Ashu Kamboj v Polyseal Waterproofing (Victoria) Pty Ltd T/A Polyseal Victoria

[2014] FWC 6479

[2014] FWC 6479 Note: An appeal pursuant to s.604 (C2014/6646) was lodged against this decision - refer to Full Bench decision dated 9 April 2015 [[2015] FWCFB 935] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashu Kamboj
v
Polyseal Waterproofing (Victoria) Pty Ltd T/A Polyseal - Victoria
(U2013/17721)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 16 SEPTEMBER 2014

Application for relief from unfair dismissal - jurisdiction - resignation.

[1] On 23 December 2013 Mr Ashu Kamboj (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by Polyseal Waterproofing (Victoria) Pty Ltd T/A Polyseal - Victoria (Polyseal - the Respondent) on 9 May 2013.

[2] In these proceedings, Mr Kamboj gave evidence on his own behalf, while Mr Louie Perri (Victorian State Manager, Polyseal), Ms Claire Liao (Contract Administrator/Estimator, Polyseal) and Mr Ben Ilic (Operation Manager, Polyseal) gave evidence for the Respondent. Mr James Hooper of counsel appeared with permission for Polyseal.

[3] For the reasons set out below, I have found that Mr Kamboj resigned from his employment voluntarily and was not dismissed at the initiative of Polyseal. I have therefore dismissed the application for want of jurisdiction.

Background

[4] Mr Kamboj commenced his employment with Polyseal on 27 May 2011. His termination took effect on 9 May 2013. Mr Kamboj submits that while he resigned from his employment on 9 May 2013, Polyseal did not accept his resignation and subsequently terminated his employment on 14 May 2013 with effect from 9 May 2013. On the other hand, Polyseal contends that it did not terminate Mr Kamboj on 14 May 2013 as he had resigned on 9 May 2013.

[5] Mr Kamboj tendered his resignation on 9 May 2013 by way of a text message sent to his supervisor, Mr Ilic, at 9.39 am. The message read:

“Sorry mate I put the phone on silent last night. I just woke up and saw your missed calls. As for work thanks very much. I am resigning from the job. I will also send written resignation to Louie with reasons. Please let me know when I can come to bring all the tools back to the factory. Also let me know if there is any paperwork. Again thanks to you personally because you introduced and trained me in this job.” 1

[6] Mr Ilic responded at 12.27pm in the following terms:

“Ok Ash Im sorry to hear..you can return your tools to the factory tomorrow if you like and perhaps get in contact with louie to formalise your resignation and any paperwork necessary!!thankyou for your efforts and good luck in the future” 2

[7] Later in the day Mr Kamboj sent an email to Mr Perri which outlined the reasons for his resignation. The email set out allegations of bullying and harassment against Mr Kamboj by his colleagues as a result of issues he raised with Mr Ilic regarding their work. The following are extracts from the email:

“I regret to inform that I am resigning from the job. It has been new, different and good experience working with Polyseal. I always liked working with the company although sometimes I had little disagreements. These disagreements in the past and in the most recent are not the base of this decision and I consider them part of the job. As for these issues with Ben [Mr Ilic] I believe he is right in his place. I would never resign in the present circumstances but I am left with no choice.

... In the recent few months I talked to Ben over the phone and sent him some e-mails with pictures showing how wastage of our material, damage to our machinery etc. occurs due to rain, negligence and carelessness. Somehow this information that I send Ben emails and pictures has been passed to the boys.

At Eden this bloke threatened me and said “you complain and boys lose their job. Its like sending someone to jail. They might come back and stab you or your family. ...

At C8 one bloke repeated the same words I put in the email. ...

I strongly believe I didn’t do the wrong thing. But this could have been handled in a better way without putting me at risk. This gives me mental stress. I don’t feel safe. ...

Under these circumstances I believe it is not safe for me and my family to continue working on polyseal sites.

So please accept my resignation.” 3

[8] Mr Kamboj did not present for work in the ensuing days and on 10 May 2013 returned his tools to Polyseal.

[9] On 14 May 2013 Mr Kamboj met with Mr Perri. Mr Kamboj alleges that at the conclusion of that meeting he was advised that his resignation had not been accepted and that instead his employment had been terminated with effect from 9 May 2013. Mr Kamboj points to the termination letter he was provided by Ms Liao after that meeting which states:

“This is to confirm that the employment of Ashu Kamboj was terminated as of 9th of May 2013.

... However due to the shortage of work, his employment was terminated by 9th of May 2013.” 4

[10] Polyseal disputes Mr Kamboj’s version of events relating to the 14 May 2013 meeting and contends that Mr Perri did not authorise Ms Liao to prepare or provide the letter to Mr Kamboj 5.

[11] Mr Kamboj subsequently filed an unfair dismissal application on 4 June 2013 which was outside the 21 day statutory timeframe for lodging an application. The application came before Commissioner Lee on 27 September 2013 to deal with the extension of time issue. At the end of those proceedings Commissioner Lee reserved his decision. However, prior to Commissioner Lee handing down his decision, Mr Kamboj filed a notice of discontinuance on 24 November 2013. Mr Kamboj submits that he did this on the basis that he and Mr Perri had reached an understanding that he would be reinstated if he discontinued his application. Again, Polyseal disputes this.

[12] Mr Kamboj was not reinstated and on 23 December 2013 he filed a second unfair dismissal application in respect of the termination of his employment. Polyseal raised a jurisdictional objection on the basis that the application was lodged 207 days outside the 21 statutory timeframe. Mr Kamboj characterises Polyseal’s failure to reinstate him as the second constructive dismissal in this matter 6.

[13] The jurisdictional issue was the subject of a hearing before Commissioner Cribb on 21 March 2014. In a decision handed down on 9 May 2014 7, Commissioner Cribb determined that there were exceptional circumstances warranting the granting of an extension of time for Mr Kamboj to lodge his application. In her decision, Commissioner Cribb found, among other things, that:

(i) the termination letter given to Mr Kamboj on 14 May 2014 was neither incorrect nor unauthorised 8;

(ii) despite his resignation on 9 May 2013, Mr Kamboj was advised on 14 May 2013 that his employment was terminated by the company with effect from 9 May 2013 9; and

(iii) an agreement was reached between Mr Kamboj and Mr Perri on 18 November 2013 that Mr Kamboj would be reinstated on the condition that he discontinued his initial unfair dismissal application, with a further condition that Mr Kamboj sign a statutory declaration to the effect that his underpayment and unfair dismissal claims were false added later 10.

The Applicant’s submissions

[14] Mr Kamboj submitted that he had no alternative but to resign due to Polyseal’s failure to comply with aspects of its enterprise agreement, the Polyseal Waterproofing Victoria Pty Ltd and the CFMEU Building Industry Enterprise Agreement 2011-2015 11 (the Agreement), its failure to maintain confidentiality regarding a number of issues regarding fellow employees which Mr Kamboj had brought to the attention of Mr Ilic and it converting Mr Kamboj’s employment to a casual basis. With regard to the termination letter given to him on 14 May 2013, Mr Kamboj submitted that Polyseal had been “unable to provide a sensible reason for the termination” and alleged that it had provided misleading information to the Fair Work Commission (the Commission) in the previous proceedings regarding the extension of time issue.

[15] Mr Kamboj also referred to Commissioner Cribb’s abovementioned findings in his submissions and referred to Mr Perri’s failure to reinstate him in return for him discontinuing his first unfair dismissal application.

The Applicant’s evidence

[16] Mr Kamboj did not provide a witness statement. Key aspects of Mr Kamboj’s evidence-in-chief was that he confirmed on several occasions that he resigned on 9 May 2013 12 and that his resignation was effective immediately13. Further, Mr Kamboj also acknowledged that he had not raised the issue of harassment, cited as the primary reason for his resignation, with either Mr Perri or Mr Ilic prior to mentioning it in his resignation email to Mr Perri on 9 May 201314.

[17] Under cross examination, Mr Kamboj stated that he had rejected an offer of reinstatement made in the context of conciliation discussions at the time of the extension of time proceedings before Commissioner Lee on 27 September 2013 15. Further, he confirmed that he had asked Mr Perri for his job back when the pair met on 18 November 2013. Mr Kamboj maintained that Mr Perri had agreed to reinstate him in return for him withdrawing his first unfair dismissal application and disputed the suggestion that what was discussed was the provision of a neutral reference16.

[18] Further, under cross examination Mr Kamboj outlined details of his attempts to secure work following the termination of his employment with Polyseal and the nature of employment he had secured.

The Respondent’s submissions

[19] Polyseal submitted that there was no dismissal as Mr Kamboj had resigned on 9 May 2013 and that his behaviour subsequent to that date is consistent with him being aware of his resignation. Further, while Mr Kamboj’s resignation had been accepted, due to an administrative error, Mr Kamboj had been issued with a letter stating that his employment had been terminated 17.

[20] Polyseal acknowledged that Mr Kamboj’s claim that he has not received certain claimed wages and entitlements as per the Agreement. Specifically, Polyseal submitted that it had received correspondence from the Construction, Forestry, Mining and Energy Union (CFMEU) claiming that Mr Kamboj was owed $247.50 but that it had withheld that money pending the outcome of these proceedings. Further, Polyseal denied that it had failed to provide Mr Kamboj with replacement safety boots, that it had failed to keep confidential the complaints made by Mr Kamboj against other employees or that he had been converted from a full time daily hire employee to a casual employee 18.

[21] While Polyseal raised a number of issues regarding Mr Kamboj’s attendance at work in its submissions and cross examination of Mr Kamboj, it acknowledged that there is no contention that Mr Kamboj’s employment was terminated by Polyseal for reasons related to his performance or conduct 19. Against that background, I have not set out the submissions and evidence on this issue in this decision.

[22] As to remedy, Polyseal submitted that should the Commission find against it, reinstatement would be inappropriate due to an irrevocable break down in trust and confidence between the parties. Further any compensation should be limited to the period it would have taken Polyseal to address any procedural irregularities (which Polyseal did not concede existed in this case) attached to the termination. Polyseal estimated any such period as being one week.

The Respondent’s evidence

[23] Mr Perri attested 20 that following Mr Kamboj’s resignation email of 9 May 2013 he met with Mr Kamboj on 14 May 2013 at Mr Kamboj’s request. During the meeting Mr Kamboj indicated that he had wished to take a break from his employment and had resigned. The meeting concluded as Mr Perri had a meeting out of the office to attend. Mr Perri attests that on his way out he asked Ms Liao to prepare the necessary paperwork for Centrelink, adding that he did not authorise Ms Liao to provide the termination letter of 14 May 2014.

[24] Mr Perri further attests that in mid-November 2013 he received a series of text messages from Mr Kamboj requesting an appointment. Mr Kamboj came to see Mr Perri on 18 November 2013 where, according to Mr Perri, Mr Kamboj offered to withdraw his first unfair dismissal application on the basis that Mr Perri would provide a neutral reference were he contacted by any prospective employer. Mr Kamboj again came to see Mr Perri on 10 December 2013 when he indicated that he wished to return to his old position with Polyseal. Mr Perri indicated that there were no positions available and that he had made five people redundant since Mr Kamboj had resigned. Mr Perri disputed that there was ever an agreement that he would reinstate Mr Kamboj.

[25] Under cross examination Mr Perri stated that in respect of Polyseal’s compliance with the Agreement, Polyseal met with the CFMEU on a number of occasions and had showed the CFMEU all of its books. The CFMEU had also done their own audit and “all came back positive.” Further, the CFMEU had not raised any concerns regarding Mr Kamboj being bullied, harassed or threatened on a work site while he was employed by Polyseal 21. Mr Perri also stated that to his knowledge all was fine with Mr Kamboj’s performance and conduct at Polyseal22.

[26] In response to questions from the Commission, Mr Perri described his meeting with Mr Kamboj on 14 May 2013 as akin to an exit interview. Further, he stated that, with regard to the alleged harassment referred to in Mr Kamboj’s resignation email, he did ask Mr Kamboj to outline exactly what had happened, commenting that “it basically sounded like a stoush on site, which happens most days - more days than not.” 23 Mr Perri also responded that at the meeting Mr Kamboj did not say that but for the harassment he would not have resigned or that he felt compelled to resign because of the harassment24.

[27] Ms Liao attested, inter alia, that Mr Kamboj met with Mr Perri on 14 May 2013 for about 10 minutes and that when Mr Perri left to attend another meeting he asked her to prepare Centrelink paperwork for Mr Kamboj. Ms Liao attested that Mr Kamboj looked upset and as a result she assumed he had been terminated. As she was unsure what paperwork to prepare, she asked Mr Kamboj if he need a termination letter to which he responded yes. She then informed Mr Kamboj that the letter would enable him to claim money from Incolink. Ms Liao further explained that when an employee ceases their employment with Polyseal, part of her role is to prepare the relevant paperwork for Centrelink, i.e. a separation certificate, which Mr Perri signs. As to the termination letter she provided Mr Kamboj on 14 May 2013, Ms Liao attests that she did not have Mr Perri’s authority to prepare and sign a letter of termination. 25

[28] Under cross examination Ms Liao reaffirmed the key elements of her witness statement. In particular, she reaffirmed that her recollection was that the meeting between Mr Kamboj and Mr Perri on 14 May 2013 went for approximately 10 to 15 minutes 26. Further, Ms Liao stated that she had referred to 9 May 2013 in the termination letter as she thought that was the last day that Mr Kamboj had worked27. In response to a question from the Commission, Ms Liao confirmed that she had bumped into Mr Kamboj when he returned his tools to Polyseal on 10 May 2013 but that Mr Kamboj had simply said that he had “finished” with Polyseal and did not use the word “resign”. Ms Liao could not recall whether Mr Kamboj had indicated to her that he had finished with Polyseal the previous day28.

[29] Mr Ilic attested that, inter alia, he was not informed by Mr Kamboj of any workplace harassment against him and that he would have addressed the issue immediately had it been raised with him. Mr Ilic also attested that Mr Kamboj had raised concerns with him regarding two employees who were not working safely and that he addressed those issues immediately, including raising them at a toolbox meeting on site the next day 29.

[30] Under cross examination Mr Ilic reiterated that Mr Kamboj had never informed him that he had been threatened with violence or bullied or harassed in the workplace, nor had the CFMEU raised such concerns with him 30. Mr Ilic further stated that he had never informed other workers that Mr Kamboj had reported concerns about them to him and that Polyseal complies with its obligations under the Agreement31.

The statutory framework

[31] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Kamboj is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385, 386 and 387 which read as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:

(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.”

[32] The threshold issue which the Commission needs to determine is whether Mr Kamboj was dismissed as per s.385(a) and s.386 of the Act. If I find that Mr Kamboj was not dismissed as per s.386 of the Act, the application will be dismissed for want of jurisdiction. If, however, I find that Mr Kamboj was dismissed, the Commission then needs to consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b) of the Act. As to the remaining elements of s.385, as Polyseal submitted that the Small Business Fair Dismissal Code did not apply 32, s.385(c) is not relevant. Further, it was not submitted that the termination was a case of redundancy33, so s.385(d) does not apply.

Was Mr Kamboj dismissed?

[33] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) 34 (Mohazab) the Industrial Relations Court of Australia in dealing with the issue of whether a termination was at the initiative of the employer stated:

“... When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative.”

[34] A Full Bench of the Australian Industrial Relations Commission (AIRC) in ABB Engineering Construction Pty Limited v Doumit 35 (ABB) made the following observation on the issue of whether a termination was at the initiative of the employer:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.” (Underlining added)

[35] In this case, the evidence is that Mr Kamboj resigned on 9 May 2013 and that prior to his resignation email to Mr Perri he had not raised any concerns with either Mr Ilic or Mr Perri regarding bullying, harassment or threats of violence against him. While there were issues regarding compliance with the Agreement, Mr Kamboj’s evidence was that these were not the reason for his resignation.

[36] The question that flows from this set of circumstances is whether Mr Kamboj had no “real choice but to resign” as per Mohazab. Polyseal submitted that there were alternatives available to Mr Kamboj, including raising his concerns with Mr Perri, going to the Police or going to WorkSafe 36. While Mr Kamboj’s evidence was that he did raise the issue with the CFMEU, Mr Perri’s evidence was that the CFMEU did not raise these issues with Polyseal while Mr Kamboj was employed by it. Polyseal’s ignorance of the harassment supports a finding that its inaction in this case was not intentional but borne of a lack of any knowledge of the alleged behaviour. While I accept that Mr Kamboj was genuinely concerned for his safety, in the absence of alerting Polyseal to the threatening behaviour, he has not been able to establish that Polyseal’s conduct was “a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal” to draw on the language of the AIRC Full Bench in ABB.

[37] Mr Kamboj’s submissions in this matter also rely on the terms of the termination letter and Commissioner Cribb’s finding on this issue (see paragraph [13] above). Initially, I would note that Commissioner Cribb acknowledged in her decision that she did not have the benefit of evidence from Ms Liao in the proceedings before her 37. Ms Liao did give evidence in these proceedings which corroborated Mr Perri’s evidence. I have no reason to doubt Ms Liao’s evidence. This supports a finding that she was not authorised to prepare or sign the termination letter given to Mr Kamboj on 14 May 2013.

[38] Further, in giving evidence Mr Kamboj stated that at the meeting with Mr Perri on 14 May 2013, Mr Perri had indicated that his resignation had not been accepted as his email was merely a request. Beyond this no reason was provided as why Polyseal did not accept his resignation and instead terminated his employment. This description of the discussion on 14 May 2013 is disputed by Polyseal (see paragraph [26] above). In circumstances where there is no evidence to suggest that Polyseal wanted to dismiss Mr Kamboj, particularly as the evidence indicates that Polyseal had no issues with Mr Kamboj’s performance 38, it is difficult to understand what may have motivated the course of action which Mr Kamboj ascribes to Polyseal. This, together with Ms Liao’s evidence and the absence of any compelling evidence to the contrary, supports a finding that the termination letter was a mistake by Ms Liao.

[39] Taken together, these factors support a finding that Mr Kamboj resigned voluntarily.

[40] Much was made in the proceedings and in the respective submissions regarding Mr Kamboj’s contention that Mr Perri had failed to abide by an agreement reached in November 2013 to reinstatement him in return for him discontinuing his first unfair dismissal application. While Mr Kamboj gave evidence to this effect, Polyseal disputed that version of events submitting that what was discussed was the provision of a neutral reference for Mr Kamboj. As noted above, Commissioner Cribb found that such an agreement was reached on 18 November 2013. However, based on the evidence before me, I am unable to make a finding on this issue. Of note is that in cross examining Mr Perri, Mr Kamboj did not challenge Mr Perri’s witness statement that no such agreement was reached. Accordingly, I do not consider Polyseal’s failure to reinstate Mr Kamboj as constituting a second constructive dismissal, particularly as I am not satisfied that there was an employment relationship to terminate.

Conclusion

[41] For all the above reasons, I find that Mr Kamboj was not dismissed at Polyseal’s initiative but that he resigned from his employment voluntarily. Accordingly, I dismiss the application for want of jurisdiction. An order to this effect is attached at PR555537.

[42] Finally, I note Polyseal’s acknowledgement that it had withheld $247.50 from Mr Kamboj pending the outcome of these proceedings (see paragraph [20] above). I see no basis for Polyseal having done so and strongly recommend that it pay the outstanding amount to Mr Kamboj as a matter of priority.

DEPUTY PRESIDENT

Appearances:

A. Kamboj on his own behalf as the Applicant.

J. Hooper of counsel for the Respondent.

Hearing details:

2014.

Melbourne:

August 8.

 1   Exhibit H1 at Annexure LP-4

 2   Ibid

 3   Ibid at Annexure LP-1

 4   Ibid at Annexure LP-2

 5   Ibid at paragraph 7

 6   Transcript at PN559

 7   [2014] FWC 2910

 8   Ibid at paragraph 56

 9   Ibid

 10   Ibid at paragraph 27

 11   PR520272

 12   Transcript at PN683, PN812, PN829 & PN913

 13   Transcript at PN887, PN888 and PN1211

 14   Ibid at PN1210

 15   Ibid at PN1332

 16   Ibid at PN1433-1438

 17   Respondent’s Outline of Submissions at paragraph 3 and 73

 18   Ibid at paragraphs 36-40

 19   Transcript at PN1930

 20   Exhibit H1

 21   Transcript at PN1555-1557

 22   Ibid at PN1564

 23   Ibid at PN1709

 24   Ibid at PN1710 & PN1711

 25   Exhibit H2

 26   Transcript at PN1773

 27   Ibid at PN1783-1792

 28   Ibid at PN1880-1882

 29   Exhibit H3

 30   Transcript at PN1904-1907

 31   Ibid at PN1915-1920

 32   Respondent’s Outline of Submissions at paragraph 82

 33   Ibid at paragraph 83

 34 (1995) 62 IR 200 at 206

 35   Print N6999

 36   Transcript at PN1961-1963

 37   [2014] FWC 2910 at paragraph 55

 38   Transcript at PN1930

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