Bernadette Mcconnell v Craig Mackay Pty Ltd T/A Beulah Urban Land & Park Maintenance

[2014] FWC 454

[2014] FWC 454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bernadette Mcconnell
v
Craig Mackay Pty Ltd T/A Beulah Urban Land & Park Maintenance
(U2013/645)

COMMISSIONER LEWIN MELBOURNE, 6 FEBRUARY 2014

Application for relief from unfair dismissal - remedy - reinstatement inappropriate - assessment of compensation in lieu of reinstatement - alleged contributory misconduct - characterisation of misconduct - instalments found inappropriate

[1] In this matter, Ms Bernadette McConnell made an application under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Ms McConnell was an employee of Craig Mackay Pty Ltd T/A Beulah Urban Land & Park Maintenance (Craig Mackay), which provides land and park maintenance services to local government authorities. Ms McConnell was a book keeper/accountant for Craig Mackay.

[2] Craig Mackay objected to the Commission dealing with the application on the ground that the termination of the employment relationship between Ms McConnell and Craig Mackay was not at the initiative of Craig Mackay.

[3] The matter was listed for hearing on 2 September 2013. Craig Mackay did not appear at the hearing. No notification of Craig Mackay’s non appearance was received prior to the hearing. Nor did Craig Mackay make an application for an adjournment of the hearing. The Commission attempted to contact Craig Mackay concerning the appearance at the hearing without success. The Commission was satisfied that Craig Mackay was notified of the hearing. The hearing proceeded.

[4] At the hearing, Ms McConnell gave evidence concerning the circumstances in which the employment relationship came to an end. Ms McConnell’s evidence was that she received an email informing her that Mr Mackay had arranged for the work that she was performing to be done by a firm of accountants for $500 per week and that she should take two weeks off work.

[5] Ms McConnell gave evidence that her partner is employed by Craig Mackay at the depot at which Ms McConnell’s office was situated. Ms McConnell gave evidence that her partner had informed her that Mr Mackay had boxed and removed all of the files and materials in her office, from which she was absent during the two week period referred to in the email.

[6] Additionally, Ms McConnell was Company Secretary of an entity associated with her employer. Mr Mackay took steps to unilaterally remove Ms McConnell from this position adjacent to the events following the email above.

[7] Ms McConnell returned to the workplace after the two week period referred to in the email. On arrival she found that the locks on the gates to the depot in which the office she used was situated had been changed and she could not gain entry with the keys she had been provided with.

[8] Ms McConnell then attempted to contact Mr Mackay who did not respond to any attempted communication. Ms McConnell gave evidence that this behaviour of Mr Mackay was consistent with situations she had witnessed when Mr Mackay had terminated the employment of other persons.

[9] Having regard to this uncontested evidence, at the hearing on 2 September 2013, I decided that the termination of the employment relationship between Ms McConnell and Craig Mackay was at the initiative of Craig Mackay.

[10] Ms McConnell provided a written statement marked Exhibit A. In addition Ms McConnell gave evidence that she received no notification that her employment was under threat for any reason, she therefore had no opportunity to respond to whatever the reason was for the termination of her employment. Ms McConnell’s evidence was that no complaint about the performance of her work had been made during the employment relationship and no warning had been issued to her about the performance of her work by Craig Mackay.

[11] In light of the uncontested evidence before me I considered and took into account the matters prescribed by s.387 of the Act for the purpose of determining the application before me by arbitration.

Unfair Dismissal

[12] A decision 1 was issued on 11 September 2013. I decided that the termination of Ms McConnell’s employment was harsh, unjust and unreasonable and decided therefore that Ms McConnell was unfairly dismissed.2

[13] At the hearing on 2 September 2014, I reserved the question of remedy for further hearing. 3

[14] Directions for the hearing on remedy were issued on 3 September 2013 as follows:

Further to the Decision that the Applicant, Ms Bernadette McConnell, was unfairly dismissed by the Respondent given Ex Tempore on Monday, 2 September 2013 and recorded in the transcript of the hearing on that day, the Commission now directs as follows:

1. The Applicant, Ms Bernadette McConnell, is directed to file and serve with the Fair Work Commission, and serve on the Respondent, an outline of submissions and any witness statements and other documentary material the Applicant intends to rely on in support of an appropriate remedy in this matter, by no later than 5:00pm, Monday, 9 September 2013.

2. The Respondent, Craig Mackay Pty Ltd T/A Beulah Urban Land and Park Maintenance, is directed to file and serve with the Fair Work Commission, and serve on the Applicant, an outline of submissions and any witness statements and other documentary material the Respondent intends to rely on in relation to an appropriate remedy in this matter, by no later than 5:00pm, Monday, 16 September 2013.

3. The Applicant, Ms Bernadette McConnell, is directed to file and serve with the Fair Work Commission, and serve on the Respondent, a statutory declaration containing information regarding the Applicants efforts of mitigation since the termination of her employment, including job search activities and any remuneration received since the termination of employment from any source other than amounts paid by a government agency.

4. Parties wishing to be heard in relation to the appropriate remedy in this matter are directed to contact the Commission at [email protected] no later than 5:00pm, Monday, 16 September 2013 and the matter will be listed for an attendance hearing. In the absence of any party indicating that they wish to be heard in attendance, the matter may be dealt with on the papers filed in the matter pursuant to all of the Directions given by the Commission prior to and including these Directions.

[15] On 17 September 2013, I received an email from the Respondent requesting that he be heard in relation to the matter of remedy.

[16] The matter was listed for attendance hearing on 8 October 2013. Just prior to the hearing the Respondent advised my chambers that assistance from an AUSLAN interpreter was required. The hearing was vacated and relisted for attendance hearing for remedy on 22 October 2013 at Melbourne.

[17] On 21 October 2013, the Respondent emailed my chambers advising that he was unable to attend the hearing on 22 October 2013 due to ill health.

[18] On 21 October 2013, I received an email from the Applicant requesting that the hearing of an appropriate remedy be heard on the papers. This request was declined and the matter was listed for attendance hearing on 3 December 2013.

[19] The Applicant filed in accordance with the above mentioned directions on 12 September. The Respondent filed in accordance with the directions on 25 September 2013.

Hearing for the purposes of determining a remedy

[20] At the hearing on 3 December 2013, I granted permission under s.596 of the Act for Mr Mackay to be represented by Mr Carmody. Mr Carmody informed the Commission that he previously practiced as a legal practitioner, however no longer holds a practicing certificate. The Applicant did not object to the Respondent being represented by Mr Carmody. 4 I decided that due to Mr Mackay’s hearing disability, I would grant permission for Mr Mackay to be represented by Mr Carmody pursuant to s.596 (1) (b) and (c).

Remedies for unfair dismissal

[21] When considering an appropriate remedy for unfair dismissal Division 4 of Part 3-2 of Chapter 3 of the Act is to be considered. Division 4 of the Act is set out as follows:

Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $64,650 from 1 July 2013

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[22] At the hearing on remedy, Ms McConnell and Mr Mackay gave evidence. Mr Mackay’s evidence was given through an AUSLAN Interpretor.

[23] On the day of the hearing on remedy, after hearing the evidence, there was insufficient time available to hear submissions from the parties. Consequently, further directions were issued. Those directions were as follows:

Further to the Decision that the Applicant, Ms Bernadette McConnell, was unfairly dismissed by the Respondent given Ex Tempore on Monday, 2 September 2013 and recorded in the transcript of the hearing on that day, and further to the hearing on 3 December 2013, the Commission now directs as follows:

1. The Applicant, Ms Bernadette McConnell, is directed to file and serve with the Fair Work Commission, and serve on the Respondent, submissions the Applicant intends to rely on in support of an appropriate remedy in this matter, by no later than 5:00pm, Tuesday, 14 January 2014.

2. The Respondent, Craig Mackay Pty Ltd T/A Beulah Urban Land and Park Maintenance, is directed to file and serve with the Fair Work Commission, and serve on the Applicant, final submissions in relation to the question of remedy in this matter, by no later than 5:00pm, Tuesday 21 January 2014.

[24] The Applicant filed in accordance with the directions on 14 January 2014. The Respondent filed in accordance with the directions on 20 January 2014.

Consideration of Appropriate Remedy

[25] As I have decided that the dismissal of Ms McConnell was unfair. I should first consider whether it would be inappropriate to provide a remedy of reinstatement. 5 Ms McConnell does not seek reinstatement. Craig Mackay, through the evidence of Mr Mackay, identified dissatisfaction with the performance of Ms McConnell during her employment. Craig Mackay have made arrangements to contract the performance of the tasks performed by Ms McConnell to a firm of accountants. Ms McConnell and Mr Mackay are contestants in relation to other disputes concerning collateral business arrangements between them. In all of these circumstances I consider reinstatement would not be an appropriate remedy.

[26] Having decided that reinstatement is inappropriate, I must now consider whether an order for payment of compensations is appropriate in all the circumstances of the case. 6

[27] Such consideration includes the matters set out in s.392(2) of the Act.

[28] At this point, it is convenient to note that Ms McConnell submits that an appropriate Order of compensation is in the amount of $40,040.00.

Viability

[29] On the evidence before me, I am unable to conclude that an appropriate remedy would cause the business undertaking of Craig Mackay to become unviable. In the written submissions filed by Craig Mackay, after the hearing on remedy, on 20 January 2014, pursuant to the Directions referred to at paragraph [23] hereof, no submission was made concerning the effect of an Order of compensation on the viability of Craig Mackay.

[30] The matter of viability was however raised in a written submission dated 24 September 2013 on behalf of Craig Mackay in the following terms:

e) Under Section 392 part 2, the FWC must take into account the effect of any Order on the viability of the employer’s enterprise. I state that the business is currently under severe financial pressure and I am trying to arrange the additional funding to assist the business to continue. Any substantial Order, as sought by the applicant payable immediately, will ensure the closure of the business, and the loss of jobs to its current employees.

[31] This submission was not greatly elaborated in the evidence of Craig Mackay at the hearing on remedy on 3 December 2013. Moreover, the submission seems to be addressed to the amount of the remedy sought by Ms McConnell, which is significantly greater than the remedy which results from the Commission’s consideration below.

[32] While the evidence of Mr Mackay and Ms McConnell identify some risks to the business, the evidence and the submissions of Craig Mackay do not provide a basis to indicate an absolute or definitive level of risk to the viability of the undertaking of Craig Mackay, such as would operate to cause a revision of what I otherwise consider to be an appropriate remedy. Moreover, the risks identifiable from the evidence and any likely effect of those risks seem to arise from Craig Mackay’s business practices rather than an appropriate remedy issuing from these proceedings.

Length of Service

[33] I turn now to consider the length of Ms McConnell’s employment with Craig Mackay. 7

[34] In relation to this subject, Ms McConnell made the following submission in writing dated 6 September 2013.

9. Under Section 392 subsection 2 (b) I submit that the length of service with the respondent was 4.5 years. I was a sub-contractor for the first 2 years of service before I officially became an employee of the company. As a sub-contractor I was working 100% for Craig Mackay Pty Ltd and in all respects other than PAYG, WorkCover and Superannuation purposes was a full time employee of Craig Mackay Pty Ltd. I was employed by the respondent for a substantial amount of time and I believe this granted me a great sense of job security.

[35] Craig Mackay submit that for the purposes of the application in this matter the length of Ms McConnell’s employment with Craig Mackay is two years.

[36] With respect to Ms McConnell’s submission of what should be considered as the length of her service with Craig Mackay, it is misconceived. Ms McConnell’s submission is that for two years she was not an employee of Craig Mackay. Rather for some time the relationship involved Ms McConnell providing services under a contractual relationship which was not one of employee and employer.

[37] The service which I must take into account is “service with the employer.” 8 Therefore the relevant length of the service is between two and two and half years. I doubt that the evidence allows much greater precision or that it is necessary for my purposes.

[38] The service is sufficient, in my view, to warrant provision of a remedy of compensation. However, any such remedy should be weighed in due course when determining the appropriateness of such a remedy, overall, having regard to all the circumstances of the case including the length of Ms McConnell’s service with Craig Mackay.

Remuneration

[39] It is now appropriate to consider the remuneration Ms McConnell would have received, or would have been likely to receive, if Ms McConnell had not been dismissed. 9

[40] On the evidence before me, the employment relationship between Ms McConnell and Craig Mackay was unstable before and certainly at the time of the termination of the employment. Ms McConnell was also involved in a related business arrangements with Craig Mackay that were deeply troubled in various ways.

[41] The evidence does not support a conclusion that if the employment relationship had not come to an end when it did that it would still continue to this day. Rather, in my view, in whatever circumstances and by whatever means I consider that the horizon of that relationship was limited at the time of the termination of Ms McConnell’s employment.

[42] In this respect, I must do my best to judge from the evidence what a reasonable consideration would be of how long the employment relationship would likely have continued, in order to consider the remuneration Ms McConnell would have, or was likely to have received, if she had not been dismissed unfairly. I judge that period at three months.

[43] There is some limitation in the evidence of the remuneration of Ms McConnell in her employment. The written submission of Ms McConnell includes the following:

5. As per the respondent’s own admissions and evidence provided (please refer to their Annexure 3 of their submission dated 7 August 2013) the amount of $4712.00 net pay was paid on the 28th February 2013 for 2 weeks forced annual leave and 2 weeks in lieu of notice. This was the only amount paid to me by the respondent for wages. All other amounts were paid to me towards the separate debt.

[44] I intend to proceed on the basis that the nett earnings of Ms McConnell were $1,178.00 per week. I arrive at this amount by dividing the net amount of the termination payment by four, for reasons which I think are apparent above.

[45] Therefore, I consider that the nett remuneration Ms McConnell would have received, but for the termination of her employment by Craig Mackay, is 13 weeks at $1,178.00, an amount of $15,314.00.

[46] The loss is significant and weighs in favour of a remedy being awarded.

Mitigation

[47] Ms McConnell gave evidence of her efforts to mitigate the economic loss she has suffered as a result of the termination of her employment. I consider her efforts to have been reasonable in the relevant circumstances and this weighs in favour of a remedy. 10

Remuneration earned since termination from other work 11

[48] As noted, Ms McConnell’s evidence is that she has received two weeks pay in lieu of notice from Craig Mackay. This will be considered when overall assessment of an appropriate amount of compensation is made.

[49] I shall not have regard to the amount of two weeks accrued annual leave paid to Ms McConnell at the termination of her employment. In my view, this is an accrued entitlement payable at termination of a kind which should not be a deduction in the relevant circumstances from the remuneration which would have been received by Ms McConnell but for the termination of her employment.

Income likely to be earned 12

[50] On the evidence before me there is no such income within the relevant statutory meaning.

Other relevant matters 13

[51] I shall shortly turn to a submission concerning the proper application of s.392(3) to the facts of this case. Otherwise, on what is before me, there is no other relevant matter for the consideration of an appropriate remedy.

Alleged misconduct

[52] S.392 (3) provides that where the Commission is satisfied that misconduct by an employee contributes to an employer’s decision to dismiss an employee, notwithstanding that the dismissal is found to be unfair, the amount of compensation the Commission would otherwise order is to be reduced by an appropriate amount.

[53] It is to be noted that the provisions of s.392 (3) are mandatory.

[54] Craig Mackay submits that the amount which might otherwise be ordered under s392 (1) should be reduced by 50% on account of alleged misconduct by Ms McConnell.

[55] On the evidence before me, alleged misconduct must be considered for the purposes of proper characterisation. The evidence I refer to is that of Mr Mackay given on oath and cross examined by Ms McConnell on 3 December 2013. In my judgement, the contributory considerations to the decision of the termination of the employment of Ms McConnell by Mr Mackay are matters of performance, allegedly poor performance by Ms McConnell, from Mr Mackay’s perspective. That evidence does not satisfy me that the matters referred to by Mr Mackay are properly characterised as misconduct on the part of Ms McConnell for the purposes of s.392 (3).

[56] Accordingly, as there was nothing properly characterised as contributory misconduct by Ms McConnell, a reduction from an appropriate remedy of compensation otherwise determined under the relevant provisions of the Act is neither required or relevant.

Application of Relevant Principles

[57] As I consider that had Ms McConnell not been unfairly dismissed she would have remained in the employment for three months, all of the above considerations indicate an amount of compensation at the relevant weekly rate for 13 weeks as an appropriate remedy, less an amount of two weeks wages paid by Craig Mackay in lieu of notice.

[58] The calculation of the appropriate remedy in accordance with the principles in the case of Sprigg v Paul’s Licensed Festival Supermarket 14, recently affirmed by the Full Bench of the Fair Work Commission in Brett Haigh v Bradken Resources Pty Ltd T/A Bradken15(Haigh v Bradken)is as follows:

“1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,

2. Deduct monies earned since termination,

3. Deductions for contingencies,

4. Calculate any impact of taxation,

5. Apply the legislative cap.”

[59] Applying the principles above in making my Decision I considered the following:

STEP ONE: I have identified the tiem the employment would likely have continued in order to consider the remuneration the Applicant would have, or would likely have received, should she not have been unfaily dismissed to be three months (13 weeks).

The uncontested evidence is that the Applicant’s net earnings per week were $1,178.00.

The Applicant received a payment of two weeks in lieu of notice and a payment of two weeks annual leave at the termination of her employment. I will not have regard to the payment of two week’s annual leave as this is an accrued entitlement payable of a kind which should not be a deduction in the relevant circumstances.

Length that the employment period would likely have continued in order to consider the remuneration the the Applicant would have, or was likely to have received	13 WEEKS
Applicant’s net earnings per week.	$1,178.00 x 13 weeks	$15,314.00
Nett payment made to the Applicant by the Respondent at the time of the termination of the Applicant’s employment in lieu of notice. Note, this does not include accrued entitlements as identified above [47].	2 x $1,178.00	$2.356.00
TOTAL	$15,314.00 - $2,356.00	$12,958.00

STEP TWO: The Applicant, in her submission dated 6 September 2013, has informed the Commission that she has not earned any remuneration of any kind from employment or other work since her termination.

STEP THREE: There are no contingencies because the remedy deemed appropriate is based on known lost remuneration and not in any way based on ongoing losses of remuneration.

STEP FOUR: I have considered the impact of taxation. As the evidence before me does not enable consideration of an Order for a gross payment of 11 weeks pay, less appropriate taxation, I have decided to Order payment of an amount based on the nett weekly earnings of Ms McConnell at the time of termination, based on the termination payment referred to above.

STEP FIVE: The appropriate remedy is less than the jurisdictional cap prescribed by S.392 (5) of the Act.

[60] I have considered the assessment of remedy above, in the manner identified in smith v Moore Paragon 16, also recently approved by the Full Bench of the Fair Work Commission in Haigh v Bradken.

[61] There are no factors which I consider relevant or operative as considerations which should cause the amount of remedy to be lesser or greater than the amount arrived at in accordance with the principles in Sprigg. Accordingly, the appropriate remedy is an award of compensation of $12,958.00.

Instalment Payments of Remedy

[62] Craig Mackay have submitted that any remedy be payable by instalments over six months. Ms McConnell opposes any such order. This matter has taken some time to complete, to an extent due to the convenience of Craig Mackay. There will be no interest on the amount of loss I have assessed. The effect on the Applicant of the termination of her employment in February 2013 was significant for her economic circumstances. The remedy will be payable some 12 months after the termination of her employment by unfair dismissal. The remedy is substantially less than sought by the Applicant.

[63] All of these considerations persuade me to make an Order that the amount of compensation should be paid as one amount. It is relevant that there will also be a period of 21 days from the date of this decision for Craig Mackay to comply with the Order.

Conclusion

[64] For all of those reasons, I have decided that I will issue an order that Craig Mackay pay to Ms McConnell an amount of $12,958.00, nett of taxation within 21 days after the date of this decision.

COMMISSIONER

Appearances:

Ms B McConnell, for the Applicant

Mr C Carmody, for the Respondent

Hearing details:

Before Commissioner Lewin

2013

Melbourne

3 December 2013.

Final written submissions:

14 January 2014, submissions by Applicant

20 January 2014, submissions by Respondent

 1  [2013] FWC 6525.

 2 Ibid [33].

 3 Ibid [34].

 4   PN168 - PN191.

 5   S.390 (2) (a) FWA

 6   S.390 (3) (b) FWA

 7   S.392 (2) (b) FWA

 8   S.392 (2) (b).

 9   S.392 (2) (c).

 10   S.392 (2) (d).

 11   S.390 (2) (e).

 12   S.392 (s) (f).

 13   S.392 (s) (g).

 14 (1998) 88 IR 21.

 15   [2014] FWCFB 236.

 16   PR942856.

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