Bale v Centrex Limited - [2024] FWC 3231

[2024] FWC 3231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Bale
v

Centrex Limited

(U2024/8484)

DEPUTY PRESIDENT BUTLER

BRISBANE, 22 NOVEMBER 2024

Application for an unfair dismissal remedy – jurisdictional objection and merits – Applicant was dismissed – dismissal was not an unfair dismissal – application dismissed

Mr Laisenia Stewart Bale worked for Centrex Limited (“Centrex”), and with its subsidiary Agriflex Pty Ltd (“Agriflex”), as a Commercial Manager. He undertook the role as a fly in, fly out worker at a phosphate mine in Dajarra, near Mt Isa.
On 21 June 2024 Mr Bale sent some emails to the Head Chef at the site. The emails were, on their face, belittling and insulting. The Head Chef, whom I will refer to as “AL”, complained. Various events occurred in relation to the complaint. Then, in early July 2024, Mr Bale’s employment came to an end.
Centrex says Mr Bale resigned and was not forced to do so. Mr Bale says he was dismissed, within the meaning of that term for the purposes of the Fair Work Act 2009 (Cth) (“FW Act”). He says his dismissal was an unfair dismissal. He now applies to this Commission for an unfair dismissal remedy.[1]
For the reasons set out below I find Mr Bale was dismissed on 3 July 2024, but the dismissal was not an unfair dismissal. So, I dismiss the application.

Background

Mr Bale’s employment started on 10 December 2021.
Mr Brian Hall says he is General Manager for both Centrex and Agriflex.[2] Mr Bale says Mr Hall is General Manager of Agriflex.[3] It is common ground that Mr Robert Mencel is the Managing Director for Centrex and Agriflex.[4]
According to his “Executive Services Agreement”[5] Mr Bale reported to the General Manager for “operational matters” and to the Managing Director, Centrex for all other matters.[6] Mr Mencel says as Commercial Manager for Agriflex Mr Bale reported to Mr Hall, and Mr Hall reported to Mr Mencel. He says Mr Bale reported to him on an ad hoc basis for mining projects in the South Pacific but had had minimal to no involvement in these side projects for the past year or so.[7]
Mr Bale was on leave from 25 May 2024. He was due to return to work on 2 July 2024. This matter substantially relates to several emails sent from 21 June 2024 to early July 2024. It is useful to set those emails out in full in describing the relevant events in this case.

Mr Bale’s emails to AL of 21 June 2024

At 5:12 am on 21 June 2024 Mr Bale sent an email to AL in the following terms: [8]
Subject: FW: PFD Invoices
Good morning [AL],
Issue to resolve. I have asked you several times to cc me to your PFD invoices. A batch here where I’ve been missed out. When I get back, should I get you to seat for a basic English? or are you just getting too smart for your shoes.
Cut the bullshit and comply. Have told you so many times, stick to your kitchen and let me handle the accounting side of things.
Hi [Assistant Accountant]
Approved.
Stewart
Mr Bale copied the email to Mr Hall and to an Assistant Accountant at Centrex.
AL sent a short response email. At 5:24 am, after receiving that response, Mr Bale emailed him again, copying in Mr Hall and the Assistant Accountant, in the following terms:[9]
Subject: RE: PFD Invoices
Mate,
Cut the bullshit! Do your job and get your standards up to Head Chef’s expectations.
Then, at 6:35 am, Mr Hall emailed Mr Bale, relevantly, as follows:[10]
Subject: RE: PFD Invoices
Stewart- there is no need to be sending this type of email. I do not expect to walk into the kitchen in the morning and ﬁnd the Chef in tears. [AL] is an exceptional chef, completes tasks well outside of his PD. Addressing issues this way is Not the culture or expectation I will accept at Ardmore. As a manager there is certain professional standards to be maintained when addressing staff.
The correct culture for managing people is to sit down with them and discuss the issues civilly, document them and provide a copy so there is a complete understanding of what you require. I certainly do not address you this way with the number of anomalies in your own role. You have an option to address issues through the Acting Camp Manager if you are not getting the results you need.
I expect you will apologise to [AL] and address the issue civilly . I am about to go back to camp now 7am to talk both chefs out of resigning.
Please ensure I am copying in on the apology.

AL’s complaint about Mr Bale of 21 June 2024

After receiving Mr Bale’s emails, AL complained to the Camp Manager, Erica Hall, about Mr Bale. Ms Hall is Mr Hall’s wife. AL’s complaint related to those emails and to other events. He complained about Mr Bale’s conduct towards himself and towards his wife, who also worked at the site as a chef. I will refer to her as “JL”.

Mr Bale’s first opportunity to respond

Mr Hall wrote to Mr Bale at 10:40 am on the morning of 21 June 2024. The email states:[11]
Subject: interview with [AL]
As previously advised, I had to console [AL] this morning , to which he bought up a number of concerning accusations against yourself. Note he has kept records of your conversations and showed me a number of emails to back his statements. Stewart please respond to the items listed below. At this point it appears to be a case of Bullying and Harassment which needs to be addressed. Note - Under section 789FD of the Fair Work Act 2009, a worker is bullied at work if an individual, or group of individuals, repeatedly behaves unreasonably towards the worker or group of workers; and that behaviour creates a risk to health and safety. Abuse which the emails show, threatening which the emails show. [AL]’s mental state this morning.
The meeting disclosed [AL]’s grievances with Stewart Bale and his abuses by email ,face to face and phone calls to himself [[AL] and his wife [JL]]
[AL] was in quite a state, crying, when Erica walked into work this morning after receiving yet another abusive email from Stewart. After consoling [AL], Erica rang Brian the General Manager to come in for a meeting to try and sort this problem ASAP. [AL] wanted to resign.
[AL] showed Brian all his emails he received from Stewart that were abusive towards him and [JL]. [AL] and [JL] were instructed to do the hotel management course which, is not a part off their job description.
Stewart told [AL] one day, that he was going to get Robert Mencel to get rid of Brian Hall as he is not good at his job and not good with people.
He also told him that he (Stewart) ﬁxes everything around here, yet there is no evidence of that. Yet he tells everyone on site if it wasn’t for the old man [Brian] the place would collaspe without him. With Erica starting and after only 2 rosters of 4 days, a lot of the issues that needed ﬁxing are now ﬁxed.
Stewart told [AL} to send PFD invoices to him, which [AL] does. [Assistant Accountant’s name] the accounts person wants it sent in a different format so [AL] complies ccing Louise and Erica in for record of sent, but, Stewart gets quite abusive to [AL] saying he’s not doing the right procedure.
Stewart also told [AL] concerning Alex the original head Chef Manager that he wasn’t working out and it was Brian’s fault but, Brian made the position offer under Stewarts recommendations.
[AL] was told by Stewart to do the Food Supervisory course. Stewart advised [AL] the company will pay for the course but after [AL] waiting quite a while for Stewart to come back to him, [AL] decided just to do it off his own back and at his own expense.
Stewart was asked for numerous things from different people, mostly important to maintain food health under the Food supervisory conditions, has been asking for about the last 6 months but, nothing ever was ever done. Mostly done now under Erica’s guidance.
Stewart advised [AL] Robert Mencel and Brian Hall don’t like [AL] for some unknown reason. This is obviously not true as Brian is very respectful to me ([AL]) and always compliments and tanks me for his meal. I also do lots of things which are out of the PD for a chef, like cut eh lawns, clean rooms, clean the hotel, serve at the bar and much other things.
When Stewart says bad things about people, I ([AL]) doesn’t believe he’s talking the truth about that person. Always issues instructions using Robert or Brian’s name. I know they to busy to be issuing instructions.
It very much upsets me ([AL]) when Stewart talks bad about others. One incidence was he was accusing Davo, Sam and Grant of not being good at their jobs.
Another time Stewart told [AL] he would get him a Laptop and put the Inventory Management system on it for him which he never ended up doing. Meanwhile, [AL] decided to bring his own laptop in, which doesn’t have the system on it as he wasn’t given it but still expected to report on food inventory.
At 10:45 am on 21 June 2024, JL sent an email to Ms Hall.[12] The email was about the same issues. There is nothing suggesting anyone provided this email to Mr Bale.

Mr Bale’s first response

On the morning of 23 June 2024, Mr Bale emailed Mr Hall:[13]
Subject: RE: interview with [AL]
Hi Brian,
Sorry for the late response as I’ve just checked my email after a few days of working on the farm.
[AL] is a mate and am so glad that my email broke him. You now have his venom documented. All emails were specifically crafted for a purpose and as expected, he has pulled it out of the closet to support his argument.
Trying to teach him not to trade blows at gutter level, get his mindset to another level. We hired him at $120,000 to lead by example…trades well below par behind the curtains but can be taught if he is willing to learn.
Question now is how do we capacity build to the expected level of performance without facing harassment charges as I am now facing?. We had discussed risks of hiring husband and wife Chefs before we embarked on the camp vision. Kicking myself a bit for not listening to you but I still have hope that [J] & [AL] can improve.
Had stern discussions with [AL] and [J] before I left to ensure atmosphere for Erica was welcoming. Glad they’ve done that. As expected, tables turned on [another person]. They have been have turf wars from day 1. I’m well aware of [other person’s] limitations but her positives outweighs the negatives…another capacity building program required as firing is not an option as proper procedures etc are not implemented. And the list goes on.
Quite concerning is how he has drawn in Robert and other Senior Management to support his cause. I don’t roll that way. But can only expect response from gutter level mindset.
Erica is picking things up correctly and glad these things are popping up now. Give herself a month, cracks in Chef’s abilities and mindset will begin to show.
Great ground for capacity building.
Resending again list of seasoned candidates that should seat above current chefs and assist capacity build them.
To discuss further.

Mr Bale’s further email to the Head Chef, after his complaint, of 23 June 2024

Later on 23 June 2024, Mr Bale wrote to AL again, copying in Mr Hall and the same Assistant Accountant, in the following terms:[14]
Subject: Re: Apologies [AL]
Hi [AL]
Sincere apologies [AL]. Didn’t expect your teary reaction.
Great to see my inclusion in your subsequent emails. Keep it that way.
Not impressed with your allegations. But we can work on your weaknesses.
Doing a great job but there is a higher ground to climb too.
Please excuse the words but you have to grow some balls.
Cheers.

Emails after Mr Hall received Mr Bale’s response

At 2:11 am on Monday 24 June 2024 Mr Hall wrote to Mr Bale as follows:[15]
Subject: RE: interview with [AL]
Stewart, unfortunately your response does not fully cover the allegations. I have also reviewed your attempt of apology to [AL] which also includes abuse and threats.
I am not sure if you realise the seriousness of these allegations. The Australian “Unfair Work Act” covers bullying and harassment, it is the law. [AL] is entitled to bring charges against the individual and the company if he wishes. On his salary scale he is entitled to full Government support in bringing these charges. Unfortunately, on your salary scale you are not entitled to government support and would be required to wear your own court and lawyer costs in defending. There are statements by others, full support from personnel on [AL] being a very good chef, does extra work outside of his position description, including extra hours doing basic maintenance tasks, working the bar etc.
The Centrex/ Agriflex policy on “Bullying and Harassment” recommends Instant Dismissal in these cases. I have sort corporate advice on this matter and am advised you should resign. I will seek external advice on the correct process for this, but as it is against the law I expect the same result. Meanwhile, I recommend you resign to ensure you do not lose any or all of your entitlements and do not have a dismissal against your name. Any reference check for your future endeavours would be “you left of your own accord”. At the least you should expect you will not receive a salary review and a reallocation of your tasks.
Mr Bale responded at 9:21 am that same morning, 24 June 2024, as follows:[16]
Subject: RE: interview with [AL]
Good morning Brian,
Thank you for your email. So sad that you have not bothered to listen to the other side of coin. Even sadder when I’ve supported you through the thick and thin and you’ve recommended as you have, even seeking formal advice for my instant dismissal before consulting me. [AL] is a friend, I’ve assisted greatly in getting him and his wife to where they are at the moment and intend to capacity build him/her further. Just because your tummy is getting satisfied, you’ve overlooked costings and quality aspects that I am worried about.
I know more of him than you. I’ve changed beds, mopped and assisted him in the kitchen and laundry setting standards in all aspects of that catering framework. Their collective struggles and interest as a couple is at my best interest. My emails are friendly battering between friends who have worked closely together in the last six months. As head, I want the best for him. This is our normal mode of discussion when we verbally chat to get a point across. In the past, I’ve sourced my Accountants directly from the Philippines. Mate, only 2 emails as a friendly banter ( so I thought), you’ve decided and have facilitated for my termination? . Damn, but if [AL] is hell bent in taking me out and you are comfortable with the current standards and costs, glad to step aside. Yep, my bad for been frank with a friend who has been testing my simple catering accounting framework numerous times thinking he is the Accountant. Get to know him better, he can be very cheeky and sly at times.
I’d have a field day in Court on defamation claims against [AL] that you have well documented but I choose not to go that way because I believe I can still capacity build him. Wife [J] committed a few mistakes (sackable offences) and wanted to resign. I encouraged her to hold as I there is still a chance to capacity build. These are well documented.
Why is it when Erica is merely 1-2 weeks into her work, she correctly picks symptoms of staff issues that we can work on and you are recommending sacking [other person]?. Here you go again with me. We’ve lost a handful of quality workers, just forced to resign if not happy.
You’ve flagged that harassment clause at me. Where do you define the boundaries of harassment? I can easily change the tables on you and argue that you’ve harassed me to meet your monthly KPI’s this far. Making me work continuously while on break Denying me well documented “time in lieu” claims. But I choose not to do so by sticking to the big picture.
I took leave from the 30th of May 24. Its now the 24th of June 24 and I have worked tirelessly almost every day attending to work emails and issues. I strategically took leave to look at things from the outside and reassess my options. Share price is down today, net asset getting worse and challenges are getting a bit more complex as we manage HR drivers to produce the quantity.
Frankly, I’m simply crippled to influence these numbers due to your management style. This particular case is another classic example of your decision-making process.
You denied me performance appraisal last year explaining that it was Robert’s fault as I was hired by him. It’s only fair that I seek his counsel on your recommendations.
If it comes to me leaving, please let it be seamless. Allow me to teach and capacity build where I can in the time given.
I will update you once Robert has advised me.
Shortly afterwards, at 10:36 that morning, Mr Bale also sent a message to Mr Hall as follows:[17]
Hi Brian,
Just noted your email line that I have not fully responded to the allegations?. Seriously?
Let me get my response back to you by 2pm”
Later that morning Mr Bale and Mr Hall had a telephone conversation. Mr Hall says that in that call he told Mr Bale, among other things, to take the matter seriously, and respond professionally to the allegations.[18]
Mr Bale separately wrote to Mr Mencel the same day, at 11:24 am, as follows:[19]
Subject: L S Bale- Approval Request to Resign As Per GM Brian Recommendation.
Hi Robert,
Trust you are well. Spare time pondering. Friendly bantering with [AL] has landed me in the soup again. Brian has asked for my resignation and is facilitating my termination.
Approval to do so to assist with Centrex’s progress. I can give 3 months advice today or strike a deal of some sort. Worse case, re-assign me to Ricky’s team as Procurement Officer until 10^th Dec 24 when I will reach years of service and resign then.
In addition, Brian’s Management style is quite unique and can be very challenging to adapt. I was looking forward to working with him change his style in the next few months as there is a stead stream of intellects being hired and will quit soon if he doesn’t change his style. Reminded of the business growth cycle where different CEOs are hired at different stages to take business to higher ground. Just sense at times that intellects we hired a looking for directions and mentoring. Brian does not fill that crucial space.
No love lost if its best that I resign. Respect for you will always be there. At least you know that I did not quit on your vision.
At 1:49 pm Mr Mencel responded:[20]
Subject: RE: L S Bale- Approval Request to Resign As Per GM Brian Recommendation.
Stewart,
Brian is going through the correct process and getting the necessary advice.
Unfortunately, I believe the best outcome for yourself is to resign.
At 3:21 pm Mr Bale wrote to Mr Hall, copying in Mr Mencel and another person at Centrex, in the following terms:[21]
Subject: [AL]-Allegations Against Stewart Bale
Hi Brian,
Thank you for our brief chat. As you’ve already started formal proceedings against me, let me face the music and may be learn from it.
As agreed, I will hand over my written response to [A’s] outrageous allegation on Wednesday the 3rd of July 24 when I return to site. Let me face the independent inquiry’s music and then decide on my option to resign. As discussed, I will set out defamation claims against [AL], hopefully nip his lies in the butt for future good.
Meanwhile, I will move quickly to train and delegate current tasks to ensure continuity. Nothing major really.
If I resign effective Wednesday, 3rd of July 24, giving three month’s notice, there is ample time to ensure smooth transition and training of a suitable replacement.
As assured, my commitment to the last minute.
He then sent another email at 4:19 pm the same day:[22]
Subject: Catering and Accommodation Year End Accounting Requirements -30th June 24
Hi Brian,
Despite the formal proceeding that you’ve trigger off, I still intend to get involved with camp work and get the required accounting work done for the financial year ended 30th June 24. I have no issues with [AL].
Happy to hand over to Erica to liaise directly with the Auditors on accounting matters etc to adhere to formal proceedings requirements etc if any.

Mr Hall’s deed proposal

Mr Hall wrote to Mr Bale on 26 June 2024 in the following terms:[23]
Subject: The process
Only Robert aware of the issue, should not be copying others. Been lots of discussion over a number of days on how to manage this. I am now advised to request you to sign a deed of release. This triggers clause 13.4 of your employment contract, re:, Termination without Cause which allows Centrex to pay you out the notice period, 3 months of salary ( approx $40k and any leave entitlements ( approx 33days, approx $14k).
The process is –
·Agree to sign the deed of release by responding to this email.
·Employsure will draft the deed of release letter for you to sign
·You return the deed of release letter signed with a written resignation
·Centrex pay you out, no return to site.
I believe this is the best option for you. The alternative is they go down the disciplinary path, which under the Centrex Bullying and Harassment policy is instant dismissal where you would not be paid out other than leave entitlements. Employsure also advise when on leave personnel are not to communicate with site personnel, a new one for me. If no response from you by July 2nd they will issue you a letter to stand down until further notice, not to return to site.
Please advise.
I will refer to this email as “the deed proposal.”

Mr Hall cancels Mr Bale’s flight

Mr Bale had been scheduled to return to the mine site on 3 July 2024. Mr Hall says that on 2 July 2024, in the absence of a response from Mr Bale to the deed proposal of 26 June 2024, he cancelled Mr Bale’s flight to Mt Isa. Mr Hall says he had intended to then issue the letter that had been foreshadowed in his email of 26 June 2024,[24] to stand Mr Bale down and “start the disciplinary process.” Mr Bale says:[25]
On Tuesday, 2^nd of July 2024 at 8pm, I realized that my ticket to fly from Brisbane to Mt Isa the very next morning at 5am was cancelled without notice. What options did I have at this point? What was so difficult of having a face to face discussion, worse case scenario, pack up my belongings and return to Brisbane in the next flight.
At this point, I decided to negotiate a deed of release and complete all resignation formalities required formally resigned by Friday the 5^th of July 24. To date, my personal belongings have not been returned by Agriflex.

Mr Bale’s email of 2 July 2024

At 8:42 pm the same night, 2 July 2024, Mr Bale replied to Mr Hall’s email of 26 June 2024 as follows:[26]
Subject: RE: The process
Hi Brian,
Trust you are well.
Please allow me until 12pm Friday, the 5th of July 24 to respond to your Deed of Release proposal. I will also respond to allegations by then.
Yes, as my ticket to fly back to mine site tomorrow morning has been cancelled, I have resigned.
Please allow until 12pm Friday, the 5th of July 24 for my final closure submissions (resignation letter, responses to allegations and Deed of Release thoughts) concluding my chapter with Agriflex.

The email purporting to accept Mr Bale’s resignation

The following afternoon Mr Hall responded as follows, copying in Mr Mencel and another person at Centrex:[27]
Subject: RE: The process
Stewart, hope are also well . Thanks for your email last night. As per your email “ I have resigned”, Centrex accepts your resignation. There is no need for further discussion. If you can return the company Laptop and any other company items asap please. I will arrange for Centrex payroll to pay out your entitlements tomorrow as per discussed in the proposal for the deed of release. As you have resigned there is no need for the deed of release form.
Thanks for your support at Agriflex and wish you all the best in your future endeavours.

Subsequent events

On 4 July 2024 the employer paid Mr Bale his outstanding entitlements, and three months’ pay, which Mr Hall describes as being “in lieu of notice.”[28]
On 9 July 2024 Mr Bale provided to Mr Mencel an extensive response (dated 8 July 2024).[29] Mr Mencel provided it to Mr Hall.[30]
On 12 July 2024 Mr Mencel acknowledged the response, by email to Mr Bale, stating “Hi Stewart, Content noted. Thank you for your efforts over the last two and half years and I wish you the very best.” Mr Bale responded that afternoon[31] with:
Subject: Re: Centrex Ltd (CXM)- Agriflex- Stewart Bale's Response To [AL’s] Allegations and Other Operational Concerns
Hi Robert,
Appreciate your email and I wish you the very best as well.
Please do keep me in your contact list for any work in the South Pacific and I'm always a phone call away. But only work for real men that can bring concepts to fruition and they don't have to deal with cry babies :).
You're a great person to work for.
Please pass on my regards to Brian as well and I do seek forgiveness for my short comings.
It has been an invaluable foundational experience for my next role.
There could be a small nudge from Fair Work Commission on some aspects of my dismissal but lets leave that to its formal process.
Have a great weekend.
Stewart

Some relevant provisions of the Fair Work Act

Part 3-2 of the Fair Work Act 2009 (“the Act”) provides for a person who is unfairly dismissed to apply to the Commission for a remedy. In this matter the main questions include:[32]
(a)Was Mr Bale “dismissed” as that term is used in the Act?[33]
(b)Was he “protected from unfair dismissal” when his employment ended?[34]
(c)Was he “unfairly dismissed,” for the purposes of the Act?[35]
As I stated above, Centrex has raised a jurisdictional objection to the application. It says Mr Bale was not dismissed. The term has a particular meaning under the Act, which I will discuss below.
There are various conditions the Applicant has to meet to be protected from unfair dismissal. There are also various issues to consider in deciding whether someone has been unfairly dismissed. I will discuss these below.
If I am satisfied that the answer to each of the above questions is yes, then I can consider whether to order a remedy for the unfair dismissal.

This application

Mr Bale filed this application on 22 July 2024. I find that he applied within the period required in s 394(2) of the Act. I find that the employer was not a small business. I also find that the dismissal was not a case of genuine redundancy. These issues were not in dispute.
The parties did not resolve this matter by conciliation and so it proceeded to determination. The Member who had previously had carriage of the matter issued Directions on 2 September 2024. I held a conference with the parties on 19 September 2024. On that same date I issued further Directions, in materially the same terms but affording additional time, and affording Mr Bale a further opportunity to file materials.

Determinative conference or hearing

If there are contested facts, as there were in this case, the Commission has to hold a conference or hearing when determining the application.[36]
I invited the parties to provide their views, if any, as to whether this application should be determined in what is referred to as a “determinative conference,” or at a hearing. The parties were content for the matter to be dealt with in a hearing. I considered whether a hearing would be the most effective and efficient way to resolve the matter. After doing so I decided[37] to proceed to determine the matter by holding a hearing. The hearing was on 21 October 2024.

Permission to be legally represented

The Applicant was self-represented. The Respondent sought to be represented before the Commission by a lawyer. Relevantly, s 596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer only with the permission of the Commission. Permission can be granted only on certain conditions set out in s 596(2). I found that the discretion was enlivened because it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter. I decided to exercise the discretion, bearing in mind that the Applicant did not object. I permitted the Respondent to be legally represented.

Evidence

Mr Bale gave evidence, as did Mr Hall and Mr Mencel.
Some of the documents that were put before me contained email correspondence that appeared to be aimed at resolving the matter as between the parties. This is apparent from the emails I have set out above. None of those emails were marked “without prejudice.” No party sought to assert “without prejudice” privilege in relation to any of those emails. No party objected to these emails being put into evidence.
Mr Bale provided some irrelevant material. It was not necessary to consider that material.

Submissions

Centrex filed an outline of submissions of 9 September 2024. Mr Bale filed materials containing some argument on 16 September 2024. After the conference of 19 September 2024, I gave him an opportunity to file revised material. He filed written submissions on 25 September 2024. Centrex provided its outline of submissions in reply on 30 September 2024. Both parties also provided lists of authorities on 8 October 2024. Both parties made oral closing submissions at the hearing. I have considered the parties’ submissions, and will address them, as necessary, below.

Was Mr Bale dismissed?

As I stated above Centrex raised a jurisdictional objection, namely that Mr Bale was not dismissed. Section 386(1) of the Act provides that an 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.
Relevantly, a person has been dismissed if:
(a)their employment has been terminated “on the employer’s initiative;”[38] or
(b)they were forced to resign because of the employer’s conduct.[39]
If a person apparently resigns, that can in some cases be a termination “on the employer’s initiative.” For example, if an emotional employee “resigns” in the heat of the moment, and the employer simply takes the “resignation” at face value instead of clarifying or confirming the resignation with the employee after a reasonable time, that can fall within the first of the two categories. Employer conduct is not a necessary element.[40] There is no exhaustive description of what constitutes termination “at the employer’s initiative.”[41]
On the other hand, if the person resigns because the employer’s conduct forced them to, then that would fall into the second category. This will arise where the employer took some action with the intention of ending the employment, or that has the probable result of ending the employment, such that the employee had no effective choice but to resign.[42]
Centrex made submissions about s 386(1)(a) of the Act, asserting that it did not terminate Mr Bale’s employment, and about s 386(1)(b) of the Act, to the effect that Mr Bale voluntarily resigned.
Mr Bale submitted[43] that his termination was ended on the employer’s initiative, for the purposes of s 386(1)(a). He separately submitted “I was forced to resign on the 3^rd of July 24 (my formal start date for work) following the cancellation of my ticket by my employer.”[44]
This is the date on which Mr Hall purported to accept a resignation from Mr Bale and the date on which he had been scheduled to fly to Mt Isa. It is not the date of the email that the Respondent says constituted the resignation.
I do not accept that Mr Bale resigned at all, let alone voluntarily resigned. In my view the termination was on the employer’s initiative as contemplated by s 386(1)(a) of the Act, for the following reasons.
The Respondent argues the email of the evening of 2 July 2024 constituted a resignation. I am not persuaded of that. The meaning of the phrase “I have resigned” in the email is unclear. The use of the present perfect tense suggests something that happened in the past but continues to apply in the present. But Mr Bale had not resigned in the past, as at that time. Mr Bale says I should understand the phrase as meaning he intended to resign at a future date. Centrex argues “I have resigned” had the same meaning as “I resign”.
It is useful to consider the events that happened in the lead up to the email. I also accept Mr Bale’s submission that I should read his email as a whole.
Mr Hall and Mr Mencel had both previously told Mr Bale he should resign. Then, Mr Hall wrote to Mr Bale on 26 June 2024 for the explicit purpose of negotiating a deed providing for Mr Bale’s resignation. He asked for Mr Bale’s response to that proposal by 2 July 2024. On 2 July 2024, Mr Hall cancelled Mr Bale’s flight to Mt Isa. Mr Bale became aware of the cancellation at 8:00 pm. Mr Bale then responded, at 8:42 pm the same evening, to Mr Hall’s email of 26 June 2024. Having regard to the times at which emails had previously been sent, it was clearly not unusual for Mr Hall and Mr Bale to communicate outside business hours. In the days before his email of 2 July 2024, Mr Bale had explored with both the employer and the subsidiary, via Mr Mencel and Mr Hall, various options including (imminent) resignation, redeployment into a different role and then resignation on a later date once he had accrued more service or return to the mine site to participate in the formal disciplinary process. At the time at which Mr Bale sent his email on the evening of 2 July 2024, the thing that had happened in the immediate past was his flight being cancelled. It seems obvious that on becoming aware of the flight cancellation Mr Bale finally appreciated the seriousness of his situation. Under cross-examination, he said it was at this point that he lost “hope.”
Mr Bale reported to Mr Hall for operational matters and to Mr Mencel for all other matters. He was negotiating with Mr Hall, but he had also communicated with Mr Mencel to seek “permission” to resign. Yet Mr Bale sent the email of the evening of 2 July 2024 to Mr Hall rather than to Mr Mencel, and without copying Mr Mencel in.
In that email of the evening of 2 July 2024, as well as using the phrase “I have resigned” after “Yes, as my ticket to fly back to mine site tomorrow morning has been cancelled,” Mr Bale also:
(a)indicated he would respond to Mr Hall’s “Deed of Release proposal,” and respond to the allegations, by 5 July 2024; and
(b)stated he would provide, among the “closing submissions” that he intended to provide by the 5^th of July, a “resignation letter.”
Under cross-examination, Mr Bale referred to his “dismissal,” and then the following exchange occurred:
Respondent’s lawyer: When you say your dismissal happened, when did that occur? You mean when you tendered in your resignation?
Mr Bale: I – as of today, I have not actually given any formal resignation as per my understanding … it has to be written, and clearly expressed…”
It is clear from the face of Mr Bale’s email of the evening of 2 July 2024 that he thought he was simply continuing the parties’ negotiations in relation to Mr Hall’s proposal of 26 June 2024.
The email of the evening of 2 July 2024 was a request for more time to respond to the allegations and the proposal of 26 June 2024. It was not a resignation letter. It expressed an intention to provide a resignation letter in the future.
Despite Mr Hall’s words in his email of 3 July 2024, the employer’s actions are consistent with the employment having come to an end by dismissal, not resignation. On 4 July 2024 the employer paid Mr Bale three months’ pay in lieu of notice. The employer made this payment even though there was no concluded settlement agreement between the parties. If Mr Bale had actually resigned he would have been the one required to give notice, not the company, so it is difficult to see what notice this payment was in lieu of, on the employer’s case.
For the purposes of s 386(1)(a) of the Act, the employment came to an end on the employer’s initiative, when on 3 July 2024 it purported to accept Mr Bale’s resignation. Mr Bale was dismissed.

Was Mr Bale protected from unfair dismissal?

Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b)one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Centrex did not raise any jurisdictional objection in reliance on s 382 of the Act. However, I will address these issues briefly for completeness.

Minimum employment period

It was not in dispute and I find that Mr Bale was an employee and had been employed by Centrex since December 2021. I have stated above my finding that Centrex was not a small business. Accordingly, I am satisfied that, at the time of his dismissal, Mr Bale was an employee who had completed a period of employment with Centrex of at least the minimum employment period.

Applicant’s annual rate of earnings

The parties entered into an agreement, titled Executive Services Agreement, in 2021. That agreement provided for an annual salary of $160,000. It also included a schedule in which Centrex provided a “high income guarantee”. The parties did not refer to that guarantee in these proceedings, and despite it there is no evidence before me that the employer kept Mr Bale’s earnings above the high income threshold. The evidence is to the contrary.[45] I find that Mr Bale’s annual salary was $160,000 as at the time of the dismissal.[46]
Mr Bale’s annual salary was expressed, in his contract, to be exclusive of compulsory superannuation and “any additional voluntary superannuation contributions directed by [Mr Bale].” Compulsory superannuation does not count towards “earnings” for the purposes of the high income threshold.[47] There was no evidence before me of any amounts provided by the employer to go towards voluntary superannuation contributions, over and above the salary or otherwise. Mr Bale was also entitled to participate in any incentive scheme approved by the Board, but again there was no evidence before me of any such scheme, or of any benefit from participating in it.
There is no evidence before me that suggests there are any other components of “earnings” to be taken into account having regard to s 332 of the Act or regulation 3.05 of the Fair Work Regulations 2009. There was a passing mention of a company laptop but no indication that this gave rise to a non-monetary benefit. There was no evidence about how travel or accommodation costs arising from the fly-in, fly-out nature of Mr Bale’s role were dealt with, and therefore no evidence that would lead me to apprehend it may be necessary to take into account allowances or expenses payments in that regard.
Accordingly, it was not in dispute and I find that, at the time of dismissal, the sum of Mr Bale’s annual rate of earnings (being $160,000) together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009 (of which there are none before me), was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2024, is $175,000.

Mr Bale was “protected from unfair dismissal”

I am therefore satisfied that, at the time of dismissal, Mr Bale was a person protected from unfair dismissal.

Was the dismissal harsh, unjust or unreasonable?

I now turn to the question of whether the dismissal was harsh, unjust or unreasonable.[48] In that regard the Commission must take into account:[49]
(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 Commission considers relevant.

I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[50]
Centrex’s written submissions substantially went to the jurisdictional objection, and, if that was not successful, remedy. They did submit that Mr Bale had been given an opportunity to respond. At hearing they also took issue with Mr Bale’s conduct. After hearing from Centrex’s representative on the jurisdictional objection, I asked them about the merits. They submitted Mr Bale’s conduct was serious misconduct and warranted summary dismissal, but that the employer had nonetheless paid him three months’ pay in lieu of notice.

There was there a valid reason for the dismissal related to Mr Bale’s conduct

In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[51] and should not be “capricious, fanciful, spiteful or prejudiced.”[52] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[53]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[54] “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it.”[55] In this case it was not in contest that Mr Bale sent the emails set out above.
Mr Bale’s emails to AL of the morning of 21 June 2024 were belittling and insulting. Criticising AL’s English was plainly offensive. Copying in other people made those emails more humiliating. The email that Mr Bale sent to AL after being told to apologise displayed no remorse; if anything, that email added further insult. Mr Bale sought to later characterise these emails as friendly banter but that was disingenuous.
Mr Bale argued that the language used in the emails was consistent with the sort of language used on mine sites.[56] In his evidence Mr Mencel disagreed. Whether or not people generally use crude language on mine sites is beside the point. On the face of the material the conduct issue related to bullying and harassment, not swearing. Mr Hall’s email to Mr Bale of 21 June 2024, which set out issues in respect of AL, and JL for response, referred to the Act’s definition of bullying and harassment, and referred to Mr Bale’s emails as being abusive and threatening.
As well as the responses he provided on 23 June 2024[57] and 24 June 2024,[58] Mr Bale provided a further response on 9 July 2024,[59] after his employment had ended. The contents of each response fortify rather than assuage my view that there was a valid reason for termination.
I find Centrex had a valid reason to dismiss Mr Bale, related to his conduct.

Mr Bale was notified of the valid reason

The question is whether Mr Bale was notified of the valid reason referred to above.[60] I find the employer notified Mr Bale of the valid reason, before any decision to dismiss him, by Mr Hall’s email of 10:40 am on 21 June, which was in explicit, plain, and clear terms.[61] Mr Hall’s email of 24 June 2024[62] also emphasised the seriousness of the matter.

Mr Bale was given an opportunity to respond

An employee protected from unfair dismissal should be provided with an opportunity to respond 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 employment.[63]
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 fairly.[64] 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 requirements.[65]
Mr Bale submits he was dismissed with no opportunity to respond.[66] He says no workplace investigation was conducted.[67] He says there was no “framework” in place to “verify claims.”[68]
Mr Hall’s email of 21 June 2024 set out the matters to which Mr Bale was to respond and provided an opportunity to respond. Mr Bale took up that opportunity by his email of 23 June 2024 at 6:05 am.
At 2:11 am on 24 June 2024, Mr Hall wrote to Mr Bale again. In that email he expressed concern that Mr Bale did not understand the seriousness of the allegations. And, saying he was doing so on advice, he recommended that Mr Bale resign. I accept that the two of them then had a phone conversation in which Mr Hall told Mr Bale to respond. Mr Bale then sent another response, by his email of 24 June 2024 at 9:21 am.
Mr Bale then wanted a further opportunity to respond. He initially indicated, by another email later on 24 June 2024, that he would provide a response on 3 July on his return to site. Then, in his email on the evening of 2 July 2024, he requested further time to provide a response, saying it would be provided by 5 July 2024. He ultimately provided it on 9 July 2024. By that time, however, his employment had come to an end. The failure to fully afford him the third opportunity to respond does not change the fact that he had already had two opportunities.
Almost all of the relevant communications occurred while Mr Bale was on leave. Mr Hall said he thought it was “appropriate to address the bullying immediately despite [Mr Bale] being on annual leave, due to the seriousness of the situation.”[69]
It would have been preferable if Mr Bale had been given another opportunity to respond once he returned from leave, instead of the process being abruptly ended by Mr Hall’s characterisation of Mr Bale’s email of 2 July 2024 as a resignation, and the purported acceptance of it.
But though that would have been preferable, that does not mean Mr Bale was not given an opportunity to respond. Mr Bale’s own emails to AL, that gave rise to the process, were sent while Mr Bale was on leave. He continued to send multiple emails throughout his leave. He says he worked throughout his leave for most days to “keep things moving.”[70] Even though he was on leave, he availed himself of the two opportunities given to him to respond. In those circumstances, the fact that he was on leave does not mean he was not given the opportunity to respond.
There is nothing to indicate that JL’s email of 21 June 2024[71] was put to Mr Bale for response. The reason for this was not explored in the evidence. But that email from JL related to the events put to Mr Bale for response.
I find that Mr Bale was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.

Refusal to allow a support person?

Neither party raised this as an issue. Almost all of the communication was undertaken by email. There was no evidence that Mr Bale asked to have a support person during any relevant conversation, or that Centrex or Agriflex refused to allow him to have one. Centrex did not unreasonably refuse to allow Mr Bale to have a support person present at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

As the dismissal related to conduct, not performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

Neither party submitted that the size of Centrex’s enterprise was likely to affect the procedures followed in effecting the dismissal. I find that the size of Centrex’s enterprise had no such impact.

Absence of dedicated human resource management specialists or expertise

This consideration goes to whether procedural shortcomings on the part of an employer can be excused to some extent, because of a lack of human resources specialists or expertise. As it was common ground that Centrex and Agriflex were taking external advice in relation to this matter, this consideration is of limited relevance.
It is clear Mr Hall wrote his own emails rather than having his advisers draft them. But the emails were clear and explicit. They put Mr Bale on notice of the matters put against him, stated that they were serious and why, put him on notice of the likely consequences, and gave him an opportunity to respond.
The absence of dedicated human resource management specialists in the Respondent’s enterprise had little or no effect on the procedures followed in effecting the dismissal.

What other matters are relevant?

Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The following relevant matters weigh in favour of a finding that the dismissal was not harsh, unjust, or unreasonable:
(a)The seriousness of the misconduct, obvious from the face of the emails.
(b)Mr Bale’s lack of insight into his own behaviour, demonstrated by his attempts to justify his conduct on the material and during the hearing.
(c)Mr Bale’s lack of remorse, demonstrated by the content of his “apologies” email to AL of 23 June 2024,[72] and further demonstrated by the content of his response sent 9 July 2024[73] and his email to Mr Mencel of 12 July 2024.[74]
It was not in dispute that the employer paid Mr Bale three months’ salary in lieu of notice (as opposed to summarily dismissing him). It was clear on the face of Mr Hall’s email of 26 June 2024 that the employer considered it likely had grounds for summary dismissal. The Respondent’s representative submitted that Mr Bale’s conduct had warranted summary dismissal. I agree with the Respondent that, in light of Mr Bale’s conduct, the decision to terminate Mr Bale’s employment on payment in lieu of notice rather than summarily dismiss him also weighs in favour of a finding that the dismissal was not harsh, unjust, or unreasonable.
Mr Bale submitted that the fact that Mr Hall and the Camp Manager, to whom AL’s complaint was first made, were married, meant there was a “conflict of interest”. I do not accept that Mr Hall’s marriage to the Camp Manager gave rise to any impediment to him being the decision-maker in relation to a complaint brought by a third person. This submission does not assist Mr Bale.
Mr Bale’s material also seems to suggest that Mr Hall was motivated to cancel his ticket to Mt Isa because Ms Hall worked at the site and reported to Mr Bale, and it would be “awkward.”[75] Centrex submits it would not have been appropriate for Mr Bale to have returned to the mine site, in light of the complaint, because the employees on roster lived at camp together. They say the Respondent had to implement measures to ensure as far as practicable, any potential hazard was minimised or mitigated.”[76]
Some of Mr Bale’s material relates to Ms Hall and his views about her skills and capacity.[77] His response dated 8 July 2024 and sent 9 July 2024[78] provides various “character assessments”[79] and analyses of others’ skills and performance.[80] He has provided material about the company’s governance and performance[81], and about shareholders sentiments.[82] This material does not assist me in considering whether the dismissal was harsh, unjust, or unreasonable.
Mr Bale also takes issue with the fact that Mr Hall referred to, but did not provide a copy of, a Bullying and Harassment policy. The evidence suggests that Mr Bale asked the Centrex company secretary, John Santich, for this policy, rather than asking Mr Hall or Mr Mencel for it. Mr Bale provided an email apparently from Mr Santich of 28 June 2024 which was in the following terms:[83]
Subject: Re: Request- Whistle Blower Cover – To 5^th of July 24
Thank you for your email Stewart.
Your email is the first I’ve heard of this matter and it is outside my remit as company secretary, which is essentially a corporate role and does not cover HR.
All of the company’s policies, including the Whistleblower Policy, are to be found in the Company’s Corporate Governance Plan on the Company’s website at the URL below. I don’t think there is as specific policy relating to Bullying and Harassment, although it is covered by the Whistleblower Policy.
Corporate Governance Plan:
[URL set out]
As I’ve said, this is not party of my brief, so it’s unlikely I’ll be involved.
Mr Bale did not provide the earlier email from himself to Mr Santich. He does not say why he asked Mr Santich, not Mr Hall or Mr Mencel, about the policy. Mr Bale does not say whether, after receiving this email, he read the whistleblower policy. He did not put a copy of the whistleblower policy before me. Centrex also did not put a copy before me, despite including in their submissions a quote they said was from the Corporate Governance Plan.[84]
No party put before me any bullying or harassment policy. Mr Bale has not demonstrated any inconsistency with any such policy on the part of the employer, let alone any inconsistency serious enough to render the treatment he received unfair given his conduct.

I am not satisfied that the dismissal was harsh, unjust or unreasonable

I must consider and give due weight to each of the foregoing matters as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[85]
Mr Bale’s poor conduct was serious and was self-evidently a valid reason for dismissal. He was notified of the reason and given opportunities to respond. He lacked insight and remorse, which gives rise to the obvious concern that he may conduct himself in the same way in the future. He received payment in lieu of notice. No considerations in his favour outweigh these findings. Having considered each of the matters specified in s 387 of the FW Act, I am not satisfied that the dismissal was harsh, unjust or unreasonable.

Conclusion

Because I am not satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s 385 of the Act.
The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr L Bale, the Applicant, on his own behalf.
Ms M Noorzai, solicitor for the Respondent.

Hearing details:

2024.
Brisbane:
21 October.

[1] Fair Work Act 2009 s 394.

[2] Exhibit R1, Statement of Mr Hall, at [6].

[3] Exhibit A1, Statement of Mr Bale, Annexure 28.

[4] Exhibit R2, Statement of Mr Mencel at [3].

[5] Exhibit R3, Executive Services Agreement.

[6] Exhibit R3, Executive Services Agreement, cl 3.1(1)(i).

[7] Exhibit R2, Statement of Mr Mencel at [5].

[8] Exhibit R1, Statement of Mr Hall, Annexure AN1.

[9] Exhibit R1, Statement of Mr Hall, Annexure AN1.

[10] Exhibit R2, Statement of Mr Mencel, Annexure RM1.

[11] Exhibit R1, Statement of Mr Hall, Annexure AN2.

[12] Exhibit R2, Statement of Mr Mencel, Annexure RM2.

[13] Exhibit R1, Statement of Mr Hall, Annexure AN3.

[14] Exhibit R1, Statement of Mr Hall, Annexure AN1.

[15] Exhibit R1, Statement of Mr Hall, Annexure AN4.

[16] Exhibit A1, Statement of Mr Bale, Annexure 12.

[17] Exhibit R1, Statement of Mr Hall at [24].

[18] Exhibit R1, Statement of Mr Hall, at [25].

[19] Exhibit A1, Statement of Mr Bale, Annexure 14.

[20] Exhibit A1, Statement of Mr Bale, Annexure 14.

[21] Exhibit A1, Statement of Mr Bale, Annexure 15.

[22] Exhibit R1, Statement of Mr Hall, Annexure AN7.

[23] Exhibit R1, Statement of Mr Hall, Annexure AN8.

[24] Exhibit R1, Statement of Mr Hall, at [30].

[25] Exhibit A1, Statement of Mr Bale at [20].

[26] Exhibit A1, Statement of Mr Bale, Annexure 18.

[27] Exhibit R1, Statement of Mr Hall, Annexure AN10.

[28] Exhibit R1, Statement of Mr Hall, at [33].

[29] Exhibit A1, Statement of Mr Bale, Annexure 10.

[30] Exhibit R1, Statement of Mr Hall, at [34].

[31] Exhibit R2, Statement of Mr Mencel, Annexure RM4.

[32] Fair Work Act 2009 ss 386 and 390.

[33] Ibid s 386.

[34] Ibid s 382.

[35] Ibid s 385.

[36] Ibid s 397.

[37] Ibid s 399.

[38] Fair Work Act 2009 s 386(1)(a).

[39] Fair Work Act 2009 s 386(1)(b).

[40] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47].

[41] Mohazabv Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at [205]-[246].

[42] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47]; O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 at [23].

[43] Applicant’s written submissions of 25 September 2024, at [8]-[9].

[44] Applicant’s written submissions of 25 September 2024, at [3] and [26].

[45] Exhibit A1, Statement of Mr Bale, at [8] and Annexure 20.

[46] Exhibit A1, Statement of Mr Bale, Annexure 20.

[47] Fair Work Act s 332(2), (4), s 333.

[48] Fair Work Act 2009 s 385.

[49] Fair Work Act 2009 s 387.

[50] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[51] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[52] Ibid.

[53] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[54] Edwards v Justice Giudice [1999] FCA 1836, [7].

[55] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[56] Exhibit A1, Statement of Mr Bale, Annexure 28, at [20].

[57] Exhibit R1, Statement of Mr Hall, Annexure AN3.

[58] Exhibit R1, Statement of Mr Hall, Annexure AN5.

[59] Exhibit A1, Statement of Mr Bale, Annexure 10.

[60] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[61] Ibid.

[62] Exhibit R1, Statement of Mr Hall, Annexure AN4.

[63] 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].

[64] RMIT v Asher (2010) 194 IR 1, 14-15.

[65] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[66] Applicant’s written submissions of 25 September 2024, at [13].

[67] Applicant’s written submissions of 25 September 2024, at [17].

[68] Exhibit A1, Statement of Mr Bale, Annexure 28, at [11].

[69] Exhibit R1, Statement of Mr Hall at [16].

[70] Exhibit A1, Statement of Mr Bale, Annexure 28, at [7].

[71] Exhibit R2, Statement of Mr Mencel, Annexure RM2.

[72] Exhibit R1, Statement of Mr Hall, Annexure AN1.

[73] Exhibit A1, Statement of Mr Bale, Annexure 10.

[74] Exhibit R2, Statement of Mr Mencel, Annexure RM4.

[75] Exhibit A1, Statement of Mr Bale, Annexure 28 at [31].

[76] Respondent’s submissions in reply, [9].

[77] Exhibit A1, Statement of Mr Bale, at [22]-[24]; see also Annexure 10, and Annexure 28 at [30].

[78] Exhibit A1, Statement of Mr Bale, Annexure 10.

[79] Exhibit A1, Statement of Mr Bale, Annexure 10, part 1, at [6].

[80] Exhibit A1, Statement of Mr Bale, Annexures 10 and 23.

[81] Exhibit A1, Statement of Mr Bale at [6]-[7] and also Annexure 1; see also Exhibit A2.

[82] Exhibit A1, Statement of Mr Bale, Annexure 27.

[83] Exhibit A1, Statement of Mr Bale, Annexure 24.

[84] Respondent’s submissions in reply, [32].

[85] 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].

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