Brett Lindsay Hopping v Bolton Clarke

[2020] FWC 3753

[2020] FWC 3753

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Lindsay Hopping
v
Bolton Clarke
(U2020/2495)

DEPUTY PRESIDENT LAKE BRISBANE, 16 JULY 2020

Application for an unfair dismissal remedy – jurisdictional objection – applicant resigned – show cause process – no compulsion by the Respondent - application dismissed.

[1] Mr Brett Hopping (the Applicant) has made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) alleging that the way in which his employment ended with Bolton Clarke (the Respondent) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] The Applicant commenced employment with the Respondent on August 2013 and his employment came to an end on 24 February 2020. In his Form F2 Application filed on 4 March 2020, the Applicant states that he resigned from his employment on 24 February 2020 and was forced to do so due to a course of conduct engaged by the Respondent.

[3] The Applicant was employed by the Respondent at the Tantula Rise Residential Community facility located at Alexandra Headlands on the Sunshine Coast. He was employed as a Personal Care Worker.

[4] The Respondent raised a jurisdictional objection to the Applicant’s application on the basis that he was not dismissed, submitting that he voluntarily resigned with immediate effect on 24^th February 2020.

[5] It is not in dispute that the Applicant is a person protected from unfair dismissal and that the Respondent is not a small business employer. It is also the case that the Applicant’s employment did not end by reason of redundancy. The question of whether the Applicant was dismissed on the 24^th February 2020 in circumstances that constituted constructive dismissal is a matter for determination.

[6] Directions were set for the filing of material and the parties elected to have the jurisdictional question of whether the Applicant was forced to resign determined on the papers, without a hearing.

Applicant’s Evidence

[7] The Applicant’s evidence was that he was forced to resign as he had been suffering from bullying and the employer had allegedly been breaching Occupational Health and Safety guidelines matters which he had raised: 1

In conclusion, I was forced to resign to protect my own mental and physical health and safety due to the many breaches of Workplace Health and Safety legislation as listed above along with the bullying I was subjected to, which also breached Fair Work legislation.

[8] These claims lacked specificity, but included various grounds such as: 2

•  Bullying by the Residential Manager, Marcelle Maxwell including:

•  A failure to talk to the Applicant;

•  A failure to conduct a fair investigation regarding complaints raised by the Applicant;

•  A failure to take the concerns of the Applicant seriously;

•  Conducting a conversation in a corridor as opposed to in a private area; and

•  Placing the Applicant under disciplinary action for allegations of elder abuse.

•  A breach of WHS legislation and a therefore, a subsequent failure to look after the Applicant’s safety, which appears to include:

•  A failure to provide PPE;

•  Water leakage from an air conditioning unit, constituting a breach of WHS.

•  A failure to follow company policy regarding notifications of infectious residence to staff; and

•  Purportedly being singled out for a performance review.

[9] The Applicant was the subject of two complaints from anonymous sources. The Applicant contends that the Residential Manager informed him that she was concerned a staff member had it in for him. Following the last of the two complaints, he texted Ms Maxwell the following message:

Hey Marcel

It’s Brett

Wow 2020

It has really bought out a lot of issues. For the last 2 hours my heart and head have been throbbing. Thinking of the accusations of Josie McAlum

And now this latest accusation/complaint.

There is a Mole in our midst.

I have spent 2 hours documenting and assessing Tallowood. There is no and have not been any relative up there that would have said that about me.

Our Mole is

Wait for it Julie James

She is responsible for these two issues with me.

Tomorrow I can and will back up my summary with evidence.

My heart is pounding. I can also give you many staff that will voluntarily offer their disgust in her and her behaviour.

I’m not throwing stones Marcel 

I can back up all and then all we need is handwriting from her to match the complaint.

Let’s chat tomorrow.

Have a great night

Cheers Brett

[10] Following that, Ms Maxwell allegedly did not engage with the Applicant regarding the matter and he escalated it to the HR Department. After considering the matter the response he received back from the HR Department was the following: 3

Hi Brett, we have copies of all the associated documents from site. I have reviewed these again after receiving your email and, as Marcelle has advised you, there is insufficient information or evidence to substantiate your claim. I was under the impression you had evidence we had not previously seen.

We are certainly aware of your concerns and will continue to keep a watchful eye on all staff behaviour.

[11] On the last day of employment, 24 February 2020, Mr Hopping attended a meeting with Ms Maxwell which he states he was lured to under the premise that they were following up his allegations. The Applicant provides no further account of what happened at this meeting, but it can be assumed that he tendered a signed letter of resignation and that the meeting did not proceed in any substantial way.

Respondent’s Evidence

[12] The evidence is conveniently laid out in the following extracted from their submission:

7. Between 11 February 2020 to 18 February 2020, the Respondent received a number of complaints from employees regarding the Applicant’s conduct in the workplace.

8. The complaints from employees alleged that the Applicant was rude and aggressive towards employees in the workplace, had a negative attitude, was nasty to employees and that he made constant complaints regarding management at the workplace.

9. In addition to the complaints received regarding the Applicant’s conduct towards other employees, the Respondent received allegations that the Applicant had behaved inappropriately towards a vulnerable person in his care. Specifically, it was alleged that the Applicant had, on at least one occasion, raised his voice at a resident while providing care to the resident, pointed at the resident and made comments to the effect of “You are a nasty man”. The Respondent was of the view, based on the information provided in the reports, that allegations of this nature, if substantiated, may constitute elder abuse.

10. The Respondent has an established Elder Abuse Prevention and Response Standard. This standard relevantly states:

1 Statement of Standard

Bolton Clarke will act in the best interests of care recipients and residents who have been abused by upholding their rights and ensuring that the dignity and respect of older people accessing services is upheld at all time. There is nothing more important to Bolton Clarke than the health and safety of those we provide care and support to. Bolton Clarke has zero tolerance for care recipient and resident abuse or neglect. Bolton Clarke will:

…

Achieve a unified and consistent approach to the management of the abuse of care recipients and residents.

3.3.1 Abuse types & indicators

3.3.1.3 Psychological abuse (including social isolation) Psychological abuse is the infliction of mental stress involving actions and threats such as verbal abuse, threats, bullying, intimidation and harassment, social isolation, fear of violence, deprivation and feelings of shame and powerlessness. Examples include treating a care recipient or resident as if they are a child, engaging in emotional blackmail and preventing contact with family and friends and/or access to services and community activities, religious (spiritual) and cultural events.

4.1 Duty of care

When the abuse of a care recipient or resident is identified or reasonably suspected, reasonable action needs to be taken to ensure others are not harmed in the course of their work and to prevent abuse from reoccurring. In responding to abuse the priority is to provide an appropriate, adequate and timely response, with a focus on the immediate safety of the care recipient or resident, the carer (if applicable) and the staff member. Staff should only provide advice which is within their competence and position responsibilities.

11.Giving due consideration to the seriousness of the allegation in relation to the Applicant’s alleged conduct towards a resident, and in line with the Respondents Elder Abuse Prevention and Response Standard, the Respondent promptly commenced an investigation.12.On 17 February 2020, the Applicant was advised the Respondent had received complaints against him and that he was stood down pending investigation into the complaints and allegations made against him.

13.It is the Respondents position that it is reasonable management action, and in accordance with its duty of care, to stand down (with pay) employees who have been reported engaging in conduct which may constitute elder abuse pending the outcome of investigation.

14.On 18 and 19 February 2020, the Respondent proceeded to collate and review all complaints and allegations made against the Respondent. Mr Geoffrey Owen-Turner, Senior Employment Relations Advisor, was tasked with providing Ms Maxwell advice and assistance with this matter.

15.Following a detailed and comprehensive review of all the provided information to date, the Respondent determined that there was not enough information or evidence available to substantiate allegations of elder abuse, however, considered an investigation into the Applicant’s conduct regarding the employee complaints remained warranted.

16.The Respondent gave consideration to the complaints the Applicant had made in relation to his employment. The Respondent was aware that the Applicant had made complaints, however, was unable to fully understand the substance of the complaints as the Applicant had not provided specific details relating to incidents that had occurred and evidence to support his allegations. The Respondent provides further submissions below regarding the Applicant’s complaints are provided below under the sections Complaints made by the Applicant during employment and Allegations of bullying.

17.The Respondent formed the view that the appropriate next step in the investigation was to arrange an information gathering meeting with the Applicant. The purpose of this meeting was to discuss and seek a response from the Applicant in relation to the allegations made against him, and to provide the Applicant an opportunity to provide further information regarding his complaints for discussion. The Respondent submits Mr Owen-Turners statements as evidence of this.

18. The Respondent was of the view that it would be beneficial for a senior representative of the HR department to be present during the meeting to provide support and assistance to both parties during the meeting.

19. It was the Respondent’s position that no further action could be considered until the information gathering meeting had occurred and as such, no action had been either considered, or taken, against the Applicant at this time.

20. Subsequently, a meeting was arranged with the Applicant on Monday, 24 February 2020 at 10.30am. The Applicant was advised by Ms Maxwell that the purpose of the meeting was to gather information in relation to the complaints and allegations made against him, and, the Applicant’s complaints regarding the workplace. The Applicant was notified that Mr Owen-Turner from the Respondents HR team would be present to provide assistance during the meeting. The Respondent submits Ms Maxwell’s and Ms Owen-Turner’s statements as evidence of this.

21. On the morning of Monday, 24 February 2020 prior to the meeting commencing, Mr Owen-Turner and Ms Maxwell met to discuss and confirm the purpose of the meeting. The Respondent submits that during this discussion Mr Owen-Turner and Ms Maxwell confirmed the purpose of the meeting was to gather information.

22. On Monday, 24 February 2020 the Applicant attended the meeting with Mr Owen-Turner and Ms Maxwell where he tendered his resignation before the meeting proper had commenced. The Respondent submits statements from Mr Owen-Turner and Ms Maxwell regarding the details of the meeting. The Respondent further submits that details of the meeting are provided in the Employer Response.

23. The Respondent provides the following summary of meeting on Monday, 24 February 2020:

i. The meeting commenced at 10.30am where Mr Owen-Turner introduced himself;

ii. Prior to any discussions between the Applicant and the Respondent taking place the Applicant advised he was resigning and would not discuss any other matters with the Respondent;

iii. The Applicant proceeded to sign the resignation letter, made comments that the Respondent would hear from Fair Work and the meeting ended.

[13] Below is attached the resignation letter provided by the Applicant to the Respondent.

To Whom It May Concern

Following on from the recent performance review, investigations, and allegations I find that it is untenable to work for this organisation any longer. Breaches of legislation, and company policy and procedure from this company concerning fairwork have impacted me greatly and I no longer have the trust that is required in myemployer. Bolton Clarke have repeatedly stated to the unions that there is no moneyto give worker a wage rise, that is a lie that is holding up negotiations for a new EBA.Under the legislation both parties are bound by the first rule that all parties mustmeet in good faith. Bolton Clarke have failed this miserably. Without faith and trustrelationships are broken. As a result, I hereby tender my resignation effectiveimmediately as it would be unsafe for me under Workplace Health and Safetylegislation to remain as an employee. Under the circumstances I hereby request thatmy full balance of accrued recreational/holiday leave, and pro rata long service leaveas the law says that I will be credited with the time I have been employed, becalculated and paid into my salary sacrifice account (Access Pay) held with your company on the next pay run for payment on 28th February 2020.

Legislation and applicable case law

[14] Section 386 of the Act states:

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.

[15] Section 386 of the Act has created a clear “bifurcation in the definition of “dismissal” and has created two clear grounds on which a claim could potentially proceed. 4 In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench expanded on the content of the two limbs:

[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 probable (sic) 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.

(emphasis added)

[16] On the facts presented Mr Hopping was not terminated in his employment. The Applicant’s case therefore relies upon s 386(1)(b) – that the Applicant was forced to resign due to the conduct of the Respondent.

[17] The case of Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 is a foundational case in determining what is classified as a ‘forced resignation’. There it was stated: 5

In these proceedings it is unnecessary and undesirable to endeavour to formulate an

exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.

(emphasis added)

[18] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench helpfully expounded on Mohazab:

[31] The approach taken in Mohazab that a termination of employment at the initiative of the employer could be constituted by a “forced” resignation was followed in numerous decisions made in respect of the various iterations of the termination of employment scheme in the Workplace Relations Act 1996. These decisions most notably include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J) referred to Mohazab and said:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”

[32] In the latter decision a Full Bench of the Australian Industrial Relations Commission said:

“[23] ... It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

•  where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

•  where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

(emphasis added)

[19] The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred. 6 Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”7

[20] Further, it has been found that where an employee is subject to disciplinary procedures, this is not in itself sufficient to demonstrate that a resignation was forced by actions of the employer. 8 In Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555, Mr Bell resigned prior to the conclusion of a formal determination regarding his falsely signing of timesheets. He contented in his resignation letter that his resignation was “due to circumstances beyond his control”. Further, there was reliable evidence that the employer stated that “it’s serious business and [Mr Bell’s] employment may be terminated.” The Full bench concluded that “this was no more than mere fact, acknowledged by Mr Bell on his own appreciation of the position.”9 A statement that an employee may be terminated as a result of an investigative process is not, on its own, determinative of whether a constructive dismissal has occurred.

[21] In the current case, the Applicant was put on notice of the investigation and show cause process and was aware that these could lead to a termination of the Applicant’s employment. However, this alone could not be enough to class the Applicant’s resignation as one forced upon him.

[22] The decision of Senior Deputy President Richards in Megna v No 1 Riverside Quay (SEQ) Pty Ltd 10 provides instruction on how to interpret “forced”:

[14] It seems that the term “forced” is the past tense of the verb form “to force”, and as such, an understanding of the plain meaning of the term “force” is relevant to applying s.642(4).

[15] Relevantly, the Macquarie Dictionary defines “force” as:

… strength or power exerted upon an object; physical coercions; violence … power to influence, affect or control; power to convince … to compel; constrain or oblige (oneself or someone) to do something … to bring about or effect by force; bring about of necessity or as a necessary result … to put or impose (something) forcibly on or upon a person … to press, urge or exert to violent effort or to the utmost …

[16] The term “force” appears to encompass both the application of physical power to directly achieve a result and the actions of a person to persuade or otherwise convince another for the same purpose. In either case, there is an important element of compulsion present.

[17] In the contextual circumstances now before the Commission, the issue is whether the Applicant herself is able to demonstrate:

•  That she did not voluntarily resign her position or employment;

•  But that her employer, because of its actual conduct, forced her to do so, such that there was an element of compulsion present. (emphasis added)

[23] There is no reliable evidence before the Commission that the Respondent engaged in any conduct that satisfies the requisite element of compulsion.

[24] In Ashton v Consumer Action Law Centre, 11 Commissioner Bisset considered whether an employee was forced to resign due to supervisory requirements placed on the employee, which he claimed were so onerous that it made his job impossible to do. However, it was stated in that decision that even where an employee believes supervisory requirements to be harsh, it does not mean they are so. Further, it was determined:

[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.

[60] That, following the grievance outcome and the delivery to him of a letter seeking his response on performance matters, Ashton felt he had no choice but to resign does not mean that the actions of the Respondent were intended to force that resignation.

[61] In this matter, viewed objectively, the actions of the employer in investigating Mr Ashton’s grievance and/or in instigating higher level supervisory requirements and/or in providing him with a letter outlining specific areas of concern with his performance were not designed to force Ashton to resign.

[62] I find that Mr Ashton was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.

[25] The salient facts in the current case are as follows:

•  Mr Hopping was the subject of two historical complaints. Both of these were reviewed by Ms Maxwell and she concluded that the complaints lacked sufficient evidence or information and could not be substantiated. Ms Maxwell informed Mr Hopping no further action would be taken regarding these. 12

•  Mr Hopping had been subject of several more recent complaints around the beginning of 2020, with one capable of being considered elder abuse. These were referred these to the HR Department and as a result of the most recent complaint he was stood down with pay pending an investigation.

•  On Monday 24 February, Mr Hopping met with Ms Maxwell and Mr Owen-Turner at 10:30. Mr Owen-Turner outlined that the purpose of the meeting was to discuss the allegations against him and that he would also be able to raise concerns that he had. Following that opening Mr Hopping stated that he was here to resign, he signed a resignation that he had pre prepared and following Mr Hopping signing the letter he left the meeting.

•  The statements of both Ms Maxwell and Mr Owen-Turner support the contention that the meeting at which he resigned was not in fact a disciplinary meeting as Mr Hopping purports, but rather an informal one to gather his responses to a number of questions that the facility management wanted to understand as part of an investigation. 13

•  Ms Maxwell stated in her statement that Mr Hopping had never submitted any formal complaints to her, neither did he provide any evidence or specific information to support his complaints. 14 Further, Mr Hopping did not raise any formal concerns regarding workplace health and safety, as required by the Respondent’s policy15 and Ms Maxwell never received any formal concerns from Mr Hopping regarding WHS matters.16

•  Ms Maxwell also stated that she had performed a performance review several months prior to the events of above and felt that the meeting was a positive effort and no performance issues were identified. She made mention that Mr Hopping had been feeling stressed by some events in his personal life and that they had discussed this issue. There were no indications that this process was used to target or to highlight any deficiencies of his performance. Further, this was not a single performance review, as the Respondent conducted seven or eight reviews with other employees. 17

[26] In reviewing the conduct of the Respondent, it does not seem that they were performance managing the Applicant. If this had been the case, then it may have accounted for the Applicant feeling pressured and under examination. Rather, the employer was in the early stages of an investigation, no evidence was produced that the respondent was considering termination or even of any discipline being considered. They were correctly having a meeting with the Applicant to get his views and responses, it was planned to be an informal session as the investigation was in the early stages. Prior conduct would indicate that the Respondent had not unnecessarily pursued the Applicant, with previous complaints against the Applicant being dismissed without investigation for a lack of substance.

[27] Given the serious nature of at least one of the complaints, the Respondent had a duty to investigate; such an issue is of far greater magnitude than the Applicant’s unsubstantiated complaints. A failure to investigate the complaints of the Applicant do not amount to bullying conduct. Through the information provided it seems clear that the Respondent does not investigate all matters brought to its attention, only those of a serious or well substantiated nature. Indeed, the Applicant has benefited personally from this approach, with his two historical complaints being deemed lacking sufficient evidence and therefore, not investigated. In this regard, the behaviour of the Respondent is consistent and would not constitute bullying or otherwise reasonably inspire an employee to resign.

[28] There is no evidence to support the view that the Respondent s behaviour was any more than one of a responsible management working through what may be a serious issue. The investigation had not yet germinated, and as such, it is impossible to tell what fruit it would bear, but one thing is certain: beginning an investigation procedure to address a serious issue could not possibly constitute compelling an employee to resign. The Applicant’s complaints of bullying are largely unsubstantiated and even if substantiated, would not leave “no effective or real choice but to resign”. The Applicant could have raised any WHS issues with his employer as per company policy and better particularised any concerns he had so that they might be investigated.

[29] Given this context and on an objective analysis of the Respondent’s conduct it cannot be shown that there was any compulsion on the facts which led to the Applicant’s resignation. Mr Hopping was not forced to resign because of conduct or a course of conduct engaged in by the Respondent.

[30] Accordingly, I find that there was not a dismissal pursuant to s.386(1)(b) of the Act.

Conclusion

[31] I find that the Applicant was not dismissed in accordance with subsection 386(1) of the Act.

[32] Accordingly, I must dismiss the application and I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721060>

 1   Applicant’s Submissions, page 4.

 2   Applicant’s Submissions, page 1.

 3   Applicant’s Submissions, page 4.

 4   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, [47].

 5   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200, 205-206 (Mohazab).

 6   Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].

 7   Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 8   See for example Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.

 9   Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555, [38].

 10   PR 973462, 11 August 2006.

 11   [2010] FWA 9356.

 12   Statement of Marcelle Maxwell, page 3.

 13   Statements of Marcelle Maxwell and Statement of Geoffrey Owen-Turner.

 14   Statement of Marcelle Maxwell, page 4.

 15 Respondent’s Outline of Submissions, [67] – [69].

 16   Statement of Marcelle Maxwell, page 3.

 17   Statement of Marcelle Maxwell, page 3.