Bethany Kemmis v The Ethical Ice Cream Co (Cairns) Pty Ltd
[2022] FWC 1653
•28 JUNE 2022
| [2022] FWC 1653 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Bethany Kemmis
v
The Ethical Ice Cream Co (Cairns) Pty Ltd
(C2022/396)
| COMMISSIONER HUNT | BRISBANE, 28 JUNE 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection – applicant resigned – resignation caused by conduct, or a course of conduct on the part of the respondent – jurisdictional objection refused
On 10 January 2022, Ms Bethany Kemmis made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Ms Kemmis stated that she had been dismissed from her employment with The Ethical Ice Cream Co (Cairns) Pty Ltd T/A Ben and Jerry’s Cairns (the Respondent) on 6 January 2022. The Respondent is a retail ice creamery.
In its Form F8A – Response to general protections application, the Respondent raised a jurisdictional objection to the application on the grounds that Ms Kemmis was not terminated on the employer’s initiative pursuant to s.386(1) of the Act, and that she had resigned from her employment. The Respondent further stated that if Ms Kemmis had not resigned from her employment, she would have been dismissed.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Ms Kemmis was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Ms Kemmis was dismissed in contravention of the general protections provision.
The matter was therefore listed for jurisdictional hearing by video using Microsoft Teams before me on 6 June 2022. Ms Kemmis represented herself and Mr Nick Lorentzen, Store Franchise Owner appeared for the Respondent.
This decision deals only with the jurisdictional objection to be determined.
Legislation
Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The meaning of “dismissed” is provided at s.386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
Ms Kemmis’ evidence and submissions
Ms Kemmis commenced employment with the Respondent on 23 September 2021. She stated that she commenced as a Scooper, but within the first shift was promoted to the role of Shift Leader, and then shortly thereafter become Acting Assistant Manager.
In her Form F2, Ms Kemmis stated that she had:
· Bent over backwards for the Respondent;
· Put her own money from her own pay cheques into the Respondent;
· Opened and closed the shop every day, which ‘ran down her bank account’ from 17 December 2021; and
· not had a minimum 10-hour break between shifts and sometimes having only a four-hour break.
Ms Kemmis stated that the Respondent’s business was put under her name as the owner which she did not agree to; she stated that she discovered this when the pest control contractor sent her a screenshot asking her if she is the owner.
Ms Kemmis attributed her contraction of COVID-19 to the Respondent; she suggested it did not follow appropriate guidelines. She considered that she had been bullied out of her role by Mr Lorentzen and Ms Gina Romano, Store Manager. She stated that the Respondent had accused her of being racist.
When Ms Kemmis became unwell, she informed Mr Lorentzen who told her to alert other staff on the workplace platform. He asked her when she could attend for a meeting, with Ms Kemmis agreeing that 6 January 2022 would be a suitable day.
Her evidence is that upon arriving to work on 6 January 2022, she filled an ice cream order which was due and assisted a staff member to open the store. When Ms Romano arrived, she looked to be in shock to see Ms Kemmis there. Mr Lorenzten arrived, and Ms Kemmis considered she would be a having a regular weekly meeting with him.
Mr Lorenzten asked her, “Are you ready for this meeting?” She said to wait a second so she could bring her laptop and prepare for the meeting. Ms Kemmis and Mr Lorentzen sat outside of the shop and Ms Kemmis began discussing things she had noted with staff and issues she wanted to get on top of. At this point, Mr Lorentzen interrupted her and said, “Actually, I think we need to wrap this up. Your personal life is coming too much into work, you should go see a doctor.”
Ms Kemmis was in a state of shock. She said she was required to clear her computer and immediately leave the store. She stated she was locked out of the internal electronic workplace communication platform whilst she rushed to clear her accounts she had been logged into. Ms Kemmis asserted that this created a more controlled situation for the Respondent by preventing her from accessing evidence against the Respondent.
Ms Kemmis received the following email from Mr Lorentzen at 12:47pm on 6 January 2022:
“Dear Beth,
Further to our meeting earlier I’m writing to confirm acceptance of your resignation with immediate effect.
You will be paid for your time today plus the $250 weekly payment we’ve been making to you for your off site administrative work.
I’m sorry that we have reached this point but it’s clear that the role hasn’t been working for you or for us. Your demeanour and attitude very clearly reflect that.
A number of staff, myself included, have expressed concern about your mental health in recent times. You failed to notify me of your absences last week from the store and the arrangements you put in place to cover your shifts. There were two occasions after Christmas when the store opened over 2 hours late when you had responsibility for the opens. You neglected to mention either of these to me.
I’ve also received recent feedback from other staff about you bad mouthing staff which is wholly inappropriate. This was raised expressly with you in the recent chat messages which included Adi.
In all, I think your resignation is the appropriate course of action. I encourage you to seek professional support to help you work through the personal issues which appear to have dominated your life in recent times.
Thank you sincerely for everything you’ve contributed. I wish you every success in the future.
…”
Mr Lorentzen posted the following on the workplace platform:
“Please note that Beth Kemmiss [sic] has resigned effective immediately to pursue other career goals.
On behalf of all of us, I’ve thanked Beth for her contribution since we opened in September and I’ve wished her well with her future endeavours.
Gina Romano and I will be actively assessing our staffing needs in coming days but there will almost certainly be an opening for a new shift leader for anyone that is interested.
Nick”
Ms Kemmis denied resigning from her employment, either in writing or verbally. In the alternative, Ms Kemmis said that she was forced to resign because of conduct, or a course of conduct engaged in by the Respondent. She stated that given what was said by Mr Lorentzen at the meeting, while she was still in shock, he made it look like she had resigned.
Ms Kemmis and Mr Lorentzen exchanged text messages on 12 January 2022 regarding Ms Kemmis’ contact with the Respondent’s staff. I do not consider it necessary to reproduce the text messages between them.
The Respondent’s evidence and submissions
In the Form F8A completed by the Respondent, the following was stated:
“The Applicant was not dismissed. She resigned. But if she hadn’t resigned she would have been dismissed….”
In an attachment to the Form F8A, the Respondent provided the following account. I have redacted some parts on account of sensitive matters or allegations not related to Ms Kemmis’ employment:
“……
3. At her best, Beth was a capable employee who early on showed good promise. But she had a very troubled personal life which kept intruding adversely into the day-to-day operations of the store in a variety of different ways. She told me on several occasions [redacted]. I was very understanding and supportive of her situation. I know others in the store were too. On more than one occasion I advised her [redacted].
4. Her attitude and demeanour typically ranged from being highly elevated to being very sullen and resentful. Unfortunately, in the weeks leading up to her resignation I noticed a marked decline in her attitude and demeanour. On more than one occasion in the weeks prior she had said to me that she no longer enjoyed working at Ben and Jerry’s and that “I’ll just walk”. I had previously counselled her against that course of action.
5. We had one shift leader who had resigned in mid-December specifically because of the way Beth has spoken to her. When asked about the incident Beth had told me [redacted] and that’s why she was so angry. I asked her [redacted]. I also emphasised that whilst I was entirely understanding of the circumstances she described, she could not take her anger and frustration out on other staff. She was told formally– in person and in writing - that this style of staff management would not be tolerated. I had counselled her on several occasions to take her management style “down a notch or two’ and to treat people fairly and reasonably.
6. At no stage has Beth ever been asked or expected to put her own money in to the business. On the one occasion where she told me she had bought a vacuum for the store I insisted she claimed the money back from petty cash which, to the best of my knowledge, she did.
7. Any suggestion that Beth was in any way bullied by myself or other staff is entirely without foundation. I abhor bullies and will not tolerate them in any workplace which I oversee.
8. At no point have I ever suggested that Beth is racist. Again, these allegations are entirely without foundation.
9. Beth was responsible for staff rostering, including her own, and for taking the required breaks. She was never asked by me to contravene any workplace requirements, and neither was I aware of any such contraventions. I have always expected my staff to strictly observe all such requirements.
10. Numerous incidents in the weeks prior to her resignation gave rise to mounting concern on my part:
a) On two successive days (27th – 28th December) at the busiest time of the year she had opened the store over 2 hours later than scheduled and completely omitted to mention either incident to me. This struck me as extremely concerning behaviour and I gave her very strict instructions that this should never happen without my knowledge and authority.
b) She had also closed the store early without my knowledge and authority on 30th December. She had brushed this off as though it were of no consequence.
c) She went completely off the radar in the first week of January and arranged for a junior member of staff to cover her shifts without my knowledge and approval. I only found out about this by chance.
d) On Monday 3rd January, when I asked about her absences and when she would next be in the store she gave only vague and conflicting responses saying:
“Not till i get paid And even then ill probably start working at tz abut more so i can make some money so i can save bond and rent etc to move out ill just drop into ben and jerrys when i feel like it”
e) I found this explanation concerning and implausible given we had committed to giving her 30 hours a week rostered time plus an additional $250 a week for administrative work that could be done ‘out of hours’.
f) The same day, in response to a message from Beth that “everyone else is sabotaging it for me” I replied: “That’s not the case Beth. People are worried about you. I’m worried about you. No one is sabotaging you or your role. We committed to pay you 30 rostered hours a week plus $250 for admin. But if you’re not available or committed to the role then we need to know.”
g) By Tuesday 4th January I was growing increasingly concerned. I sent her a message and subsequently rang her. It was clear to me that her personal circumstances were impeding her ability to do her job. At no stage did she say to me she was unwell or sick but she had effectively removed herself from her responsibilities and was doing the bare minimum to stay involved.
h) Staff were beginning to ask questions about her absence, and I suggested to her in a message that I should perhaps put a note around to staff to advise that she was sick and she agreed that would be helpful so “I don’t have to go in to detail with every staff member”.
i) On Wednesday 5th January Beth confirmed to me that she would be in the store on Thursday 6th January, and we agreed to meet at midday.
j) Also, on Wednesday 5th January I was approached by two other staff independent of one another who expressed their serious concerns about Beth. I was told they were worried about her erratic behaviour and her personal circumstances.
k) I also received a complaint that she had been rude and offensive to other staff which was something that Beth had previously been warned about.
l) I was also informed that Beth had told several staff that my business had been put in her name (a claim she repeats in her F8 application). That claim is entirely without foundation. Beth has no association with the business in any way and never has. She has never been used on any paperwork in the way suggested. A quick check of our ASIC filings will confirm this. I was genuinely shocked when I first heard this claim. It suggested to me that Beth’s grip on reality was seriously in question. I can only assume that she may have seen her name on some paperwork as a contact person for the store and drawn the wrong conclusion.
m) After weighing everything I’d heard I determined that I needed to resolve the matter once and for all. It was clear to me the arrangement wasn’t working for her or us. It was starting to have serious repercussions for staffing and our store.
n) On the morning of Thursday 6th January there was a flurry of posts from Beth on our internal communications platform about staff performance. They were hectoring in style and tone and gave the impression of trolling staff. I asked her to stop and said that we would discuss when we met later that morning.
o) I arrived at the store about 1145 ready for a meeting at 12 noon. It was immediately apparent to me that Beth’s demeanour was angry, sullen, and resentful. She could not look me in the eyes.
p) We met outside the store just after 12 noon, I started the conversation by saying that I didn’t think the role was working for her or us. I said there was no point being in the role if she wasn’t happy, that it was clear from recent events that she was struggling, and that people were concerned about her wellbeing. Her immediate response was “well, I’ll walk then”. I said that in the circumstances I thought that was the appropriate course of action and I accepted her resignation.
q) By this stage she had become extremely angry and volatile and started to swear at me. It was obvious to me that this wasn’t going to be a separation on good terms. I said that we should wrap this up immediately and asked her to give back the laptop computer, gather her possessions and leave the store. Despite my reservations, I allowed her to remove some personal data she had on the laptop. I sat there for perhaps 10 minutes whilst she did this. I then accompanied her to the back of the store where she gathered her possessions and left. I sent her an email shortly afterwards (attached as appendix 1).
r) It is also worth noting that we were subsequently unable to get into the laptop using the designated password. I took the attached screen shot (appendix 2) a little later that afternoon. We then had to get the laptop reset by our IT specialist at considerable cost.
s) In the days immediately following her departure Beth bombarded my staff with a series of obnoxious text messages making spurious and defamatory claims against individuals and the store. She had also stated she would do everything in her power to get the store closed down. Several staff complained to me about these messages and sent me screen shots which I have on file. I wrote to her on 12th January asking her to stop with immediate effect or I would report that matter to the police.
Conclusion I am sorry that we arrived at the point where it became necessary to part ways. I accepted Beth’s resignation as the appropriate course of action. If she hadn’t offered to resign, I was fully prepared to dismiss her on the spot for all the reasons outlined here. The damage that was being done by her presence in the store far outweighed any genuine sympathy I felt for her personal circumstances.”
In further written material in preparation for the hearing before me, Mr Lorentzen stated the following:
“…..
3. I am very clear that she resigned when she used the words “well, I’ll walk then” in response to my opening comment that I didn’t think the role was working for her or us.
4. Ms Kemmis was the Acting Assistant Manager and we had committed to giving her 30 hours a week rostered time plus we agreed to pay her $250 a week for off site administrative work that could be done from home (See Screen shot of message at Appendix 2 that includes the Ben & Jerry’s Operations Manager, Adi Colling).
5. Despite that commitment, Ms Kemmis worked the following rostered hours prior to her resignation
· Week beginning 27/12 - 19.33 hours
· Week beginning 20/12 - 22.32 hours
· Week beginning 13/12 - 29.26 hours
· Week beginning 6/12 - 29.5 hours
6. In the two busiest weeks of the Christmas period Ms Kemmis worked substantially less than the 30 rostered hours available to her. Her suggestion that she was grossly overworked is not borne out by the facts. She was responsible for rostering her time so the decision was hers and hers alone, but it did give rise to serious concern on my part.
7. There is clear evidence of a lack of interest and commitment on her part toward the role in the weeks prior to her resignation. She was blaming everyone for ‘sabotaging’ her position which was patently not the case. See the screen shot below (Appendix 1) of a message exchange between Ms Kemmis and I on Monday 3rd January.
Mr Lorentzen: OK, so when are you back here?
Ms Kemmis: Not till I get paid
And even then ill probably start working at tz about more so I can make some money so I can save bond and rent etc to move out ill just drop into ben and jerrys when i feel like it
Mr Lorentzen: Beth, committed to give you 30 hours a week so there’s no shortage of money to be earned here. Plus the $250 for admin stuff. So are you not able to commit to that arrangement any longer?
Ms Kemmis:I get paid 700 once last week I spent basically all of that on ubers back and forth to me its almost not work it
So far ive heard no ones doing dipped cones no ones doing anything I’m not going to get paid to do all my jobs plus everyone elses they get paid good money to do their job they have been there almost 4 months since we opened and they still cannot
Right now I do want to do it but everyone else is sabotaging it for me
Mr Lorentzen: That’s not the case Beth. People are worried about you. I’m worried about you.
No one is sabotaging you or your role. We committed to pay you 30 rostered hours a week plus $250 for admin. But if you’re not available or committed to the role then we need to know. Let’s sit down to discuss. Let me know when you’re available.
Ms Kemmis:Yeah I said this last week everyone is starting to make me hate my job and I will just quit and you said no you cant do that
I don’t want to quit but I’m so overworked that I have had vertigo everyday since I haven’t worked at timezone and if I keep going I will end up in hospital
But sounds like a plan
8. From my perspective, her “well, I’ll walk then” comment at our January 6th meeting was consistent with her verbal and written comments in the days and weeks prior to our meeting. Her resignation was therefore a logical extension of what she’d been saying for some time.
9. I think Ms Kemmis was genuinely surprised and angered that I accepted her offer. I had previously rejected such offers and sought to counsel her in a more positive direction (she alludes to one such conversation in the Appendix 1 message below). But on this occasion, I accepted the offer. When Ms Kemmis immediately became angry, volatile and swore at me, I sought to wrap up the meeting quickly.
10. I followed up our meeting with an email to her within 30 minutes confirming my acceptance of her resignation (see my Form 8A response). This is a contemporaneous record of that meeting. At no point did Ms Kemmis respond to say that she had not resigned. It is only later that she has taken a different position.
11. I have been very clear that had Ms Kemmis not resigned I would have dismissed her anyway. It has been suggested that this is tantamount to constructive dismissal. I disagree. I would argue that I have simply been entirely open and honest about the background that led to that meeting and the circumstances I faced. My preference was for Ms Kemmis to resign and to try and manage a parting on good terms. She offered her resignation and I accepted it. However, it was immediately clear from her attitude and demeanour that parting on good terms would not be possible.
12. There is no advantage to me in seeking to misrepresent her dismissal as a resignation (indeed, quite the contrary). Had I dismissed her she would not have been entitled to any notice and has therefore not suffered any financial loss. Indeed, we paid her $250 that was nominally for administrative work conducted off site during the week. Given she had been off work sick in the days prior, this amount had not been earned at that stage of the week. In the circumstances, I think she has been treated very fairly and beyond minimum requirements…..”
During the Hearing, there was a conflict between Ms Kemmis and Mr Lorentzen as to how long the meeting on 6 January 2022 lasted. Following the hearing, Mr Lorenzten advised that his CCTV footage demonstrates that the meeting went from 12:03pm to 12:14pm. Ms Kemmis was afforded an opportunity to provide any views to Chambers having regard to the late evidence given by Mr Lorenzten; no views were received.
Consideration
Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their “employment” has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee.[2]
When analysing whether there has been a ‘termination at the initiative of the employer’ for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.[3]
A ‘termination at the initiative of the employer’ is when two criteria are satisfied:
· the employer’s action ‘directly and consequentially’ results in the termination of employment, and
· had the employer not taken this action, the employee would have remained employed.[4]
For there to be a ‘termination at the initiative of the employer’ there must be action by the employer that either intends to bring the relationship to an end or has that probable result.
The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[5] (Tavassoli) considered the legal principles pertaining to s.386(1) of the Act. Having examined what it described as “a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative”,[6] the Full Bench stated:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the
conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
I have considered s.386(1)(a), whether Ms Kemmis’ employment with the Respondent has been terminated on the initiative of the Respondent in the manner articulated in Tavassoli. That is to say, judged objectively, did Ms Kemmis resign her employment and did she not intend to resign her employment on 6 January 2022?
I am satisfied that Ms Kemmis did say to Mr Lorenzten, “Well, I’ll walk then”. She did so in response to Mr Lorenzten informing her that he didn’t think the role was working for her or for the business, and his statement that there was no point being in the role if she wasn’t happy, that it was clear from recent event she was struggling, and that people were concerned about her wellbeing.
I accept Ms Kemmis’ evidence that she was preparing to meet with Lorenzten that morning in her usual weekly meeting, and she was wishing to discuss operational issues. She had not intended on resigning during that meeting and did so only in response to Mr Lorenzten’s statement.
While I accept that the statement, “Well, I’ll walk then” constituted a resignation, I find that it was in response to Mr Lorenzten’s statement, and it was said in the heat of the moment. Ms Kemmis was then given a short period of time to remove personal documents from the Respondent’s laptop before she exited the store. She had not been earlier prepared, so this was a hurried task she needed to undertake.
Ms Kemmis promptly filed her application, disputing that she had resigned her employment after she learned that the Respondent was treating her end of employment as a resignation.
As to s.386(1)(b), I have also adopted the principles outlined by the Full Bench in Tavassoli set out above and have considered:
· Whether the Respondent engaged in conduct intended to bring the employment to an end; and
· Was the termination of Ms Kemmis’ employment the probable result of the Respondent’s conduct such that she had no effective or real choice but to resign?
Mr Lorenzten’s evidence is that prior to the meeting of 6 January 2022, he held serious concerns with respect to Ms Kemmis’ mental health. Her conduct had certainly been very odd, particularly with respect to her statement that she would decide when she would attend for work and she would “drop in” whenever she felt like it. Mr Lorenzten’s written correspondence to Ms Kemmis was always exemplary, courteous and considerate.
Prior to the meeting on 6 January 2022, Mr Lorenzten resolved to terminate Ms Kemmis’ employment; Mr Lorenzten has made such a concession.
Mr Lorenzten informed Ms Kemmis that he did not think it was working for Ms Kemmis and the business, provoking the response given by Ms Kemmis. I have no hesitation in finding that the Respondent engaged in conduct intended to bring the employment to an end. Mr Lorenzten has firmly and genuinely stated that if Ms Kemmis had not resigned, he would have dismissed her at that meeting.
I find that the termination of Ms Kemmis’ employment was the probable result of the Respondent’s conduct – it was more than the probable result, it was the declared result having regard to Mr Lorenzten’s evidence – and accordingly, Ms Kemmis had no effective or real choice but to resign. If she had not resigned her employment, it would have ended within minutes by Mr Lorenzten declaring it to have ended.
Conclusion
On the basis of the material before me, I find that Ms Kemmis’ employment ceased by way of a dismissal at the initiative of the Respondent on 6 January 2022. The jurisdictional objection is dismissed.
Should the parties wish to engage in conciliation, they should advise my Chambers by no later than 4.00pm (AEST) Friday, 1 July 2022. If the matter does not resolve by conciliation, I will issue a certificate under s.368(3)(a) of the Act.
COMMISSIONER
[1] [2020] FCAFC 152.
[2] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75], see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
[3] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75].
[4] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
[5] [2017] FWCFB 3941.
[6] Ibid at [35].
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