Alexandra Mercuri v Green Castle Renmark Pty Ltd T/A Renmark Country Club

[2019] FWC 1834

[2019] FWC 1834

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexandra Mercuri
v
Green Castle Renmark Pty Ltd T/A Renmark Country Club
(U2018/12151)

COMMISSIONER PLATT ADELAIDE, 25 MARCH 2019

Application for an unfair dismissal remedy – determinative conference – valid reason - harsh, unjust and unreasonable – application granted.

[1] On 25 November 2018 Ms Alexandra Mercuri lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer Green Castle Renmark T/A Renmark Country Club (RCC) which took effect in November 2018.

[2] On 5 December 2018, the Australian Hotels Association filed a Form F3 Employers Response on behalf of RCC which indicated that RCC commenced operating the hotel on 3 September 2018 and that Ms Mercuri was a transferring employee. RCC also took a jurisdictional objection that Ms Mercuri had not been dismissed. In the alternative RRC contended that Ms Mercuri had exhibited a poor attitude towards work and that her performance was not at the standard required. In addition it was alleged that Ms Mercuri showed Ms Cathy Qu (the owner and operator of the venue) a lack of respect. RCC contended that at the time of the dismissal, 25 persons were employed.

[3] The matter did not resolve at Conciliation and was allocated to my Chambers on 2 January 2019.

[4] Directions for the filing of material and the date of Hearing were issued on 11 January 2019. Owing to the unavailability of an interpreter in Berri, the matter was heard in Adelaide.

[5] On 1 February 2019, I made an order for production which required RRC to produce all time and wage records relating to the Applicant’s employment in the possession of the Respondent (including any records relating to employment by the previous owner of the business). The Respondent submitted that all such records had been produced in the Commission.

[6] I invited submissions as to the conduct of the Hearing by way of a Determinative Conference. Ms Mercuri objected to the request. No submissions were received from RCC. I determined to conduct the Hearing as a Determinative Conference taking into account the nature of the factual dispute and the fact that the Respondent was not represented.

[7] Mr Wright represented the Applicant. Permission was granted under s.596(2) of the Act with the consent of the RCC. Mr Geoffrey Last (Manager) represented RCC.

[8] Ms Mercuri, Mr Ryan Hayward, Ms Qu, Mr Last and Ms Tian provided witness statements (including attachments) and gave sworn evidence. These documents were received as exhibits. The statements contained a level of hearsay evidence; I have received that evidence but have not considered hearsay evidence that was not otherwise corroborated. A statement submitted by Ms Millington was withdrawn.

[9] Ms Qu and Ms Tian (to a lesser extent) were assisted by an interpreter.

[10] The key issues to be decided in this matter were as follows:

•  Was Ms Mercuri’s casual employment regular and systematic with a reasonable expectation of continuing on a regular and systematic basis such that she was protected from dismissal pursuant to s.382 of the Act?

•  Was there a dismissal within the meaning of s.386 of the Act?

•  If Ms Mercuri was protected from dismissal and there was a dismissal, was the dismissal unfair considering the criteria in s.387 of the Act?

Was Ms Mercuri protected from dismissal pursuant to s.382 of the Act?

[11] It was not in dispute that Ms Mercuri was engaged as a casual employee. Ms Mercuri contends she commenced employment in September 2016 (at which time the RCC had a different owner) and had been engaged on a regular and systematic basis, working 5 shifts per week. Ms Mercuri contended that but for the dismissal she had a reasonable expectation of ongoing employment.

[12] On 3 September 2018 the new owners, Mr Last and Ms Qu took over the management and Ms Mercuri continued in the same role. She was not provided with any advice (including written advice) that her previous service would not be recognised by the new owners.

[13] Mr Last provided copies of rosters for the Remark Resort for the period of 28 May 2018 – 11 November 2018 1, in addition to timesheets for Ms Mercuri for the period of 3 September – 11 November 2018. Ms Mercuri did not work for RCC after 11 November 2018.

[14] Ms Mercuri advised that a roster was published each week and she worked on the days rostered, but that the hours could have been shortened or extended depending on the workload. On some occasions she worked extra shifts.

[15] Ms Qu, Ms Tian and Mr Last disputed the contention that Ms Mercuri was employed on a regular and systematic basis.

[16] A review of the rosters indicates that in the period prior to the new ownership, Ms Mercuri was rostered to work five days per week for nine weeks out of ten and worked four days in the remaining week.

[17] In the ten weeks that Ms Qu and Mr Last operated the business, Ms Mercuri was rostered to work six days for four of those weeks, five days for five of those weeks and three days in her last week.

[18] A review of the Renmark Resort timesheets for the period 3 September – 11 November 2018 indicates that Ms Mercuri worked 237.25 hours, an average of 26.31 per week, with a minimum of 14.75 and a maximum of 34.5 hours per week.

[19] With respect to the change of ownership of RCC on 3 September 2018, and based on the evidence before me, I find that Ms Mercuri was a transferring employee and that in the absence of written advice from the new employer that her previous service would not be recognised, her service with the previous employer counted towards her service.

[20] I find that Ms Mercuri’s hours were regular and systematic, and that her service was for a period exceeding 12 months.

[21] I find that Ms Mercuri was protected from dismissal pursuant to s.382 of the Act.

Was Ms Mercuri dismissed?

[22] Ms Mercuri gave evidence that in November 2018 she emailed Ms Tian (who was responsible for rostering at the time) requesting confirmation as to the current status of her employment at RCC. The email references details of an alleged payment error and summarised a conversation Ms Mercuri alleged had occurred with Ms Tian.

[23] The email concluded with the sentence “Please advise me of my current status of my employment by COB Wednesday 21 November 2018”.

[24] Ms Mercuri stated that after she had raised the payroll error her name had been removed from the roster and her scheduled shifts were given to others.

[25] On 21 November 2018 Ms Tian replied as reproduced below:

“Alex

Your period of employment at Renmark Country Club has been for a period of 2 months, and during that period of time, your roster varied week to week.
During that period of time, your attitude of work was inappropriate (sic); we have received a significant quantity of complaints regarding your attitude to customers.
Regarding the pay rate, it is clearly demonstrated in the Award guide, you didn’t supervise anyone in the venue and you didn’t do the work as training. As the work you did on that night was only waitress and that is what you got paid as in work, you spent a considerable period of time in the cool chatting to kitchen staff, and following function room at this customers already lined up in front of bistro till waiting to order (sic). Also, as a casual employee, we are not required to provide you with notice regarding the limitation/termination of your casual employment.”

[26] Ms Mercuri understood from the email that she had been dismissed.

[27] From the information before me Ms Mercuri was not rostered and did not work at RCC after that email was sent. RCC was invited but did not provide details of rosters after 21 November 2019.

[28] Ms Tian contended that the statement about the notice required for casual employees was a statement of fact and was not intended as a dismissal letter. I reject this characterisation of the letter. If this letter was simply a statement of the notice requirements I would have expected that Ms Mercuri would have been rostered to perform additional shifts. In my view this email had the effect of dismissing Mr Mercuri from her employment for the reasons detailed in the second paragraph.

[29] In closing submissions Mr Last advised that Ms Tian was offended by the way Ms Mercuri treated her, in particular referencing the demand for a response about a pay dispute by a nominated date. Mr Last contended that Ms Tian decided not to roster Ms Mercuri for up to four weeks to teach her a lesson. This confirms my view that that Ms Mercuri was dismissed.

[30] I find that Ms Mercuri was dismissed within the meaning of s.386 of the Act on 21 November 2018.

Was the dismissal harsh, unjust or unfair?

[31] Ms Qu advised that RCC received online customer reviews and that poor reviews would be posted on the notice board for employees to view. When she received the feedback she would try and identify the person concerned from who was working on that day. Ms Qu contended that in the September/October period she received poor feedback from customers about matters concerning Ms Mercuri and spoke to her for 2-3 minutes on two occasions. The complaints provided did not identify the service provider, and it appears that only one of the complainants was contacted by RCC to determine what had occurred.

[32] The feedback indicated that Ms Mercuri was rude on one occasion, was “aloof, weird and treated customers poorly and with indifference” on another occasion.

[33] Ms Tian gave evidence (via a telephone) that she also received online complaints about Ms Mercuri’s performance and put the number at 1 – 2 complaints per day that Ms Mercuri worked with her. These allegations were not contained in Ms Tian’s statement.

[34] Ms Tian’s evidence is completely at odds with the evidence of Ms Qu. Mr Last sought to explain the inconsistency by reference to Ms Tian’s English speaking skills, however for the first part of her evidence she was able to answer all of my questions without the assistance of an interpreter. I did not form the impression that Ms Tian misunderstood my questions on the number of complaints she received. Ms Tian did not give any evidence that she was dissatisfied with the way she was treated by Ms Mercuri, other than being ignored on a single occasion. Ms Tian, as reported by Mr Last, determined not to roster her for a period of four weeks. I treat Ms Tian’s evidence about complaints in respect of Ms Mercuri work performance with caution, in so far as it differs from the evidence of Ms Qu.

[35] Ms Mercuri denied both any poor service to customers and that she had been spoken to by Ms Qu about the customer feedback.

[36] It was also alleged by Ms Qu and Ms Tian that Ms Mercuri did not correctly log off the Wageloch time recoding system using the computer. It was said by Ms Tian that this made payroll processing difficult. Ms Mercuri said that there were times that the computer system was down and paper records had to be used. Mr Last and Ms Qu denied that the system was ever down but Mr Last accepted that the manual work around system was in place. There was no evidence that Ms Mercuri was warned about her conduct in this regard.

[37] The final allegation concerned Ms Mercuri talking to other staff members during her shift. Ms Mercuri denied this allegation. There was no evidence of Ms Mercuri being warned about such concerns.

[38] In October, Ms Mercuri was seeking to be converted from casual to part-time employment. RCC put a proposal to Ms Mercuri on 18 October 2018; the parties were negotiating the terms of the contract. Whilst the terms of a new contract were not agreed prior to the dismissal, it appears that despite the customer feedback and Ms Qu’s and Ms Tian’s alleged discussions with Ms Mercuri, RCC was prepared to offer her ongoing employment. From this I draw the conclusion that any concerns RCC had about Ms Mercuri’s performance must have been at a low level.

[39] Ms Qu said that Ms Mercuri did not respect her. This was based on Ms Mercuri’s failure to look her in the eye, statements that she did not understand Ms Qu, and that she would not respond to questions. Ms Qu felt that Ms Mercuri was racially discriminating against her and her daughter, Ms Tian. It appears that there were difficulties in the working relationship between Ms Mercuri and Ms Qu and Ms Tian. This is supported by the evidence of Ms Mercuri that she was suffering from anxiety attacks whilst Ms Qu was present. I accept that cultural differences and expectations could have an adverse impact. On the information before me it appears that the working relationship was deteriorating and would have continued to do so.

[40] Ms Mercuri denied that she was subject to counselling or any discussions in relation to the feedback provided by customers. Ms Mercuri said she had difficulty in understanding Ms Qu. Based on my observations during the Hearing I accept that Ms Mercuri may have had difficulty in understanding Ms Qu.

[41] There was no formal termination process, the employment ceasing with Ms Tian’s email of 21 November 2018. Whilst that email advised of RCC’s concerns about Ms Mercuri’s attitude, and customer complaints, there was no opportunity given to Ms Mercuri to respond to the performance concerns, or improve her work performance.

Consideration

Was the dismissal harsh, unjust or unreasonable?

[42] Pursuant to s.387 of the Act, 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.”

Valid reason - s.387(a)

[43] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd²which requires the reason for termination to be “sound, defensible or well founded.”

[44] With respect to the allegations of poor customer service, I accept that four complaints were made. Putting the Respondents case at its highest (that those complaints were received and were each the subject of a 2 – 3 minute discussions with Ms Mercuri), they do not provide a sufficient basis for a valid reason for dismissal.

[45] Similarly the allegations in respect of the time keeping system and inappropriately talking to others are not such that they could constitute a valid reason for dismissal. I do not accept that the facts demonstrate that Ms Mercuri showed disrespect to Ms Qu or Ms Tian.

[46] I accept that RCC had a proper basis to have a discussion with Ms Mercuri about her work performance, but the conduct alleged by RCC (put at its highest) is insufficient to establish a valid reason for dismissal.

Notification of valid reason - s.387(b)

[47] Ms Mercuri was advised by email that she was dismissed, the email infers that it was as a result of her attitude toward work and significant complaints regarding customers.

Opportunity to respond - s.387(c)

[48] Ms Mercuri was not given an opportunity to respond to the allegations. I do not accept (putting RCC’s case at its highest) that the 2 – 3 minute discussions regarding customer feedback was an opportunity to respond and no discussions were had concerning any other issue.

Any unreasonable refusal by the employer to allow Ms Mercuri to have a support person present to assist at any discussions relating to dismissal - s.387(d)

[49] No discussions were held.

Warnings relative to unsatisfactory performance - s.387(e)

[50] There were no warnings given to Ms Mercuri, I do not accept (putting RCC’s case at its highest) that the 2-3 minute discussions represented a warning. There is no dispute between the parties that it was never suggested that Ms Mercuri’s employment was at risk.

Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)

[51] RCC is not a small business, however it appears to be unsophisticated in its approach to employee relations and that it has no internal human resources support. It appears that it had access to the industry employer representative during the course of Ms Mercuri’s employment.

Other matters considered relevant - s.387(h)

[52] It appears that there was a gap between Ms Qu and Ms Tian’s expectations of Ms Mercuri’s conduct, which was adversely impacting on the working relationship.

Conclusion

[53] The Explanatory Memorandum to the Act³ explains the approach of the Commission in considering the elements of section 387:

“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”

[54] In Byrne and Frew v Australian Airlines Pty Ltd,⁴ the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

“It may be that the termination is harsh but not 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 acted, 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.”

[55] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Ms Mercuri’s employment was harsh, unjust and unreasonable.

Remedy

[56] The relevant provisions of Division 4 of Part 3-2 of the Act state:

“Division 4—Remedies for unfair dismissal

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.

…

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.”

[57] The prerequisites contained in ss.390(1) and (2) of the Act have been met in this case.

[58] Ms Mercuri seeks reinstatement. RCC submits that the relationship has broken down to the point that reinstatement would be untenable.

[59] The breakdown of the employment relationship is an important factor when assessing the issue of reinstatement: Bellia v Assisi Centre Inc T/A Assisi Centre Aged Care. 5

[60] In Thinh Nguyen and another v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australian Chapter 6 the Full Bench summarised the principles relevant to this consideration as follows:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

[61] I have applied those principles in my consideration of this matter.

[62] Having considered the evidence and observed the interactions between Ms Mercuri, Ms Qu, Mr Last and (to a lesser extend) Ms Tian, I accept that the working relationship has broken down and when I consider the health impacts on Ms Mercuri, I am satisfied that reinstatement is not appropriate in this case.

[63] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances.

[64] I now turn to whether compensation in lieu of reinstatement is appropriate.

[65] A Full Bench in McCulloch v Calvary Health Care Adelaide⁷ confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul’s Licensed Festival Supermarket⁸ remains appropriate.

[66] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the Act,⁹ it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of the employer - s.392(2)(a)

[67] There is was no submission that any award of compensation would affect the viability of the employer.

The length of service with the employer - s.392(2)(b)

[68] Ms Mercuri’s service was just over two years.

The remuneration that would have been received, or would have been likely to receive, if he had not been dismissed - s.392(2)(c)

[69] In determining how long Ms Mercuri would have remained employed but for the dismissal I have considered the following:

•  Whilst the Respondent expressed some concerns about poor feedback received via social media and one customer directly, Ms Mercuri had not been the subject of any formal performance discussions. It was open for the Respondent to commence performance management discussions with Ms Mercuri which may have resulted in dismissal after Ms Mercuri was given an opportunity to improve, or Ms Mercuri may have satisfactorily addressed the complaints.

•  On the evidence, Ms Mercuri had a poor working relationship with Ms Qu and Ms Tian. It appears that there was disconnect between Ms Mercuri and Ms Qu and Ms Tian. This may have been due to cultural differences. Ms Mercuri experienced high levels of anxiety and time off work as a result. It appears that this disconnect would have continued to adversely impact on the working relationship.

[70] In the circumstances, I believe it is reasonable to assess compensation in this matter on the basis that Ms Mercuri would have continued to work for a period of 6 weeks (including notice) had she not been dismissed.

The efforts to mitigate the loss suffered by her because of the dismissal - s.392(d)

[71] Despite efforts to seek alternative employment in the hospitality and other industries in Renmark and beyond, Ms Mercuri had not secured alternative employment at the time of the Hearing. No deduction arises as a result of any failure to mitigate the loss.

Remuneration earned during the period between the dismissal and the making of the order for compensation and the amount of any income likely to be earned during the period between the making of the order for compensation and the actual compensation - ss.392(e) and (f)

[72] As at the Hearing date, Ms Mercuri had not received any remuneration post-dismissal (excluding social security benefits).

Any other matter that the FWC considers relevant and the remaining statutory parameters - s.392(g)

[73] There are no other relevant matters.

Deduction for Misconduct - s.392(3)

[74] Having considered the evidence and my findings, I do not believe it is appropriate to make any deduction for misconduct.

[75] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[76] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or half the high income threshold immediately before the dismissal.¹⁰ The amount of compensation awarded is less than this limit.

[77] Taxation is to be paid on the amount determined.

[78] I believe that the compensation detailed below is appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.¹¹

[79] I award compensation in the amount of $4,020.00 gross, which represents the amount Ms Mercuri would have been paid if she had continued to work for a period of 6 weeks. The weekly rate is based on the average of Ms Mercuri’s weekly earnings since Ms Qu and Mr Last acquired the business. The compensation must be paid within 14 days from the date of this Decision.

[80] An Order 12 reflecting this Decision will be issued.

COMMISSIONER

Appearances:

Mr A Wright (of Counsel) on behalf of the Applicant.

Mr Last on behalf of the Respondent.

Hearing details:

2018.

Adelaide.

12 February 2019.

Printed by authority of the Commonwealth Government Printer

<PR706039>

 1   Exhibit R5.

2 (1995) 62 IR 371 at 373.

³ Explanatory Memorandum to the Fair Work Bill 2008.

4 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24.

 5   [2011] FWAFB 5944.

 6   [2014] FWCFB 7198.

7 [2015] FWCFB 873.

8 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431.

9 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.

10 Section 392(5) of the Act.

11 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].

 12   PR706040.