous incidents of relaxations, particularly in the Brisbane Property Team as there were several staff that required survey training, namely in the area of cadastral reinstatement. [37] A policy was introduced on 10 July 2023, which provides that projects for a fee less than $5,000 are not to be undertaken. Mr Byrom noted this policy was not in place at the relevant time of the Benobble allegation. [38] In respect of the development potential of the property, at a later date, the landowner was referred to the Town Planning Section of the Respondent and a quote was established. -- 9 of 75 -- [2024] FWC 2865 10 [39] After Mr Zahl provided the envelope with $300 cash to Mr Byrom, Mr Byrom placed it in his drawer. A surveyors meeting was planned one late afternoon. Mr Byrom asked Ms Conneely to purchase enough pizzas for the meeting, together with two cartons of light beer. Ms Conneely used the cash in the envelope to make the purchases. Mr Byrom stated this was all done with Mr Howard’s knowledge. Gympie allegation [40] Mr Byrom explained that the informal policy at the time was that when a staff member wished to undertake a survey on behalf of a family member or for themselves, the approved protocol and usual practice was as follows: • the staff member would seek approval from his or her Line Manager; • the work would be completed in the staff member’s own time and not booked to a quote or job number; • any outlays or additional work undertaken by the Respondent staff during business hours or if the staff member wished to have their hours officially recognised, that would be recorded against the quote or job number; • once the costs incurred by the Respondent were known, the quote/job would be reconciled and the appropriate invoice raised; • if the job was a ‘cadastral job’ which were predominantly the ones brought to Mr Byrom’s attention, he was to treat them in the same manner as any commercial jobs. Mr Byrom would ensure the job had been completed in a competent manner and that all Quality Assurance (QA) procedures had been undertaken and he would execute the relevant plan accordingly. This was not an unusual process and had occurred on many occasions. Mr Byrom normally spoke with Mr Howard about them; and • at all times, Mr Byrom understood that the work undertaken by Mr Zahl was a family matter. Mr Byrom was never advised that Mr Zahl was to receive payment. Hervey Bay allegation [41] Mr Byrom stated that Mr Zahl was an enthusiastic surveyor and very keen to assist people wherever and whenever he could. Mr Zahl had asked if any work was required to be done north of the Sunshine Coast that he be considered to do that work as it would give him an opportunity to see his family and friends as he was from that region. [42] Mr Byrom had requested Mr Zahl to increase his ‘Project Management’ exposure and for him to provide quotations and manage some of the smaller jobs the Respondent is often requested to undertake. The Respondent often receives requests from the Hervey Bay region. [43] A request was received from Mr Tristan Wessling of Nikenbah by email and reviewed by Mr Zahl. Mr Zahl discussed the matter with Mr Byrom and indicated that the client required -- 10 of 75 -- [2024] FWC 2865 11 survey services as a matter of urgency due to his building commitments and that he had been unable to find a local surveyor to undertake the work in the required timeframe. Mr Byrom informed Mr Zahl: “Client urgencies don’t need to become ours and that we are not in a position to assist for two reasons as we could not complete the work in the required timeframe and we could only visit Hervey Bay if we could share mobilisation (i.e. effective costs) over more than one job to ensure that they are viable for all parties.” [44] Mr Zahl expressed his sympathy for the client and the situation, and said he was prepared to travel to the region in his own time to catch up with family and friends and to complete the survey in his own time. Mr Byrom spoke to Mr Zahl about life balance and that he had been working away recently and should consider spending time with his partner rather than considering working every weekend. Mr Byrom said that if he continued with that approach, he would find himself working all weekends which had been his experience when he had previously worked for the Respondent in Mackay. [45] Mr Zahl advised that his partner was comfortable with him working on weekends. Mr Byrom responded that he would find that surprising. He left the conversation on the basis that Mr Zahl would act on his advice and that there was no requirement for him to travel to Hervey Bay to undertake the work. [46] This was the last time Mr Byrom thought of the matter until some months later when Mr Zahl entered his office and handed him a sealed envelope which he indicated contained cash and that it was for work he completed in Hervey Bay. Mr Byrom was taken by surprise and did not count the money or open the envelope. He placed it with the remaining cash from the Benobble job in his drawer on the same basis that it would be used for Social Fund functions and in accordance with the precedent set in respect of the Benobble job. General Matters [47] Prior to the termination of his employment, at the end of September 2023, Mr Byrom had a performance review with Mr Howard. There were no negative comments brought to Mr Byrom’s attention. On the contrary, Mr Howard commented on how much Mr Byrom’s efforts were appreciated and the high degree of respect his team members had for him. They also discussed strategies around how they could double the size of the team and how they should structure such a team. [48] At or around this time, Mr Byrom also raised with Mr Howard that his current workload was proving unsustainable and that it needed to be addressed along with a review of his remuneration. [49] On 30 October 2023, Mr Byrom again raised these concerns with Mr Howard and suggested that, given that he and Mr Byrom each had upcoming holidays, these issues should be resolved prior to Christmas. Mr Howard did not raise the issues which are the subject of the allegations with Mr Byrom or make any other negative comments regarding his work performance. Neither in this meeting or at any other time did Mr Howard inform him of Mr Zahl’s alleged behaviour and conduct, even though Mr Byrom was his direct Line Manager. -- 11 of 75 -- [2024] FWC 2865 12 [50] With respect to mitigation, Mr Byrom commenced employment with a new employer on 19 February 2024, earning $150,000 per annum. Evidence of Mr Byrom in reply Response to Ms Gomes’ evidence [51] Mr Byrom stated that he was not aware of any cash paid to Mr Zahl in respect to the Gympie job until he was informed in the meeting on 2 November 2023. After being advised of such, he accepted there may have been three cash jobs undertaken by Mr Zahl. [52] Mr Byrom was unaware the Hervey Bay job had been undertaken until months later when he received the envelope with cash in it. He stated that he did not give prior approval for Mr Zahl to undertake the work. He informed Mr Shirley and Ms Gomes that if he was again approached by any member of staff regarding cash jobs, he would immediately advise that cash jobs would not be tolerated. [53] Mr Byrom disagreed with Ms Gomes’ assertion that he appeared ‘nonchalant’ in the meeting; rather, he was surprised and shocked by the allegations as he had not been given any notice or warning as to the same. [54] Mr Byrom stated that he made it quite clear during the meeting that he was concerned about Mr Zahl accepting any cash payment and that is why he approached Mr Howard for his approval prior to Mr Zahl undertaking the job. He also clarified that he had been under a misapprehension in relation to the Gympie job and had no idea that the Hervey Bay job had taken place until after the fact. Mr Byrom stated in the meeting that he considered that a verbal or written warning would be appropriate in the circumstances. [55] He noted that when Mr Zahl approached him regarding the cash job for $300, the company policy in respect of small work required approval for jobs less than $3,000, and this had only been introduced one week prior. He sought Mr Howard’s permission to allow Mr Zahl to undertake the job for $300. Response to Mr Howard’s evidence [56] In Mr Howard’s witness statement, he included emails sent by Mr Zahl to various people. Mr Byrom noted that in respect of the Hervey Bay job, he was not included in any of Mr Zahl’s emails and only became aware of the job when he was later told by Mr Zahl and given the envelope with cash in it. [57] Mr Byrom noted that he was only included in one email from Mr Zahl regarding the Gympie job, which Mr Byrom understood to be for a family member. There was no mention within the email of any payment to be made to Mr Zahl. [58] When Mr Byrom executed the Survey Plan for the Gympie job, he allocated the relevant time to the appropriate quote which was subsequently invoiced by the Respondent. -- 12 of 75 -- [2024] FWC 2865 13 [59] In respect of his conversation with Mr Howard regarding the Benobble job, Mr Byrom’s recollection is that it occurred around the middle of the day, and not at around 6:00pm as stated by Mr Howard. Mr Byrom’s evidence is he informed Mr Howard that Mr Zahl had been approached by a client who ‘needed the pegs to be found’. Mr Howard gave Mr Byrom approval for Mr Zahl to accept a cash payment which would be put towards the Social Fund. Response to Mr Shirley’s evidence [60] Mr Byrom explained that Mr Howard was not asked to leave the room, and that Mr Byrom was the one asked to leave the room, confirmed in the evidence given by Mr Howard and Ms Gomes. [61] According to Mr Byrom, the family policy was an informal procedure. This procedure, which also applied to “philanthropic matters” was as follows: “When a staff member wishes to undertake a survey on behalf of a family member or their own personal survey, the usual approach in Brisbane was as follows: - Staff member seeks approval from Line Manager. Work was to be completed in own time and not booked to a quote/job. Any outlays or additional work undertaken by Veris staff during business hours or that the staff was seeking to have their hours officially recognized are to be recorded against the quote/job. Once costs incurred by Veris are known, the quote/job was reconciled and the appropriate invoice was raised. If the job was a cadastral job, which are predominantly the ones brought to my attention, as they require the execution of a Cadastral Surveyor to have any legitimacy. I treated them in the same manner as any commercial jobs. I ensured the job had been completed in a competent manner that all QA procedures had been undertaken and I executed the plan according.” [62] Mr Byrom said he was aware of the following small jobs that had occurred in recent years: • Employee A sought to renovate his own residence. Employee A undertook survey set out and requested formal certification from a Cadastral Surveyor. It is Mr Byrom’s understand that Mr Howard was aware / approved of this arrangement. • Employee B approached Mr Byrom regarding survey work for a close friend of his. Employee B proposed completing all necessary survey/drafting work on his own time and billing his friend for any outlays/disbursements. Mr Byrom executed the final Ident Plan as the Respondent’s delegate. -- 13 of 75 -- [2024] FWC 2865 14 • Employee C required survey work to be completed on behalf of a church. Mr Byrom believed that with the Respondent’s approval, a terrestrial laser scan was completed and suitable 3D modelling was undertaken. Employee C and others from the Respondent undertook this work. Mr Byrom’s recollection is that this may have occurred under the previous Regional Manager, not Mr Howard. • On the sale of a property owned by Mr Byrom’s family, he approached Mr Howard and proposed that he be permitted to complete the required Identification Survey as a training exercise for a young surveyor. Mr Byrom recalls that an invoice was raised for incurred costs (of $1,500 plus GST) on 31 May 2023. [63] Through various discussions with other staff members from other offices over a prolonged period, Mr Byrom said he is aware of other instances where approval was given for work to be undertaken in the manner outlined above and/or where Respondent staff have used company resources to assist with their own residential improvements. [64] Mr Byrom reiterated that he was not copied into any email regarding payment for either the Gympie or Hervey Bay jobs. He did not give approval to the Gympie job in the circumstances alleged by the Respondent. Mr Byrom clarified that Mr Zahl had informed him that the proposed work was on behalf of a member of his family. Evidence given during the Hearing [65] In cross-examination, Mr Byrom accepted that when Mr Howard permitted the cash payment for the Benobble job, it was not to be set as a precedent for future cash jobs, nor was it authority to do other cash jobs.1 [66] In oral evidence, for the first time, Mr Byrom suggested that Mr Zahl had indicated to him that doing the small job for Mr Wearing would allow greater and faster access to the Benobble job, which might lead to further work from Mr Wearing. Mr Byrom stated that he put that to Mr Howard when he called him to seek authorisation. [67] Mr Byrom accepted that when he provided further information regarding the Gympie job at the meeting of 2 November 2023, he stated that Mr Zahl had told it was a job for his brother, brother-in-law or a good friend, but he could not remember. [68] Mr Byrom confirmed that when Mr Zahl approached him about doing the Gympie job for a family member, Mr Byrom did not ask him who the family member was.2 He now considers that if he had been aware that the job was for somebody other than a family member, a different conversation with Mr Zahl would have occurred. [69] Mr Byrom accepted that when he was sent detail of the Gympie job, there was a logo for JM Plumbing and Civil. He stated that he didn’t go into detail at that time and he didn’t give any thought to it at that time. In re-examination, Mr Byrom volunteered that the job would have been valued at approximately $2,500.3 -- 14 of 75 -- [2024] FWC 2865 15 [70] Mr Byrom accepted that when he certified the survey for the Gympie job, it declares that it is certified by the Respondent.4 [71] In respect of the Gympie job, Mr Byrom accepted that Mr Zahl travelled in the Respondent’s vehicle on the relevant weekend at a distance of approximately 150km each way, with approximately $150,000 of equipment in the vehicle. He stated that when he gave Mr Zahl approval to do the Gympie job he was under the assumption it was for a family member and he didn’t give any consideration as to whether the distance was 15km or 150km.5 In cross- examination he conceded that he was aware that Mr Zahl’s use of the company vehicle was not complying with the Respondent’s policy.6 The following was discussed: Commissioner: How many other employees in your team had work vehicles? Mr Byrom: In my team, I don't know. I'd say 15. Commissioner: And did you ever make enquiries of them about what they were getting up to on weekends with the use of the vehicles, knowing that there's a 50-kilometre limit? Mr Byrom: Every now and again we'd have those discussions, and every now and again I'd go to Michael Howard when one of them approached me about taking a vehicle further afield, and when we discussed it an approval was always granted. Commissioner: So employees knew what they could and couldn't do, and if they were going further they'd ask you, and you'd discuss it with Mr Howard? Mr Byrom: Most of the time, that's correct. I can't – sorry, I can't say that they came to me every time, I wouldn't know. Commissioner: No, but it's quite a tight policy? Mr Byrom: It is a tight policy. Commissioner: But Gympie's, say, 150 kilometres away? Mr Byrom: I agree. Commissioner: And you know he's taking the vehicle, and he's probably staying with a relative? Mr Byrom: Yes. Commissioner: And you didn't think to ask Mr Howard on that occasion? Mr Byrom: No, as I said, we'd had a number of discussions about vehicles and previously approval had been granted – you know, had been granted. -- 15 of 75 -- [2024] FWC 2865 16 Commissioner: But you're saying that people would come to you, you'd seek his approval, but on this occasion you didn't? Mr Byrom: No, as I say, I – I rightly or wrongly gave the approval as a result of him, you know, trying to do the job for his family member. Ms Stone: And so it was because the job was for Mr Zahl's family that you then didn't apply the polices that you knew were in place? Mr Byrom: That's correct. Ms Stone: Because your concern was – when you did that, you were not acting in the best interests of Veris, as your employer? Mr Byrom: One could say I was, because I was trying to manage morale of the team. Ms Stone: By deliberately breaching their policies, or allowing deliberate breaches of their policies? Mr Byrom: There's a – there was a – a degree of reasonableness when someone is asking you to do a favour for a family member. [72] Mr Byrom confirmed that he did not enquire if there was a safety plan in place for the Gympie job. [73] In respect of the Hervey Bay job, the distance was approximately 288km each way. The following was asked in respect of the Hervey Bay job: Ms Stone: ….. Now, you say that several months later Mr Zahl approaches - several months after having had that conversation with him about not doing the job, he approaches you with an envelope with cash and says, 'This is for the Hervey Bay job'? Mr Byrom: That's my recollection. Ms Stone: At that time you didn't say to him, 'Michael, you should not have done that job'? Ms Byrom: As I said, at the time I was busy doing other things and I kept going with what I was doing. Ms Stone: You didn't say to him, 'I did not authorise you to do that job'? Mr Byrom: I can't remember what I said to him. Ms Stone: You didn't say to him, 'Not only did I not authorise it, I explicitly told you not to do the job'? -- 16 of 75 -- [2024] FWC 2865 17 Mr Byrom: Like I say, I can't remember what I said and I acknowledge in hindsight I should have taken the time to have disciplined him. Ms Stone: You should have taken the time to have disciplined him because you now accept that he breached several of Veris's workplace policies, including the vehicle management plan, the requirement to have a journey management plan in doing the Hervey Bay job? Mr Byrom: I acknowledge that to be the case since he went and did it, yes. Ms Stone: In addition to breaching the small job policy or work instruction, as well? Mr Byrom: Yes. Ms Stone: Instead, you accepted an envelope of cash? Mr Byrom: Yes. Ms Stone: You say you have no idea how much money was in the envelope - at the time you had no idea of how much money was in the envelope? Mr Byrom: No, I did not, no. Ms Stone: You didn't open it? Mr Byrom: Not at the time, I didn't. Ms Stone: You didn't count it? Mr Byrom: I didn't at the time, no. Ms Stone: You didn't say to Mr Zahl, 'How much money is in here'? Mr Byrom: As I said, at the time I was concentrating on something else and I didn't (indistinct) during that time. Ms Stone: Mr Byrom, I think it's fair to say in most circumstances if an employee went to their supervisor and said, 'Here's an envelope full of cash', that would cause some alarm for the supervisor? Mr Byrom: I'm not saying it didn't cause me alarm. Ms Stone: Well, it didn't cause you sufficient alarm to stop what you were doing and make those inquiries? Mr Byrom: Correct. -- 17 of 75 -- [2024] FWC 2865 18 Ms Stone: Instead, you put that money in a drawer with the other $300 from the Benobble job? Mr Byrom: Yes. Ms Stone: And at no point after putting that money in the drawer and having that conversation with Mr Zahl did you go back to him and say, 'We need to have a serious talk about your conduct in doing the Hervey Bay job'? Mr Byrom: I know I didn't discipline him. Whether I went back casually or not, I don't know. I can't recall. Ms Stone: It's pretty significant breaches of the policies, aren't they? Mr Byrom: I agree and, as I say, I didn't do a formal thing, but whether I said to him, 'What are you doing?' I can't remember. [74] Mr Byrom confirmed that he did not report the breaches to Mr Howard or Ms Gomes. He was asked if, in the meeting of 2 November 2023 he stated that he knows that he should have disciplined Mr Zahl in respect of his conduct. Mr Byrom said that he was unsure about that and could not point to anywhere within his statement that supported that he should have taken that action. [75] Mr Byrom accepted that the Hervey Bay job was actually completed by Mr Zahl on 2 April 2023, but he did not become aware of it until sometime after June 2023. Mr Byrom accepted the proposition that if he had disciplined Mr Zahl in respect of the Hervey Bay job, Mr Zahl would have been on notice in respect of his request to do the Gympie job that he needed to comply with the Respondent’s obligations. [76] I asked Mr Byrom questions in respect of GST and tax evasion regarding the cash payments. Mr Byrom confirmed he didn’t make any inquiries about these issues. [77] In cross-examination, Mr Byrom conceded that he breached the Respondent’s code of conduct by not ensuring that business records were accurately kept to reflect the underlying facts and figures of the Respondent. He conceded that he did not make any inquiries as to whether Mr Zahl put in place safety plans or journey management plans for the Hervey Bay and Gympie jobs. [78] Mr Byrom conceded that he had breached the code of conduct regarding his obligation to report observed or suspected behaviour contrary to the code. [79] Mr Byrom considered post-dismissal that he was bound by certain post-employment restrictions, but he did not communicate with the Respondent to be released by them. He did not earnestly look for employment until the beginning of 2024. -- 18 of 75 -- [2024] FWC 2865 19 Evidence of Mr Zahl [80] Mr Zahl was formerly employed by the Respondent as a Senior Surveyor. He commenced this position in August 2022 and was employed until his dismissal on 1 November 2023. He worked an earlier period with the Respondent between January 2021 and February 2022 in Mackay. Benobble Allegation [81] Mr Zahl was tasked with surveying land at Benobble. On 21 February 2023, he was approached by an adjacent landowner, Mr Lachlan Wearing, with a request that survey works be undertaken on his land. Mr Wearing was keen to understand the development potential of, and the location of, the existing boarding corners of his lot. As surveyors had previously visited the corners of the property in 2011 and 2021, it was Mr Zahl’s opinion that the relevant pegs would still be present and could easily be located. It was likely the corner marks were obscured by vegetation and it wouldn’t take long to locate them and undertake the necessary work. [82] Mr Zahl phoned Mr Byrom and advised him of the above that in his opinion it was only a very small job, and that the landowner had suggested making a payment in cash, without prompt or suggestion by himself. Mr Byrom informed Mr Zahl not to proceed until he got back to him to give confirmation. Mr Zahl understood Mr Byrom was internally escalating the matter though he was not privy to the further discussions. [83] Approximately one hour later, Mr Byrom called Mr Zahl. Mr Zahl had the impression that Mr Byrom had resolved the matter internally. Mr Byrom gave him confirmation to proceed, stating that if Mr Zahl received a cash payment, the cash would be used for the Survey Team Social Fund. It was clear that any payment was to be brought directly to the office and at no point was any portion of the payment to be kept or split. [84] Before proceeding with the task, Mr Zahl forwarded an email of confirmation to Mr Wearing and then undertook the job, which took very little time. Mr Zahl received an envelope from Mr Wearing with what he understood to be $300 of cash, and a note identifying the job and that the monies were for “service rendered” and signed by Mr Wearing. Later that day, Mr Zahl handed this envelope to Mr Byrom and Mr Zahl understood that a portion of the funds was used for the purchase of food and drinks for the survey team at a social function. [85] Mr Wearing’s property was referred to the Respondent’s Town Planning section and a formal quote for potential, future work was established. Gympie Allegation [86] Mr Zahl’s understanding of the Respondent’s policy towards undertaking work for family members was as follows: • the relevant staff member would seek approval from his or her Line Manager; • the work was to be completed in the staff member’s own time and not booked to a quote / job; -- 19 of 75 -- [2024] FWC 2865 20 • any outlays or additional work undertaken by various staff during business hours are to be recorded against the quote / job; and • once any and all costs incurred were totalled, the quote / job is to be reconciled and the appropriate invoice raised. [87] Mr Zahl received a request from his brother to undertake some work for his boss near Gympie. Mr Zahl informed Mr Byrom that he had been requested to undertake a survey on behalf of a family member and proposed he do the work on his own time on a weekend. [88] Mr Zahl completed the job and received a payment of $700 to himself. It is his evidence that neither Mr Byrom nor the Respondent was aware of that payment. A quote of $550, inclusive of GST was raised and billed to the client. It is Mr Zahl’s evidence that at all times he led Mr Byrom to believe that it was a job for a family member and undertaken in accordance with the standard policy of the Respondent. Hervey Bay Allegation [89] Mr Zahl informed Mr Byrom that he would be interested in doing any available work north of the Sunshine Coast as it would give him an opportunity to see his family and friends from that region. Mr Byrom had also requested Mr Zahl increase his ‘Project Management’ exposure and for Mr Zahl to quote and manage some of the smaller jobs which they were regularly requested to undertake. Mr Zahl was also aware that the Respondent often receives requests on behalf of clients in the Hervey Bay region. [90] Mr Tristain Wessling of Nikenbah made a request that the Respondent undertake survey services as a matter of urgency due to building commitments which he had, noting that he was unable to locate a local surveyor to undertake the work in the required timeframe. The request was reviewed by Mr Zahl and discussed with Mr Byrom. [91] Mr Byrom informed Mr Zahl that client urgencies are not necessarily those of the Respondent and the Respondent was not able to assist because of the required timeframe. Further, Mr Byrom informed Mr Zahl that staff can only visit Hervey Bay if they share mobilisation over more than one job to ensure the work undertaken is viable. [92] Mr Zahl expressed sympathy for the potential client and the situation to Mr Byrom, informing him that he was prepared to travel there on his own time as it would allow him to catch up with family and friends. Mr Byrom spoke to Mr Zahl about work/life balance and that he should consider spending more time with his partner rather than working on weekends. Mr Zahl told Mr Byrom that his partner was comfortable with him working on weekends. Mr Byrom responded with words to the effect that he was surprised by that. [93] Although Mr Byrom did not authorise Mr Zahl to undertake the job, Mr Zahl arranged the job and $750 cash payment with Mr Wessling and carried out the works on a Saturday afternoon which he believes was on 2 April 2023. Sometime later in the year, around the end of June, the client gave to Mr Kevin Jordan, a Respondent employee, an envelope containing $750 cash to be passed on to Mr Zahl. When he received the envelope with cash, Mr Zahl -- 20 of 75 -- [2024] FWC 2865 21 removed $150 for himself, leaving $600 in the envelope. He gave the envelope to Mr Byrom on the Monday after he had received it. [94] When Mr Zahl gave Mr Byrom the envelope, Mr Byrom said words to the effect, “I didn’t realise you’d gone and done it”. Mr Byrom also said something to the effect that Mr Zahl should not be doing work on weekends, as weekend work was not standard within the property team. Mr Byrom took the envelope to his office. [95] Mr Zahl denies that he ever said to anyone that Mr Byrom is “a great Section Leader because he lets me do cashies” or words to that effect. Mr Zahl also denied ever saying that his partner was annoyed because he had not been paid for cashies he had completed. [96] Mr Zahl was requested to attend a meeting with Mr Shirley, Ms Gomes and Mr Howard on 1 November 2023 where the above incidents were raised. During the first meeting at 12:30pm, allegations of misconduct were put forth to which he replied, after which he was asked to leave the premises while Mr Byrom was interviewed. When Mr Zahl was asked to return, around 2:30 to 3:00pm, Mr Howard was not in the meeting and Mr Zahl’s employment was terminated. Approximately one week later, by agreement, the decision to terminate his employment was converted to a resignation of employment, with a one-time payment made in lieu of notice and post-employment obligations as per his employment contract enforced. Evidence given during the Hearing [97] In cross-examination, Mr Zahl agreed that he reported into Mr Byrom. He accepted that if he was told by Mr Byrom that he didn’t want him to do something, he wouldn’t have done it.7 [98] In respect of the Benobble job, Mr Zahl agreed he was the one who considered a $300 cash payment was a suitable amount to charge Mr Wearing. Mr Zahl agreed that when he was seeking permission from Mr Byrom to charge Mr Wearing, he did not suggest to Mr Byrom that it could lead to further work for the Respondent.8 [99] In respect of the Hervey Bay job that Mr Zahl undertook, he agreed that he used the company vehicle he had been supplied with. He agreed that he did not implement a safety plan or a journey management plan for the job. He stated that Mr Byrom had never declared that he must not do the job; he strongly discouraged him from doing it. Mr Zahl understood that he was not expressly forbidden from doing the job and he took it upon himself to do it because it gave him the opportunity to spend the weekend with his remote family. [100] Mr Zahl considered that the work he undertook in respect of the Hervey Bay job was on behalf of the Respondent, despite taking $150 from the envelope. He considered that Mr Byrom was alarmed to have received the envelope later in the year. Mr Byrom did not state to Mr Zahl, when he received the envelope, that he should not have undertaken the work, only that he thought he had said he should not do the job. [101] Mr Zahl confirmed in cross-examination that Mr Byrom did not inform him that he should not do the job because it would breach the small job policy. Mr Byrom did not raise the -- 21 of 75 -- [2024] FWC 2865 22 issue of having to obtain Mr Howard’s approval. Mr Byrom did not raise with him that if he did the job he would need to put in place a safety plan. [102] In respect of the Gympie job, Mr Zahl conceded that he had not put in place a safety plan, journey management plan, nor recorded that he used the company vehicle for the travel. He conceded that with all of the time he spent working on the job preparation in company time, it was a loss to the business.9 [103] In respect of the access to the Benobble job, Mr Zahl answered the following questions put to him:10 Commissioner: You didn't say to Mr Byrom, 'It'd be really good to do this because when we'll get access. We won't have to go from the other side and it'll be really good because he might give us some more work later'? Mr Zahl Not that he would give us more work later but to the best of my recollection it was – yes, obviously good to be on good terms with him but not specifically that, you know, we should be doing any favours for him, if that answers your question. So, no, sorry, I don't - - - Commissioner: You didn't mean to butter him up? Mr Zahl: No, no. Commissioner: He was already giving you access, wasn't he? Mr Zahl: Correct. Commissioner: So even if he'd said – come back and said, 'No, sorry, we can't do your (indistinct) work', you already had access? Mr Zahl: Correct. Commissioner: Right. Mr Byrom says that you did make that representation to him and then he made that representation to Mr Howard? Mr Zahl: I can't speak to that, sorry. Commissioner: So you didn't make that representation to Mr Byrom? Mr Zahl: No. Commissioner: So when he's giving evidence to the Commission that about that, he's wrong? -- 22 of 75 -- [2024] FWC 2865 23 Mr Zahl: To the best of my recollection, yes. Like, I did not have that conversation with Mr Byrom. Evidence of Ms Conneely [104] Ms Conneely is presently engaged as a Para-Surveyor by the Respondent. [105] Ms Conneely recalled an occasion in 2023 when Mr Byrom advised her that Mr Zahl had done a small surveying job for which a cash payment had been received. At the time, Ms Conneely was employed as an Administration Manager. [106] Mr Byrom told her that Mr Howard had given approval for the payment and that the amount of $300 in cash was provided to Mr Zahl in an envelope which Ms Conneely saw him place in a drawer in his desk. He said that it was to be used when the occasion arose for a social function with the Property Team in the Brisbane office. [107] A few months later, a function was organised and Mr Byrom handed her the envelope and asked that she purchase beer and pizza which she did. She placed the change back into the envelope and handed it to Mr Byrom. Mr Byrom also informed Ms Conneely that he did not want the whole team knowing about the money as he did not want to encourage others to do “cash jobs”. [108] Ms Conneely considered that Mr Byrom was very highly thought of throughout the office and well regarded both as a person and in his professional capacity. EVIDENCE OF THE RESPONDENT Evidence of Mr Howard [109] Mr Howard has been with the Respondent for six years and is currently the Regional Manager – Queensland, where he is responsible for the Respondent’s operations in Queensland. He has held this role since April 2022. He reports to Mr Shirley and at the time of Mr Byrom’s dismissal, he reported to Ms Julie Stanley, the then Chief Operations Officer. At the time of Mr Byrom’s dismissal, fourteen employees reported to him including Mr Byrom. [110] On 23 October 2023, Mr Howard received a text message from an individual asking, “Are you free for a confidential 5 min talk today?” Mr Howard called this person within minutes of having read the message. While speaking with the person, and learning what they had to say, Mr Howard opened the Respondent’s Whistleblower Policy and discussed the relevant provisions of the policy with the person. [111] During the call, the person reported the following: • earlier that week, Mr Zahl said that Mr Byrom was a great Section Leader because he lets Mr Zahl do “cashies”, where a “cashie” is understood to be a job that is done off the books for cash in hand; -- 23 of 75 -- [2024] FWC 2865 24 • Mr Zahl also said that he and his wife were a bit annoyed that they had not received the cash yet; • Mr Zahl said that when cash was received by Mr Byrom, he distributed part of the money to the person who had done the work and the other was used for drinks money for the team; • Mr Zahl said he knew that Mr Byrom had already received the money for the “cashie” job while articulating with his hands in a way to suggest the “money is under the table” and stated that he had not received his distribution yet; and • Mr Zahl stated that the money was kept in an envelope in a drawer in Mr Byrom’s office, under his desk. [112] Mr Howard referred to this complaint as the “Whistleblower Complaint”. [113] Mr Howard was aware Mr Byrom would be out of the office from the afternoon of 24 October 2023. On that afternoon, when all employees had left the office, Mr Howard searched the drawers in Mr Byrom’s office. He found an envelope folded in thirds at the back of the bottom drawer between the pages of an A4 sized notebook. He unfolded the unsealed envelope and looked inside. He saw several $50 notes folded in half and a clear plastic unsealed packet with pieces of paper and what may have been coins in it. Mr Howard did not touch it or remove any contents. [114] Mr Howard also noticed there was handwriting on the envelope as follows: “[Redacted Name] Survey Service [Redacted Address] NIKENBAH” [115] Mr Howard took a photo of this envelope with the handwriting, folded it and placed it back in its original place and left the office. [116] On 26 October 2023, Mr Howard conducted a search on the Respondent’s internal systems for the contact details set out in the envelope. He searched by name and address separately and found no information in the Respondent’s electronic project files or in Greentree, the Respondent’s internal resource planning and finance software. [117] In the normal course of events, if the Respondent decides that it can take on a job, the whole job life cycle will be recorded on Greentree. This includes creating a quote job, preparing and sending the quote, receiving a response from the prospective client about whether they want them to do the job, creating the job on the system, then recording all hours on the job and ultimately invoicing the client for the job. Mr Howard understood this process would cost the Respondent a couple of hundred dollars in administration time alone. [118] When Mr Howard was later searching Google Maps, he noted that Nikenbah is a suburb in the Hervey Bay region and the address on the envelope was an actual address. -- 24 of 75 -- [2024] FWC 2865 25 [119] At 2:00pm that same day, Mr Howard called Ms Gomes and discussed the Whistleblower Policy with her and the protection for the whistleblower. He informed Ms Gomes of the Whistleblower Complaint. Ms Gomes briefly discussed the process moving forward, namely, that they would have to investigate the matter further to see whether they could corroborate the allegations of the whistleblower. [120] At 4:00pm that same day, Mr Howard and Mr Shirley spoke, with Mr Howard informing him of the Whistleblower Complaint. He informed him of the envelope with cash he had discovered in Mr Byrom’s drawer. [121] Following that call, he again spoke with the whistleblower who suggested that there might be an amount of $3,000 related to cash jobs performed by Mr Zahl. The whistleblower suggested the cash was picked up the previous week from Hervey Bay. [122] Later that same day, Mr Howard telephoned Ms Stanley and informed her of the information before him. At approximately 9:30pm that night, Mr Howard attended the office and took a photo of the contents of the envelope inside Mr Byrom’s drawer. Further, he took a video of himself opening the drawer and exposing the position of the envelope in the drawer. He removed the contents from the envelope and placed it on top of the envelope and took a photo. [123] Mr Howard noted there was nine $50 notes folded and a reusable clear plastic bank bag with coins and what appeared to be receipts and a folded piece of paper. Mr Howard opened and removed the contents of the clear plastic bag except for the coins. [124] Mr Howard came across a receipt for pizzas and beers, totalling around $270. [125] Mr Howard returned the contents back into their original place in the envelope and placed the envelope in Mr Byrom’s drawer. [126] On 26 October 2023, Mr Howard attended an online meeting with Mr Shirley, Ms Stanley and Ms Gomes. They discussed ways that they might gather other objective evidence relating to the allegations and the subject of the Whistleblower Complaint. It was decided that Mr Howard would investigate any unauthorised motor vehicle usage and access and search the work emails of Mr Byrom and Mr Zahl. Mr Shirley would also organise for an automated key word search to be conducted across the whole of the Property Team’s emails with their IT department. [127] Mr Howard used key word searches to investigate Mr Byrom and Mr Zahl’s emails. While reviewing Mr Byrom’s emails, he did not discover any references to employees undertaking cash jobs, other than Mr Zahl. [128] In his investigation into the motor vehicle usage data and emails of Mr Byrom and Mr Zahl, it was revealed that there were at least three occasions on which projects seemed to have been undertaken outside of the Respondent’s usual systems and approval process. These were as follows: -- 25 of 75 -- [2024] FWC 2865 26 • In or around February 2023, Mr Zahl undertaken pegging work in Benobble. Specifically, on 21 February 2023, there was email correspondence from Mr Zahl to the client (with Mr Byrom carbon copied in) confirming that pegging works would be completed for a cash payment of $300 (Benobble Job). • In or around June 2023, Mr Zahl undertaken a job in the Araluen/Gympie area. Specifically: • there was email correspondence between Mr Zahl and the client in relation to performing work over the weekend for a cash payment of $700.00. Mr Zahl wrote as follows: “I’m available to do the works next Saturday (3rd of June) and get the finalised survey plan to you within 2 weeks. I’m happy to look into the building footprint on site too. A heads up in advance, I expect that the total works should come to around $1,250. $500 ex GST invoiced by Veris which covers the senior plan QA, disbursements (barcode & allocation) and plan signing; and $700 for my time which is the calculations, travel, field work, plan drafting and surveyors QA. Are you happy with that fee assessment, and does that meet your expectations?” • on 26 May 2023, there was email correspondence from Mr Zahl to Ms Sippel requesting a quote to be created. Mr Byrom was carbon copied into this email. Among other things, the email stated: “AB – this is the job we spoke about yesterday evening, just keeping you in the loop.” • a search of Greentree, the Respondent’s enterprise resource planning system, showed a quote was opened by Mr Zahl on 29 May 2023 with a quote value of $500.00; • a review of the vehicle usage report recorded the use of a company vehicle by Mr Zahl on 3 June 2023 to travel from his residential address to an address in Gympie, then staying in Gympie for the night and returning home the next morning; • on 12 June 2023, there was email correspondence from Mr Zahl to Mr Byrom referring to the quote and requesting Mr Byrom to sign the survey plan; and • on 12 June 2023, Mr Byrom sent an email to Mr Zahl attaching the signed survey plan. (Gympie Job). • In or around May 2023, Mr Zahl had undertaken work in Hervey Bay. Specifically: -- 26 of 75 -- [2024] FWC 2865 27 • a review of the vehicle usage report recorded the use of a company vehicle to Mr Zahl to travel to and from an address in Nikenbah; • on 23 March 2023, Mr Zahl emailed the client advising that “there is no need for any formal quote acceptance for this scope of works”; • a search of Greentree showed a quote for work undertaken in Nikenbah / Hervey Bay. The quote had been opened by Mr Zahl on 27 March 2023 for the value of $750.00 and was subsequently closed and marked as “Lost”; • on 4 May 2023 there was email correspondence from Mr Zahl to the client stating: “Thank you for your time yesterday. I’m glad that you’re happy with the pegging and that I could attend site to get the works completed so readily. As discussed, if you are happy to pay cash, could you please deliver $750.00 to our local survey manager, Kevin Jordan… … If you could please include a signed note to the effect ‘for survey services at [REDACTED ADDRESS], enclosed is $750’, and give Kevin a ring when you on [sic] the way.” • there was no record of this job in Greentree, nor an invoice raised nor a recording of the receipt and allocation of the $750 cash payment at or around this time; (Hervey Bay Job). [129] On 26 October 2023, Mr Howard called Mr Peter Sipple, who was a former senior surveyor based in the Brisbane office and had recently retired. Mr Sipple was well respected in the team. Mr Howard believed that if there was a practice of accepting cash jobs, he would be aware of it. Mr Howard asked Mr Sipple whether there was a sense that cash jobs occurred regularly during his employment with the Respondent. Mr Sipple replied that there was no such practice, and he was not aware of any cash jobs having been undertaken. [130] On 30 October 2023, Mr Howard sent an email to Mr Shirley, Ms Stanley and Ms Gomes attaching an internal memorandum titled “Memo on Cash Jobs evidence” and supporting documents. The memorandum outlined his review of the Respondent’s vehicle use records and the email correspondence between Mr Byrom and Mr Zahl, including the evidence outlined above. [131] The following day, Mr Howard attended a meeting with Mr Shirley, Ms Stanley and Ms Gomes where they discussed the next steps in relation to the investigation and how to proceed with Mr Zahl and Mr Byrom. They collectively agreed that there was sufficient documentary evidence to put the allegations to Mr Byrom and Mr Zahl. They agreed that they would speak -- 27 of 75 -- [2024] FWC 2865 28 to Mr Zahl before they spoke to Mr Byrom. This was because Mr Zahl had undertaken the work and they saw Mr Byrom as having been involved in the authorisation of this conduct. [132] They further agreed that the evidence suggested there were potential serious breaches of the Respondent’s policies and they considered, should the breaches be confirmed without any reasonable explanation, it would likely warrant the termination of the employment of Mr Zahl and Mr Byrom. Given the seriousness of the matter, Mr Shirley and Ms Gomes made the decision to fly to Brisbane and meet with Mr Byrom and Mr Zahl in person to put the allegations to them and seek their response. [133] Mr Howard was asked to invite Mr Zahl and Mr Byrom to attend separate meetings on 2 November 2023. As discovered during the Hearing, Mr Howard prepared a draft script to read to Mr Zahl and Mr Byrom when inviting them in for their respective meetings. Mr Howard, Mr Shirley and Ms Stanley provided input into the script. They settled on the following in respect of Mr Byrom: “Alistair, This is a quick call to let you know that I have been reviewing motor vehicle data and it has led to finding some potential issues that look to be a breach of our policies, to go through and sort it out I would like to meet with you at 1:00 tomorrow. This call was also to give you the opportunity to have an external support person with you during this meeting. I am unable to go through it now over the phone and unfortunately, I cannot do this any sooner as I will be out of the office in the morning. I will send an email and a text to confirm the meeting at 1:00 in the Board Room tomorrow. I will see you then.” [134] At 5:00pm on 1 November 2023, Mr Howard called Mr Zahl and informed him that he had been reviewing the motor vehicle usage data and found some issues that appeared to be in breach of the Code of Conduct. Mr Zahl was invited to attend the meeting at 12:30pm the next day. Mr Howard also told Mr Zahl that he had the opportunity to bring an external support person with him to the meeting. [135] Mr Howard then called Mr Byrom and read from the above script. Mr Byrom asked if someone else from the business was going to be in the meeting. Mr Howard replied yes. Mr Byrom said that he did not think he would need a support person as he did not have a vehicle so it was not his issue that would require a support person. [136] Mr Howard subsequently sent separate emails and text messages to Mr Zahl and Mr Byrom confirming the date and time of their respective meetings. The text message to Mr Byrom is produced below: “Thanks for calling back Alistair As just discussed on the phone, this is to confirm our meeting time of 1.00pm in the Board Room to go through some potential issues that look to be a breach of our policies and also to provide you the opportunity, should you wish, to have an external support person with you in the meeting. Regards -- 28 of 75 -- [2024] FWC 2865 29 Michael” Meeting with Mr Zahl [137] At 12:30pm on 2 November 2023, Mr Howard attended a meeting with Mr Zahl, Mr Shirley and Ms Gomes. Mr Howard informed Mr Zahl that he had undertaken a review of the motor vehicle usage data, Greentree and email correspondence and had found references to a number of cash jobs. Mr Howard provided the details of the three cash job allegations to Mr Zahl. [138] In response, Mr Zahl explained he had undertaken the Gympie Job for a family member and Mr Byrom was aware of this job because Mr Zahl had sought, and received, authorisation from Mr Byrom to do the job and receive a cash payment. [139] Mr Howard noted that the policy in which Mr Zahl referred to in his statement in respect to undertaking work on behalf of family members does not exist. There is no policy written or otherwise, and there was no practice in place that applied to the employees of the Respondent who wanted to complete work for family members. Mr Howard is not aware of any other employees who have engaged in this practice, and it would not have been condoned had they had done so. [140] In relation to the Hervey Bay Job, Mr Zahl said he performed this job without Mr Byrom’s knowledge. During the meeting, Mr Zahl stated that he had given the cash payment he received for the Hervey Bay job to Mr Byrom. [141] In relation to cash payments, Mr Zahl initially said he did not take any cash for himself for performing the three jobs. Mr Shirley questioned him, asking “Why would you go out all the way and do this work and not get any benefit?” in which Mr Zahl responded, “I just did it.” Mr Shirley then said, “I can’t quite believe you would go away on a weekend to do a job and not receive anything in turn.” Mr Zahl responded, “I did expect something.” [142] Mr Shirley then discussed the risks associated with safety, liability and insurance in performing jobs ‘off the book’ using the Respondent's motor vehicle equipment and using the Respondent's branding and letterhead. Mr Shirley asked Mr Zahl whether Mr Zahl took these risks into account when he performed the cash jobs and Mr Zahl responded no. [143] Mr Shirley then stated that in light of the seriousness of the breaches, Mr Zahl's employment may be terminated but said that they would make some further inquiries before making a definitive decision. Mr Zahl took responsibility for his conduct and said, “This is all on me, this is my fault.” [144] Mr Shirley asked Mr Zahl to leave the room and said they would call him when they were ready to speak to him. The meeting was adjourned, and Mr Zahl left the room. [145] Mr Howard, Mr Shirley and Ms Gomes collectively agreed that Mr Zahl had raised enough doubt in relation to whether he had performed the cash jobs on his own volition or under -- 29 of 75 -- [2024] FWC 2865 30 the wing of Mr Byrom. They therefore decided that they would speak to Mr Byrom about his involvement before making a decision in respect of both employees. Meeting with Mr Byrom [146] At 12:50pm, Mr Howard, Mr Shirley and Ms Gomes met with Mr Byrom. Mr Shirley began by informing Mr Byrom that they had undertaken a review of motor vehicle usage data and found some irregularities in relation to Mr Zahl. Mr Shirley then set out details of the allegations against Mr Byrom including the following: • in relation to the Benobble Job, they had located email correspondence between Mr Zahl and a client regarding survey works to be performed for a cash payment of $300; • in relation to the Gympie Job, they had located email correspondence between Mr Zahl and a client regarding works to be performed in the Gympie area for a cash payment; • they had also located email correspondence sent by Mr Zahl to Ms Sippel requesting a quote to be created for a job in Araluen in the Gympie area. Mr Byrom was copied into the email; • a review of the motor vehicle data found that Mr Zahl's vehicle had been recorded as travelling from his home address to a town in Gympie, then staying in Gympie for the night and returning home the next morning; • they had located an email sent from Mr Zahl to Mr Byrom requesting Mr Byrom to sign a survey plan for the work performed in Gympie. The email correspondence showed Mr Byrom signed and returned the survey plan. The work performed by Mr Zahl was part paid for in cash and was not recorded in the Respondent’s ERP system which it uses for project management and finance tasks; and • Mr Zahl had undertaken work in Hervey Bay for a cash payment. [147] In relation to the Benobble Job, Mr Byrom admitted that this job was performed by Mr Zahl for a cash payment. He then stated that the job had been performed with Mr Howard’s knowledge and that Mr Howard had given approval for this job. Mr Howard said he was rattled when he heard this as he could not recall any conversation with Mr Byrom about the Benobble Job and it had not occurred to him at any time while he was conducting the investigation that he had been involved or might be conflicted. [148] Mr Byrom then provided his responses to the Gympie Job and the Hervey Bay Job. However, Mr Howard was so rattled after Mr Byrom’s comments about his knowledge of the Benobble Job that he does not clearly recall Mr Byrom’s responses. [149] Approximately five minutes after Mr Byrom first mentioned Mr Howard’s involvement in the Benobble Job, he then circled back to the job and said it involved "banging in a couple of pegs'. This is what made Mr Howard remember the conversation that had occurred between -- 30 of 75 -- [2024] FWC 2865 31 himself and Mr Byrom. Upon recalling this conversation, he turned to Mr Shirley and said that Mr Byrom was correct. At this point, Mr Shirley said the interview should be paused and asked Mr Byrom to leave the room. Meeting with Mr Shirley and Ms Gomes [150] After Mr Byrom left, Mr Howard was alone in the room with Mr Shirley and Ms Gomes. Mr Howard said he apologised and explained to them Mr Byrom had in fact informed him about the Benobble job. He explained that on a date he does not specifically recall, around 6:00pm, he was in his office when Mr Byrom came in and informed him that he had an employee who was currently on a client site and had been asked to “bang in a couple of pegs” for an individual for “a couple of hundreds of dollars”. Mr Byrom proposed that they use the cash received to “buy pizza and beers” for the team. It was the end of the day, he was tired and did not enquire into it any further and remember approving this job. The entire discussion lasted only a couple of minutes. [151] Mr Shirley responded that Mr Howard has put the Respondent in a difficult situation. Mr Howard apologised again for this conversation and references to Benobble not having registered with him until now. Mr Shirley told Mr Howard that he would not take any further part in the meetings. Mr Howard left the room and did not attend any further meetings with Mr Zahl or Mr Byrom, nor did he participate further in any decision making regarding their employment. Meeting with Mr Shirley [152] Around 3:15pm that day, Mr Shirley spoke to Mr Howard about his conduct in relation to authorising the Benobble Job. Mr Shirley discussed the ramifications of his conduct, namely that it opened the doors to conduct in breach of the Respondent’s policies, namely the Gympie and Hervey Bay Jobs. [153] However, Mr Shirley explained that the Benobble Job was different to the other jobs as the Benobble Job did not provide a personal financial benefit to anyone. Further, the Benobble Job involved performing work on a client site where the workers were already working under a safety plan, and it did not require the workers to travel to another location. [154] Mr Howard recalled Mr Shirley warning him that there would be a negative outcome should he engage in any further conduct in breach of the Respondent’s policies and procedures, irrespective of the nature or seriousness of the breach. Mr Howard understood this to be a formal warning. Respondent’s directions to Mr Byrom in relation to small jobs [155] On 14 February 2023, Ms Stanley sent an email to the Extended Leadership Team, which included Mr Byrom. The email contained a link to the work instruction titled “Create Client Value – Transition from Smaller Projects”. This work instruction provided that small projects under $3,000 would only be approved if certain guiding principles were met. -- 31 of 75 -- [2024] FWC 2865 32 [156] On 10 July 2023, Ms Stanley sent an email to the Extended Leadership Team again, which included Mr Byrom. This email provided that small projects under $5,000 must not be approved or undertaken unless all the guiding principles were met. [157] Mr Howard explained that the directions from Ms Stanley were aimed at ensuring that the Respondent’s employees were only performing work that had the potential to return a profit after costs. The Respondent is a large ASX-listed company and the cost of its employees carrying out a job and engaging in the administration side of a job were not insignificant. Although these limits applied, there was some flexibility around the limit where there was an additional benefit to carrying out the work. For instance, where a junior staff member needed specific experience in order to become a registered surveyor, a senior staff member would consider a request to take on a smaller and potentially less profitable job if it would allow the junior staff member to gain the experience. Cash in Mr Byrom’s drawer [158] On 8 March 2024, Mr Howard undertook a reconciliation of the cash and receipts that Mr Byrom handed to Ms Stanley after his dismissal. There was $630.25 in cash and $269.72 in receipts. The total is $899.97. It should be noted that this accords with $300 in cash from the Benobble job and $600 in cash from the Hervey Bay job (after Mr Zahl had deducted $150 in cash from the $750 cash payment received). Mr Byrom’s termination letter [159] Prior to the meetings on 2 November 2023, Ms Gomes sought Mr Howard’s approval to put his electronic signature on the termination letters that were ultimately provided to Mr Byrom and Mr Zahl. Ms Gomes drafted the letters; Mr Howard reviewed them. He understood that the letters were to be signed and printed as a contingency in the event that it was decided that the employment of Mr Byrom and Mr Zahl should be terminated. [160] It was decided that Mr Howard should not print the letters in Brisbane because his office is on the other side of the floor from the printer and photocopier, and he could not guarantee that he would get to the letters before they were printed. It was decided that Ms Gomes would print the letters in Melbourne and bring copies with her to Brisbane. Evidence given during the Hearing [161] In cross-examination, Mr Howard was taken to the Respondent’s Whistleblower Policy. He confirmed that he was the Investigation Officer per the Policy. He accepted that he was not provided with any authorisation to conduct preliminary investigations. He stated that he has not had any training in the Whistleblower Policy and his only experience with the Policy was to read it. [162] He stated that Ms Stanley was the Whistle Blower Protection Officer, a designated employee with the authority to investigate. The Policy provides that the Investigation Officer is an internal or external person trained and authorised. [163] The Policy provides as follows: -- 32 of 75 -- [2024] FWC 2865 33 “9.2 Investigation Process Investigations will be conducted independently of the subject of the allegations. The Investigation Officer (or their delegate) will, as appropriate, provide feedback to the Whistle blower on the progress and expected timeframes of the investigation. Where appropriate, the subject of the allegations will be informed of the allegations and provided with the opportunity to respond. …….. 9.4 Concluding the Investigation The Investigation Officer (or other investigator) will provide a report setting out the findings on the allegations and a summary of the evidence. Findings may be that an allegation is • fully substantiated; • partially substantiated; • not able to be substantiated; or • disproven. ………..” [164] In cross-examination, Mr Howard accepted that his Memo to management at [130] did not make any findings, as required by clause 9.4 of the Policy. [165] Mr Howard was taken to the Respondent’s Discipline and Termination Policy where it variously prescribes the following: “5.5 Procedural fairness The employee who is subject to a disciplining action by the Company must be afforded procedural fairness. This means that as a minimum the employee must be informed of the concerns relating to their conduct and be provided with an opportunity to respond….. 7. Disciplinary interview …….. The employee will be provided with a description of the facts surrounding the reason for the disciplinary interview and be given an opportunity to respond. …..” [166] The following was put and answered in cross-examination:11 -- 33 of 75 -- [2024] FWC 2865 34 Ms Brooks: Now, you agree that in order to be able to decide whether they ought to be bringing a support person they need to understand that the meeting is a disciplinary meeting. You agree with that? Mr Howard: Yes. Ms Brooks: And that it relates to them? Mr Howard: Yes. Ms Brooks: And their conduct? Mr Howard: Yes. Ms Brooks: Now you contacted by phone, Mr Byrom, on the 1 November? Mr Howard: Correct. Ms Brooks: And you told Mr Byrom that the meeting was to discuss breaches of the vehicle policy – motor vehicle policy? Correct? Mr Howard: Can I refresh myself on that? Ms Brooks: Well, can you – well with your independent recollection? Mr Howard: It was about policy. I thought it was about code of conduct but I might be conflating that with Michael Zahl. Ms Brooks: Well, have you looked at the evidence? Do you know what evidence Mr Byrom put – has in his statement? About what you told him in that phone conversation? Mr Howard: Yes. Ms Brooks: Right. And he says that you told him that the meeting was to discuss breaches of the motor vehicle policy. You're aware of that? Mr Howard: Yes. Ms Brooks: And that's not right, is it? That it was about breaches of the motor vehicle policy, because he doesn't have a motor vehicle? Mr Howard: Yes. Ms Brooks: Do you agree with that? Mr Howard: Yes. -- 34 of 75 -- [2024] FWC 2865 35 Ms Brooks: He rides a scooter. And you told him it was about the motor vehicle policy and you suggested he bring a support person. And then he told you, 'I don't know why I need to bring a support person. I don't have a work vehicle.' Correct? Mr Howard: Yes. [167] Mr Howard said he could not recall Mr Byrom suggesting, when seeking approval for the Benobble job that it might save around ’40 minutes of bush bashing’.12 Mr Howard agreed that he approved the job to be performed for the payment of $300. When investigating the matter in October 2023, he didn’t recollect that he had approved the Benobble job. Evidence of Ms Sonya Gomes [168] Ms Gomes is employed by the Respondent in the role of General Manager, People and Culture and has held that role since 1 July 2023. [169] Attached to Ms Gomes’ witness statement is the Respondent’s Code of Conduct and Discipline and Termination Policy. Mr Byrom’s employment agreement referred to the Code of Conduct. [170] Ms Gomes noted that Mr Byrom was a member of the Respondent’s Extended Leadership Team. He was responsible for the respective team leaders within the property team in the region, including Michael Zahl, Senior Surveyor. [171] On 25 October 2023, Mr Howard called Ms Gomes and informed her he had received information from a whistleblower that staff were performing cash jobs as follows: (a) Mr Zahl stated that Mr Byrom let him do “cashies”; (b) Mr Zahl stated that he and his wife were annoyed with Mr Byrom for not passing on cash payment that was due to Mr Zahl for undertaking the “cash jobs”; and (c) Mr Zahl disclosed that the cash was in Mr Byrom’s drawer at his desk. [172] Ms Gomes advised Mr Howard to urgently inform Mr Shirley. [173] The following day, Mr Howard emailed Ms Gomes photos of cash and notes allegedly found in Mr Byrom’s desk drawer. Following this, Mr Shirley notified Ms Gomes that an internal investigation should be conducted, and Mr Howard was conducting a review of email correspondence, vehicle usage data and the enterprise resource planning system Greentree. Mr Shirley requested Ms Gomes review the Respondent’s policies and procedures that may have been breached. [174] On 30 October 2023, Mr Howard emailed Ms Gomes attaching an internal memo “Memo on Cash Jobs evidence” and supporting documents. The memo outlined the results of -- 35 of 75 -- [2024] FWC 2865 36 Mr Howard’s review of vehicle use records, email correspondence between Mr Byrom and Mr Zahl, and information from other records including Greentree. [175] Upon reviewing the Respondent’s policies and the evidence collected by Mr Howard, Ms Gomes considered the results of Mr Howard’s investigation suggested that there may have been breaches of the Respondent’s Code of Conduct, the Motor Vehicle Policy and significant conflict of interest issues including misuse of company assets for personal gain. Further, the investigation suggested that there had been use of the Respondent’s staff and equipment for the performance of jobs outside of current policies and procedures leading to a number of significant risks, including in relation to safety and public liability. [176] Ms Gomes noted that the investigation concluded there were at least three occasions where jobs were not done in accordance with the Respondent’s policies, practices and directions, as follows: a) in or around February 2023, Mr Zahl had undertaken pegging work in Benobble for a cash payment of $300; (b) in or around June 2023, Mr Zahl had undertaken a job in the Araluen/Gympie area over the weekend for a cash payment of $700.00; and (c) in or around May 2023, Mr Zahl had undertaken work in Hervey Bay (Nikenbah) for a payment of $750.00. [177] On 31 October 2023, Ms Gomes met with Mr Howard, Mr Shirley and Ms Stanley to discuss the findings of the investigation. They concluded that it had revealed enough to meet with Mr Byrom and Mr Zahl and put the allegations to them. They considered the matter was serious enough to warrant Mr Shirley and Ms Gomes travelling from Melbourne to Brisbane to meet with Mr Byrom and Mr Zahl in person. They formed the view that if after the meeting there was no difference in their understanding of the allegations from what they saw in their investigation, and Mr Zahl and Mr Byrom could not justify their actions, the Respondent would likely terminate their employment. They discussed contingency plans if they terminated Mr Byrom and Mr Zahl, as it would have a significant impact on the team, current projects and clients. [178] Ms Gomes drafted and printed letters ahead of time, one for final written warnings and one for termination, depending on what the Respondent decided was appropriate. She brought them with her on her flight to Brisbane. Ms Gomes did this as she and Mr Shirley did not have private offices in Brisbane, nor access to secure printing in Brisbane. The Respondent’s position heading into the meetings was that immediate termination was appropriate, and that Mr Byrom and Mr Zahl would need to provide sufficient information to convince Ms Gomes, Mr Shirley and Mr Howard that dismissal was not appropriate to provide the formal written warnings instead. As such, the dismissal letters were signed but the warning letters were not, especially as there would be no need to hand the warning letters over during the meeting, as they would be continuing in the business. -- 36 of 75 -- [2024] FWC 2865 37 [179] On 1 November 2023, Mr Howard notified Ms Gomes that he had called Mr Zahl and Mr Byrom and invited them to attend meetings on 2 November 2023, informing them they had the opportunity to bring a support person. [180] On 2 November 2023, Ms Gomes and Mr Shirley flew to Brisbane for the meetings. In the meeting with Mr Zahl, he acknowledged he had breached the Respondent’s Motor Vehicle Policy. [181] In respect of the three cash jobs performed by Mr Zahl, he gave the following explanations: Benobble job - he performed additional work at a site he was already attending for work reasons, and received approval from Mr Byrom before performing the work. He gave the $300 cash to Mr Byrom. Gympie job – he did this work in his own time and not during work hours, but he had made Mr Byrom aware of the job. Ms Gomes confirmed with Mr Zahl that he kept the money directly. Mr Zahl could not recall how much the job paid. Hervey Bay job – he often went to Hervey Bay as he had family in the region but on that occasion performed a job, receiving a cash payment. Another employee, Kevin Jordan, collected the cash, and then provided it to Mr Zahl who provided it to Mr Byrom. The job paid approximately $750. Mr Zahl stated that because Mr Byrom approved of the first job, he had not specifically sought approval for the two subsequent jobs from Mr Byrom, but simply informed him of them. [182] Ms Gomes noted that Mr Shirley explained that performing a job for cash was in breach of several of the Respondent’s policies and could create a significant conflict of interest. He also stated that Mr Zahl put the Respondent at a significant risk of liability in respect of safety. Mr Zahl acknowledged the risk. Mr Shirley stated it could result in termination of his employment, but the Respondent would investigate the matter further. Mr Zahl was informed the Respondent would consider this information and interview Mr Byrom, requesting Mr Zahl stay in the vicinity of the workplace. [183] Following the meeting with Mr Zahl, Mr Howard convened a meeting with Mr Byrom with Ms Gomes and Mr Shirley in attendance. Mr Howard began by stating that the Respondent had reviewed motor vehicle usage data and it had come to the Respondent’s attention that there have been breaches of the Respondent’s Motor Vehicle Policy by Mr Zahl. Mr Howard then went on to say that upon further investigation of Greentree and a review of emails, they had found references in email correspondence between Mr Zahl and Mr Byrom in relation to Mr Zahl performing cash jobs. Mr Howard said that they identified at least three occasions where jobs had been undertaken for cash. Mr Howard stated that they had just spoken to Mr Zahl and he told them that Mr Byrom was aware of all three jobs and aware of the fact that all three jobs were undertaken for cash payment. [184] Mr Byrom admitted to jobs being undertaken for cash. He said, “There have been maybe three cash jobs”. In relation to the work at Benobble, Mr Byrom said words to the effect of “You [Mr Howard] were aware of the first job as I had spoken to you about this job. The first -- 37 of 75 -- [2024] FWC 2865 38 one was banging in some pegs and you [Mr Howard] said yes so we went ahead. We used the cash for pizza and beer. The receipts are still in my drawer”. At this point, Mr Howard stated he had no recollection of such a discussion. [185] At this point, Mr Byrom stated he informed Mr Howard and sought Mr Howard’s approval for the work performed at Benobble. He claimed he advised Mr Howard that the proposed work would take less than one hour, the employee was already at the site and the payment would be about $300 which could be put into the team’s social fund. Mr Byrom stated that Mr Howard approved this job, and as such he believed he was not required to seek approval for similar work, such as that performed at Gympie and Hervey Bay. [186] Ms Gomes provided that within five minutes, Mr Howard apologised and stated he did recall a conversation with Mr Byrom to similar effect. Specifically, that employees had been asked to do pegging work at a site they were already at, it would take less than an hour, and the cash from the work would buy beers for the team. Mr Howard confessed he agreed to it. Mr Byrom was asked to leave the room briefly, and Ms Gomes and Mr Shirley decided Mr Howard should not take part in the meeting or decision making in this matter. Mr Byrom was asked to rejoin the meeting after Mr Howard left. [187] Mr Shirley put forward allegations in relation to the work performed at Gympie and Hervey Bay, noting Mr Zahl stated that Mr Byrom was aware of them. Mr Byrom stated that he had some awareness of them, but believed work performed at Hervey Bay was for a family member of Mr Zahl and as such he did not need to raise it, and further stated he could not recall much about the work at Gympie. [188] Mr Byrom stated the $1,000 was still in his drawer at work, and had not been spent. He offered to collect the cash at that point, which Mr Shirley stated wasn’t necessary. Mr Shirley asked whether taking the money was the right thing to do, to which Mr Byrom stated it was perhaps not the right thing to do but he was of the view it was for a small job. [189] Mr Shirley stated Mr Byrom’s authorisation was a significant breach of the Respondent’s policy, and asked Mr Byrom what disciplinary action he believed should be taken against him. Mr Byrom stated a verbal or written warning is warranted, to which Mr Shirley stated it was serious enough the Respondent was contemplating termination. Mr Byrom was asked to stay in the vicinity of the workplace. [190] Ms Gomes considered that throughout this meeting, Mr Byrom acted nonchalant, and did not appear concerned at any point, even when he was notified of potential termination of employment. [191] Mr Shirley and Ms Gomes then met with Mr Howard to discuss the allegation he had authorised one of the instances of alleged wrongdoing, relating to the work performed in Benobble. Mr Howard apologised for not recalling it earlier, but stated there was no precedent allowing staff to undertake cash jobs. [192] Mr Howard said that he did have a conversation with Mr Byrom late one evening in the office where Mr Byrom sought approval for surveying staff to do some pegging work at a client site for a cash payment. Mr Howard said that he did recall Mr Byrom stating that the cash -- 38 of 75 -- [2024] FWC 2865 39 received from this job could be used to purchase beers for the team. Mr Howard confirmed he had approved the performance of this work. Mr Howard said that he did not pay enough attention to what was being asked and that in hindsight, he should have taken the time to ask for more details. [193] Mr Shirley said words to the effect of, “You understand that this has put us in a difficult position?” Mr Howard confirmed he understood. [194] Ms Gomes then deliberated with Mr Shirley as to the appropriate action the Respondent should take in respect of Mr Zahl and Mr Byrom. This discussion was approximately two hours long, and involved speaking to Mr Paganin, Board Chairman, Ms Stanley, and Mr Steve Dorian, an external HR advisor. [195] The group came to the conclusion that if Mr Byrom had not authorised Mr Zahl to proceed with the Benobble job then perhaps Mr Zahl would not have undertaken the other two jobs. They concluded that Mr Byrom and Mr Zahl should each take responsibility for their respective actions. Mr Byrom was to be held accountable for authorising or failing to stop the practice of cash jobs while Mr Zahl was to be held accountable for conducting the jobs and receiving a cash payment. They also discussed concerns that Mr Byrom did not seem to view his conduct as a breach of any policies or procedures and was clearly lacking insight into the severity of, and risks associated with, conducting ‘off the book’ projects. [196] Ms Gomes and Mr Shirley considered that if they were to decide to terminate the employment of Mr Zahl, then they would need to take the same disciplinary action against Mr Byrom. This is because Mr Byrom was aware of Mr Zahl’s conduct and as a senior manager he ought to be held accountable for authorising the improper conduct of subordinate employees. [197] Ms Gomes and Mr Shirley determined that whilst Mr Howard was aware of the Benobble Job, there was no evidence of a pattern of Mr Howard approving or authorising cash payments. Mr Byrom had stated that he did not seek approval or make Mr Howard aware of the other two jobs, that is, the Gympie Job and the Hervey Bay Job. As such, Ms Gomes and Mr Shirley determined that Mr Howard would receive a warning but decided that his employment would not be terminated. They agreed that based on the information available, Mr Zahl and Mr Byrom’s employment would be terminated. [198] Ms Gomes and Mr Shirley reconvened the meeting with Mr Zahl without Mr Howard present. During this meeting, Ms Gomes and Mr Shirley stated that performing cash jobs was a breach of the Respondent’s policies and procedures, including the Code of Conduct. Mr Shirley advised Mr Zahl that his behaviour could not be condoned and as such, his employment was terminated for serious misconduct effective immediately. Mr Shirley handed Mr Zahl his letter of termination. Mr Zahl accepted the decision and stated that he did not want anyone else to be held accountable for his wrongdoing. Mr Zahl then packed up his belongings and left the building. [199] Mr Shirley and Ms Gomes then met with Mr Byrom. Mr Shirley told Mr Byrom that performing work ‘off the books’ for clients using the Respondent’s resources, in exchange for cash payments was a significant breach of the Respondent’s policies and procedures. Mr Shirley stated that Mr Byrom knowingly allowed this conduct to continue. Mr Shirley noted that Mr -- 39 of 75 -- [2024] FWC 2865 40 Byrom’s behaviour was in complete contradiction to the Respondent’s expectations of a senior leader in the business and of a senior member of the surveying industry. On this basis, Mr Shirley informed Mr Byrom that his employment was terminated for serious misconduct, effective immediately. Mr Shirley handed Mr Byrom a letter of termination. Mr Byrom then packed up his belongings and left the building. Evidence given during the Hearing [200] In cross-examination, Ms Gomes agreed that the Respondent had deviated from the Whistleblower Policy by not providing a report with findings within it.13 The following exchange occurred: Ms Brooks: You say in your statement that you had already determined that if he didn't come up with an explanation for the conduct you were going to allege against him, that his employment would be terminated at the meeting. Correct? Ms Gomes: That if there was no other evidence provided, that it could lead to potential termination. Ms Brooks: He received no warning from you ahead of that meeting as to what allegations were to be put to him. He was told, on your case, that it was about breaches of the code of conduct? Ms Gomes: The allegations were put to him at the first meeting. Ms Brooks: That was his one and only opportunity to persuade Veris that he should not be terminated. Correct? Ms Gomes; A decision was not made at that meeting. He had further opportunity. Ms Brooks: Sorry, the meeting on 2 November. There was no other meeting other than the 2 November meeting. Is that correct? Ms Gomes: Correct. Ms Brooks: That was the one and only opportunity he had to persuade Veris that he hadn't engaged in gross misconduct. Correct? Ms Gomes: There was more than one meeting on 2 November. Ms Brooks: All right. The day of 2 November is his only opportunity. Do you accept that? Ms Gomes: Correct. Ms Brooks: He had no notice of the allegations? -- 40 of 75 -- [2024] FWC 2865 41 Ms Gomes: He was provided notice the day before that it was in relation to breach of policies. Ms Brooks: Not specifically the allegations, though? Ms Gomes: At the meeting, yes, he was. Ms Brooks: He was given it at the meeting. He had no time to prepare a comprehensive response, did he, because he was told about them at the meeting? Ms Gomes: At the meeting he was - he provided a response, and he accepted that he was aware. Ms Brooks: There was no time for Mr Byrom to prepare a comprehensive response to serious allegations about gross misconduct, including allegations of tax fraud. Do you accept that? Ms Gomes; I disagree. Ms Brooks: You think he had plenty of time? Ms Gomes: I think he was provided the allegations and he had time to respond. Ms Brooks: Did you sit him in a room with all the emails and the memo from Mr Howard? Ms Gomes: We had put the allegations to Mr Byrom in the room. Ms Brooks: Did he have a chance to review all the emails? Ms Gomes: He didn't request that. Ms Brooks: Is that no? Ms Gomes: He did not request it. ………………… Ms Brooks: All right. Mr Byrom hadn't seen the allegations in writing at any stage by the time he was brought back into the meeting finally. That's correct? Ms Gomes: Not in writing. Ms Brooks: And he did see them for the first time in writing when he was handed his termination letter. Correct? Ms Gomes: Correct. -- 41 of 75 -- [2024] FWC 2865 42 Ms Brooks: That termination letter does not refer to the Hervey Bay job, does it? Ms Gomes: I would have to look into that. Ms Brooks: You can't remember? Ms Gomes: It referred to the jobs that we investigated. ……………. Ms Brooks: ………..Do you agree that the Hervey Bay job is not referred to, the Nikenbah job? Ms Gomes: Correct. [201] I asked Ms Gomes the following questions: Commissioner: All right. So the difficulty about varying or editing the letters, on learning that it's because there's a photocopier and you didn't want to print it and there's some distance - it sounds absurd to me that you and Mr Shirley couldn't have been standing by the photocopier and having well executed letters present, reproduced. I mean, if Mr Shirley's at the photocopier, as a CEO of the business, surely people aren't butting in and saying, 'Well, that's my document.' They're letting him, as an important person in the business, have the space, aren't they? Ms Gomes: Yes, but we weren't set up for printing. We would have to contact IT. It's a small office. It seemed like the right thing to do at the time, so that we were prepared, in case of the - you know, if that was the situation. Commissioner: It's outrageous that you thought that you needed to - I mean, it's a 101 lesson that I've been giving practitioners for 25 years, when I was a (indistinct) practitioner - 'Do not have the written warning or termination letter in your back pocket, in the drawer. Don't do it', yet you've done it. You turned up with it from interstate. So does it matter what he said in the meeting? Ms Gomes: Yes, it would have. We wouldn't have issued the letters. Commissioner: Why didn't you suspend him? Why didn't you make findings - after some deliberation, make the findings separate, issue him with a show cause letter? I mean, again, that's IR 101. 'We've made findings. We say this. Now tell me why you shouldn't be dismissed.' Why didn't you do that? -- 42 of 75 -- [2024] FWC 2865 43 Ms Gomes: Because in the meeting with Mr Zahl he clearly stated that his manager was aware, and Mr Byrom said that he was aware as well. So the allegations were substantiated. We couldn't have seen anything else that he was saying that would be any different. Commissioner: Well, with advice you'd expect him, maybe a week later - if he was given a week to come back with, 'Please don't dismiss me. I'm X years old. I have this standing in the industry. If you think this was bad enough, please consider some alternative', and then you could have considered that. I mean, you understand what a show cause letter is? Ms Gomes: Correct, yes. Commissioner: Have you issued show cause letters - - -? Ms Gomes: Yes. Commissioner: You have? So is that your practice? Ms Gomes: To issue show cause letters? Commissioner: Yes? Ms Gomes: I have in the past, depending on the situation, but in this, after deliberation, it was that both parties had agreed that they confirmed what we had found, and so we made the decision to terminate. Commissioner: So the findings could have been substantiated on 2 November. You accept that? Ms Gomes: Yes. Commissioner: Why did the decision to terminate have to be made on the same day? Ms Gomes: I guess because the matters were that serious that it was made on that day. Commissioner: You understand the distinction - - -? Ms Gomes: ---Correct. Commissioner: - - - between substantiating - - -? Ms Gomes: The findings. -- 43 of 75 -- [2024] FWC 2865 44 Commissioner: - - - the findings that had borne out from the investigation and the discussion on 2 November, taking a course and then asking somebody to show cause why they shouldn't be dismissed. There's usually a breather. Would you accept that? Ms Gomes: Correct. Commissioner: If there had been the same decision, he might have been employed for maybe one or two weeks longer. Do you accept that? Ms Gomes: Or at least a day, overnight, or a couple of days. Commissioner: You wouldn't give him one day - - -? Ms Gomes: One week. Commissioner: - - - would you, to show cause? Ms Gomes: No. Commissioner: How long would you give him? Ms Gomes: Potentially till the end of the week, because it was, I believe, a Tuesday. Commissioner: If he said, 'I need to lawyer up', you might have given him a little bit longer? Ms Gomes: He would have requested - we would have considered what he would have requested. Commissioner: If the decision was, after listening to his response, 'No, we still consider that dismissal is warranted', then you might maybe give an extra one or two weeks' pay? Ms Gomes: Correct. Evidence of Mr Shirley [202] Mr Shirley is the Managing Director and Chief Executive Officer for the Respondent and has been since 28 October 2019. [203] Mr Shirley confirmed that Mr Byrom was initially engaged in the role of Principal – Surveying in the Brisbane office, until he was promoted to Section Leader. Mr Byrom held this role until his dismissal. -- 44 of 75 -- [2024] FWC 2865 45 [204] As the Section Leader, Mr Byrom was a member of the Queensland Regional Management Team and the Extended Leadership Team Nationally. He reported to Mr Howard. The primary purpose of Mr Byrom’s role was to lead people, profit, performance and operations in line with overall national, regional and sectional strategy. His responsibilities included: • developing and leading the team to execute and deliver growth in the Respondent’s strategy; • delivering profitable growth; • liaising with other Section Leaders within the business in Queensland and nationally; • participating in leadership team meetings; • managing revenue and costs to deliver agreed commercial goals; • maintaining relationships with industry clients; • delivery of projects and performance within the group; and • ensuring compliance by licensed surveyors with regulatory surveying requirements. [205] Mr Byrom was also the Chair of Vertex, which is an internal committee of the Respondent that oversees technical and professional contributions at the Respondent. The Vertex Committee consisted of recognised senior external leaders and delivered presentations in relation to technical issues and industry concerns to the Board of the Respondent. Further, Mr Byrom represented the Respondent on the Boards of several large industry associations. [206] In view of his seniority and position within the business, Mr Byrom had authority to delegate work and he had significant autonomy and accountability around the day-to-day running of the business. As such, Mr Byrom was expected to be held accountable for his decisions. The internal investigation [207] At 3:20pm on 25 October 2023, Mr Shirey received a text message from Mr Howard requesting that he return his call. When they spoke, Mr Howard learned of the Whistleblower Complaint. [208] Mr Shirley approved of Mr Howard checking Mr Byrom’s drawer for cash. On 26 October 2023, Mr Shirley received an email from Mr Howard attaching photos of cash and notes found in Mr Byrom’s drawer at his desk. [209] Later that day, Mr Howard, Ms Gomes and Mr Shirley had a series of discussions in relation to the allegations including about how to investigate the issue. Mr Shirley noted that they did not want to confront Mr Zahl and Mr Byrom without any corroborating evidence. [210] The investigation included a review of emails and vehicle usage data. The review into email correspondence was rudimentary and involved key word searches. The searches that were conducted were linked to Mr Zahl and Mr Byrom. [211] On 30 October 2023, Mr Shirley received an email from Mr Howard, attached to which was an internal memorandum titled “Memo on Cash Jobs evidence” and supporting documents. The memorandum outlined the evidence found which supported the whistleblower’s -- 45 of 75 -- [2024] FWC 2865 46 allegations. It detailed Mr Howard’s review of the Respondent’s vehicle use records and the email correspondence between Mr Byrom and Mr Zahl as outlined above. [212] From Melbourne, on 1 November 2023, Mr Shirley, Ms Stanley and Ms Gomes met electronically with Mr Howard to discuss the investigation findings and after some discussion, agreed that if they met with Mr Zahl and Mr Byrom and their responses did not change their views of the evidence they had seen, then they thought it would be likely that they would terminate the employment of each of them. [213] It was agreed that termination letters would be prepared in Melbourne and brought with Mr Shirley and Ms Gomes when they travelled to Brisbane the next day. Mr Shirley’s evidence is that they did not wish to be ‘scrambling’ on the day while working from the Brisbane office. [214] If the outcome was that Mr Byrom or Mr Zahl were not going to be dismissed, but instead be warned, warning letters could be issued later. Warning letters were drafted but did not accompany Mr Shirley and Ms Gomes to Brisbane. [215] Mr Shirley asked Mr Howard to arrange the meetings with Mr Zahl and Mr Byrom for 2 November 2023. [216] Mr Shirley also made arrangements with the IT Team to limit the access of Mr Byrom and Mr Zahl to their work systems during the meetings. [217] On the morning of 2 November 2023, Mr Shirley and Ms Gomes flew from Melbourne to Brisbane. Meeting with Mr Zahl [218] At approximately 12:30pm on 2 November 2023, Mr Shirley, Mr Howard and Ms Gomes met with Mr Zahl. In that meeting, Mr Shirley put to Mr Zahl that based on a review of the Respondent’s vehicle use records and email correspondence sent and received by Mr Zahl, the Respondent had discovered three occasions in which Mr Zahl had been involved in performing projects for cash using the Respondent’s equipment, resources and email addresses; namely the Benobble Job, the Gympie Job and the Hervey Bay Job. [219] Mr Zahl did not refute the allegations and admitted to performing those jobs. [220] Mr Shirley explained that performing these cash jobs using the Respondent’s resources was a serious breach of the company’s policies and procedures. Mr Zahl accepted this proposition. [221] Mr Shirley asked Mr Zahl if there were others involved and he said, “no, not directly”. Mr Zahl was asked if Mr Byrom was involved or was aware and/or had knowledge of the three cash jobs, to which Mr Zahl responded yes. [222] Mr Zahl stated that Mr Byrom was aware of the three jobs and he didn’t consider there was an issue in undertaking work for cash as Mr Byrom had been aware of them. Mr Zahl declared that Mr Byrom was holding the cash in his desk drawer in his office. -- 46 of 75 -- [2024] FWC 2865 47 [223] Mr Shirley asked Mr Zahl if he understood the risk that his conduct, in using the Respondent’s equipment and vehicle to perform private projects posed to the Respondent and its insurers. Mr Zahl responded that he appreciated, in hindsight, the issues that his conduct presented. [224] Mr Shirley informed Mr Zahl that they needed to consider the issues further and informed Mr Zahl that they would speak to him later that day. Ms Gomes explained to Mr Zahl that on face value, his conduct amounted to a serious breach of the terms of his employment contract, and it put his employment at risk. [225] While Mr Zahl appeared upset during this meeting, he did not appear surprised. He remained professional throughout the meeting and appeared accepting of the circumstances. Mr Zahl said he would go for a walk and would return to the office when they were ready to speak to him again. Meeting with Mr Byrom [226] At approximately 1:00pm that day, Mr Howard, Ms Gomes and Mr Shirley met with Mr Byrom. During this meeting, Mr Shirley began explaining that they had found three occasions in which projects were undertaken for cash by Mr Zahl. Mr Shirley explained that the allegations were based on a review of the Respondent’s vehicle use records and email correspondence sent and received by Mr Zahl. Mr Shirley informed Mr Byrom that there was also email correspondence sent and received by Mr Byrom demonstrating Mr Byrom’s involvement and awareness of Mr Zahl’s conduct. [227] Mr Byrom accepted that the three jobs had occurred. [228] Mr Byrom admitted that he had cash in an envelope in his drawer and offered to collect the cash from his drawer. Mr Byrom said the cash was used to purchase pizza and beer for the team and there was a receipt in the drawer to evidence these transactions. [229] With respect to the Benobble job, Mr Byrom said that it was for a cash payment of $300 but that he had sought prior approval from Mr Howard. Mr Howard appeared to be shocked by this information. [230] Initially, Mr Howard did not recall any such conversation with Mr Byrom. However, within approximately two to three minutes, Mr Howard then recalled that there had been a discussion in passing one evening with Mr Byrom where he sought approval to perform a job for a payment whereby the cash would be used to purchase drinks for the team. Mr Shirley asked Mr Howard to leave the room, and Ms Gomes and he continued the discussion with Mr Byrom alone. [231] Mr Byrom agreed that undertaking projects for cash using the Respondent’s letterhead, emails, equipment, and vehicles presented a significant risk to the business. Mr Byrom also agreed that this conduct should not occur going forward. -- 47 of 75 -- [2024] FWC 2865 48 [232] Although Mr Byrom agreed the conduct should not continue, it is Mr Shirley’s evidence that Mr Byrom did not seem to appreciate the seriousness of his past conduct and he did not think it was a big issue. At no point during the meeting did Mr Byrom refer to any policy which would have allowed him to authorise work for family members to be done off the books. [233] Mr Shirley asked Mr Byrom what disciplinary action he believed would be appropriate in the circumstances. Mr Byrom replied that a verbal or written warning would be warranted. Mr Shirley informed Mr Byrom that termination of his employment was also a possibility. Mr Shirley then adjourned the meeting and Mr Byrom left the room. Discussion with Mr Howard [234] Ms Gomes and Mr Shirley then had a discussion with Mr Howard in relation to his alleged involvement. Mr Howard apologised for his conduct in approving the cash job on the Benobble site. [235] Mr Howard explained that he now recalled Mr Byrom entering his office late one evening and saying that a staff surveyor currently on a site had been asked to perform some pegging work as part of the same development. Mr Byrom said that the cash payment for this work would be a couple of hundred dollars and would be used to purchase beers for the team. [236] Mr Shirley recalled Mr Howard saying that in the moment he approved the work considering that the value of the work was relatively low, and the surveying staff member was already on the site and was not required to travel elsewhere to perform the job. Mr Howard acknowledged that he should have given more thought to it and should have declined to approve the work. [237] Ms Gomes and Ms Shirley decided that Mr Howard should have no further role in the meetings or the decision making with respect to Mr Zahl and Mr Byrom’s employment. Deliberation and consideration [238] Mr Shirley and Ms Gomes held a discussion with Mr Karl Paganin, Board Chairman, Ms Julie Stanley, the then Chief Operating Officer and Mr Steve Dorian, an external Human Resources advisor. They considered that the immediate termination of Mr Zahl’s employment was justified on the basis that: • Mr Zahl had breached his employment contract on a minimum of three occasions, being the Benobble Job, the Gympie Job and Hervey Bay job; and • Ms Zahl understood that his behaviour was inappropriate and created significant commercial and legal liabilities for the Respondent. [239] In respect of Mr Byrom, they considered that it was clear he had condoned and facilitated the conduct of Mr Zahl. Further, Mr Byrom had held cash payments and was copied in on email correspondence in relation to these “off the book” jobs. -- 48 of 75 -- [2024] FWC 2865 49 [240] However, Mr Shirley said they took into account that Mr Byrom was a senior member of the extended leadership nationally, and was the most experienced member of the Queensland Leadership and the Chair of the Vertex Committee. They also considered the risk and commercial implications of the termination of Mr Byrom’s employment were significant for the Respondent particularly in light of Mr Byrom’s extensive experience and technical knowledge within the surveying field. [241] Moreover, from a commercial perspective, Mr Shirley considered that performing “off the book” work for cash payment, especially where the cash payment is for the individual’s personal benefit, is not encouraged or condoned by the Respondent as it exposes the business to a significant amount of risk in terms of safety, insurance and liability as well as significant cost implications. For instance: • The work performed by surveyors like Mr Zahl involves the use of the Respondent’s resources and technical equipment. Sending a surveyor like Mr Zahl out on the field means that they need to take with them upwards of $100,00 to $150,000 worth of equipment with them, exposing the business to a commercial risk on each trip if the equipment is damaged. This risk was increased where the Respondent does not or cannot track the job and the location of its equipment. • Where that work involves travel using a company vehicle, that exposes the Respondent to a commercial risk and cost associated with the use of the vehicle and potential liability should the vehicle or the surveyor be involved in an accident. • Should a surveyor injure themselves while using their equipment to conduct private work that was not recorded on their systems and which was not part of an existing safety plan, that has the potential to further damage the Respondent’s reputation on a commercial level with respect to occupational health and safety matters, which it takes seriously. In this case, although the Benobble Job would have meant Mr Zahl was covered under an existing safety plan, that was not the case for the Gympie job or the Hervey Bay job. This also posed safety and other risks to Mr Zahl by undertaking work outside of his approved work duties. • The use of “Veris” branded vehicles, equipment and emails for private work has the potential to damage the Respondent’s reputation and cause significant risk in the event that a surveyor was to make a mistake or act improperly while carrying out the work, as there would be an automatic assumption by a client that the work was being performed by the Respondent. In this case, the Gympie and Hervey Bay job involved corresponding with clients that the work was being performed by the Respondent. This exposed the Respondent to significant risk in terms of public liability and insurance, noting that their excess under the policy is approximately $250,000. [242] Ultimately, Mr Shirley and Ms Gomes concluded that if Mr Byrom had not been a senior member of the Respondent’s team and not of such high commercial and technical value to the Respondent, they would have easily made a decision to terminate his employment and that should be the right outcome in this case. Given that Mr Byrom did hold those additional attributes, they also decided that it was unacceptable for him to condone the inappropriate conduct of more junior staff under his management. -- 49 of 75 -- [2024] FWC 2865 50 [243] From a risk and governance perspective, Mr Shirley said they formed the view that as a large ASX-listed firm in this industry, the Respondent could not afford to allow Mr Byrom’s employment with the Respondent to continue. [244] In particular, they considered that a warning would not be sufficient because of the severity of Mr Byrom’s conduct given his training and instructions against the conduct, and the fact that the Respondent has one other property team in Queensland and property teams in every other State of Australia. Implementing only a warning would send the wrong message to all the other property teams that engaging in off the books conduct was not serious conduct that was condoned by the Respondent. Termination of Mr Zahl’s employment [245] At approximately 3:30pm, Mr Shirley and Ms Gomes invited Mr Zahl to return to the room. Mr Shirley explained to Mr Zahl that they had considered his responses and the circumstances. In doing so, they formed the view that Mr Zahl’s conduct amounted to multiple, serious breaches of his employment contract and therefore, they had no option but to terminate his employment effective immediately. [246] Mr Zahl responded that he was extremely disappointed, but he did not dispute the rationale behind the termination of his employment. Ms Gomes handed Mr Zahl a letter confirming the termination of his employment for serious misconduct. [247] Ms Gomes explained the contents of the letter and told Mr Zahl that they would arrange for him to come in and collect his personal items. Ms Gomes then escorted Mr Zahl downstairs and took his security pass. Termination of Mr Byrom’s employment [248] Mr Byrom was invited back into the room at around 4:00pm. [249] Mr Shirley denies that he commenced by saying (in reference to Mr Howard’s involvement), “It now appears that we now have three wrong not just two”, as asserted by Mr Byrom. Mr Shirley recalls he said, “There has been an added complexity with three people now being involved.” [250] Mr Shirley explained to Mr Byrom that as a senior leader in the business, they trusted him under his delegations to appropriately manage the risks and commercial practices in the business. He explained that his conduct in approving three cash jobs was a significant breach of the Respondent’s policies and exposed them to such a significant risk that they could not ignore. [251] Mr Byrom was then terminated, effective immediately, and explained it was due to serious breaches of his duty as a leader, presenting the Respondent with significant commercial risk. Mr Byrom was informed that it was clear that personal jobs using the Respondent’s equipment and vehicles was in breach of the Respondent’s policies and practices. -- 50 of 75 -- [2024] FWC 2865 51 [252] Mr Shirley handed Mr Byrom a letter confirming the termination of his employment for serious misconduct. A copy of the termination letter is produced at paragraph [28] above. Ms Gomes then explained the contents of the letter of termination, and asked Mr Byrom if he had any questions; Mr Byrom did not. [253] Ms Gomes explained that they would separately arrange for him to come in after hours to collect his personal effects. Mr Byrom said he had a significant number of files from his roles on professional bodies on his work computer. Ms Gomes informed him they would arrange for him to access and copy the required files. [254] Ms Gomes then escorted Mr Byrom out of the room and building. Events post-termination of Mr Byrom’s employment [255] Two days later, Mr Shirley received a call from Mr Zahl, requesting that his termination be converted to a resignation with one weeks’ payment in lieu of notice. Mr Shirley said he would consider the request and come back to him. [256] Mr Shirley spoke with Ms Gomes regarding Mr Zahl’s request. Despite the seriousness of the conduct, they agreed to convert Mr Zahl’s termination into a resignation and provide him with one weeks’ payment in lieu of notice on the basis that: • during the course of his employment, and other than his involvement in the three jobs, Mr Zahl had generally been a good employee; • he behaved professionally throughout the meeting on 2 November 2023, including the termination meeting, and he had taken responsibility for his actions without any attempt to blame others for his own actions; and • he was a comparatively junior employee and they did not want this incident to damage his prospects of future employment and work in the industry. [257] On 6 November 2023, Mr Shirley called Mr Zahl and informed him that they would amend his termination to provide for one week’s payment in lieu of notice. Mr Zahl was appreciative and professional in their discussions. Disciplinary action against Mr Howard [258] On 2 November 2023, following other meetings, Mr Shirley and Ms Gomes attended a meeting with Mr Howard. The purpose of the meeting was to discuss Mr Howard’s conduct in approving work to be performed for cash. Mr Shirley explained to Mr Howard that he had put the Respondent in a difficult position and his actions had not been appropriate. [259] Mr Howard conceded that, in retrospect, he ought to have been less cursory in his decision making with respect to approving the Benobble Job. Mr Howard acknowledged that it was a poor decision. -- 51 of 75 -- [2024] FWC 2865 52 [260] Mr Shirley verbally warned Mr Howard that if he engaged in any further conduct in contravention of a company policy or procedure, it would not be condoned and his employment would be at risk of termination. Mr Shirley clarified that his decision not to terminate Mr Howard’s employment in this instance ultimately turned on the materiality of the circumstances and conduct that he approved, namely his approval of the Benobble job. Specifically: • the Benobble Job was an existing job with an existing client; • the surveying staff were already on site and therefore were not required to travel to another location; • because the employees were already on site, they were operating under a safety plan; • it saved time in the sense that the individual requiring the pegging work would have otherwise approached their client who have in turn requested them to perform the work anyway; and • the Respondent had performed the original pegging work on the site and therefore, liability already sat with the Respondent. [261] Therefore, in contrast to the Gympie and Hervey Bay jobs, Mr Shirley considered that the Benobble job was materially different, particularly in respect of risk, safety and insurance considerations. In those circumstances, Mr Shirley considered it appropriate to counsel Mr Howard against the behaviour and provide him with a verbal warning. Jobs for Family [262] Mr Shirley noted Mr Zahl’s assertion that the Respondent had a policy applicable to undertaking work on behalf of family members. Mr Byrom also made reference to such policy and that he treated the Gympie Job “like all other family jobs that had been undertaken over the years”. [263] Mr Shirley stated that at no time before, during or after Mr Byrom’s employment was there such a policy, written or otherwise. Mr Shirley denied there was a practice of employees completing work for family members off the books. In any event, based on Mr Zahl’s own statement, the Gympie Job was not work that was conducted for his family. [264] Mr Shirley explained that employees can do work for family members where it is approved by management and a quote and job is raised in the Respondent’s systems and recorded. All information is recorded as it would ordinarily be recorded, including the use of a company vehicle to travel to the job. The Respondent does not offer a “family discount” and the job proceeds as any other job would proceed. Mr Shirley can recall approximately three jobs which have been approved for family members in the last several years. Evidence given during the Hearing [265] In answering questions from me, Mr Shirley confirmed that he and Ms Gomes flew home to Melbourne that night. He stated that they had a contingency plan to stay. [266] During the Hearing, a ‘run sheet’ of how 2 November 2023 would be played out was produced by the Respondent at the request of Mr Byrom. The proposed script was also produced with Mr Shirley’s amendments. Mr Shirley accepted that he responded: -- 52 of 75 -- [2024] FWC 2865 53 “There’s a couple of queries with Alistair’s call. Maybe it should be a review of the vehicle data has led us to find some potential issues that look to be a breach of our policies. A bit more generic as vehicle won’t apply to him and he will query.” [267] In answering questions in cross-examination, Mr Shirley said that the allegations were not put to Mr Byrom in advance of the meeting due to wanting to protect the whistleblower. [268] In respect of the ‘run sheet’, the following was anticipated: “….. 4. First meeting at 12:30pm in Brisbane Boardroom with MZ, MS, SG and MH a. Run through evidence and dismissal. b. On completion, MZ to hand over mv keys, mobile phone and office swipe card, leave laptop on desk and leave office immediately and provided with opportunity to come back after hours to collect personal possessions. MH to provide his mobile number for MZ to call after hours to get building access with him. 5. Second meeting at 1:00pm with AB, MS, SG and MH a. Run through evidence and dismissal b. on completion, AB to hand over office swipe card, leave laptop and leave office immediately and provided with opportunity to come back after hours to collect personal possessions. Going into next part is contingent upon information received during MZ and AB meetings and if further people need to be called in. …..” [269] The remainder of the run sheet detailed informing relevant personnel of the termination of Mr Byrom and Mr Zahl. Only 30 minutes was provided in the run sheet to meet with Mr Byrom, dismiss him and have him leave the office. Mr Shirley stated that the schedule wasn’t time limited. He answered, “We could go for as long as we needed to.” He answered that if Mr Byrom’s employment was to be terminated, a retired employee who had recently returned as a casual employee would be utilised as a key resource. [270] Mr Shirley denied stating to Mr Byrom that he would not be receiving his long service leave when he informed him of his dismissal. [271] Mr Shirley answered the following questions from me:14 Commissioner: …. Mr Shirley, have you had to dismiss people in your career? Mr Shirley: Yes. Commissioner: Do you normally put allegations in writing to people? -- 53 of 75 -- [2024] FWC 2865 54 Mr Shirley: There's different circumstances, but, yes, generally - I can't remember off the top of my head, but, yes, sometimes it is, yes. Commissioner: When you talk about protecting the whistleblower I mean by 2 November the allegations are out there. What protection does that person require from 1 November to 2 November? Mr Shirley: There's some real challenges around that particular circumstance that I can't really - I'd rather not talk about in terms of that individual. We were being - trying to be as protective as we could over that individual. Commissioner: Well, I think in the material produced here we probably know more now than Mr Byrom would have known on 2 November? Mr Shirley: I understand that, yes. Commissioner: We now know that it was somebody at a conference having a discussion with Mr Zahl. But what were your concerns on 1 November; why couldn't you - I mean isn't it just that you didn't want to give him the heads up? Mr Shirley: No, it's not that. We were genuinely concerned that someone would push this particular whistleblower, because there are only so many industry organisations that have met in that short period, and we were genuinely concerned about the health and wellbeing of that person because of some wider issues. Commissioner: Some what issues? Mr Shirley: Wider issues that they have. Commissioner: All right. But you can't put the allegations to Mr Byrom in writing, because what does that do to the whistleblower? Mr Shirley: I think if we - we didn't want people trying to explore the issue before we got to the meeting. Commissioner; Which people? Mr Shirley: We weren't sure who was going to ring who overnight or what they were going to do. We were genuinely concerned about the mental health of that individual for some other unrelated issues. Commissioner: All right. Let's say you don't give the heads up and you put the allegations. Then they're put, and then if Mr Byrom says, 'I need -- 54 of 75 -- [2024] FWC 2865 55 more time to be able to respond to the allegations', they're out there anyway on 2 November, aren't they? Mr Shirley: They are, yes. Commissioner: Let's say even on 2 November you make some findings, and then you ask Mr Byrom to show cause as to why he shouldn't be dismissed - - -? Mr Shirley: Yes. Commissioner: - - - and you give him a little bit of time to deal with that issue, because you've made findings, you've substantiated the allegations. That was available to you, wasn't it? Mr Shirley: Yes, it was. Commissioner: And have you ever done that practice before? Mr Shirley: Yes, we have. Commissioner: Why didn't you do it on this occasion? Mr Shirley: Because of the depth and extent of the issues. We had someone very, very senior in the organisation, that a lot of the time he well regarded in the industry, had brought significant risk and commercial cost on the business. Commissioner: So he's unrepresented in that 45 minutes, and you ring around and decide that he must be dismissed right there and then? Mr Shirley: That's what we did, yes. Commissioner: You couldn't sleep on it, put it to him in writing that you've formed a preliminary view that he ought to be dismissed, but can he plead for his job. Why couldn't you have done that? Mr Shirley: I didn't think getting him to plead for his job was a good thing for him or for us. Commissioner: That's what a show cause letter is all about. You understand that? Mr Shirley: Yes, I - - - Commissioner: You said you've done that before? Mr Shirley: Yes. Because the level of what we were talking about was so significant he couldn't work at that level of seniority in our -- 55 of 75 -- [2024] FWC 2865 56 business, and Alistair wouldn't have worked at a different level of seniority. Commissioner: Sorry, let's say you substantiate your findings on 2 November? Mr Shirley: Yes. Commissioner: Your investigation has concluded, you substantiate the allegations. You're saying what then, that there's no way out? Mr Shirley: There didn't appear to be any reason how we could continue having his employment, that that level of breach of trust and risk that was material for us. Commissioner: If you're right about that, then why couldn't he have been afforded some time to - - -? Mr Shirley: Yes, I understand. Commissioner: - - - convince you that there was some alternative, and even if you came to the conclusion a week or two later that, no, he's going to be dismissed, at least you get a say, we gave him an opportunity? Mr Shirley: I understand what you're saying. Commissioner: And you've done that for others, but not for him? Mr Shirley: For more junior staff members. Yes, we've never not at this level and not this level of implications. SUBMISSIONS OF THE PARTIES [272] The parties provided extensive written submissions prior to the Hearing, together with very detailed written closing submissions. I have had regard to all of the submissions but have not reproduced in this decision all of the material of the parties. Mr Byrom’s submissions [273] Mr Byrom submitted that he was unfairly dismissed within the meaning of s.385 of the Act, in that the dismissal was harsh, unjust and unreasonable. He argued that the dismissal was harsh, unjust and unreasonable on the basis that: • there was no valid reason for the dismissal relating to his conduct; • he was provided with inadequate notice of the reasons given by the Respondent for the dismissal; -- 56 of 75 -- [2024] FWC 2865 57 • he was not given any or any reasonable opportunity to respond to the reasons given for the dismissal. Rather, he was “ambushed” at the meeting held on 2 November 2023, as he had no idea what the meeting was about, had no proper opportunity to respond to what was presented to him and was denied a reasonable opportunity to respond to the allegations had substantial consequences in the matter. It is Mr Byrom’s position that he was given false information regarding critical facts, including the knowledge and approval of Mr Howard in respect to matters and allegations of which Mr Byrom was impugned; • he was not given any reasonable opportunity to have a support person present to assist at the discussions relating to the dismissal; • he was not notified that matters relating to his conduct in respect to which allegations, including serious allegations, would be raised against him or that allegations of misconduct of any kind would be raised; • he was not notified that discussions would take place which may lead to his dismissal; • the decision to summarily terminate his employment was made prior to the meeting referred and without any consideration being given to his response or potential response to the allegations; • he was not given any warning that his alleged actions were, or could be considered by the Respondent to constitute a valid reason for his dismissal and he was not given any warning that his action could constitute a possible breach of the relevant Policy or Policies of the Respondent; • he was not given any warning or training in respect to the matters complained of by the Respondent, including in respect to any applicable Policies of the Respondent; • The procedural deficiencies in respect to the process undertaken by the Respondent were extreme and were otherwise in breach of the principles of natural justice; • His conduct was not sufficiently serious to provide a valid reason for dismissal. The conduct of Mr Zahl which was categorised by the Respondent as constituting severe misconduct was apparently not regarded by the Respondent a sufficiently serious to justify his ‘dismissal’, as the basis for the termination of his employment was altered to that of resignation; • the Respondent failed to make any proper or reasonable inquiry in respect of the allegations when such inquiry would have demonstrated that the allegations were false and/or without sufficient foundation to justify same or his dismissal; • the allegations that he wrongly approved and/or was responsible for the conduct of Mr Zahl (a subordinate employee) were demonstrably false and without foundation. The allegations were maintained notwithstanding the admission made by Mr Howard -- 57 of 75 -- [2024] FWC 2865 58 that he was aware of and had in effect approved such actions or a substantial part of them; • any reasonable inquiry made by the Respondent to Mr Zahl would have demonstrated that Mr Byrom was unaware of his conduct in respect to the Hervey Bay and Gympie Allegations, or a substantial part of them and did not give Mr Zahl his approval to undertake such actions, as set out in Mr Zahl’s evidence; • the meeting between the Respondent and Mr Byrom on 2 November 2023 was not conducted as part of an inquiry or investigation into anomalies regarding “jobs” undertaken by Mr Zahl which had come to light, which matters should have been discussed with Mr Byrom prior to such meeting. The purpose of the meeting was to execute a decision made by the Respondent to summarily terminate Mr Byrom’s employment; and • the allegations against Mr Byrom at their highest did not constitute any serious or imminent risk to the viability reputation or profitability of the Respondent’s business, particularly taking into account the substantial period of time which had elapsed since the relevant actions had occurred. [274] It was submitted that the reasons given for dismissal by the Respondent are not “sound, defensible or well founded.”15 It was asserted that the allegations against Mr Byrom, at their highest, do not constitute a valid reason for dismissal.16 Although it was not alleged that Mr Byrom was guilty of misappropriation of funds, any misappropriation and/or loss suffered by the Respondent would be insufficient to justify dismissal.17 [275] Mr Byrom asserted the dismissal was reached in a predetermined manner and without knowledge of the facts and matters concerning the allegations. The decision was made without proper consideration of the explanations, responses or information provided by Mr Byrom, Mr Howard and Mr Zahl, who was also dismissed on 2 November 2023 immediately before Mr Byrom. [276] It is further asserted that the dismissal was not arrived at with procedural fairness, on the basis that: • Mr Howard gave misleading notice of the meeting when speaking to Mr Byrom at 6:00pm on 1 November 2023 concerning Mr Byrom being required to attend a meeting the next day. Mr Howard referred to the meeting being about “vehicle policy issues.” • Mr Howard did not inform Mr Byrom that two of the most senior offices of the Respondent, being Mr Shirley and Ms Gomes, would be in attendance and had travelled from Melbourne for that purpose or that the meeting concerned allegations made about him or as to the subject matter of the meeting. • Until he was confronted by the allegations by Mr Shirley, Ms Gomes and Mr Howard at the meeting on 2 November, Mr Byrom was oblivious to any concerns about -- 58 of 75 -- [2024] FWC 2865 59 himself as an employee of the Respondent being investigation and about which he may have been subject to disciplinary action or adverse employment outcomes. • Mr Byrom was not informed at any time to have regard to the Respondent’s own (Discipline & Termination) and that he would be interviewed pursuant to that Policy. He was not told a “formal disciplinary interview” as is provided for in the policy was about to occur with him. • The matters of concern were not disclosed to Mr Byrom until the meeting on 2 November 2023. Mr Byrom submitted that this is not sufficient and a proper opportunity for Mr Byrom to respond or provide any or any reasonable procedural fairness to him. At least one of the matters presented to him occurred in February 2023. • The allegations and accusations in writing were first seen by Mr Byrom on 2 November 2023 in the dismissal letter. Mr Byrom was not given any warning with respect to the subject matter of the allegations or as to any conduct in breach of the company’s policies. • No suspension process as provided for in the employer’s applicable policy and in Mr Byrom’s employment agreement, show cause process or forewarning of possible employment consequences including the termination of employment, was afforded to Mr Byrom. • The Respondent superficially went through the motions of giving Mr Byrom an opportunity to respond to the allegations. However, a decision to terminate had already been made and Mr Shirley and Ms Gomes had travelled from Melbourne for that purpose. [277] The dismissal was ultimately affected without notice or payment in lieu. Mr Byrom was escorted from his place of employment without any opportunity, at that time, to collect his personal possessions. [278] Mr Byrom submitted that the Commission should make an order for an amount equivalent to six months wages and entitlements following the termination, less any income received by Mr Byrom or payable to him in respect to such period.18 This is an amount of around $70,000. [279] Mr Byrom relies on the following authorities, particularly in Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport (2000) 98 IR 137, where it stated at [106]: “procedural fairness would require that an employee be notified of a valid reason of their termination before any decision is taken to terminate their employment to provide them with an opportunity to respond to the reason identified.” [280] In closing submissions, Mr Byrom asserted that he gave evidence in a direct and straightforward manner, readily making concessions when appropriate. It was submitted that it -- 59 of 75 -- [2024] FWC 2865 60 would be wrong to characterise his conduct as “deceitful”. If the Commission considers he “hid” the Hervey Bay cash in his drawer, the Commission ought to have regard to Mr Byrom’s evidence that he wished it would go away; it was not to secure it for his personal use. The Respondent’s submissions [281] The Respondent refuted that Mr Byrom was unfairly dismissed, noting that the evidence demonstrates that: • there was a valid reason for the dismissal, in that Mr Byrom engaged in serious misconduct which was largely admitted by Mr Byrom (notwithstanding his attempts to recharacterise that conduct); • that conduct was sufficient to warrant summary dismissal; • Mr Byrom was provided a meaningful opportunity to respond to the allegations and he did not respond to those allegations; • the decision to terminate Mr Byrom’s employment was not taken lightly, nor was it pre-determined; • while there were deficiencies in the process adopted by the Respondent, Mr Byrom was afforded procedural fairness in substance and any deficiency was not sufficient to render the dismissal unfair; • at no point was Mr Byrom misled, regardless of his perception of what occurred; • Mr Byrom was provided with the opportunity to have a support person which he did not action; • the investigation into Mr Byrom’s conduct was thorough and impartial, despite Mr Howard’s involvement; • Mr Byrom was informed of the reason for his dismissal in writing and in a manner he apparently understood; and • in all the circumstances, the dismissal was fair. [282] Mr Byrom was aware of the Motor Vehicle Policy and Code of Conduct and had certified to the Respondent that he had read and understood the policies.19 [283] The Create Client Value – Transition from Smaller Projects Work Instruction (Small Jobs Policy) came into effect on 14 February 2023, before any of the Benobble, Gympie or Hervey Bay Jobs were undertaken. For several years prior to the introduction of the Small Jobs Policy, there was an informal policy that the Respondent would not engage in small jobs that were not commercial and Mr Byrom was aware of this.20 That informal policy was subsequently formalised by way of the Small Jobs Policy. -- 60 of 75 -- [2024] FWC 2865 61 [284] The Respondent argued that the Small Jobs Policy applied to each of the Benobble, Gympie and Hervey Bay Jobs. None of those jobs met the criteria for approval under the Small Jobs Policy. However, the Benobble Job was not in breach of the Small Jobs Policy because it was approved by Mr Howard who had the discretion to do so. [285] The Code of Conduct applied to Mr Byrom. It was submitted that Mr Byrom persistently breached the Code of Conduct by way of his involvement in each of the Benobble, Gympie and Hervey Bay Jobs. [286] The Respondent conceded that Mr Howard did not follow the Whistleblower Policy to the letter. It is submitted that there was no substantive unfairness towards Mr Byrom because of any defects in complying with the Whistleblower Policy. [287] The Respondent prepared a run sheet in advance of the 2 November 2023 meeting. The Respondent accepted that the run sheet gives the impression that the decision to terminate Mr Byrom’s employment had already been made. The Respondent asserted that the run sheet was prepared as a contingency in the event the outcome was termination. The run sheet was dependent on what occurred in the meetings with Mr Zahl and Mr Byrom. Due to the seniority and significance of Mr Byrom’s role, the Respondent recognised that if the outcome was dismissal, it would have to act swiftly to minimise disruption to the Property Team in Brisbane. [288] The Respondent accepted that it was a mistake to print the letters in advance. However, while it may be evidence of a lack of expertise and open to criticism, it is not evidence of a pre- determined decision. [289] In respect of any remedy to award Mr Byrom in the event the Commission determines that he was unfairly dismissed, the Respondent made the following submissions: • Mr Byrom went on a two-week holiday shortly after his dismissal; • Mr Byrom did not make any immediate enquiries about other employment; • by the time Mr Byrom returned it was going into December; • although Mr Byrom had ‘some discussions with people’, those people suggested he wait until after Christmas to have employment discussions; and • despite having concerns about restraints of trade in his contract, Mr Byrom did not seek to be released from those restraints by the Respondent and he could not recall if he discussed this with his lawyer. [290] Having regard to the above, the Respondent asserted any compensation ought to be limited to $17,462, comprising: • $189,000 – what Mr Byrom would have earned with the Respondent (if the Commission were to find that he would have maintained employment with the Respondent for the 12 month period he nominated); -- 61 of 75 -- [2024] FWC 2865 62 • less $125,000 – what Mr Byrom will have earned from his new employment by the end of the nominated 12 months; • less $29,076 – the equivalent of 8 weeks’ pay representing the period between Mr Byrom’s dismissal and the end of Christmas, during which he failed to mitigate his loss; and • less 50% – as a deduction for Mr Byrom’s misconduct. CONSIDERATION [291] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:21 “It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer act, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” [292] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.22 s.387(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) [293] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider: “In its context in s.170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1) At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based on upon the operational requirements of the employer’s business. Further, in consideration whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly’.” [294] 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.23 -- 62 of 75 -- [2024] FWC 2865 63 [295] Mr Byrom was a senior, experienced and well-respected employee. He held an important role in the business, including representing the Respondent externally. Benobble job [296] In respect of the Benobble job, it is clear that Mr Zahl contacted Mr Byrom to enquire if the side job for Mr Wearing could be conducted. It would appear that between Mr Zahl and Mr Byrom, they determined that a nominal amount of $300 could be charged to Mr Wearing, if approval of Mr Howard was obtained. [297] I consider it more likely than not that Mr Byrom sought Mr Howard’s approval to have Mr Zahl perform the job for $300 cash earlier than the estimated 6:00pm time put by Mr Howard. It was more likely to have been earlier in the afternoon. I do not consider that Mr Byrom gave Mr Zahl the all clear without having run it first by Mr Howard. [298] Having obtained Mr Howard’s approval to perform the job for $300 cash, the work was then properly approved. I find, however, that Mr Zahl did not suggest to Mr Byrom that having the work authorised would save hours of ‘bush bashing’ and it was put, for this reason, the job should be approved, and to promote Mr Wearing agreeing to the access to his land. Mr Byrom gave oral evidence that this is what he discussed with Mr Zahl. Mr Zahl disagreed this had been discussed and I am of the view that Mr Byrom surprisingly made this evidence up in the witness box as a reason for why the work was performed. Mr Zahl’s evidence was that Mr Wearing had provided access to his land for the substantive Benobble job whether his private, small job was approved or not. [299] I also find that Mr Byrom did not suggest this to Mr Howard in order to make approving the cash job more attractive, despite his oral evidence. [300] Mr Byrom and Mr Howard’s involvement in having the Benobble job performed for the payment of cash, without charging GST or declaring the payment on the Respondent’s balance sheet was a significant failure of both employees. Mr Byrom’s assertion that the payment could be used to offset entertainment expenses of pizza and beer for a team meeting does not meet proper accounting standards for an incorporated entity, and certainly not one with a valuable reputation as the Respondent. [301] Mr Byrom’s initial reaction when confronted with this allegation on 2 November 2023 was to offer to get the $300 from his office drawer. It is a peculiar statement to make, when he ought to have remembered that the bulk of the money was spent on pizza and beer for the team. Gympie job [302] Mr Byrom was informed, through an email sent by Mr Zahl on 26 May 2023 that the work he wished to perform on a weekend involving a ‘family job’ was, in fact for a client named JM Plumbing and Civil. The quote had a large logo of the business on it. [303] Mr Byrom clearly paid very little attention to the relevant paperwork associated with the job Mr Zahl wished to perform. The quote was for $500 excluding GST, although GST was -- 63 of 75 -- [2024] FWC 2865 64 charged to the client for the $500 portion of the payment, not the additional $700 cash received by Mr Zahl. [304] Mr Byrom gave evidence that the work performed in relation to the Gympie job would be approximately $2,500 in value. Mr Zahl conceded in oral evidence that the time he spent working on the job, including preparation for the job in company time meant that it was a loss to the Respondent. [305] Mr Byrom signed off on the survey plan understanding that the client was paying only $550. He did not know of the large amount of work performed by Mr Zahl during work time to prepare for the job, nor did he know that Mr Zahl charged and received $700 in cash from the client. [306] In permitting Mr Zahl to perform the work, Mr Byrom had no regard for the Respondent’s motor vehicle policy. Mr Byrom certainly did not take into account the travel undertaken by Mr Zahl at the Respondent’s cost, and the supervising of the survey plan by Mr Byrom, when approving the modest amount of $550 (inclusive of GST) to be charged the client. Mr Byrom made no effort to satisfy himself that the work was being performed for a member of Mr Zahl’s family. If he had, he would have discovered the work was not being performed for a family member. [307] Mr Byrom’s evidence that whenever he had sought approval for his team members to use their allocated company vehicle beyond that permitted in the Respondent’s policy, it was always approved, was entirely unsatisfactory. There was no standing approval given by the Respondent to allow employees to use the company vehicle as an employee saw fit, nor did Mr Byrom have any authority to permit such use. [308] Mr Byrom had no regard for the Respondent’s policies requiring a safety plan to be executed and a journey management plan for the work performed by Mr Zahl on the Gympie job. He had no regard for the job being performed at a loss to the Respondent. Hervey Bay job [309] When approached by Mr Zahl to permit him to perform work at Hervey Bay, Mr Byrom’s response to Mr Zahl was insipid. He did not instruct him not to; he simply said he should consider his work/life balance and not make other people’s urgencies the Respondent’s urgency. [310] Where Mr Byrom ought to have said no, it was not permitted, it was a small job, there was no motor vehicle approval, nor was there a safety plan or journey management plan in place, he effectively turned a blind eye to Mr Zahl’s willingness to perform the unauthorised job. [311] When later, he received an envelope containing cash (with a portion of it deducted by Mr Zahl), Mr Byrom ought to have investigated the matter and reported the cash payment. Instead, he did not count the cash and he placed it in his office drawer. It was untouched when discovered by Mr Howard. There is no suggestion, nor do I find that Mr Byrom was looking to personally gain from the transaction. -- 64 of 75 -- [2024] FWC 2865 65 [312] Mr Byrom did nothing at all to prohibit or report Mr Zahl’s conduct. He became aware of Mr Zahl’s conduct in June 2023 and retained the cash in the envelope in his drawer for many months, until his dismissal in November 2023. When questioned on this in the termination meeting, Mr Byrom did not suggest that he was in any way hampered in disciplining Mr Zahl. [313] Mr Byrom’s conduct permitted tax evasion in that no GST was recorded for the $750 payment, nor did Mr Byrom have any plans to have the $750 payment recorded on the Respondent’s balance sheet. He was not aware at the time that Mr Zahl removed $150 of the payment for himself, but if he had made inquiries, he would have known that Mr Zahl received an untaxed payment. Consideration of s.387(a) [314] A person in Mr Byrom’s senior position ought to have known that the conduct of Mr Zahl was in breach of the Respondent’s various policies and it permitted actual tax evasion. Mr Byrom turned a blind eye to the conduct, or in the alternative, failed to make reasonable efforts to ensure that he and his subordinate complied with the Respondent’s policies and taxation responsibilities. [315] The most serious breach was in respect of the Hervey Bay job, with Mr Byrom having direct knowledge in June 2023 of Mr Zahl’s conduct. Mr Byrom’s failure to do anything about Mr Zahl’s conduct months earlier, and Mr Byrom’s receipt of the $600 cash payment (less a $150 deduction made by Mr Zahl) constituted a serious breach of the Respondent’s various policies. [316] I do not consider it material in respect of the consideration at s.387(a) that the Hervey Bay job was not referenced in the dismissal letter, prepared a day earlier. The information gleaned from the meetings on 2 November 2023 resulted in the Respondent deciding to dismiss Mr Byrom. [317] The second most serious breach of the Respondent’s policies was in respect of the Gympie job. Simply because Mr Byrom was not aware that Mr Zahl had received a $700 cash payment does not excuse Mr Byrom’s omissions. Mr Byrom made no effort to make proper inquiries in respect of the job, yet was involved in the job by signing off the survey plan. He is not entitled to selectively reduce his culpability in respect of Mr Zahl’s breaches of the Respondent’s various policies. [318] I am satisfied that the dismissal was related to Mr Byrom’s conduct. Mr Byrom was aware of the Respondent’s various policies which I am satisfied are reasonable in all of the circumstances. He breached numerous policies and allowed Mr Zahl to breach numerous policies. Mr Byrom inappropriately informed Ms Conneely to keep quiet in respect of Mr Zahl performing cash jobs, demonstrating his willingness to permit the misconduct and Mr Byrom’s desire to conceal from others his involvement. I am satisfied that in respect of the Gympie and Hervey Bay jobs, there was a valid reason for the dismissal. -- 65 of 75 -- [2024] FWC 2865 66 s.387(b) - Whether the person was notified of that reason [319] Mr Byrom was notified in writing that he was dismissed in respect of the Benobble and Gympie jobs. He agreed that when the Hervey Bay job was put to him in the meeting of 2 November 2023, he addressed the allegation. Mr Byrom advocated in that meeting that he ought to be given a warning in respect of all of his conduct. [320] I consider that Mr Byrom was notified that he was being dismissed, but not necessarily in respect of all three cash jobs. I consider that he could reasonably have assumed that to be the case. Again, it is noted that the termination letter refers only to two of the three cash jobs. s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person [321] Mr Byrom was not given proper advance notice of the purpose of the meeting. In my view, the Respondent acted reprehensibly in attempting to conceal the real reason for meeting with Mr Byrom on 2 November 2023. The prepared script and email sent to Mr Byrom tells of the attempt by the Respondent to make the purpose of the meeting as vague as possible. [322] There was no reason to provide to Mr Byrom all of the reasons for the meeting on 2 November 2023 when he was contacted by Mr Howard on 1 November 2023. However, Mr Byrom was forced to give his account in respect of all three cash jobs ‘on the run’ in the first meeting of 2 November 2023. He had a short amount of time during a break to then run through the three cash jobs in the second meeting of 2 November 2023. He was clearly not provided with a reasonable opportunity to respond to the conduct concerns the Respondent held. [323] The ‘run sheet’ extracted in the course of these proceedings demonstrates that Mr Shirley and Ms Gomes had a vision they wished to implement on 2 November 2023 – dismiss Mr Zahl and Mr Byrom unless they had anything extraordinary to say. The dismissals would be actioned very promptly to permit communication of the dismissals to others in the team. [324] The swiftness of the Respondent’s decision to dismiss Mr Byrom deprived Mr Byrom an opportunity to procedural fairness, as required by clause 5.5 of the Respondent’s Discipline and Termination Policy. He was entitled to, in accordance with the policy, a right to be informed of the concerns and an opportunity to respond. A right to be informed of the concerns, in these circumstances, ought to have included the allegations in writing following an initial investigation meeting. An opportunity to respond, in all of the relevant circumstances is not a matter of minutes. Mr Byrom ought to have been provided with a right to respond in writing following an initial investigation meeting. [325] The Respondent’s Whistleblower Policy provided that an investigation would be conducted and findings made in a report. The findings may be fully or partially substantiated, unable to be substantiated or disproven. Mr Howard conceded that none of this was done. [326] Ultimately, Mr Byrom was provided with such a short amount of time to respond to the allegations on account of the Respondent’s desire to swiftly dismiss him that it made the investigation period almost void. Ms Gomes gave evidence that she and Mr Shirley determined that if Mr Zahl needed to be dismissed, so too did Mr Byrom. That evidence is quite disturbing -- 66 of 75 -- [2024] FWC 2865 67 and demonstrates that Mr Byrom was not afforded impartial consideration of his conduct without it being coloured by Mr Zahl’s conduct. [327] The concerns around Mr Byrom getting a head’s up in respect of the Whistleblower Complaint before 2 November 2023 make no sense at all. He was informed of the allegations on 2 November 2023. He could have been issued with an instruction not to attempt to find the source of the complaint while the matter was being investigated. s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal [328] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. [329] There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following: “This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” [330] In the circumstances, I find that the Respondent did not unreasonably refuse to allow Mr Byrom to have a support person present at discussions relating to the dismissal on 2 November 2023. s.387(e) - Was there a warning of unsatisfactory work performance before dismissal [331] Mr Byrom’s dismissal did not relate to unsatisfactory performance, it related to alleged misconduct. This is a neutral factor. s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed [332] The Respondent is not a small business. It employs a dedicated human resource management specialist and, in the evidence, given, sought advice from an external human resources advisor prior to dismissing Mr Byrom. [333] The Respondent’s decision to print termination letters for Mr Zahl and Mr Byrom from Melbourne on 1 November 2023, without any consideration of editing them following the meetings on 2 November 2023 is amateurish. The reasons given is that none of the senior management could access the printer without some other unrelated employees potentially reading the document on the printer beforehand. Such reasoning is unprofessional. There is nothing extraordinary in a senior, visiting employee of the Respondent standing by the shared -- 67 of 75 -- [2024] FWC 2865 68 printer ensuring that another senior manager prints documents which are then retrieved before others have the opportunity to read it. s.387(h) – Other matters [334] Whilst there was no unreasonable refusal by the Respondent to allow Mr Byrom to have a support person present to assist at any discussions relating to the dismissal as per the consideration at s.387(d) of the Act, I consider that the false premise of the meeting as explained to Mr Byrom on 1 November 2023 contributed to the denial to Mr Byrom of procedural fairness. [335] As a senior employee, with serious allegations being put to him, and in consideration of his length of service, he was entitled to have the Respondent’s policies upheld in their application to him, as much as he was obligated to follow the Respondent’s various policies in respect of his conduct. By denying Mr Byrom the right to the allegations in writing, the real opportunity of a support person in respect of matters known by him to be affecting him, and the opportunity to provide a show cause response in the event a show cause letter was issued to him, the Respondent acted unfairly towards him. [336] There was nothing precluding the Respondent from suspending Mr Byrom while it completed its investigation and made findings once his responses were provided. There was nothing precluding the Respondent from issuing to Mr Byrom a show cause letter if it made findings that in all of the circumstances, Mr Byrom’s employment might need to be terminated, subject to anything he said in his show cause response. [337] The haste and method of Mr Byrom’s dismissal meant that it mattered very little what he said on 2 November 2023; he was very likely going to be dismissed. [338] I have had regard to Mr Byrom’s seven years’ service with the Respondent. Conclusion [339] I have determined that there was a valid reason for the dismissal. [340] I consider that the Respondent informed Mr Byrom of some of the reasons for the dismissal, but he would have understood it was in respect of all three cash jobs performed by Mr Zahl. [341] I have determined that Mr Byrom was given an opportunity to respond to all of the reasons for the dismissal, however it was in such a rushed, procedurally unfair way that it was deficient. [342] There was no unreasonable refusal by the Respondent to allow Mr Byrom a support person. [343] Mr Byrom’s dismissal was for alleged serious misconduct, not for unsatisfactory work performance. -- 68 of 75 -- [2024] FWC 2865 69 [344] The Respondent’s enterprise is not small. There was not an absence of a dedicated human resource management specialist impacting on the procedures followed. [345] In respect of other matters, I have determined that Mr Byrom was largely denied procedural fairness and the Respondent breached some of its own policies in the way it went about dismissing Mr Byrom. I have had regard for Mr Byrom’s length of service with the Respondent. [346] Overall, notwithstanding that there was a valid reason for the dismissal, the deficiencies in the way the Respondent went around dismissing Mr Byrom so swiftly lead me to the conclusion that the dismissal was harsh, unjust and unreasonable. Having satisfied myself that the dismissal was harsh, unjust and unreasonable, pursuant to s.385(b) of the Act, I find that Mr Byrom was unfairly dismissed. Remedy [347] Section 390 of the Act reads as follows: “390 When the FWC may order remedy for unfair dismissal (1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if: (a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and (b) the person has been unfairly dismissed (see Division 3). (2) The FWC may make the order only if the person has made an application under section 394. (3) The FWC must not order the payment of compensation to the person unless: (a) the FWC is satisfied that reinstatement of the person is inappropriate; and (b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case. Note: Division 5 deals with procedural matters such as applications for remedies.” [348] Mr Byrom is a person protected from unfair dismissal for the Act’s purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated. [349] I am satisfied that it is inappropriate to order reinstatement. [350] I now turn to consideration of compensation. -- 69 of 75 -- [2024] FWC 2865 70 Compensation [351] Section 392 of the Act provides: “392 Remedy—compensation Compensation (1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement. Criteria for deciding amounts (2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including: (a) the effect of the order on the viability of the employer’s enterprise; and (b) the length of the person’s service with the employer; and (c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and (d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and (e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and (f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and (g) any other matter that the FWC considers relevant. Misconduct reduces amount (3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct. Shock, distress etc. disregarded (4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or -- 70 of 75 -- [2024] FWC 2865 71 humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal. Compensation cap (5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of: (a) the amount worked out under subsection (6); and (b) half the amount of the high income threshold immediately before the dismissal. (6) The amount is the total of the following amounts: (a) the total amount of remuneration: (i) received by the person; or (ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and (b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.” Authorities [352] The approach to the calculation of compensation is set out in a decision of a Full Bench of Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.24 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;25 Jetstar Airways Pty Ltd v Neetson-Lemkes;26 and McCulloch v Calvary Health Care (McCulloch).27 [353] I have had regard to the above authorities, and I have considered the submission of each party. The effect of the order on the viability of the respondent [354] There is no evidence to suggest that an award of compensation would affect the viability of the Respondent’s enterprise. -- 71 of 75 -- [2024] FWC 2865 72 The length of Mr Byrom’s service [355] Mr Byrom had seven years and two days’ service which I consider to be a reasonable period of time. The remuneration that Mr Byrom would have received, or would have been likely to receive, if he had not been dismissed [356] Noting that I have found that the Respondent had a valid reason to dismiss Mr Byrom, I consider that if he had been afforded procedural fairness and an appropriate period to respond to allegations in writing, and a show cause process to be followed, the employment would have continued for a period of three weeks (beyond his pre-arranged period of two weeks’ annual leave) before he would have been fairly dismissed. The Respondent’s compliance with its own policies would have rendered this an appropriate amount of time. I have determined that an appropriate amount of time would have been two weeks to conclude the investigation, allowing Mr Byrom representation if he sought it, and one week to consider any response from Mr Byrom in respect of a show cause letter that ought to have been issued to Mr Byrom. All of this would have occurred after Mr Byrom’s return from annual leave. [357] I do not consider it necessary to make provision for any notice not paid to Mr Byrom pursuant to s.117 of the Act. I consider that Mr Byrom’s conduct would reasonably constitute serious misconduct in respect of his awareness of Mr Zahl’s performance of the Hervey Bay job and Mr Byrom’s receipt of the $600 cash payment in June 2023 and his failure to report the matter. [358] The amount of remuneration Mr Byrom would have received in the three-week period would have been $189,000 / 52 x 3 weeks = $10,903.85. I have taken into account the fact that Mr Byrom had pre-arranged annual leave for a period of two weeks following his dismissal, and I am satisfied that he would have been on annual leave. The three weeks of compensation is for the period beyond the annual leave. The efforts of Mr Byrom (if any) to mitigate the loss suffered because of the dismissal [359] Having decided Mr Byrom’s employment would have continued for an additional three weeks beyond his two-week period of annual leave, I need only consider the efforts of Mr Byrom to mitigate his loss in those three weeks. I do not consider it necessary for him to have immediately sought employment in those three weeks and no deduction is made to the award of compensation. The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation [360] Mr Byrom did not earn any remuneration from employment or other work in the above relevant period. -- 72 of 75 -- [2024] FWC 2865 73 The amount of any income reasonably likely to be so earned by Mr Byrom during the period between the making of the order for compensation and the actual compensation [361] This factor is not relevant in the circumstances of this matter. Other relevant matters [362] I note that Mr Byrom will be entitled to a payment of pro rata long service leave on account of having reached seven years’ service and a finding that the Respondent has unfairly dismissed him.28 I estimate that is a payment of approximately $31,500. Misconduct reduces amount [363] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct. [364] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced. [365] I am satisfied that misconduct of Mr Byrom contributed to the Respondent’s decision to dismiss him. Accordingly, I must reduce the amount that would otherwise be ordered by an appropriate amount on account of the misconduct. [366] In all the circumstances, I am satisfied that the appropriate amount by which to reduce the amount of the order for compensation on account of misconduct is 35%. The amount to be awarded is therefore $7,087.50. Shock, distress etc. disregarded [367] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Byrom by the manner of the dismissal. Compensation Cap [368] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal. -- 73 of 75 -- [2024] FWC 2865 74 [369] The high income threshold immediately prior to the dismissal was $167,500, and the amount for 26 weeks was $83,750. The amount of compensation the Commission will order does not exceed the compensation cap. Payment by instalments [370] This is not a relevant consideration. Order of compensation [371] I have determined to award Mr Byrom the amount of $7,087.50 and an amount of $779.63 in superannuation at the rate of 11% as it was in the 2023/2024 financial year. [372] The Respondent is to pay to Mr Byrom the following amounts within 14 days: (a) $7,087.50 taxed as required by law; and (b) $779.63 into Mr Byrom’s superannuation account. [373] An order [PR780287] giving effect to this decision will be published. COMMISSIONER Appearances: M Brooks of Counsel, instructed by M Woods of Woods Prince Lawyers for the Applicant. M Stone of Counsel, instructed by V De Alwis of Gadens for the Respondent. Hearing details: 2024. Brisbane. 17 April. 18 April. Final written submissions: 10 June 2024 for the Applicant. 18 June 2024 for the Respondent. 24 June 2024 for the Applicant’s submissions in reply. Printed by authority of the Commonwealth Government Printer -- 74 of 75 -- [2024] FWC 2865 75 <PR780286> 1 Transcript of Hearing, 17 April 2024, PN719. 2 Transcript of Hearing, 17 April 2024, PN759. 3 Transcript of Hearing, 17 April 2024, PN1412. 4 Transcript of Hearing, 17 April 2024, PN819. 5 Transcript of Hearing, 17 April 2024, PN957. 6 Transcript of Hearing, 17 April 2024, PN1055. 7 Transcript of Hearing, 17 April 2024, PN1560. 8 Transcript of Hearing, 17 April 2024, PN1619. 9 Transcript of Hearing, 17 April 2024, PN1799. 10 Transcript of Hearing, 17 April 2024, PN2007 – PN2013. 11 Transcript of Hearing, 18 April 2024, PN2208 – PN2218. 12 Transcript of Hearing, 18 April 2024, PN2299. 13 Transcript of Hearing, 18 April 2024, PN2763. 14 Transcript of Hearing, 18 April 2024, PN3378 – PNPN3399. 15 See Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 3731. 16 See Crockett v Vondoo Hair t/a Vondoo Hair [2012] FWA 8300. 17 See McKerrow v Sarina Leagues Club Incorporated t/a Sarina Leagues Club [2012] FWA 1251. 18 See Claudia McLeod & Sierra Louie v Project 88 TPF Pty Ltd T/A Pink Flamingo Spiegelclub [2023] FWC 2630. 19 Transcript of Hearing, 17 April 2024, PN1247 – PN1250. 20 Transcript of Hearing, 18 April 2024, PN3278 – PN3284. 21 (1995) 185 CLR 410, [465]. 22 Sayer v Melsteel [2011] FWAFB 7498 at [20]. 23 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. 24 (1998) 88 IR 21. 25 [2013] FWCFB 431. 26 [2013] FWCFB 9075. 27 [2015] FWCFB 2267. 28 Industrial Relations Act 2016 (QLD), s.95(4). -- 75 of 75 --