Ashley Dominick v Jessicare Pty Ltd
[2021] FWC 6421
•26 NOVEMBER 2021
| [2021] FWC 6421 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ashley Dominick
v
Jessicare Pty Ltd
(U2021/7519)
DEPUTY PRESIDENT MASSON | MELBOURNE, 26 NOVEMBER 2021 |
Application for an unfair dismissal remedy – valid reason found – dismissal found not to be unfair – application dismissed – question of remedy considered in the alternative.
[1] On 24 August 2021, Miss Ashley Dominick (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Jessicare Pty Ltd (the Respondent) on 20 August 2021. The Applicant seeks an order for compensation.
[2] Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 18 November 2021. After hearing from the parties, I determined to conduct a conference pursuant to s.398 of the Act.
[3] Both parties were granted permission to be legally represented pursuant to s.596(2) of the Act. At the Conference the Applicant was represented by Ms Natalie Vogel of counsel. The Applicant was called to give evidence along with her mother Ms Lori Dominick (Ms Dominick). The Respondent was represented by Mr Tinashe Makamure, Senior Associate of Barry Nilsson Lawyers who called Ms Jessica Hull, Director of the Respondent to give evidence.
Background and evidence
[4] The Respondent provides personal care services to people with disabilities throughout the Metro-Melbourne area and at the time of the Applicant’s dismissal, employed approximately 21 staff. Ms Hull is the Respondent’s sole director and was in a personal relationship with the Applicant for approximately 9 years up until December 2020 1.
[5] The Applicant commenced employment with the Respondent on 20 August 2020 as a casual Support Worker on a minimum rate of $50.00 per hour for which she entered into a signed employment agreement dated 4 August 2020 2. Despite the personal relationship between the Applicant and Ms Hull ending in December 2020, the Applicant continued to work for the Respondent and accepted a permanent part-time position on or around 17 February 2021. While the applicant and Ms Hull had initially agreed on a salary of $52,000 (inclusive of superannuation) in December 2020, Ms Hull subsequently agreed in February 2021 to temporarily increase the proposed salary of $52,000 to $80,000 for a period of 6 weeks. No formal employment agreement reflecting the terms of the permanent part-time position or the temporary salary increase to $80,000 was signed by the Applicant or Ms Hull.
[6] Ms Dominick who is the Applicant’s mother, originally assisted Ms Hull to set up the financial systems of the Respondent’s business including the payroll and accounting operating system in mid 2020 when the business was established3. Ms Dominick, who continued to support the Respondent’s business after its establishment, was not an employee of the Respondent. Ms Hull states that at the time of the Applicant’s appointment to the permanent part-time position in February 2021, she (Ms Hull) did not deal with the financial aspects of the business including payroll and left that to the Applicant and Ms Dominick. She says she would send the relevant financial/payroll details to the Applicant and/or M Dominic for actioning4. Ms Hull produced various text messages exchanged with the Applicant as evidence of the financial/payroll information that the Applicant was required to process5. She concedes however that she often sent payroll information to both the Applicant and Ms Dominic and left it to them to implement between them. She states she did this out of the trust she held in them.
[7] The specific purpose of increasing the Applicant’s salary for a temporary period as stated above was to assist the Applicant purchase a new motor vehicle, an issue which Ms Hull says had been the subject of discussion between herself and the Applicant for some time 6. Once the agreement had been reached regarding the increased salary, Ms Hull left it to the Applicant and Ms Dominick to implement the payroll change reflecting the agreement that the Applicant’s salary would be increased to $80,000 for a temporary period7. The Applicant agreed in her evidence that the agreement to increase the salary to $80,000 was for a temporary period but she believed it was for 8 weeks as opposed to the 6 weeks stated by Ms Hull.
[8] The Applicant’s role that she accepted in February 2021 required her to undertake the following duties;
• support work;
• rostering of carers;
• payroll data entry;
• client invoicing;
• client and/or employee set up in MYOB;
• social media and marketing; and
• general administrative duties.
[9] The above duties were not all required to be performed immediately by the Applicant on commencement in the permanent part-time position but evolved over the subsequent 6 months. For example, work on the social media and marketing activities commenced in July 2021.
[10] The Applicant’s agreed hours of work were said by Ms Hull to be 16 hours per week, a figure the Applicant challenged, stating that she actually worked up to 38 hours per week. The payslips produced do not reveal the actual hours worked but simply identify the fortnightly salary paid which was $3,076.92 gross 8. A review of various text message exchanges suggests there was some variability in the hours worked. See for example the exchange between the Applicant and Ms Hull on 11 March 2021 where the following is stated;
“Ms Hull: | 9 + 5 = 14hrs (still under your 16 hr) There is a lack of gratitude I understand you did a lot of hours with Lynette last fortnight and I was extremely grateful for your flexibility. At the same time, you did earn $1,500 in a week for your 27hrs worked. I can’t even invoice this amount. |
Applicant: | I realise that and I am grateful I’m on a great hourly rate………” |
[11] Based on the above exchange I don’t accept that the Applicant was working full time although her hours may have fluctuated. She acknowledged that she was on a “great hourly rate” which strongly suggests that she was working on a part-time basis. While the Applicant states that her hours increased over time as her responsibilities increased, there is no support for the Applicant’s claim in either the payslips, payroll advice reports or any other communication between the Applicant and Ms Hull. In these circumstances I am inclined to accept Ms Hull’s evidence that the Applicant’s part-time hours were agreed to be 16 hours per week, but the actual hours worked varied from time to time and may have increased over time as her duties evolved, although not to the extent that the Applicant was working full-time as she claimed.
[12] On 11 March 2021 at approximately 10.30am, Ms Hull was advised by the Applicant in a text message exchange that the Applicant intended to keep her old car as she was not able to afford a new car. Ms Hull expressed disappointment given the agreed purpose for the increased salary was to assist the Applicant purchase a new car. Ms Hull states that she and the Applicant then agreed to return the Applicant’s salary to the original agreed level of $52,000. Relevant extracts of the text message exchange between Ms Hull and the Applicant on the 11 March 2021 are as follows;
“Ms Hull: | …the whole point of me putting you on 80k was so you could buy a car |
Applicant: | Yes I realise that but I’m not in a financial position to buy a car Jess. Put the salary back down if you need to. |
Ms Hull: | OK. I think we need a contract in order. I will drop it back to the original 52k I am feeling very taken advantage of, and your [sic] not being very nice to me. I’m trying my hardest to make things easy for us both but it’s only making me feel like shit The whole point of my increasing this to 80k for 6 weeks was so you could buy a car. Instead you’ve completed (sic) taken advantage of the extra, free money and saved it? Im sort I feel this way to (sic) What a fool I am…. ……………………. |
Applicant: | I realise that it was to buy the car and I just fkn told u I can’t afford one now that I’m paying this shit on my own! Just put me back down on whatever u feel comfortable with for the hours I’m doing. I’m still doing ur pays or my mum is fkn working for u for free! It’s been one pay cycle! I haven’t taken advantage or saved enough for a car! I will give notice as soon as I find something…..” 9 …………………………… |
Ms Hull: | …….I would like to find a way to work amicably together. Do you think this is possible? |
Applicant: | Yes u are. ……………….” |
[13] Ms Hull states that following the text message exchange with the Applicant she subsequently spoke with Ms Dominick by telephone on 11 March 2021 at approximately 6.00pm and discussed the Applicant’s decision not to follow the agreement reached in February 2021 regarding the increased salary and car purchase. She says that she confirmed to Ms Dominick that she and the Applicant had agreed to reduce the Applicant’s salary to the originally agreed $52,000 and instructed Ms Dominick to implement that reduction 10.
[14] Ms Hull further states that the Applicant inferred in subsequent informal discussions that her salary had been reduced. She did this according to Ms Hull through comments made by the Applicant to the effect that she could not afford to pay for much because she was only on $52,000. The Applicant strongly denied making any comments or inferring that she was on a reduced salary of $52,000. Ms Hull says that despite the discussions in March 2021 regarding the Applicant’s salary, the two of them continued to maintain a professional relationship and close friendship in the following months 11. Ms Hull states she took no immediate steps in the wake of the 11 March 2021 text message exchange with the Applicant to follow-up and confirm that the Applicant’s salary had in fact been reduced to $52,00012.
[15] Ms Dominick states that she was responsible for processing payroll for the Respondent and confirmed that she had originally received instructions both verbally and by text from Ms Hull to increase the Applicant’s salary in February 2021 to $80,000, an increase she understood was in recognition of the increase in administration duties taken on by the Applicant. She further states that she received no further communication, text or otherwise, from Ms Hull directing her to reduce the Applicant’s salary until 14 August 2021 when she received a text from Ms Hull asking why she had not reduced the Applicant’s salary.
[16] Ms Dominic denies having received a phone call on 11 March 2021 from Ms Hull instructing her to reduce the Applicant’s salary to $52,000 as claimed by Ms Hull. Ms Dominic further states that the Applicant did not possess the ability, access, knowledge or authority to pay herself 13. The Applicant also confirmed in her evidence during cross examination that her payroll duties were confined to data entry of hours of work of employees and that she did not amend actual payrates as this was done by Ms Dominic.
[17] Ms Dominic also states that in preparing the payroll it was necessary as a final step for Ms Hull to authorise the pays prior to release and distribution of the pays by the bank. Ms Hull concedes that through that approval step it would have been possible for her to check each employee’s individual pay details. At the time however she says she was not aware of the process to check the pays prior to approval as she says she placed great trust in the Applicant and Ms Dominic in processing the payroll.
[18] On the morning of 14 August 2021 Ms Hull contacted the Applicant seeking the MYOB log-in details for the purpose of passing on that information to an accounting firm (Blue Rock) Ms Hull had engaged to assist with accounting, general ledger and financial advice. Once Ms Hull had obtained the log-in details, she accessed the system and identified that the Applicant was still being paid the higher salary of $80,000 exclusive of superannuation 14. She was concerned at this discovery because she felt it was at odds with the agreement reached with the Applicant on 11 March 2021. After unsuccessfully attempting to contact the Applicant, Ms Hull suspended the Applicant’s access to the Respondent’s operating system on 14 August 2021.
[19] The Applicant states that she also received a text message from Ms Hull on 14 August 2021 requesting that she sign a rental agreement to rent a house she and Ms Hull had been purchasing together. She responded to Ms Hull that she was not prepared to sign anything 15. Later that same day the Applicant states she was unable to fill a shift because of restrictions on her authority within the operating system16. She subsequently sent an email to Ms Hull at 10.31am on 16 August 2021 to advise her that she was unable to update shifts as she no longer had system authorisation and queried why her access had been denied17.
[20] Ms Hull contacted Blue Rock on 16 August 2021 seeking advice in relation to the Applicant’s conduct following which she wrote to the Applicant on 16 August 2021 advising of the suspension of her employment. The correspondence was received by the Applicant on the evening of 16 August 2021 (the Suspension Letter). That correspondence relevantly stated as follows;
“Dear Ashley
Suspension of employment
We refer to your employment with Jessicare Pty Ltd (the ‘Company’).
It has recently come to the Company’s attention that you have wilfully and knowingly failed to revert your salary to its original $52,000 after a formal arrangement with the Company to temporarily increase your salary ended on 11 March 2021.
In light of this, the Company has made the decision to suspend your employment on full pay pending a formal meeting to discuss these concerns with you in greater detail.
In due course, you will receive an invitation to a meeting which further particularises the Company’s concerns and the time in which it seeks to meet with you. While you are suspended from your duties, please ensure that you remain readily available to be called upon by the Company at any time during your normal working hours.
Furthermore, it has come the Company’s attention that you have deactivated its website.
We request that you immediately reinstate the website and cease any further access until directed otherwise by the Company.
If you have any questions, please do not hesitate to contact me.
………………” 18
[21] The Applicant was subsequently sent correspondence by Ms Hull on 19 August 2021 requesting her to attend a meeting on 20 August 2021 to discuss concerns regarding her conduct (Meeting Request Letter). The letter relevantly stated as follows;
“Dear Ashley
Request to attend meeting regarding unsatisfactory conduct
We refer to your employment with Jessicare Pty Ltd (the ‘Company’) and our correspondence to you on 16 August 2021.
We would like to meet with you to discuss concerns regarding allegations of misconduct. The circumstances of misconduct which have come to the Company’s attention include but are not limited to the following:
• You have wilfully and knowingly failed to revert your annual salary to its original $52,000 after a formal arrangement with the Company to temporarily increase your salary ended on 11 March 2021. As such, you have subsequently continued to pay yourself a salary of $80,000 without the Company’s consent.
• You have removed the Company website from its current domain and have instead placed it under a domain of your own name. On 16 August 2021, the Company made a lawful and reasonable direction that you reinstate its website, however you have failed to adhere to this direction.
The intention of this meeting is to discuss the matters above with you in further detail and provide you with the opportunity to respond to our concerns.
The details of the meeting are as follows:
Time: 10.00am
Date: 20 August 2021
Location: To be conducted virtually over Zoom
You are welcome to bring a support person with you to this meeting.
Please note that should we substantiate the allegations of misconduct to our reasonable satisfaction, you may be subject to disciplinary action up to and including the termination of your employment.
If you have any questions or would like to propose an alternative time, please do not hesitate to contact me.
…………..” 19
[22] The disciplinary meeting proceeded via an on-line meeting on 20 August 2021 to which the Applicant, supported by her mother Ms Dominick, attended with Ms Hull who was accompanied by a consultant employee of Blue Rock. Ms Hull produced notes of the meeting 20 which indicated that the meeting commenced at 10.00am. During the meeting the two allegations raised in the Meeting Request Letter were put to the Applicant and she was invited to respond.
[23] In relation to the first allegation, that of the Applicant’s failure to reduce her salary from $80,000 to $52,000 as agreed with Ms Hull on 11 March 2021, the Applicant acknowledged in the meeting that it was agreed that her salary would be increased from $52,000 to $80,000 for a temporary period of 6-8 weeks to assist her with purchasing a car. She rejected that she had been instructed to reduce the salary, maintained that the salary changed all the time and that her duties also changed and that she was not responsible for reducing her own salary. As regards the website allegation, the Applicant stated during the meeting that she believed she owned the developed website as it was on her Wix account. She stated that as she created the website, she believed she owned it, although acknowledging that the hosting of the website was paid for by the Respondent. She further stated during the meeting that she did not intend on returning the website to the Respondent 21.
[24] The Applicant agreed during her cross-examination that the record of the meeting held on 20 August 2021 was reasonably accurate and in particular confirmed the accuracy of her recorded responses to the questions put to her during the meeting 22. She reaffirmed in her evidence that she was not instructed on 11 March 2021 to reduce her own salary and that it was not her role in any case. She states that it was a matter for Ms Hull and the fact that no action was taken to reduce her salary was not due to the Applicant failing to comply with a direction. The Applicant also pointed to the additional tasks she says she progressively took on after March 2021 which in her mind justified retaining the higher salary. She did not feel it was her role to raise with Ms Hull that her salary had remained at $80,000 despite the exchange between them on 11 March 2021.
[25] As regards the Respondent’s website development, she claimed to have undertaken its development at her own initiative and was done on her personal Wix account she had set up. She agreed however that website content and any costs associated were provided or borne by the Respondent. She also agreed that on notification of her suspension by the Respondent, she removed Ms Hull’s access to the website which was on her personal Wix account 23. She also agreed that during the meeting on 20 August 2021 she refused to return the website domain to the Respondent although she has since offered to return it24.
[26] After obtaining the Applicant’s responses the meeting was suspended while Ms Hull considered those responses. Following that break Ms Hull advised the Applicant that her employment would be terminated and that she would be paid 2 weeks’ pay in lieu of notice plus any accrued entitlements. She was also directed to return the monies she had been overpaid. A letter confirming the Applicant’s termination of employment was provided on 23 August 2021 and relevantly stated as follows;
“Dear Ashley,
Letter of Termination
We are writing to you to confirm your employment with Jessicare Pty Ltd (the ‘Company’) has been terminated on the basis of misconduct.
As discussed in the meeting conducted with you on 20 August 2021, the circumstances which resulted in the Company’s decision to terminate your employment are as follows:
Your wilful conduct of failing to revert your annual salary to its original $52,000 after a formal arrangement with the Company to temporarily increase your salary ended on 11 March 2021. As such, continuing to receive a salary of $80,000 without the Company’s knowledge or consent. Failure to follow a lawful and reasonable direction on 16 August 2021, to reinstate the Company website to its original domain after it was subsequently removed and placed under a domain in your own name.
In accordance with the Fair Work Act 2009 and your contract of employment you will be provided with 2 weeks’ notice. You will be paid your notice in lieu and will not be required to work out your notice period. You will also be paid your annual leave balance and any outstanding wages owing to you.
In light of the Company’s identified overpayment which was facilitated by you, the Company requests that you return to it the overpayment to the amount of $16,492 by no later than 6 September 2021.
As advised to you in the meeting on 20 August 2021, you will be required to return any company property within your possession immediately, this includes but is not limited to making arrangements for the reinstatement of the Company’s website to its original domain and its return to possession to the Company.
If you have any questions, please do not hesitate to contact myself.
We wish you all the best in your future endeavours.
……….”
[27] The Applicant states that it was her belief that the action taken by the Respondent to suspend her access to the operating system and ultimately to dismiss her was due to Ms Hull’s vindictive response to the house rental issue. Ms Hull strongly denied there was any link between the house rental issue and subsequent disciplinary action taken by her against the Applicant notwithstanding the timing of the house rental matter arising on 14 August 2021.
[28] The Applicant’s pay in lieu of notice and entitlements were paid out on the basis of an annual salary of approximately $47,000 25.
Has the Applicant been dismissed?
[29] A threshold issue to determine is whether the Applicant has been dismissed from her employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[30] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Initial matters
[31] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[32] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. It is not contested that the Applicant was dismissed on 20 August 2021 following which she filed an application for an unfair dismissal remedy on 24 August 2021. I am therefore satisfied that the application was made within the period required under subsection 394(2) of the Act.
Was the Applicant protected from unfair dismissal at the time of dismissal?
Minimum employment period
[33] It was not in dispute and I find that the Respondent is not a small business employer, having stated in its Form F3 that at the time of the Applicant’s dismissal it employed 21 employees. The Applicant commenced her employment with the Respondent on 8 August 2020 and was dismissed on 20 August 2021, that being a period of employment of just over 12 months. I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period of six months.
Modern award or enterprise coverage, annual rate of earnings
[34] The issue of the Applicant’s salary on termination was disputed with her 2 weeks’ notice and entitlements paid out at a salary of approximately $47,000 whereas the Applicant states that she was in receipt of a salary of $80,000 immediately prior to the dismissal. Ms Hull did not dispute this evidence. Taking the Applicant’s case at its highest, her annual rate of earnings of $80,000 would still fall comfortably below the high income threshold of $158,500.
Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?
[35] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[36] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis). I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the Act.
Was the dismissal a case of genuine redundancy?
[37] Under s.389 of the Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[38] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[39] Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.
Was the dismissal harsh, unjust, or unreasonable?
[40] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission 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.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s 387(a)?
[41] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”26 and should not be “capricious, fanciful, spiteful or prejudiced27.” 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 employer28.
[42] There are two grounds of misconduct on which the Respondent relied in dismissing the Applicant. Firstly, it is said that the Applicant wilfully failed to return her salary to the original $52,000 after a formal arrangement to temporarily increase it ended on 11 March 2021, and as such she continued to receive the higher salary without the Respondent’s knowledge or consent. Secondly, the Applicant was said to have failed to follow a lawful and reasonable direction to reinstate the Company’s website to its original domain. I will now turn to consider each of the relied upon grounds.
Did the Applicant fail to return her salary to the original $52,000?
[43] It is not in dispute that the Applicant commenced as a casual employee with the Respondent in August 2020 and that an agreement was reached between her and Ms Hull that she would move to a permanent part-time position in February 2021. The parties had initially discussed and agreed verbally in December 2020 that a salary of $52,000 (inclusive of superannuation) would attach to the part-time role. However, prior to the Applicant actually starting the part-time role in February 2021 a further verbal agreement was reached between Ms Hull and the Applicant that the Applicant’s salary would be temporarily increased to $80,000 to assist her purchase a new motor vehicle.
[44] The Applicant and Ms Hull had a different understanding of how long the above-referred temporary period would be. Ms Hull states the agreed period was that of 6 weeks while the Applicant states that she understood that the period was for 8 weeks. While the difference is not of any great moment, I favour Ms Hull’s evidence on this point given that her text message to the Applicant on 11 March 2021 29 specifically referenced the 6 week period. The Applicant’s claim that the temporary period changed over time is not supported by any evidence and was rejected by Ms Hull. I find that the agreement reached between the Applicant and Ms Hull was that the Applicant would receive an increased salary of $80,000 for a period of 6 weeks commencing on or around 17 February 2021 for the express purpose of assisting her purchase a new car. There can be no doubt in my view that the Applicant understood it (the higher salary) was a temporary arrangement, as evidenced by her response to Ms Hull in the text message exchange between them on 11 March 2021 as set out above at [12].
[45] Regrettably, no formal agreement was signed by the parties reflecting either the permanent part-time role or the applicable salary. There was no written record in evidence of an instruction being given by Ms Hull that the Applicant’s salary was to be increased to $80,000. However, Ms Dominic gave evidence which I accept on this point, that she implemented the increased salary of $80,000 on Ms Hull’s instruction in February 2021. Despite the absence of any formal documentation recording the agreement for the increased salary of $80,000, the Applicant was nonetheless paid the higher salary of $80,000 from her commencement in the part-time role in February 2021.
[46] Shortly after the implementation of the increased salary, the Applicant advised Ms Hull on 11 March 2021 that she was unable to afford a new car and would not be purchasing one despite the agreement reached between them. Ms Hull was unhappy with this turn of events and indicated that the Applicant’s salary would need to be consequently decreased to $52,000, the originally agreed amount. The Applicant acknowledged this in the 11 March 2021 text message exchange.
[47] The Respondent submits that the text message exchange of 11 March 2021 between Ms Hull and the Applicant contained an instruction to the Applicant to reduce her salary to $52,000. I am not persuaded by that submission for the following reasons. Firstly, there was no explicit instruction given to the Applicant that she should immediately reduce her own salary. Secondly, Ms Hull specifically suggested that a contract may be required which was not subsequently actioned. Thirdly, the Applicant herself stated to Ms Hull in the text exchange that she (Ms Hull) should put her back down on a salary Ms Hull was comfortable with having regard to the duties performed by the Applicant. Finally, Ms Hull gave evidence that she subsequently spoke with Ms Dominic on the evening of 11 March 2021 and gave her an instruction to reduce the Applicant’s salary in accordance with the agreement reached between the Applicant and herself earlier that day. I will return to this particular evidence of the telephone discussion between Ms Hull and Ms Dominic but if that evidence were accepted it is curious why Ms Hull felt compelled to give an instruction to Ms Dominic after having already instructed the Applicant.
[48] I do not accept the Respondent’s characterisation of the 11 March 2021 text message exchange between the Applicant and Ms Hull as containing an instruction. A better reading of the text message exchange is that Ms Hull was very unhappy with the Applicant’s advice that she would not be buying a car and then agreed with the Applicant that her salary would be reduced. The Applicant’s response does not evidence her agreement to action the reduced salary but rather she puts the onus on Ms Hull to take steps to pay her (the Applicant) an appropriately reduced salary. Ms Hull may believe that her intention was made clear to the Applicant but in my view it falls short of an instruction to reduce her salary.
[49] I now return to the evidence of the alleged phone call from Ms Hull to Ms Dominic on the evening of the 11 March 2021 during which Ms Hull says she instructed Ms Dominic to reduce the salary of the Applicant. I found Ms Hull’s evidence of the alleged phone call to be unconvincing. No phone records were produced in evidence to support the claim a call had been placed by Ms Hull. Furthermore, there was also no written record of any instruction being given to Ms Dominic which seems at odds with Ms Hull’s evidence that she would routinely text or email Ms Dominic and the Applicant in respect of payroll changes. Ms Dominic was also credible in her denial of having received such a phone call or instruction. I prefer Ms Dominic’s evidence on this point.
[50] Another element to consider in determining whether there was a clear instruction to reduce the Applicant’s salary from $80,000 to $52,000 is that of where accountability lay for actioning such an instruction if given. Both Ms Dominic and the Applicant were clear in their evidence as to where the split in accountability lay, that being Ms Dominic was responsible for inputting rates of pay or salaries while the Applicant entered the hours of work. For her part Ms Hull gave evidence that she copied both the Applicant and Ms Dominic into emails or texts regarding payroll matters and left it to them to manage jointly. Joint management of the payroll is made apparent by the various text messages 30 exchanged between Ms Hull and the Applicant.
[51] A review of the emails confirms that Ms Hull regularly sent texts to the Applicant regarding payroll matters. It is also apparent that the Applicant relied on Ms Dominic to support her in the preparation of the pays. See for example an exchange on 11 March 2021 when the Applicant let Ms Hull know that the pays would be prepared “once mum gets home” 31. As to where the particular split of work responsibility lay between the Applicant and Ms Dominic, that is less clear. Some insight can be gleaned from certain texts. See for example a text exchange where in relation to a rate of pay for an employee the Applicant says;
“I think Svenja’s might be wrong but I’ll get mum to make sure it matches” 32.
[52] There is a further text exchange on 7 April 2021 between the Applicant and Ms Hull when after Ms Hull raised the issue of the correct rates being paid to a particular employee according to their contract, the Applicant says;
“OK, I don’t have their contracts Mum has entered in Gui on propagation (sic) rates apart from that I just pay what she has entered into the system” 33
[53] Further on in the same text exchange on 7 April 2021 the Applicant then states;
“Is Holly on probation too? I need to sit with mum to show me more of this….”
[54] It appears from the above that at least in April 2021 the Applicant was not responsible for inputting rates of pay but rather relied on the rates input by Ms Dominic. It is certainly not possible on the evidence of the text message exchanges to conclude that the Applicant was responsible for inputting all payroll data including payrates and managing it independently of Ms Dominic.
[55] One further point to be made is that if the Applicant as alleged, failed to follow an instruction to reduce her salary, it was certainly not well concealed deceit or fraud. That is because Ms Hull was still required to approve each payroll before bank release. That she chose not to familiarise herself with how to interrogate the payroll data before approval was with respect a significant failure on her part. An interrogation of the payroll before bank approval would have quickly revealed the higher salary the Applicant continued to receive after 11 March 2021. I note that Ms Hull has since learned how to interrogate the payroll data prior to bank approval.
[56] As stated above, despite the text message exchange between the Applicant and Ms Hull on 11 March 2021 regarding the Applicant’s salary being reduced, no action to reduce the salary was taken and the Applicant continued to receive the higher salary. On why the Applicant did not raise the continued payment of the higher salary with Ms Hull, the Applicant justified that on the basis of it not being her place to query why her salary had not been reduced. She further justified retention of the higher salary on the basis of the increase in duties she took on progressively. I find that reasoning offered by the Applicant to be disingenuous given she clearly understood in February and March 2021 that the higher salary was agreed for a temporary period. The fact that she did not query or further discuss her receipt of the higher salary despite Ms Hull’s statements to her via text message on 11 March 2021 that her salary would have to be reduced was opportunistic to say the least.
[57] The Applicant relied on the absence of a clear instruction to either herself or Ms Dominic from Ms Hull to reduce her salary and thus enjoyed the ongoing benefit of a higher salary that was only intended to be temporary. A reasonable person in the same circumstances might have queried why the salary had not been reduced. For reasons not satisfactorily explained, the Applicant remained silent in respect of the ongoing benefit that applied well beyond the period that was originally agreed to. While Ms Hull bore an onus to initiate the salary reduction, the Applicant’s conduct in this matter does not paint her in a good light. However, her conduct of omission falls short of wilfully continuing to pay herself a higher salary.
[58] Ms Hull may have thought that her instructions were clear but in simple terms they were not. Consistent with her normal approach of communicating with either the Applicant and/or Ms Dominic, she could easily have confirmed an instruction in writing that the Applicant’s salary was to be reduced to $52,000 with effect from 11 March 2021. The absence of any text or email is telling. It follows that I am not satisfied that the Applicant wilfully continued to pay herself the higher salary after the temporary agreement was said to have expired. I am not satisfied that the Applicant’s conduct in respect of her salary was such as to establish a valid reason for her dismissal.
Did the Applicant fail to restore the Company’s website to the Respondent?
[59] The second ground relied on by the Respondent in dismissing the Applicant was that she refused to return the Respondent’s website domain to the Respondent after having been directed to do so.
[60] The Applicant says she developed the Respondent’s website at her own initiative and in doing so set up a personal account in her own name on Wix, which is a free, user-friendly, website building platform. In developing the website, it was necessary for the Applicant to transfer the Respondent’s website domain name to her personal Wix account. The Applicant acknowledged that costs associated with the website development were borne by the Respondent and that images required for the website were also supplied by the Respondent. I also note that the duties of the Applicant included that of social media and marketing.
[61] During the disciplinary meeting on 20 August 2021 the Applicant claimed that as she had developed the website on her personal Wix account she believed she owned the website. She refused to return the website domain to the Respondent despite a direction from Ms Hull to do so. The Applicant agreed in her evidence that she had refused to return the Respondent’s website domain to the Respondent during the meeting on 20 August 2021. She also confirmed that when her access to the Respondent’s operating system was removed on 14 August 201, she removed Ms Hull’s access to the website she was developing.
[62] I accept that the Applicant may have used her initiative to develop the Respondent’s website. I also accept that the Wix platform may have been an appropriate platform on which to develop the website. I disagree however with the Applicant’s belief as stated in the meeting of 20 August 2021 that as she had developed the website it was her property. The website was not her personal property despite it being built on a personal Wix account she established. That is because the website was set up using the Respondent’s domain name, that being property of the Respondent. Furthermore, costs of the website development were borne by the Respondent and it also supplied content for the website.
[63] While the Applicant has since offered to return the website domain to the Respondent, she refused to do so on 16 August 2021 when directed and continued to decline to do so during the meeting on 20 August 2021. The instruction given by the Respondent was lawful and reasonable and ought to have been complied with by the Applicant. The Applicant’s failure to comply with a reasonable and lawful direction of the Respondent constitutes serious misconduct. The Applicant’s expressed preparedness to return the website domain in the wake of her dismissal does not absolve her from the serious misconduct engaged in immediately prior to her dismissal.
Conclusion on valid reason
[64] I am not satisfied that the Applicant or Ms Dominic were instructed to reduce the Applicant’s salary from $80,000 to $52,000 following the 11 March 2021 text message exchange between Ms Hull and the Applicant. Ms Hull’s failure to explicitly instruct the Applicant to take action to reduce her own salary leads me to conclude the Applicant did not wilfully retain the higher salary despite the temporary arrangement purportedly ending. The Applicant’s conduct of doing nothing despite Ms Hull’s apparent intent of reducing the Applicant’s salary may be excused by the absence of an express instruction. The Applicant’s conduct of saying nothing to Ms Hull despite continuing to receive the $80,000 temporary salary well beyond the 11 March 2021 text message exchange and the initially agreed 6 week period, does not in my view rise to the level of serious misconduct, but reflects poorly indeed on the Applicant. That is because she took advantage of Ms Hull’s failure to explicitly communicate the salary reduction action that was required. Nevertheless, I am not satisfied that the Applicant’s inaction was sufficient to establish a valid reason for her dismissal.
[65] As to the Applicant’s refusal to return the Respondent’s website domain when directed to do so, I am satisfied her conduct constituted a refusal to follow a lawful and reasonable direction and was therefore serious misconduct. In the circumstances I find there was a valid reason for dismissal because of that serious misconduct. This weighs in favour of a finding that the dismissal was not unfair.
Notification of the valid reason - s.387(b)
[66] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,34 and in explicit35 and plain and clear terms36.
[67] The Applicant was notified in the Meeting Request Letter on 19 August 2021 of the two grounds on which the Respondent was considering disciplinary action up to and including termination of the Applicant’s employment. Those grounds included the refusal of the Applicant to return the Respondent’s website to its original domain.
[68] I am satisfied that the Applicant was notified of a valid reason for her dismissal related to her capacity or conduct. This weighs in favour of a finding that the dismissal was not unfair.
Opportunity to respond to any reason related to capacity or conduct - s.387(c)
[69] An employee protected from unfair dismissal should be provided with an opportunity torespond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment37.
[70] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly38. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements39.
[71] A meeting was conducted on 20 August 2021 at which the Applicant was invited to respond to the allegations and a series of questions in relation to the alleged misconduct. The meeting notes, which were not challenged by the Applicant, confirm that the Applicant was afforded an opportunity to respond to the reasons relied on by the Respondent for her dismissal, that being her conduct.
[72] I am satisfied that the Applicant was given an opportunity to respond to the alleged misconduct before the decision was taken to dismiss her. This weighs in favour of a finding that the dismissal was not unfair.
Support person – s.387(d)
[73] 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.
[74] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“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.”40
[75] The Applicant was advised in the Meeting Request Letter of 19 August 2021 of the meeting to be conducted on the 20 August 2021 and was specifically notified of her right to be accompanied by a support person. Ms Dominick accompanied the Applicant in the meeting on 20 August 2021. This weighs in favour of a finding that the dismissal was not unfair.
Warnings regarding unsatisfactory performance - s.387(e)
[76] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.
Impact of the size of the Respondent on procedures followed - s.387(f)
[77] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed approximately 21 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[78] The evidence in this matter indicates that while the Respondent did not have access to the services of an in-house human resources specialist, Ms Hull sought and obtained external professional advice from Blue Rock. In the circumstances I am satisfied that the absence of an in-house human resources specialist did not materially impact on the procedures followed by the Respondent in dismissing the Applicant. This factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
[79] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[80] The Applicant states that the text message exchange between herself and Ms Hull on 14 August 2021 regarding house rental arrangements 41 is also relevant to consideration of whether her dismissal was unfair. She submits that the Respondent’s action of suspending her access to the operating system on 14 August 2021, suspending her employment on 16 August 2021 and then dismissing her, was at least in part motivated by her refusal to sign a rental arrangement for a house she says was being jointly purchased by her and Ms Hull prior to the breakdown in their relationship. The Applicant submits that an inference can be drawn from the timing of that exchange relative to the timing of her suspension and dismissal. Ms Hull strongly denied there was any link between the house rental exchange and subsequent disciplinary action.
[81] I accept that the Applicant’s suspension and disciplinary action occurred at the time of the apparent tension over the proposed house rental arrangements. Beyond the timing there is no other indication that the two matters were linked. I am unable to draw the inference the Applicant submits should be drawn given the other legitimate concerns held by the Respondent regarding her conduct. In these circumstances I regard the timing as coincidental and is not a relevant factor is assessing whether the dismissal was unfair.
Conclusion on whether dismissal was unfair
[82] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable 42.
[83] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because there was a valid reason for the dismissal, it was carried out in a procedurally fair manner and there are no other factors that are relevant in the circumstances.
[84] If, however I am wrong in my conclusion that there was a valid reason for the dismissal such as to render the dismissal unfair, I would decline to grant the Applicant a remedy for the reasons set out below.
Remedy
[85] Firstly, as to reinstatement, both the Applicant and the Respondent agreed that reinstatement would not be appropriate having regard to the breakdown in both their personal and professional relationships . In these circumstances and also having regard to the small size of the Respondent’s business, I consider that reinstatement would be inappropriate. I will now turn to consider whether a payment of compensation would be appropriate in all the circumstances.
Effect of the order on the viability of the Respondent’s enterprise (s.392(2)(a))
[86] The Respondent conceded that any compensation order made by the Commission would be covered by an insurance policy maintained by the Respondent. In these circumstances I am satisfied that an award of compensation would not impact on the viability of the employer.
Length of the Applicant’s service (s.392(2)(b))
[87] The Applicant commenced employment with the Respondent on 8 August 2020 as a casual employee, became a permanent part-time employee in February 2021 and was terminated by the Respondent on 20 August 2021. A period of 12 months’ service with the Respondent does not weigh in favour of significant compensation.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed (s.392(2)(c))
[88] The Applicant was forthright in communicating to the Respondent that if her salary were reduced to $52,000 she would need to look for alternate employment. Had the Applicant’s employment not ended on 20 August 2021 I am satisfied that the Applicant’s salary would have been reduced to $52,000 as was originally agreed between the Applicant and Ms Hull on 11 March 2021. Given the Applicant’s clear statement that she would look for alternate employment, coupled with the agreed breakdown in the personal and professional relationship between the Applicant and Ms Hull, it is unlikely the Applicant would have remained in the Respondent’s employ beyond a reasonably short period of time that the Applicant would have taken to secure alternate employment.
[89] I do not accept the Applicant’s statement that she would have remained with the Respondent for an extended period of time as that statement is contradicted by her advice to Ms Hull that she would need to look for alternate employment when advised on 11 March 2021 that her salary would need to be reduced. It is also difficult to reconcile with her evidence on the breakdown in the relationship between herself and Ms Hull. In these circumstances I am satisfied that the Applicant would have remained in the Respondent’s employ for no more than a further 12 weeks beyond the date of her dismissal on 20 August 2021. This would have been a reasonable period within which the Applicant would have been able to secure alternate employment.
[90] Based on a further twelve weeks’ employment with the Respondent on a salary of $47,272.72 (excluding superannuation) she would have received an amount of $10,909.08 based on a weekly rate of pay of $909.09 multiplied by 12 weeks.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal (s.392(2)(d))
[91] The Applicant gave evidence that she has applied for several positions and was successful in securing a fixed term position with AHA Services Trust (AHA) which commenced on 13 September 2021 and will conclude on 10 December 2021. In the circumstances I am satisfied that the Applicant has made reasonable efforts to mitigate her loss and that no deductions should be made in the calculation of compensation in respect of her efforts to secure alternate employment.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation (s.392(2)(e))
[92] In the 12 week period immediately following the Applicant’s dismissal on 20 August 2021, she received remuneration totalling $11,390.68 (excluding superannuation). That was through income received from AHA between 4 September and 12 November 2021 of $9,572.50 43 and 2 weeks’ pay in lieu of notice of $1,818.1844 she received from the Respondent on termination.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation (s.392(2)(f))
[93] The Applicant’s evidence is that she is likely to earn remuneration from her current fixed term role with AHA up to 10 December 2021. No deduction is appropriate however having regard to my earlier finding that the Applicant would have remained employed for a further 12 week period beyond 20 August 2021.
Other relevant matters
[94] No other matters were raised by the Applicant or Respondent as being relevant to question of compensation. Nor am I aware of any other matters that should be taken into account.
Compensation – how is the amount to be calculated?
[95] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).45 This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages46.”47
[96] As set out above I have determined that had the Applicant not been dismissed on 20 August 2021 she would have worked for the Respondent for a further 12 weeks and earned $10,909.08 in that period. From that amount must be deducted actual earnings in that period following dismissal. The amount of earnings in the 12 week period following the Applicant’s dismissal is that of $11,390.68, which exceeds the amount I estimate the Applicant would have earned in the 12 week period but for her dismissal. In these circumstances it is unnecessary to consider further deductions for either contingencies or any contributory misconduct.
[97] The application of the ‘Sprigg formula’ reveals that the Applicant has not suffered a loss of remuneration in the relevant 12 week period. As stated by the Full Bench in Hanson Construction Materials Pty Ltd v Darren Pericich 48 (Pericich) Sprigg is a “useful servant” but should not be applied in a “rigid determinative manner” and that it is necessary to have regard to “all of the circumstances of the case including the particular matters set out at s.392(2)(a) to (g)”49.
[98] In considering all of the circumstances of the case I do not believe an adjustment to the amount produced by the application of Sprigg would be appropriate in the circumstances having regard to the findings I have previously made regarding the Applicant’s conduct. I have also taken into account the Applicant’s short service and that she benefited significantly from the Respondent’s failure to action the agreed salary reduction following the 11 March 2021 exchange. The higher salary enjoyed by the Applicant persisted for a further 5 months, a period that extended well beyond the originally agreed 6 week temporary period. In the circumstances, an award of compensation would be inappropriate, and I would decline to order compensation if I had concluded that the Applicant’s dismissal was unfair.
Conclusion
[99] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.
[100] I have further found that if I am wrong in my conclusion regarding the Applicant not having been unfairly dismissed, I would nonetheless decline to grant her a remedy, be that by way of reinstatement or financial compensation for the reasons set out above.
[101] The application is dismissed. An Order will be separately issued giving effect to my decision.
DEPUTY PRESIDENT
Appearances:
N Vogel of Counsel for the Applicant.
T Makamure for the Respondent.
Hearing details:
2021.
Melbourne (by Microsoft Teams):
18 November.
Printed by authority of the Commonwealth Government Printer
<PR736071>
1 Exhibit R1, Witness Statement of Jessica Hull, dated 29 October 2021 at [1]-[3].
2 Ibid, Annexure JH2 Schedule 1.
3 Exhibit R1 at [5]-[8].
4 Ibid at [14].
5 Ibid, Annexure JH5a-JH5h.
6 Exhibit R1 at [15]-[17].
7 Ibid at [18].
8 Exhibit A2, Payslip for fortnight ending 8 August 2021, Exhibit R1, Annexure JH10, Payroll Advice Report 11 March 2021-20 August 2021.
9 Ibid, Annexure JH7
10 Exhibit R1 at [21].
11 Ibid at [22]-[24].
12 Ibid at [25].
13 Exhibit A13, Statutory Declaration of Ms. Lori Dominick, dated 24 August 2021.
14 Exhibit R1, Annexure JH9-Payroll activity report 11 March 2021 – 20 August 2021, Annexure JH10 – Payroll advice report 11 March 2021 – 20 August 2021.
15 Exhibit A9, Text msg exchange between Applicant and Ms Hull dated 14 August 2021.
16 Ibid.
17 Exhibit A10, Email from Applicant to Ms Hull 16 August 2021 at 10.31am.
18 Exhibit R1, Annexure JH12
19 Exhibit R1, Annexure JH13.
20 Exhibit R1, AnnexureJH14.
21 Ibid.
22 Transcript at PN956-PN972
23 Transcript at PN842-PN849
24 Ibid at PN828-PN838
25 Exhibit A7, Payslip for pay period ending 5 September 2021.
26 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
27 Ibid.
28 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
29 Exhibit R1, Annexure JH7
30 Exhibit JH5A-JH5I.
31 Exhibit R1, Annexure JH5A.
32 Exhibit R1, Annexure JH5E.
33 Exhibit R1, Annexure JH5F.
34 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
35 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
36 Ibid.
37 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
38 RMIT v Asher (2010) 194 IR 1, 14-15.
39 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
40 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
41 Exhibit A8.
42 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]– [7].
43 AHA Payslips for period 4 September – 12 November 2021.
44 Exhibit A11 & Exhibit A6
45 (1998) 88 IR 21.
46 [2013] FWCFB 431.
47 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
48 [2018] FWCFB 5960.
49 Ibid at [39].
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