Bryan Ellem v Northern Alarm Security Logistics Pty Ltd
[2011] FWA 2655
•4 MAY 2011
[2011] FWA 2655 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bryan Ellem
v
Northern Alarm Security Logistics Pty Ltd
(U2010/10532)
COMMISSIONER STEEL | WHYALLA, 4 MAY 2011 |
Termination of employment - Jurisdiction - Whether termination at initiative of the employer.
Background
[1] This matter is an application by Mr Bryan Ellem (“the applicant”) pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for a review of his alleged termination of employment by his former employer Northern Security Alarm Logistics Pty Ltd (“the respondent”).
[2] The applicant claims he was notified on 22 June 2010 that he was redundant due to the loss of a security contract by the respondent resulting in a lack of work available to him. The respondent denies the applicant’s employment was terminated at the instigation of the employer. They assert that he resigned or walked away from the job. Conciliation in this matter was not successful and the matter was assigned for determination.
[3] Mr Ellem had worked for the former owner of the business, Ms J Hills, and the respondent recognised that the applicant’s service was transmitted with his employment to the respondent in approximately early June 2009. 1
Jurisdictional issue
[4] Given the diverse claims it falls to the tribunal to determine its jurisdiction and whether there was a termination at the initiative of the employer such that the applicant can make the application under s.394 of the Act.
[5] Section 385(a) of the Act relevantly states that in order to make an application under s.394 of the Act, an applicant must have been a person who has been dismissed from his or her employment:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and...”
[6] Section 386 of the Act defines the notion of dismissal in the following manner:
“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.”
[7] The tribunal is therefore determining if the facts of this matter identify a dismissal event that conforms to the above definitions. In that determination the tribunal has considered the jurisdictional and substantive evidence in this matter. 2
Evidence and factual matrix
[8] The respondent elected to represent themselves and provided a number of witnesses. Much of the evidence was contentious as to the detail of the events in question which gives rise to matters of credit of the parties involved. I have therefore set out much of the evidence to identify those matters.
The respondent’s case
[9] The Managing Director of the respondent, Mr Laury Bais, gave evidence. Mr Bais is an articulate and resourceful witness and was a principal participant in generally all the events in question. Mr Bais asserted that the applicant was interviewed on 22 June 2010 in the respondent’s Port Augusta office and informed that due to the loss of a contract by the respondent as of 19 July 2010, that the applicant’s hours of work and allocation of work were to change. The respondent is emphatic that redundancy was not mentioned to the applicant but that the applicant was given specific options to consider in regard to working arrangements applying to him. They were:
(a) Three hours of patrols per night plus two hours of duties during the day.
(b) Three hours per night and two hours of holiday payments to be continued for an indefinite period.
[10] Mr Bais, in evidence, also asserted that the applicant had another option of going on holidays for a period and then resuming work on option (a) above. Thus the applicant was given various options of maintaining 35 hours working/payment per week. The respondent asserts that further work was being tendered for and in fact was won in October 2010 and that they wanted to retain the applicant’s services to service that contract. 3
[11] The interview occurred within the respondent’s office and various other staff and related people (a total of four) were in the adjacent area and could overhear the conversation or parts of the conversation. These arrangements were orchestrated by the respondent and were so arranged as the respondent was concerned as to the applicant’s reaction to the consequent changes to his working arrangements. The respondent was concerned the applicant may become aggressive 4 and he wanted sufficient witnesses to that possible occurrence.5 Also the rostered staff member (Mr Wasley) has a hearing problem and the respondent was concerned he may not be able to hear the conversation that was to take place.
[12] The respondent also submitted he had asked Mr and Mrs Andrews to remain as they had been discussing potential work availability and the respondent was concerned the applicant may react badly to the news and may have leave his employment immediately. 6
[13] The respondent asserts the applicant was aware these four people were in the office, at least in the initial part of the meeting, and were located behind a partition. It is not contentious that conversations in the office would be overheard generally by those people located in the front office area. The applicant was requested to consider his options within 24 hours and the meeting concluded.
[14] The respondent was contacted by the applicant by phone on 24 June 2010. In that conversation the respondent asserts the applicant advised he intended to resign. 7 The respondent later requested a letter from the applicant indicating his intentions in relation to his resignation. The applicant did provide a written letter as requested dated 25 June 2010.8 That letter refers to:
“You advised me due to loss of contracts recently, there would be no ongoing work. There for (sic) my job was redundant on the 30th 06-10. I accept the redundancy package you offered and will complete my last shift at 6am on the 1-7-10.”
[15] The respondent asserts he telephoned the applicant and denied that the applicant had been made redundant. The respondent, some days later, provided a letter to the applicant. 9 This letter was hand delivered by an employee of the respondent on 30 June 2010 to the applicant. Its text is as follows:
“Dear Brian Ellam
As per our phone discussion and in answer to the letter of resignation you sent us, we reluctantly accept your resignation and assigned final working date as 30th June, 2010.
We recognise your decision to resign from your post with us although we feel the need to emphasize our offer to you for continued work within our company.
Although the Part-time Patrol work you had previously been doing was reduced due to the loss of Council Contracts we did offer you similar working hours but with a mix of Patrol and other Security/Guard work combinations.
We want it known that we have not ceased you employment voluntarily, nor have your shifts been made redundant - just altered to include different roles of Security.
You will be sadly missed and wish you many Regards for your future employment. Please advise us if you need any Work references.
Yours sincerely
(Signed)
Laury Bais
Managing Director”
[16] Thus in face of the assertion by the applicant by letter on 25 June 2010 that he had been advised he had been made redundant effective 30 June 2010, the respondent hand delivered a letter on the applicant’s self-nominated last shift (30 June 2010, some days later) that denied he had been made redundant and claimed the applicant, had resigned effective that date. The respondent claims delays in providing the letter occurred in their Port Augusta office.
[17] The applicant is alleged to have reacted aggressively to receiving the letter and abused the staff member (Mr Stuart Bais, the respondent’s 19 year old son). The applicant refused to proceed with his shift, being his last designated shift in relation to his service with the respondent. The applicant indicated to the respondent by phone call at this time he was not happy at the reference to his impending separation as being a resignation.
[18] The applicant was given a lift home by Mr Stuart Bais. An altercation later occurred with the applicant’s wife and Mr Bais when she was advised of the respondent’s views on the applicant’s separation. The applicant subsequently received his appropriate pay for time worked and outstanding accruals.
[19] The respondent further asserts that the applicant was contacted by phone on 1 July 2010 in an effort to resolve the issue. Such contacts offered ongoing work and or the applicant to take holidays and then come back to work. The applicant is asserted to have got angry and hung-up on the respondent. The respondent then sent a text message to the applicant. 10
[20] The respondent further asserts that work was again offered via the applicant’s union representatives and through Centrelink personnel. 11 Such efforts however were not successful.
Evidence of Peter Wasley
[21] Mr Wasley has a hearing impairment and wears two hearing aids to augment his condition. He confirmed he was not instructed by the respondent as to the conversation and interview with the applicant and went about his normal work which caused him to be visible to the parties talking in the back office area on occasion. He confirmed the meeting was apparently cordial and without event. Importantly he was not present nor overheard all the conversation or therefore its contents. 12 He furthers states he accompanied Stuart Bais to the applicant’s house to drop of a letter which was left in the screen door. This document has been identified in evidence as not relevant to these deliberations.
[22] Importantly he confirmed his statement was assisted for him by Ms Carol Bais. It was as a consequence more detailed than what he would have otherwise provided. 13. It was not challenged on any particular grounds by the applicant. He confirmed the applicant had observed him and Mr and Mrs Andrews in the office. However he could not recall when the Andrews’ had arrived in regard to their interview and the applicant’s attendance. They were, he asserts, located at some time at the front of the office smoking.
Evidence of Cathleen Andrews
[23] Mrs Andrews has some health issues as a result of her multiple sclerosis condition. She admits to some effect on her memory retention and trouble remembering without instigation. She also confirmed she was assisted with her statement by Ms Carol Bais and that it was far more detailed than she would have otherwise produced. 14
[24] Mrs Andrews asserts her husband and herself had an interview with the respondent as to changes to hours of work for Mr Andrews and about other matters including accusations as to the applicant’s use of the respondent’s vehicle. She confirmed she and her husband were asked to stay behind by the respondent as he was worried about a possible confrontation with the applicant. She was not specifically requested to listen to the conversation. Mrs Andrews says her husband had seen the applicant aggressive and confrontational previously. Mrs Andrews remained in the front office location the whole time of the interview and states she heard most of the conversation, and that the voices were loud and it sounded as if someone was getting angry. 15
[25] Mrs Andrews admits that her memory is not sound because of her medical condition. 16 However she does remember a change in hours for her husband being advised to him. She did not hear all of the conversation clearly and therefore cannot state that ‘redundancy’ was not mentioned. She asserts that the respondent offered at sometime to the applicant additional hours and that the applicant stated he would not do any security duties other than patrols and that he had not had a holiday for some time.
Evidence of Gifford Peter Andrews
[26] Mr Andrews provided some direct testimony. He presented as a serious and genuine individual for the tribunal. Mr Andrews had a meeting with the respondent which discussed changes to his hours of work and other commercial activities. He asserted that the applicant has a short fuse. He had agreed to remain while the applicant was being interviewed and states he was there for the whole time of the interview. He states the applicant sounded angry to be asked to do other duties as a consequence of the change. 17 Mr Andrews also states the applicant indicated he wanted to do patrols only and that if he had to do work other patrols he didn’t want to work anymore.18 He did not hear the applicant say he was going to resign. Mr Andrews asserts he heard the applicant say he “had not had a holiday for ten years and he would discuss the options with his wife.”19 Further he states that he never overheard either party mention redundancy in the meeting.20
[27] Mr Andrews was in attendance in case the applicant became aggressive, he was not instructed to specifically listen to the conversation. He was talking to his wife on occasion during the meeting. He accepts he may not have heard the total conversation but reinforces no mention of redundancy was mentioned as far as he is aware. He further was not sure the applicant was aware the Andrews’ were behind the partition. He says conversations were normal but muffled on occasion. He also states he heard the applicant say that he was contemplating giving the job up.
Evidence Stuart Bais
[28] Mr Stuart Bais is the respondent’s son and employee. Stuart presented as articulate, reliable and sensitive to the matters at hand. He delivered the amended “resignation” letter to the applicant and confirmed the applicant’s unhappy reaction to the same and him yelling on the phone to the respondent. He confirms the applicant refused to complete his shift and he drove the applicant to meet his wife and then to his home. The applicant’s wife was aggressive at the “Coles” meeting and made various threats to the respondent’s family which Stuart reported to the police. In the phone call to his mother he was requested to get the relevant keys from the applicant.
[29] Stuart was emphatic that the applicant stated he was not working the last shift and that the applicant was not told not to work this last shift. Stuart was instructed to request the return of company property from the applicant and did so.
Applicant’s evidence and submissions
[30] The applicant was a serious, mature witness with apparently good recall of factual material.
[31] Mr Ellam says he was made redundant on 22 June 2010. He called the respondent the next day to say he would accept the redundancy package and was asked to put it in writing. 21 He did so and a letter was received by the respondent on 25 June 2010. It was subsequently responded to five days later with a substantial change in that the redundancy was referred to as a resignation by the respondent. The applicant reacted to this and was thereafter relieved of his last shift and left the employ of the respondent.
[32] It was put to the respondent that his motivation in this matter was to procure a resignation as it would avoid a future unfair dismissal risk which may be difficult to sustain and that the respondent sought to avoid the payment of redundancy entitlements.
[33] Mr Wright, on behalf of the applicant, further submitted that the in the alternative if the respondent asserts that the applicant terminated his own employment as of 30 June 2010, then the applicant relies on the conversations with his union on 8 July 2010 where he was willing and able to return to duties. Further in the alternative, that the dismissal on 30 June 2010 was a genuine redundancy. Further again in the alternative, the applicant was constructively dismissed as a consequence of the unconscionable conduct of the respondent.
[34] The applicant says he was in the security industry from 2001-2009 with no breaks. He worked for Mr Hills under various business names and when this business was in administration or bankruptcy he worked for the trustee and then the new owner Ms Hills. He asserts he was in continuous employment. 22
[35] The applicant was invited by a phone call from the respondent to a meeting to be held on 22 June 2010 to discuss his on-going employment. The applicant says he was concerned about this meeting. In his evidence he asserts he requested to bring a witness to the meeting with Mr Bais. He asserts this was refused. However in his statement in evidence he states “I asked him whether I should bring someone with me and he (Mr Bais) said ‘no, employees only’”. When questioned by the tribunal as to the reason for his concerns for a witness he agreed he has little concern which gave rise to the question why he asked for a witness. 23
[36] The applicant states he did not see anyone else at the office when he arrived for his meeting with the respondent except Stuart Bais and Mr Wasley. He was not aware others may be listening to his conversation and was under the assumption it was Laury Bais and himself involved in the interview. 24
[37] The applicant was aware of uncertainty of on-going work because of the contract tender renewal. He also was aware his employer was unsuccessful in that tender before he attended for the interview. 25 The applicant thought that if the respondent did not get the contract his job was possibly at an end.26
[38] There was obviously an issue between the parties as to rumours the applicant was working for other employers using the respondent’s company equipment. This was discussed before the events in question. 27
[39] The applicant’s work arrangements prior to the meeting were that he was on call between 8.00 am and 6.00 pm and was paid for five hours by agreement. He had had such agreements with his previous employers as well. The respondent paid him for call outs which improved his pay situation and ‘looked after him,’ which was acknowledged by the applicant. 28 The applicant stated he was advised by the respondent that, “due to the recent loss of the council contract you may be made redundant at the end of the month, that being June 2010.”29
[40] The applicant says the respondent gave him one option in regard to working hours as a result of the loss of the council contract. He asserts he was only given the annual leave option. That is he was given only the option of taking his annual leave daily over a period of 60 days (two hours per day) to add to his assigned hours of three per night and then he would be made redundant.
[41] The applicant denies saying to the respondent he would not do other work other than patrols. 30 The applicant had previously asked the respondent about the continuation of his job and was told it would not necessarily be affected by the loss of the council contract.
[42] The applicant’s statement conveys he was asked to work from 8.00 am to 6.00 pm and be paid only five hours whereas from previous evidence above he does not mean work for the continuous period between 8.00 am to 6.00 pm, but being on call during most of that time. 31 This was clarified by the tribunal with the applicant.32 The applicant admitted under examination that the respondent could have made him more than one offer in the interview.33 The applicant also agreed under cross-examination by the respondent that he was offered to do three hour patrols and additional assigned work from the respondent.34 These additional hours were yet to be designated.
[43] This seems to be inconsistent with his former position that he was only given the single option, the annual leave option. The applicant then explained the additional work would have been to his knowledge, work which he did not have a licence for. He then acknowledged further work was offered. 35 The respondent gave him 24 hours to consider his situation.
[44] The applicant then phoned the respondent the next day and indicated his intention of taking up the redundancy offer which was that he finish up on 30 June 2010. 36 The applicant in his statement asserts that the respondent did not reply to this intention.37
[45] Under cross-examination the applicant explained the “redundancy offer” given to him was his perception.
“MR ELLEM: You told me that I may be redundant at the end of the month. I took that as an offer that I was going to be made redundant.
MR BAIS: So you assumed what I was meaning?
MR ELLEM: Yes. You come across that at the end of the month I may be redundant. There was actually no work for me to continue, as my main job was patrol work at night time”. 38
[46] Further, under examination by the tribunal, the applicant stated “I genuinely believed he was offering me redundancy or continue working.” 39
[47] The applicant did not receive any correspondence from the respondent until 30 June 2010. On 25 June 2010 the applicant received a phone call from the respondent requesting in writing the applicant’s response given in the 23 June 2010 phone call to the respondent. 40 He completed a letter and sent it to the respondent.41 He did not hear from the respondent again until 30 June 2010.
[48] Prior to commencing his last shift on 30 June 2010 the applicant was presented with a letter from the respondent. This was his first sight of such letter. He refused to sign the letter because of its contents. It characterised his actions as a resignation whereas the applicant contends he was made redundant by the respondent. This letter refers to the applicant’s letter as a letter of resignation and is the letter referred to and set out in paragraph 15 of this decision. 42 The letter is dated 30 June 2010. The applicant was provided the letter by Stuart Bais but refused to sign the letter as requested.
[49] The applicant then answered a phone call he thought was from Laury Bais and told the caller he did not quit and hung up. 43 The applicant says Stuart Bais then told him he was not to do the final shift. The applicant says he asked Stuart for a lift after he was told he was not completing the shift. He says he did not walk off. He handed the keys over and asked for a lift from Stuart.44
[50] The next day, 1 July 2010, the applicant received a text message from the respondent regarding him leaving employment. This stated “So let me get something straight, you don’t want to quit therefore you will have holidays and come back to work for five hours a day.” 45 The applicant then referred the matter to his union.
[51] In his statement the applicant indicates that he was willing to go back to work with the respondent subject to written notification of hours of work, the type of work required and no forced use of accrued holidays. 46 The applicant was advised by his union that reinstatement was being discussed with the respondent. On 8 July 2010 he was subsequently advised that negotiations had broken down and he realised there was no way of getting his job back. He gave instructions to pursue an unfair dismissal clam.
Evidence of Andrew Wright
[52] Mr Wright is an Industrial officer with the Liquor Hospitality and Miscellaneous Union. He provided evidence of his involvement representing the applicant subsequent to 30 June 2010. Mr Wright asserts that his member was made redundant by the respondent but was willing to consider continuance of work with the respondent.
[53] Mr Wright held discussions with the respondent which seemed encouraging but involved the provision of an apology by the applicant in regard to various threats made against the respondent’s family. These negotiations broke down, with the respondent allegedly withdrawing any further involvement.
[54] Mr Wright asserts in his evidence that he realised the respondent was not going to take the applicant back on the occasion of the third phone call to the respondent and hence he claims the final date of dismissal is 8 July 2010. 47
Consideration
[55] The tribunal has carefully considered all the submissions and evidence of the witnesses in this matter. In determining the facts due regard has been provided to all submissions and evidence and the probability of the events in question.
[56] Section 386(1) of the Act confers a right on an employee whose employment has been terminated to apply to FWA for relief in terms of that termination, but only if that employee’s employment has been terminated on the employer’s initiative.
[57] Section 386(2) of the Act confers a right on an employee who has resigned from his or her employment, but was forced to do so because of the conduct, or a course of conduct, engaged in by his or her employer. In this matter s.386(2) has no application as the applicant did not resign his employment. He variously sought to claim access to a redundancy which he perceived was available and on offer to him. He did so in writing. 48
[58] The respondent submits that the applicant, on 23 June 2010, advised in a phone call that he was resigning. The applicant submits he advised he was taking up the redundancy offer and that the respondent did not reply to his advice. Given this evidence and in consideration of all matters it is persuasive that the respondent did not reply to the applicant’s information and further that the next day the respondent requested the applicant’s position in writing as to his intentions and response. This indicates to the tribunal that the respondent sought clarity on the applicant’s intention as to what he was indicating he wished to do. The tribunal cannot identify a resignation by the applicant in this scenario.
[59] The respondent later provided a document for the applicant to sign on his last shift. 49 This letter construed the letter from the applicant advising he would accept a redundancy package (Ex R2 Annexure BE3) as a “letter of resignation.” It further indicated the respondent had not terminated the applicant’s employment and that continued work was available to him. Again the tribunal cannot identify a resignation by the applicant in this scenario.
[60] This matter is generally therefore about the credit of the parties. In terms of the requirements of s.386(1) of the Act and the significance of the credit of the parties in this matter, I rely on the principles of repudiation recently relied upon by a full bench of this tribunal in the matter Dover-Ray v Real Insurance Pty Ltd 50 in which it cited the High Court judgement in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd. The full bench stated:
“This case is properly analysed by reference to principles of repudiation. In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd Gleeson CJ, Gummow, Heydon and Crennan JJ noted:
“The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. … Secondly, it may refer to any breach of contract which justifies termination by the other party. … There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.
In the past, some judges have used the word “repudiation” to mean termination, applying it, not to the conduct of the party in default, but to the conduct of the party relying upon such default. It would be better if this were avoided.”
(footnotes omitted)”
(footnotes omitted)
[61] The learned bench further relied upon the test for intention:
“As is apparent from this extract, the test for intention is not a subjective one depending on the actual intention of the repudiating party. Intention is to be judged from what the other party reasonably infers from the actions or words of the party who is alleged to have repudiated the contract.
A repudiation of a contract does not automatically terminate that contract. Rather, the contract comes to an end only when the other party elects to accept such repudiation. Such acceptance may be by words or conduct. The learned authors of Macken’s Law of Employment note that acceptance of a repudiation may be easily inferred.” 51
(footnotes omitted)
[62] I have noted there existed various relationship issues between the respondent and the applicant regarding use of company time and equipment. The applicant had knowledge of a loss of contract by his employer that may have affected his working hours. The meeting of 22 June 2010 between the parties is critical in this matter. The supporting evidence by witnesses is generally not helpful in determining the accuracy of the contents of this meeting and the exchange between the respondent and the applicant. The parties are diverse as to what was said and at odds that a redundancy was advised by the employer.
[63] However the tribunal identifies that the applicant at all times has referred to advice from the respondent to the effect that he may be redundant and that he shows confusion within his evidence of what was put to him. He commenced on the position that only one offer was made regarding utilisation of his annual leave and then changed that in cross-examination. He then summarised that he considered he had been offered a redundancy package and he acted upon this belief.
[64] In consideration of all the evidence the tribunal cannot identify that the respondent did, in fact, make the applicant redundant. Discussion of potential redundancy and changes to working arrangements for employees as a consequence of pressure on the business are significant issues, however they do not amount to an objective advice of the end of a person’s employment.
[65] The actions of the parties considered in light of these facts indicate that the applicant was of the view he had been made redundant and could access a package. He confirmed acceptance and a finalisation of employment date. He was therefore unwilling to continue his employment.
[66] The respondent was therefore faced with an employee seeking to rely on redundancy to exit the contract when the respondent was willing to continue employment. The respondent, though delaying a response after he received confirmation of the applicant’s position in writing, reacted to deny the redundancy was available and clearly outlined that continued employment was available.
[67] The employment of the applicant ended acrimoniously as he was disappointed and felt injured at the non-availability of a redundancy package. Given the evidence the tribunal prefers the respondent’s version that the applicant refused to complete the last shift. It is therefore to be drawn that the applicant left employment at that time. The actions of the applicant considered at this time show an unwillingness to continue in employment amounting to a repudiation of his contract of employment.
[68] The respondent’s message to the applicant the next day can only be considered to be an offer of further employment or at the least an offer to clarify the nature of further employment. The applicant ignored that message and went to his union who thereafter contacted the respondent. Eight days later discussions ensued but became distracted on matters of apology and involvement of others and subsequently failed.
[69] The respondent resolved the pay of the applicant and settled his employment, thus bringing his employment contract to an end. In the tribunal’s view this is an acceptance of the repudiation of the employment contract by the applicant.
Conclusion
[70] In summary the tribunal considers the contract of employment of the applicant was repudiated by the applicant for reasons arising from his confusion as to the nature of his future role and availability of work. He was unwilling to continue his employment.
[71] This repudiation by the applicant was accepted by the respondent when it paid him his accruals and final pay subsequent to further contacts which were frustrated and inconclusive. The tribunal therefore finds that the termination of the applicant’s employment does not fall within the requirements of s.386(1) of the Act and therefore the application is dismissed.
COMMISSIONER
Appearances:
Mr A Wright for the applicant
Mr L Bais for the respondent
Hearing details:
Whyalla
2010:
23, 24 November
1 PN 99, 247-248
2 Submissions of applicant PN 2965
3 PN 79-80
4 PN 330
5 PN 368
6 PN 624
7 PN 160
8 Ex R2 Annexure BE3
9 Ex R2 Annexure BE4
10 Ex R2 Annexure BE1
11 PN 1971
12 PN 873
13 PN 1009
14 PN 1165-1166
15 PN 1198-1199
16 PN 1228
17 PN 1475
18 PN 1486
19 PN 1592
20 PN 1600
21 PN 527
22 PN 2102-2112
23 PN 2358, 2363, 2375
24 PN 1965-1966
25 PN 59-67
26 PN 2436
27 PN 67
28 PN 2252
29 Ex R2 Para 69
30 PN 2428
31 Ex R2 Para 70
32 PN 2478
33 PN 2466-2467
34 PN 2516-2522
35 PN 2516-2522
36 PN 2527
37 Ex R2 Para 76
38 PN 2528-2529
39 PN 2670
40 PN 2672
41 Ex R2 Annexure BE3
42 Ex R2 Annexure BE4
43 Ex R2 Para 91
44 PN 2009
45 Ex R2 Para 97
46 Ex R2 Para 102
47 Ex R4 Para 30-31
48 Ex R2 Annexure BE3
49 Ex R2 Annexure BE4
50 (2010) 194 IR 22 at para 21
51 Ibid at paras 22-23
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