Benjamin Wright v Site Environmental and Remediation Services Pty Ltd
[2020] FWC 3377
•23 JULY 2020
| [2020] FWC 3377 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Benjamin Wright
v
Site Environmental and Remediation Services Pty Ltd
(U2020/3454)
| DEPUTY PRESIDENT BINET | PERTH, 23 JULY 2020 |
Application for an unfair dismissal remedy.
On 23 March 2020, Mr Benjamin Wright (Mr Wright) made an application (Application) to the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Site Environment and Remediation Services Pty Ltd (SERS).
On 17 April 2020, SERS filed a Form F3 Employer Response to the Application, noting it had no jurisdictional objections to the Application.
On 23 April 2020, the parties participated in telephone conciliation with a staff conciliator, but the issues in dispute could not be resolved.
On 4 May 2020, Chambers sought the availability of the parties to participate in a conciliation conference however, SERS informed Chambers that they saw no utility in proceeding with a conciliation conference.
Taking into account the parties’ wishes and circumstances it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 30 June 2020 (Hearing).
At the Hearing Mr Wright represented himself and gave written and oral evidence on his own behalf.
At the Hearing SERS was represented by Mr Mathew Campbell, a Director of SERS (Mr Campbell). Mr Campbell gave written and oral evidence on behalf of SERS. At the Hearing Mr Rod Manning (Mr Manning), SERS Operations Manager gave oral evidence on behalf of SERS.
Mr Manning was Mr Wright’s supervisor during the course of his employment with SERS and had frequent contact with Mr Wright. Mr Campbell and Mr Wright had limited interactions during the course of Mr Wright’s employment with SERS. All three witnesses appeared to be credible witnesses however the company representatives and Mr Wright had very different perceptions of the events which occurred.
Background
Mr Wright commenced employment with SERS on 9 November 2018 in the full-time role of Trainee Environmental Technician in accordance with a written contract of employment.[1]
The written contract of employment provided for a notice period of one month’s notice. The contract reserved a right for SERS to terminate without notice in various circumstances including where an employee has committed serious neglect in the performance of their duties.[2]
On 29 May 2019 Mr Wright received a written warning about the performance of his environment monitoring duties which identified the following deficiencies (First Written Warning):
a.The spreadsheets of monitors were not accurate.
b.Monitors were not being set up correctly in the field or appropriately secured.
c.Reports were not being completed and sent to clients in a timely manner.
The warning letter was addressed to three employees including Mr Wright. The letter notes that the issues have previously been raised with employees via email and verbally in meetings. The letter notes that if performance deficiencies are identified in the future that further warning letters will be issued as a ‘strike against your ongoing employment’.[3]
On 30 October 2019 Mr Wright was directed to attend a meeting with Mr Manning. Following the meeting he was issued with a second written warning (Second Written Warning). This warning was addressed only to Mr Wright. The warning refers to the First Written Warning and asserts that the monitors are still not being set up correctly in the field and that monitoring equipment is not properly calibrated. The letter records that these issues were raised with Mr Wright at the meeting and that his explanation that he did not have sufficient time to calibrate the equipment was not accepted because the equipment was more than 2 months past its calibration date. The letter also notes that Mr Wright provided no explanation as to why the monitors were not correctly set up. The letter reminds Mr Wright that he is required to comply with SERS management and client requirements and warns that in light of his previous warning that his employment may be terminated by 30 January 2019 if his performance did not improve (presumably the intended date was 30 January 2020.) The letter proposes a meeting on 13 December 2019 to review Mr Wright’s progress.[4] The letter concludes by inviting Mr Wright to respond to the warning either verbally or in writing.
On 9 February 2020 Mr Wright departed Perth and spent the next eleven days travelling in NSW and Queensland performing work for SERS. He arrived back in Perth at 10pm Perth time on Wednesday 20 February 2020 having commenced work at 5am Sydney time the same day. On Thursday 21 February 2020 he received an email from Mr Manning directing him to ensure that all the minor issues with Western Australian monitors be fixed by the end of the next day.[5]
Mr Wright says that this request was unreasonable given his workload as no one had been performing his normal duties in his absence. Nevertheless, he endeavoured to attend to each of the monitors which were located at the far reaches of the Perth metropolitan area from Alkimos in the north to Henderson in the south and Ellenbrook in the east. At the end of the day he provided a report to Mr Manning indicating that he had visited all but one monitor however he would need to revisit the majority of them on Monday to complete repairs.
On Monday 24 February 2020 Mr Manning contacted Mr Wright and asked him to make sure that all monitors were working by the end of the day. Mr Wright says that he was unable to complete the task that day and the following day he was required to fly to Kalgoorlie preventing him completing the task that day. On 26 February 2020 he took paid personal leave.
On 27 February 2020 Mr Manning informed Mr Wright that SERS would like him to work in Sydney from 2 March 2020 until 5 March 20200 and then work in Queensland for three weeks commencing on 9 March 2020. Mr Wright agreed to perform the Sydney work but indicated that he was not prepared to stay in Queensland for three weeks. He also asked to return from Sydney a day early. SERS agreed to both of these requests.[6]
On 5 March 2020 Mr Wright received a third written warning (Third Written Warning). The warning identified the following performance deficiencies:[7]
- The monitor calibration spreadsheet had not been reviewed/monitored to allow for units to be calibrated within required timelines
- Monitors were deployed to clients with expired calibrations
- Monitors had been incorrectly deployed to clients with incorrect setups resulting in either no available data or damage to the units
- Requests to have all units performing as per SERS and client expectations (emails dating 21st February & 24th February) had not been met.
- Failing to repair all units at the Cockburn Oval site on Friday 28th February 2020 to SERS and the client satisfaction.
The letter warned that in light of his previous written warnings Mr Wright’s employment was in jeopardy. The letter invited him to provide a verbal or written response. The letter also invited him to bring a support person with him to any in person meeting.[8]
Mr Wright provided a written response at 10am on 9 February 2020. In his response (for the first time) he responded to each of the previous written warnings.
Mr Manning and Mr Campbell considered Mr Wright’s response and were not satisfied with his response.
Towards the end of the day Mr Wright approached Mr Manning asking if he wished to discuss the content of his response. Mr Manning replied that he was waiting to hear from Mr Campbell.[9]
At 4:30pm on 9 March 2020 Mr Manning informed Mr Wright that Mr Wright’s employment was to be terminated immediately and that he would be paid two weeks’ pay in lieu of notice.[10]
Mr Wright has been unable to obtain employment since his dismissal and has been in receipt of Jobseeker payments since 24 April 2020.
Consideration
Section 390 of the FW Act provides that the FWC may order a remedy only if the FWC is satisfied both that an applicant was protected from unfair dismissal at the time of being dismissed and that the applicant has been unfairly dismissed.
Section 382 of the FW Act provides that an applicant is protected from unfair dismissal if, at the time of being dismissed the applicant is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and one or more of the following apply:
a.a modern award covers the applicant;
b.an enterprise agreement applies to the applicant in relation to the employment;
c.the sum of the applicant’s annual rate of earnings, and such other amounts (if any) worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009 (Cth) (Regulations) is less than the high income threshold.
It was not in dispute and I find that, at the time of dismissal, the sum of Mr Wright’s annual rate of earnings together with such other amounts worked out in accordance with the Regulations was less than the high income threshold.[11]
Section 385 of the FW Act provides that an applicant has been unfairly dismissed if the FWC is satisfied that:
a.the applicant 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.
There is no dispute and I am satisfied that Mr Wright was the employee of a national system employer and that his employment with his employer was terminated at the initiative of his employer. I am therefore satisfied that Mr Wright has been dismissed for the purposes of section 385 of the FW Act.
Under section 396 of the FW Act, the FWC is obliged to decide the following matters before considering whether an applicant has been unfairly dismissed:
a.whether the application was made within the period required in subsection 394(2) of the FW Act;
b.whether the applicant was protected from unfair dismissal;
c.whether the dismissal was consistent with the Small Business Fair Dismissal Code;
d.whether the dismissal was a case of genuine redundancy.
Section 394(2) of the FW Act requires an application to be made within 21 days after the dismissal took effect. It is not disputed and I find that Mr Wright was dismissed from his employment on 9 March 2020 and made the application on 23 March 2020. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
There was no dispute and I am satisfied that SERS was not a small business employer within the meaning of section 23 of the FW Act at the relevant time.[12] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply.
There was no dispute and I am satisfied that the dismissal was not a case of genuine redundancy.
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
a.whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b.whether the applicant was notified of that reason; and
c.whether the applicant was given an opportunity to respond to any reason related to their capacity or conduct; and
d.any unreasonable refusal by the employer to allow the applicant 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 applicant – whether the applicant 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.
Each of these criteria must be considered to the extent they are relevant to the factual circumstances of this matter.[13]
Was there a Valid Reason for Mr Wright’s dismissal?
In order to be a valid reason for dismissal, the reason for the dismissal should be “sound, defensible or well founded”[14] and should not be “capricious, fanciful, spiteful or prejudiced.”[15] However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.[16]
SERS submit that Mr Wright’s performance was deficient and that having raised it with him multiple times (including on three occasions via written warning letters) his deficient performance formed a valid reason for his dismissal. According to SERS since his dismissal audits have revealed a failure by Mr Wright to carry out maintenance which has resulted in equipment repairs costing in excess of $22,000. SERS say the same audits also revealed that reports were sent to clients without supporting data. Mr Wright says that all these costs cannot be attributed to him because the monitors required annual calibration.[17]
Mr Wright says that he did not agree with the contents of the First Warning Letter but concedes that he did not inform his employer. He says that at the time the warning was issued he was performing asbestos related duties and therefore was not responsible for the monitoring duties. In support of this he points to training records that indicate he was undertaking asbestos training on 23 May 20019. Both Mr Manning and Mr Campbell say that the training was of a short duration and that throughout his employment monitoring remained Mr Wright’s primary function. In the absence of identifying any other person as being responsible for the monitoring duties during this period and his lack of qualifications to perform asbestos work I accept Mr Manning and Mr Campbell’s evidence that Mr Wright was responsible for the monitoring work during this period and failed to properly perform his duties.[18]
Mr Wright says that he did not agree with the contents of the Second Written Warning however he concedes he did not respond to the Second Written Warning either verbally or in writing. I note that the Second Written Warning contained an express invitation to respond. Both letters make clear that the company had serious concerns about his performance which could ultimately lead to his dismissal. In these circumstances if the warnings were factually incorrect it is surprising that Mr Wright would not take the opportunity to clarify the facts at the time. The failure to respond at the time weighs against his credibility in relation to the factual accuracy and/or validity of those performance concerns.
Mr Wright asserts that First and Second Written Warning letters did not contain any specific directions, set any performance goals or provide for performance management so he did not understand how he could improve his performance. I am satisfied that the written warnings identified specific performance failings and gave some guidance in relation to improving his performance. The written warnings also make reference to company and client policies, procedures and requirements. The same letters make it clear that his employment was at risk if his performance were not to improve. If Mr Wright was unaware of the policies, procedures and requirements referred to in the warning letters or unclear as to the nature of the performance issues then (given the warnings about the possibility of the termination of his employment) he could have, and should have, sought further clarification about the relevant policies, procedures and requirements. There is no evidence that he did so.
In his written response to the Third Written Warning Mr Wright asserted that:[19]
a.The monitor calibration spreadsheet had always been done out of Brisbane and he had not been told that it was his responsibility to review it daily.
b.He was unaware of issuing a monitor out of calibration with the exception of a monitor deployed to Queensland because there was only one spare unit.
- He had raised the issue of funnels previously with Mr Manning. He was unaware of how to source the required parts or that it was his responsibility to source them because he had never previously done so.
- He had been working 12 days straight when he received the email informing him that he was required to have all the units performing. He provided an update at 4:40pm the same day. He was unable to complete the list on Monday morning because he was allocated other tasks. He received the second email on Monday afternoon but did not have time to action the remaining items until Wednesday.
- He received the request in relation to the Cockburn oval site at 3:48pm and left the office at 4:10pm arriving at site at 4:45pm. As the site was closing he was required to leave by 5pm and was unable to complete the job he was tasked with.
He also alleged that:[20]
- He was constantly being blamed for things that occurred, which were out of his control.
- There were insufficient work procedures and he was not shown what to do.
- He had previously reported that he was allocated insufficient time to maintain the monitors to SERS standards
- He was frequently taken off the monitoring tasks to complete other jobs without acknowledgement that there was still monitoring to do.
At the Hearing Mr Manning and Mr Campbell explained the reasons why they were not satisfied with Mr Wright’s response and decided to terminate his employment:
- Mr Campbell says that it was made clear after the First Written Warning that Mr Wright was responsible for updating the monitor spreadsheet.
- Mr Campbell says that Mr Wright should have ensured that the Queensland monitor had been calibrated before it expired. He also says that Mr Wright had failed to maintain the calibration of the monitors such that a large number of monitors were due to expire.
- Mr Campbell says that the process for purchasing is well known to all employees.
d.Mr Campbell and Mr Manning assert having the monitors functioning should have been achievable within the timeframe Mr Wright was given. They say minor defects should have been quickly and easily remedied. To the extent that there were a large number of monitors to repair and/or that the repairs were more complex was a reflection on Mr Wright not diligently or competently performing his duties in the months and weeks beforehand, not during the period he was away. For example, Mr Manning attributed some of the defects to a failure on Mr Wright’s part to correctly position the solar panels to ensure the units remained charged. He also says that when he inspected the units some had not been correctly sealed by Mr Wright and had malfunctioned due to water damage. Furthermore, Mr Manning says that the monitors can and should be monitored remotely so that Mr Wright should have been alerted to issues as they occurred and not upon inspection. Mr Manning also noted that another employee was copied in on the email so that they could provide assistance (albeit) remotely to Mr Wright.
- Mr Manning says that he had foreshadowed the request earlier in the day and that the monitors should have been ready to deploy. He disputed that the site closed at 5pm and claims that in any event it could have been accessed after it closed or on the following day.
I am satisfied that it was made clear to Mr Wright that he was required to ensure that the monitor spreadsheet was accurate and that the monitors were kept calibrated. At the Hearing Mr Wright conceded that at least one monitor was deployed with expired calibrations. Given the number of monitors due to expire it would appear that he did not adequately forward plan calibration of the other units for which he was responsible.
I am satisfied that Mr Wright should have know or ought to have been able to ascertain the process for purchasing items required to perform his duties.
Mr Wright alleged that he had insufficient time to perform his duties. Given the geographic distance between the monitors I have some sympathy for him endeavouring to comply with the email of 21 February 2020 and therefore do not accept that the timeframe to complete the task was reasonable given the extent of rectification required. I do however accept the evidence of Mr Manning that such a large number of monitors required rectification because of Mr Wright’s failure to correctly install and monitor them. I accept that this was a performance failure on Mr Wright’s part. I am not satisfied that it was reasonable to expect Mr Wright to complete the Cockburn task within the timeframe he was given but I accept Mr Manning’s evidence that the rectification was necessary because Mr Wright had not properly installed and monitored the equipment.
Mr Wright says that he received inadequate training to properly perform his duties. SERS say that Mr Wright was provided with formal and informal internal and external training during his employment. The evidence suggests that the formal training in relation to monitoring duties occurred early in his employment and before any warnings were issued to him. Mr Wright did not identify any deficiencies in that training which might explain his subsequent performance deficiencies. In any event Mr Campbell and Mr Manning were adamant that Mr Wright was provided with extensive coaching and peer support during his employment. For example, Mr Campbell says that he arranged for an experienced technician from the east coast to spend a period of time working closely with Mr Wright. Mr Wright admits that he worked with the other technician for a period of time but denies that he received any coaching. Mr Campbell and Mr Manning also say that various other staff were available to assist Mr Wright as necessary. I note that in his email of 21 February 2020 Mr Wright indicates that he will seek the assistance of another technician to complete the work. Mr Manning also says that the weekly staff meetings provided an opportunity for Mr Wright to raise any concerns and seek assistance.[21]
Having regard to the matters I have referred to above, on the balance I find that there was a valid reason for the dismissal related to Mr Wright’s performance.
Was Mr Wright notified of the valid reason?
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,[22] and in explicit and plain and clear terms. [23]
The notification of a valid reason must take place before any decision to terminate the Applicant’s employment in order to provide an applicant with an opportunity to respond to the reason identified.[24]
Mr Wright was provided written notice of the reasons for his dismissal in the Third Warning Letter.[25] The Third Warning Letter identified specific performance failings with sufficient detail that Mr Wright was able to comprehensively respond to them in his written response.
Mr Wright says that it was his refusal to travel to Queensland which was the reason for his dismissal and not the issues raised in the Third Written Warning. Mr Manning and Mr Campbell dispute this. Mr Manning says that he offered the Queensland work to Mr Wright because many employees appreciate the opportunity to supplement their wages with additional travelling allowances and that he was happy for Mr Wright to decline the work. I accept Mr Manning’s evidence in this regard and I am satisfied that the reasons for Mr Wright’s dismissal were those set out in the Third Warning Letter.
Having regard to the matters referred to above, I find that Mr Wright was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
Was Mr Wright given an opportunity to respond to any valid reason related to his capacity or conduct?
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.[26]
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.[27] 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.[28]
SERS submit that Mr Wright was provided with an opportunity to respond to the reasons for his dismissal either in writing or verbally. Mr Wright chose to provide a written response. SERS say that they considered this information before deciding to terminate his employment.
Mr Wright acknowledges that he was provided with an opportunity to respond to the reasons for his dismissal.
In all the circumstances, I satisfied that Mr Wright was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did SERS unreasonably refuse to allow Mr Wright to have a support person present to assist at discussions relating to the dismissal?
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. There is no positive obligation on an employer to offer an employee the opportunity to have a support person.
Mr Wright did not seek to have a support person present.
I therefore find that SERS did not unreasonably refuse to allow Mr Wright to have a support person present at discussions relating to his dismissal.
Was Mr Wright warned about unsatisfactory performance before the dismissal?
Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. A mere exhortation for an employee to improve their performance would not be a sufficient warning. A warning must:
a.identify the relevant aspect of the employee’s performance which is of concern to the employer; and
b.make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.[29]
SERS submit that Mr Wright was warned about his unsatisfactory performance in writing in the three written warnings issued to him.
SERS say that Mr Wright was also given verbal directions and warnings about his performance during his employment in addition to the written warnings.[30] Mr Wright disputes this however the reference to previous verbal and written warnings in the First Written Warning is consistent with this evidence.
No follow up meeting was held on 13 December 2019 and Mr Wright’s employment was not terminated before 30 January 2020. Mr Wright says that he therefore presumed that his performance was meeting expectations. Mr Manning said that work commitments prevented the meeting occurring and given that Mr Wright’s performance had briefly begun to show some signs of improvement he believed it was not necessary to reschedule it and that any further performance issues could be addressed at the weekly staff meetings. Mr Manning says that regrettably Mr Wright’s performance declined again leading to the final written warning.
A brief but unsustained improvement in performance cannot be sufficient to erase all prior warnings otherwise an employee could permanently avoid dismissal by simply improving their performance for a brief period immediately after being issued with a warning. SERS had emphatically made clear to Mr Wright that his performance was not satisfactory. Performance issues specifically raised with Mr Wright earlier in his employment were repeated in the events leading up to SERS issuing the Third Written Warning.
In all the circumstances, I find that SERS did warn Mr Wright of his unsatisfactory performance before his dismissal.
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 the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
SERS has no dedicated human resource management specialists or expertise. Neither party submitted that the absence of such expertise impacted on the procedures followed in effecting the dismissal. I find that the absence of such expertise did not impact on the procedures followed in effecting the dismissal.
Are there any other relevant matters which should be taken into consideration?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Mr Wright says his dismissal was unreasonable because he was bullied and undervalued during his employment and that this adversely impacted on his performance. He says that his dismissal was harsh because as a consequence of the COVID pandemic he has been unable to secure alternative employment. [31]
SERS submitted that the dismissal was not unreasonable given that they had provided Mr Wright with multiple opportunities to improve his performance.
I note that Mr Wright was employed for a relatively short period of time and that performance issues were raised throughout his employment.
There is no evidence that Mr Wright raised any allegation of bullying during the course of his employment. The evidence before me is that concerns about his performance were raised in an appropriate written manner. As with most employees dismissed since the outbreak of the COVID pandemic securing alternative employment is no doubt problematic. Given his youth the impact of his dismissal is arguably less harsh than for an employee closer to retirement age.
Conclusion
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Wright was not harsh, unjust or unreasonable. I am not satisfied that Mr Wright was unfairly dismissed within the meaning of section 385 of the FW Act. Mr Wright’s application is therefore dismissed.
An order to this effect [PR720544] will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr. B Wright appeared on his own behalf
Mr. M Campbell appeared on behalf of the Respondent
Hearing details:
2020,
Perth;
June 30
<PR720543>
[1] Applicant’s First Witness Statement dated 28 May 2020.
[2] Contract of Employment.
[3] First written warning dated 29 May 2019.
[4] Second written warning dated 30 October 2019.
[5] Applicant’s Third Witness Statement.
[6] Ibid.
[7] Third written warning dated 5 February 2020.
[8] Ibid.
[9] Warning letter response dated 9 March 2020.
[10] Ibid.
[11] Applicant’s Outline of Argument filed on 23 June 2020.
[12] Respondents First Witness Statement filed on 11 June 2020.
[13] 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].
[14] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[15] Ibid.
[16] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[17] Respondent Outline of Argument filed on 26 June 2020.
[18] Applicant’s First Witness Statement dated 28 May 2020.
[19] Warning letter response dated 9 March 2020.
[20] Ibid.
[21] Ibid.
[22] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[23] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[24] Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [39].
[25] Respondent’s Outline of Argument filed on 26 June 2020.
[26] 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].
[27] RMIT v Asher (2010) 194 IR 1, 14-15.
[28] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
[29] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
[30] Witness Statement of Mr Matt Campbell filed on 26 June 2020.
[31] Applicant’s Outline of Argument filed on 23 June 2020.
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