Adam Miller v Urbanite Bikes Pty Ltd T/A Urban Pedaler
[2018] FWC 6280
•17 OCTOBER 2018
| [2018] FWC 6280 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adam Miller
v
Urbanite Bikes Pty Ltd T/A Urban Pedaler
(U2017/12611)
| Commissioner Bissett | MELBOURNE, 17 OCTOBER 2018 |
Application for an unfair dismissal remedy – remitted by Full Bench – dismissal harsh and unreasonable – applicant unfairly dismissed – remedy - compensation ordered.
On 22 March 2018 I made a decision[1] in which I found that Mr Adam Miller had not been unfairly dismissed from his employment with Urbanite Bikes Pty Ltd T/A Urban Pedaler (Urban Pedaler). In that decision I determined that the dismissal of Mr Miller was consistent with the Small Business Fair Dismissal Code (Code) and dismissed the application.
Mr Miller appealed that decision and on 20 July 2018 a Full Bench of the Fair Work Commission (Commission) granted Mr Miller permission to appeal and upheld the appeal.[2] The application was remitted to me for re-hearing and determination.
On 27 July 2018 I issued directions for the re-hearing. Those directions indicated that evidence and submissions from the original hearing could be relied on in the re-hearing of the matter but gave the parties an opportunity to make further submissions and to provide further evidence if they so desired.
Mr Miller did not file any further material and indicated that he wished to rely on the evidence and submissions made by him in the initial hearing. Mr Gabe Sullens for Urban Pedaler filed additional submissions in relation to his compliance with the Code.
The hearing on remittal of the matter was held on 1 October 2018. Having heard from the parties the matter was dealt with by determinative conference.
Mr Miller gave evidence on his own behalf and Mr Sullens gave further evidence on behalf of Urban Pedaler. Both Mr Miller and Mr Sullens provided additional statements under oath. I indicated I would take into account all of the evidence, transcript and materials filed by the parties from the initial hearing and the further material provided by the parties at the most recent hearing in reaching my decision.
Background
Mr Miller commenced employment with Urban Pedaler on 5 September 2016. He was employed as the Workshop Manager in the Service Department (although for much of his employment he was the only person working in the service department). His employment was terminated by Mr Sullens, the owner of Urban Pedaler, on 22 November 2017, due to poor performance of his job.
The issues Mr Sullens had with Mr Miller’s performance were articulated in detail in a letter of 16 November 2017.[3] It was for the reasons set out therein and Mr Miller’s response to that letter on 17 November 2017 that Mr Sullens said left him with no choice but to terminate Mr Miller’s employment.
Evidence and Submissions
Both Mr Miller and Mr Sullens relied on their evidence given at the initial hearing.[4] That evidence is not repeated here but has been relied on by me in reaching my decision.
Further evidence of Mr Miller
Mr Miller gave further evidence that since his dismissal in November 2017 he has applied for more than 30 positions. He said he finally obtained full-time work approximately three months ago doing road construction as a labourer. Mr Miller also said that he had set up his own bicycle repair business and has earned some income from that business. He said that while his earnings from the business fluctuate it has been, on average, $100 per week.
Mr Miller gave evidence of the impact of the dismissal on him and his family. He said that, at the time of the dismissal he had a young daughter and another baby due in early 2018. Because of his dismissal he was not able to give his daughter the Christmas gifts that were planned and had to return some of the gifts to the stores as he could no longer afford them.
Mr Miller said that it was only through the support of his family and his wife’s parental leave payments that he was able to keep up payments on the mortgage on his home. He said that the dismissal has had an extreme economic impact on him and his family.
As to the reason for his dismissal Mr Miller maintained that many of the issues associated with his performance were, in fact, caused by poor decisions or deliberate actions of Mr Sullens. Further, he maintains that, until receipt of the letter of 16 November 2017, he was not aware that his employment was at risk.
Further evidence of Mr Sullens
Mr Sullens said that he had complied with the Code in effecting the dismissal of Mr Miller. He maintained that Mr Miller was aware that he was on notice and that he may lose his job through the formal and informal feedback provided to him by Mr Sullens over the period of his employment. Mr Sullens said that through these discussions it was made clear to Mr Miller that he was not meeting expectations.
In response to a question from Mr Miller, Mr Sullens agreed that Mr Miller’s three month review only took about two minutes but says that after advising Mr Miller that he had got through his three month probation Mr Sullens told Mr Miller he would need to continue to improve his performance or his position may be at risk.
Mr Sullens said that he had advised Mr Miller regularly that he needed to improve his performance. When asked by me when he had done this he said that in all of the discussions he had with Mr Miller about his performance he finished those discussions with a warning to Mr Miller that if his performance did not improve he would not be able to stay with the business.
When asked why he did not put such warnings in writing in circumstances where he put the issues of concern about performance or areas requiring improvement in writing, Mr Sullens said that he wanted the written documents of required areas of improvement to be positive advice to Mr Miller so that Mr Miller could concentrate on those areas of improvement. He said he did not want the written information to be threatening. All of the verbal warnings culminated in a written warning to Mr Miller on 16 November 2017 in which he was clearly advised that he was at risk of losing his job.
Small Business Fair Dismissal Code
Section 396 of the Fair Work Act 2009 (FW Act) requires consideration, prior to the merits of the matter, of whether the dismissal was consistent with the Code.
The Code states as follows:
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
Whilst Mr Sullens said that he dismissed Mr Miller “for cause” he did terminate Mr Miller with notice and there is no suggestion that the alleged stealing or unauthorised borrowing of tools was the basis for summary dismissal. In any event, Mr Sullens sent a letter on 16 November 2017 to Mr Miller detailing concerns and inviting his response at a meeting to be held on 20 November 2017. To the extent that the Code applies, it is in relation to a dismissal other than a summary dismissal.
Given the dismissal was not a summary dismissal the following matters need to be determined:
·Did Urban Pedaler give Mr Miller a reason as to why he was at risk of being dismissed?
·Was that reason a valid reason relating to capacity or conduct?
·Was Mr Miller advised either in writing or verbally that he risked being dismissed if there was no improvement?
·Did Urban Pedaler give Mr Miller an opportunity to respond and a reasonable chance to rectify the problem (taking into account Mr Miller’s response)?
Consideration
I rely on those matters I considered in making the relevant findings in the initial decision.[5]
I note however that whilst there were consistent themes in the documentation provided to Mr Miller by Mr Sullens, including with respect to customer service, cleanliness and order in the workshop, and having bikes properly tagged and attended to in a timely manner in none of this communication prior to the letter of 16 November 2017 did Mr Sullens make clear that if Mr Miller’s performance did not improve he was at risk of dismissal.
Findings
The crucial issue which will effect upon whether the dismissal was compliant with the Code is whether Mr Miller was advised either verbally or in writing prior to the 16 November 2017 letter that he was at risk of being dismissed should his performance not improve.
The evidence of Mr Miller and Mr Sullens given in this matter is directly contradictory. In the re-hearing Mr Miller said he received no such warning from Mr Sullens and Mr Sullens said he gave such warnings regularly but that he did not reduce such warnings to writing as he wanted Mr Miller to concentrate on improving his performance.
In Miller v Urban Pedaler T/A Urban Pedaler[6] the Full Bench of the Commission found that:
[21] ...Whilst the Appellant was clearly aware of the performance issues raised by the Respondent, he was not in fact told that his employment was at risk if he did not show improvement, prior to receiving the 16 November 2017 letter.
The evidence before me on re-hearing does not support a finding that Mr Sullens warned Mr Miller verbally (or in writing) prior to 16 November 2017 that his employment was at risk if he did not improve his performance. Whilst Mr Sullens says he did so, it is inexplicable that he never added any mention of such warning or caution to the written material provided to Mr Miller or in any other advice. Further, he produced no evidence to support this contention, knowing that this was a critical matter in the appeal decision in relation to the initial decision. For these reasons I prefer the evidence of Mr Miller to that of Mr Sullens. This is not to say that Mr Sullens did not counsel Mr Miller with respect to his performance on a regular and ongoing basis. The written documentation supports that this is the case.
Whilst I find that Mr Sullens did not advise Mr Miller prior to 16 November 2017 that his employment was at risk if his performance did not improve I am satisfied that Mr Miller was aware that his performance was not acceptable to Mr Sullens and it did need to improve. I am satisfied that the performance matters were raised with Mr Miller on a regular basis both in writing and in oral discussions with Mr Sullens.
I am also satisfied that Mr Miller sought to deflect responsibility for his performance issues on to others, including Mr Sullens. He did this in his response to the letter of 16 November 2017 and in his evidence given in the re-hearing.
I rely on the remaining findings made in the initial decision which were not subject to challenge on appeal or in the re-hearing of the application, including that Urban Pedaler gave Mr Miller a reason as to why he was at risk of being dismissed,[7] that the reason was a valid reason relating to Mr Miller’s capacity[8] and that the procedural matters associated with the meeting of 22 November 2018 were satisfactory.[9]
For these reasons I cannot find that the dismissal of Mr Miller was consistent with the Code.
Was Miller unfairly dismissed?
Given my finding that the dismissal was not consistent with the Code it is therefore necessary to determine if Mr Miller was unfairly dismissed.
I am satisfied that the application for unfair dismissal was made within time and that the dismissal was not a redundancy.[10]
I am satisfied that Mr Miller is protected from unfair dismissal. Whilst Urban Pedaler is a small business Mr Miller was employed for over 12 months, having completed the minimum employment period. Further, his employment was covered by a modern award.[11]
In determining if Mr Miller was unfairly dismissed it is necessary to determine if the dismissal was harsh, unjust or unreasonable.
Section 387 of the FW Act states as follows:
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.
I have considered each of these matters.
Section 387(a) - a valid reason for dismissal
In determining if there was a valid reason for the dismissal of Mr Miller when considering the application of the Code I determined that the reasons for his dismissal was “sound defensible and well founded” and therefore formed a valid reason for dismissal. As I found in my initial decision:
[45] The flow of formal communication from Mr Sullens to Mr Miller clearly demonstrates that Urban Pedaler did raise with Mr Miller those areas where his performance was required to improve. There are consistent themes through the documentation, including with respect to customer service, cleanliness and order in the workshop, and having bikes properly tagged and attended to in a timely manner.
Mr Miller does not dispute that these matters were raised with him or that he received the written communications from Mr Sullens.
I am therefore satisfied that there was a valid reason for the dismissal of Mr Miller related to his capacity (performance).
Section 387(b) – whether the person was notified of that reason
Mr Miller was advised in writing over a period of at least six months (from April to November 2017) of ongoing issues with respect to his performance. This included emails sent to him on 18 April 2017, 25 May 2017 and 28 May 2017, a meeting of 1 June 2017 in which Mr Sullens provided Mr Miller with a document that identified a number of areas of concern with Mr Miller’s performance, and further emails of 11 August 2017 and 24 October 2017.[12]
I accept that performance issues were raised with Mr Miller in his 30 day and 90 day reviews but nothing was said to Mr Miller from December 2016 (the 90 day review) and April 2017 (a four month period) such that Mr miller could be justified in thinking during this period that his performance was of an acceptable standard. This situation changed from April 2017 onwards.
Mr Miller was also formally warned that a failure to improve may result in his dismissal in the detailed letter of 16 November 2017.
Given the communication since April 2017, and in particular the letter of 16 November 2017, I am satisfied that Mr Miller was advised of the reason for his dismissal.
Section 387(c) – whether the person was given an opportunity to respond
The letter of 16 November 2017, in addition to detailing performance issues with Mr Miller, stood Mr Miller down and invited him to a meeting to respond to the matters raised on 20 November 2017 prior to Mr Sullens making a decision with respect to Mr Miller’s employment.
Prior to this meeting Mr Miller provided a written response to the matters raised by Mr Sullens in that letter.[13] Mr Miller also met with Mr Sullens on 20 November 2017.
The purpose of the opportunity to respond is to give an employee an opportunity to put those things before their employer prior to a decision with respect to employment being made.
I am satisfied in this case that Mr Miller was afforded such an opportunity and that Mr Sullens did not make a decision until after he heard from Mr Miller both in writing and in a meeting.
Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
Whilst Mr Miller said he did not have an opportunity to bring a support person with him because of the time of the meeting with Mr Sullens (7.30 a.m. on Monday 20 November 2017) Mr Miller did not request that the meeting be postponed until a support person could attend with him.
I am therefore satisfied that there was no unreasonable refusal to allow Mr Miller to have a support person with him in the discussion of 20 November 2017.
Mr Sullens would, however, be minded to consider the timing of any future meetings with his employees such that they have the opportunity to arrange a support person if they wish.
Section 387(e) - if the dismissal related to unsatisfactory performance
I have found above that Mr Miller was warned over a period of at least six months of issues Mr Sullens had with his performance.
In the decision of the Full Bench in Fastidia Pty Ltd v Goodwin[14] (Fastidia) it was held that:
[43] In the context of s.170CG(3)(d) we think that a warning must:
- identify the relevant aspect of the employee’s performance which is of concern to the employer; and
-make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.
[44] In relation to the latter requirement, a mere exhortation for the employee to improve his or her performance would not be sufficient. We also note that we accept that these criterion are to be applied in a practical and commonsense way taking into account the employment context.
Whilst this decision concerned the requirements under the Workplace Relations Act 1996, s.387(e) of the FW Act is in the same terms of s.170CG(3)(d) as considered in Fastidia such that the decision of the Full Bench provides appropriate guidance.
Whilst I am satisfied that Mr Sullens did identify those aspects of Mr Miller’s performance which were of concern I am not satisfied, for the reasons given above, that he made it clear prior to 16 November 2017 that Mr Miller’s employment was at risk unless the performance issue was addressed.
Whilst in the letter of 16 November 2017 Mr Sullens did make it clear that Mr Miller’s employment was at risk he did not give Mr Miller an opportunity to show any improvement in his performance. He stood Mr Miller down on 16 November 2017 and terminated his employment on 22 November 2017. Mr Miller could not have demonstrated any improvement in performance in such circumstances.
I therefore find that Mr Miller was not warned of the unsatisfactory performance before the dismissal taking into account the requirements set out by the Full Bench in Fastidia.
Section 387(f) & (g) - the size of the employer’s business and absence of dedicated human resource management specialists or expertise
Urban Pedaler is a small business. It had, at the time of Mr Miller’s dismissal about four employees. During the period of Mr Miller’s employment the business seems to have had between two and four employees, including Mr Miller and Mr Sullens.
There is nothing in the evidence before me to suggest that Mr Sullens had access to any human resource or other employment specialists in effecting the dismissal.
Mr Sullens, in his evidence, did refer to advice he had received about complying with the requirements of the Code but did not disclose who this advice came from. Mr Sullens said he has looked to the Code to ensure he maintains a good working environment for his staff and to keep the business out of trouble. He considered that he had followed proper process in effecting the dismissal.
I am satisfied that Mr Sullens did attempt to gain advice such that he could ensure Mr Miller was treated fairly. He failed in this endeavour only in that he failed to warn Mr Miller of the consequences of him not improving his performance. I am satisfied that the size of the business and the lack of access to relevant expertise explain, in part, the deficiencies in the process used by Urban Pedaler in warning Mr Miller about the consequences of a failure to improve his performance.
Section 387(h) – any other matters
Mr Miller gave uncontested evidence of the economic effect of his dismissal on him and his family.
Mr Sullens also recounted the stress the initial hearing, appeal and re-hearing have had on him.
I have taken this into account. I have not taken into account statements made by Mr Miller with respect to Mr Sullen’s wife or home.
Conclusion
Mr Miller was not advised that a failure to improve his performance may put his employment at risk. However, he cannot have been blind to the issues raised by Mr Sullens over the six month period prior to his dismissal. I cannot however, ignore that he was not properly or adequately warned of the consequences. Mr Sullens had ample opportunity to advise him of this but did not do so.
Mr Sullens is a small business owner who thought he was dealing with performance issues in a positive manner. He did not put any warning to Mr Miller in writing as he wanted Mr Miller to improve and meet the standards required and not see the advice to him about his performance as being no more than a means to dismiss him. Mr Sullens, in the main, took a reasonable approach to the matter he needed to deal with. The failure to provide a written warning to Mr Miller however is not offset by this approach.
A dismissal can be harsh because of the economic consequences for the employee dismissed.[15] Mr Miller gave evidence of the economic effect on him and his family of the dismissal. This is a matter that can properly be considered by me. Whilst I accept that the proceedings have been stressful for Mr Sullens the consequences of the dismissal on Mr Miller have been much more severe. He has been without regular employment for a substantial period of time and has had difficulties in providing for his family.
Taking all of the findings above into account I have determined, on balance, that the dismissal of Mr Miller was harsh and unreasonable.
I therefore find that Mr Miller has been unfairly dismissed.
Remedy
Mr Miller does not seek reinstatement and I am satisfied that reinstatement is not appropriate.
I shall therefore consider compensation. Those matters to be taken into account in determining compensation are set out at s.392 of the FW Act. Section 392 of the FW Act states as follows:
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 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.
Mr Sullens made no submissions as to the effect of any order of compensation on the viability of the business. His written submissions indicate that the business has slowly recovered the reputation of its service department, that sales are increasing and the clients are happy.
Mr Miller worked for the business for 14 months from September 2016 until November 2017. Mr Miller said that, had his employment not been terminated he would have remained with the business until July 2018.
I am not satisfied that Mr Miller would have remained employed for any extensive period of time had his employment not been terminated. In questioning Mr Miller on this point I asked that he be mindful, in responding, that there were performance concerns the business had of him. Mr Miller repeated that these performance issues were not of his doing but were caused by actions of Mr Sullens. I do not accept this reasoning of Mr Miller. As found above and in the initial decision, the performance issues were raised over a six month period. Mr Miller cannot lay them all at the feet of Mr Sullens. Mr Miller appears to be blind to the legitimate concerns raised by Mr Sullens and his need to take responsibility for his performance.
Compensation is being considered for Mr Miller because I found his dismissal unfair. I found it unfair primarily because he was not warned that a failure to improve his performance may put his continued employment at risk. These findings do not wipe the slate clean of the legitimate performance concerns Mr Sullens had of Mr Miller’s performance.
I am satisfied that, had Mr Miller’s employment not been terminated on 22 November 2017 he would have remained in employment for no more than a further four weeks. In this time Mr Sullens could have properly monitored Mr Miller’s performance having given him a warning on 16 November 2017. The history of issues with Mr Miller’s performance does not indicate that his performance would have improved to the level required by Mr Sullens.
Mr Miller was earning $26.50 per hour at the time his employment was terminated.[16] His lost remuneration, had his employment not been terminated at the time it was, is therefore $4,028.00 plus superannuation. I would reduce this amount for general contingencies by 10% leaving a total of $3,625.20.
Mr Miller gave evidence that he had applied for approximately 30 positions after he lost his job with Urban Pedaler. He said he applied for a variety of positions including stacking supermarket shelves. Mr Miller also started his own business.
Mr Miller has indicated that he has taken reasonable steps to mitigate his loss. I have therefore not reduced the amount of compensation to be awarded for any lack of effort to do so.
Mr Miller said that he earned about $100 per week on average from his bicycle business. This equates, over the six week period, to $600. I have therefore reduced the amount of lost remuneration by $600 to $3,025.20.
I have not reduced the amount of compensation for misconduct as this was not the reason for dismissal (and I found no reliable evidence that would allow any findings to make about the tools in the initial decision). I have also not included any amount for shock, humiliation or distress that may have been suffered by Mr Miller.
The amount I intend to order does not exceed the compensation cap.
An order[17] requiring Urban Pedaler to pay to Mr Miller an amount of $3,025.20 taxed according to law plus 9.5% superannuation will be issued with this decision. The amount is to be paid within 21 days of the making of this decision.
COMMISSIONER
Appearances:
A. Miller on his own behalf.
G. Sullens for Urbanite Bikes Pty Ltd T/ Urban Pedaler.
Hearing details:
2018.
Melbourne:
October 1.
<PR701194>
[1] [2018] FWC 1638.
[2] [2018] FWCFB 4166.
[3] Exhibit R1, attachment 23.
[4] See [2018] FWC 1638, paragraphs [5]-[24].
[5] [2018] FWC 1638, [29] – [45].
[6] [2018] FWCFB 4166.
[7] [2018] FWC 1638 [49].
[8] Ibid, [50]-[57].
[9] Ibid [70].
[10] Section 396(a) and (d) of the Fair Work Act 2009.
[11] Section 382 of the Fair Work Act 2009.
[12] [2018] FWC 1638, [35]-[42].
[13] Exhibit R1, attachment 3.
[14] Print S9280.
[15] Byrne v Australian Airlines Limited 1995) 185 CLR 410 at p.465.
[16] Exhibit R1, attachment 4.
[17] PR701364.
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