Candice Nielsen v Wonderland Learning Centres Pty Ltd

[2021] FWC 451

[2021] FWC 451

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Candice Nielsen
v
Wonderland Learning Centres Pty Ltd
(U2020/9653)

DEPUTY PRESIDENT BEAUMONT PERTH, 27 APRIL 2021

Application for an unfair dismissal remedy.

1 Introduction

[1] On 29 June 2020, Wonderland Learning Centres Pty Ltd (Wonderland/the Centre) summarily dismissed Ms Candice Nielsen (Ms Nielsen) on the grounds of serious misconduct. Ms Nielsen applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The matter took some time to come to hearing due to the unavailability of the parties. However, once materials were filed, it was apparent there were several issues in play.

[2] Wonderland asserted it was a ‘small business employer’ within the meaning of s 23 of the Act. It raised a jurisdictional objection to the application on the ground that it had complied with the Small Business Fair Dismissal Code (Code) with the result that Ms Nielsen’s dismissal was consistent with the Code. However, in the event it was not a small business employer, Wonderland asserted it had a valid reason for Ms Nielsen’s dismissal and procedural fairness had been afforded during the process.

[3] The matter was somewhat complicated by the fact that Ms Nielsen was a director of the Centre, and the other director, a Mr Van Den Beuken, was her estranged husband. While their separation initially appeared to have had minimal impact on their work, a marked deterioration in their personal relationship ultimately was mirrored at work. The lack of trust between the two and a palpable animosity, gave rise to a series of events which culminated in Mr Van Den Beuken calling a director’s meeting, and absent Ms Nielsen, taking a vote where Ms Nielsen was removed from the Centre’s directorship. Subsequently, Mr Van Den Beuken would take the decision to dismiss her too. The basis for doing so – withdrawing $1000.00 from a bank account of the Centre and changing the signing authorities on the Centre’s bank accounts absent his consent or knowledge.

[4] For reasons that follow, I am satisfied that Wonderland complied with the Code in relation to Ms Nielsen’s dismissal, and therefore her application is dismissed. An Order 1 to that effect is issued with this decision.

2 Background

[5] Wonderland provides before and after-school care, and vacation care, for children. In 2010, it was up for sale. Ms Nielsen and her husband, Mr Van Den Beuken, purchased the business from the previous owners. Ms Nielsen had worked for the business prior to its sale, having established its kindergarten program.

[6] Following the purchase of Wonderland in 2010, Ms Nielsen continued her employment with the business and became an equal shareholder with her husband, Mr Van Den Beuken. 2 She said she worked Monday to Friday each week on a full-time basis.3 Her duties included being the contact person for the Centre together with Mr Van Den Beuken, meeting with external stakeholders, managing licensing, regulatory and standards issues, dealing with human resources issues, purchasing items for the Centre, planning activities for the Centre (including seasonal events) and providing child care at the Centre.4 As part of performing her work, Ms Nielsen had full access to most, if not all, of the information regarding the Centre.5

[7] Insofar as managing the human resources aspect of the business, Ms Nielsen gave evidence that she would handle those issues. This involved interviewing new staff, provision of documentation to the Australian Taxation Office, and dealing with performance and conduct issues. According to Ms Nielsen, Mr Van Den Beuken was responsible for setting up payroll and determining wages under the relevant award. 6

[8] Ms Nielsen explained that she was the ‘nominated supervisor’ of Wonderland with the Department of Communities under its Education and Regulatory Unit. 7 This was because she held a ‘supervisor certificate’. The responsibilities that came with that role included the responsibility for all licensing, regulatory and compliance issues.8

[9] The rostering of staff at the Centre was a task undertaken by Mr Van Den Beuken. 9 Ms Nielsen said that Mr Van Den Beuken would prepare the staff roster some three months in advance. Each roster would initially cover the upcoming public school term, which was ten weeks long. During a school term, Mr Van Den Beuken was said to provide updates or changes to the roster. When it came to the school holidays, Ms Nielsen said that she assisted Mr Van Den Beuken with the preparation of the roster.10

[10] Ms Nielsen gave evidence that towards the end of her employment, she received $5,130.00 (gross) per fortnight and a contribution of $487.35 per fortnight for superannuation. Whilst Wonderland had initially pressed that Ms Nielsen earned more than the high income threshold, it did not pursue that argument at hearing. Further evidence was given in the hearing that Ms Nielsen’s earnings amounted to $122,246.00 per annum with $35,675.00 attributable to tax. While Ms Nielsen was a director of the Centre, she received no compensation for the role in the form of Director’s fees. Other benefits included a mobile phone, motor vehicle, computer and printer – no attempt was made to quantify those benefits.

[11] On 3 September 2019, Ms Nielsen and Mr Van Den Beuken separated. Whilst Ms Nielsen moved out of the family home, she continued to work as the Director of the Centre and performed her usual employment duties – her role within the Centre remaining unchanged. 11

[12] Ms Nielsen opened a separate personal bank account, and her salary was directed to this account rather than the joint account she had previously shared with Mr Van Den Beuken. 12

[13] Ms Nielsen said she obtained legal advice in the early part of 2020 to the effect that any joint accounts with Mr Van Den Beuken should require joint authorisation to preclude Mr Van Den Beuken from moving the Centre’s funds absent Ms Nielsen’s consent. 13 However, it appears that she did not action anything at this time based on the advice received.

[14] According to Ms Nielsen, in March 2020, COVID-19 began to affect the Centre’s operations, which closed on 4 April 2020 until the latter part of April. 14 At this time, Ms Nielsen was diagnosed with non-Hodgkin’s lymphoma and was informed that this would require 18 weeks of chemotherapy, followed by periodic scans.15 Ms Nielsen was hospitalised for a period and on leaving hospital on 12 April 2020, was informed by Mr Van Den Beuken that he had started a new personal relationship.16

[15] Mr Van Den Beuken similarly gave evidence that by 20 March 2020, COVID-19 had begun to significantly impact attendance at the Centre. 17 Both he and Ms Nielsen decided to terminate the employment of five staff, and as of 3 April 2020, the Centre was closed, and the remaining staff, of which there were five, were stood down because of the pandemic.18 Ms Nielsen disputes she had a hand in deciding to terminate the employment of such staff.

[16] According to Mr Van Den Beuken, on 30 March 2020, Ms Nielsen advised him she had been diagnosed with cancer and was commencing chemotherapy. He said that she had informed him that as a consequence of her treatment, she would not be returning to the Centre until August 2020. 19 Mr Van Den Beuken said that he asked Ms Nielsen whether she wanted to do some of her own work from home but was informed by her that she wanted to focus on getting better.20

[17] Mr Van Den Beuken confirmed that on 12 April 2020, he informed Ms Nielsen that he had ‘recent personal company’. 21 He said that from that point on, verbal contact with Ms Nielsen would start pleasant and professional but would deteriorate into abuse from Ms Nielsen, at which point he would terminate the telephone call. Ms Nielsen denies that she engaged in abuse.

[18] On 20 April 2020, Mr Van Beuken received information that the Centre could re-open on 29 April 2020. He said that he discussed this information with Ms Nielsen and began preparation for the scheduled re-opening date. 22 As verbal communication between the two had deteriorated, Mr Van Den Beuken said he informed Ms Nielsen that he would give her a weekly email update on the Centre’s progress.23

[19] Ms Nielsen said that not long after being discharged from hospital she returned to work, performing her duties remotely due to her high risk status concerning COVID-19. Those duties included sending out reminders to parents about various events, reminding Mr Van Den Beuken of important dates, discussing the planning of future activities at the Centre and planning the Centre’s activities for the July 2020 school holidays. 24

[20] Ms Nielsen gave evidence that following her release from hospital and Mr Van Den Beuken establishing a new personal relationship, she was not provided with ‘open information about Wonderland’s operations’. 25 She no longer received regular updates, including those relating to the number of children at the Centre or bookings for upcoming days or activities.26 When a serious matter occurred which was relevant to her compliance role as the ‘Nominated Supervisor’, she was not notified.27 Ms Nielsen said that she wrote to Mr Van Den Beuken specifically requesting updates on issues.28

[21] Mr Van Den Beuken stated that he provided updates about the Centre to Ms Nielsen on 1 May, 6 May, 17 May, 22 May and 26 May 2020. 29 However, in the email trail tendered is an email from Ms Nielsen dated 20 May 2020, in which she states, ‘ Hey… I’m still waiting for the programs to me and it’s now 2half weeks with no update!! Feeling like u want me out of the running of our company’.30 Mr Van Den Beuken noted that it was apparent that an update was not sent so it was addressed on 20 May 2020.

[22] Ms Nielsen said that she became concerned that Mr Van Den Beuken was reducing her access to information about the Centre and was effectively edging her out of the business. 31 She said that she mentioned this to Mr Van Den Beuken in two separate emails on 20 May 2020 and 15 June 2020.32

[23] In mid-May 2020, Ms Nielsen visited the ANZ Bank and discussed with the bank making the joint business accounts, of which there were three, subject to joint signatures. At that time there were three persons authorised to perform transactions for the three accounts without the express authority of the other persons. Those persons included Ms Nielsen, Mr Van Den Beuken, and Ms Katie Van Den Beuken. Ms Van Den Beuken, Mr Van Den Beuken’s sister, was not a director or shareholder in the Centre but was authorised to supervise the Centre while Ms Nielsen was away. 33

[24] It was Ms Nielsen’s evidence that on the day of visiting the bank in May 2020, she called Mr Van Den Beuken, suggesting that joint signatures might be a good way for things to be handled. However, according to Ms Nielsen, Mr Van Den Beuken told her it would not be good for the Centre as it would make life harder ‘for us’. 34

[25] Mr Van Den Beuken stated that on 2 June 2020, he met with Ms Nielsen to discuss the ongoing deterioration in communication. Following that meeting, he provided another update on the Centre. 35 Yet, on 3 June 2020, Mr Van Den Beuken noted that Ms Nielsen came to see her sick child who was residing with him at that time. It was Mr Van Den Beuken’s account that at this time, Ms Nielsen became aggressive and tried to take personal documents from his home. He said that he contacted the police, who attended. According to Mr Van Den Beuken, the police removed Ms Nielsen from the matrimonial home; however, an agreement was made that he would make copies of the documents – both personal and business, relevant to Ms Nielsen, and provide them to her at 8 am the following morning.

[26] Ms Nielsen’s account as to what occurred on 3 June 2020 was markedly different to that of Mr Van Den Beuken. She spoke of seeking the papers for the Nissan X-trail and asking to view them in the lounge. At that point, she says, Mr Van Den Beuken blocked her exit from the office and would not let her leave until she put the papers down. Ms Nielsen’s mother, who was present, was said to have called the police. Ms Nielsen also disagrees with Mr Van Den Beuken’s account of how the business and personal documents would be provided to her.

[27] Ms Nielsen noted that Mr Van Den Beuken sent out the program for the July 2020 school holidays but had removed her contact details from the program. 36 Ms Nielsen expressed that this concerned her as the school holiday planning and the communication to the parents was usually part of her role.37 She contacted Mr Van Den Beuken regarding her concern.38 Not long after, Mr Van Den Beuken was said to have finalised the July 2020 school holidays staff roster without Ms Nielsen’s input. Again, formulating the school holiday roster had usually formed part of Ms Nielsen’s role.39

[28] However, according to Mr Van Den Beuken he had, on 16 June 2020, sent to Ms Nielsen an email requesting her input into the July School Holiday Program to alleviate her concerns about being absent from the business. 40 Whilst the two discussed a change to the program and that was agreed upon, there was disagreement about the contact person. Mr Van Den Beuken said that he informed Ms Nielsen that he would put his number on the flyer as the contact person for this edition of the program only.41 It was Mr Van Den Beuken’s evidence that Ms Nielsen became irate and the phone call was terminated a short time later.42 Mr Van Den Beuken said that he emailed Ms Nielsen on 17 June 2020 reiterating the reason for placing his name on the program flyer.

[29] Come 17 June 2020, Ms Nielsen said that Mr Van Den Beuken had told her to stop answering the Centre’s emails. At this time, Mr Van Den Beuken informed Ms Nielsen that he had changed the childcare booking system. While Ms Nielsen noted that she disagreed with Mr Van Den Beuken’s instruction, she stopped answering emails temporarily as she did not want matters to escalate. 43 However, Ms Nielsen said that she did send Mr Van Den Beuken an email noting that the booking system had been in place for 10 years without issue.44

[30] Mr Van Den Beuken appeared to agree that he had informed Ms Nielsen to stop remotely managing bookings. 45 His evidence was that there was a doubling up of communication from the Centre to clients as the staff member at the Centre could not see that Ms Nielsen had responded to those same clients. Furthermore, according to Mr Van Den Beuken, Ms Nielsen was accepting bookings, but they were not being entered into the booking system, and she was not responding to emails fulsomely. Emails sent between the two indicate this as an issue that culminated in Mr Van Den Beuken sending an email to Ms Nielsen on 17 June 2020, where he again explained the additional workload arising from Ms Nielsen’s answering of the emails in addition to the unprofessional conduct by not fulsomely responding to client emails.

[31] Having engaged in an email exchange for part of the day on 17 June 2020, Mr Van Den Beuken observed that Ms Nielsen was still active in the email system, so he used the Centre’s email control panel to revoke her access to the server. 46

[32] On 18 June 2020, Ms Nielsen tried to check her emails and saw that she could not access them. She was worried there was a technical issue, so she rang Mr Van Den Beuken. It was purported that he informed her that there was no technical issue, but he had blocked her email access because she was ‘getting too involved’. 47 Mr Van Den Beuken confirms he informed Ms Nielsen of the same. Later that day Ms Nielsen sent Mr Van Den Beuken two emails requesting that her email access be restored.48

[33] Mr Van Den Beuken gave evidence that Ms Nielsen called him, and he asked Ms Nielsen to confirm that she would stop trying to remotely manage bookings so that he could return her access to the email system. 49 Mr Van Den Beuken said that Ms Nielsen threatened to change the Centre’s bank account if he didn’t return her access to the email system before ending the call.50

[34] This appears to have been the catalyst for Ms Nielsen to go to the bank on 18 June 2020 and change the authority on the Centre’s bank account(s) to require three signatures to transact (her’s, Mr Van Den Beuken and Ms Van Den Beuken), or at the very least, her’s and Mr Van Den Beuken. While Ms Nielsen said she informed Mr Van Den Beuken that she was going to do this, the issue was contentious. 51

[35] Ms Nielsen was asked at hearing whether she had notified Mr Van Den Beuken that she was changing the bank accounts. When it was stated to her that she had not, she noted that this was incorrect and that she had rung Mr Van Den Beuken when arranging for joint signatories. In his witness statement, Mr Van Den Beuken said that on 18 June 2020, Ms Nielsen had called him, and he had asked her to confirm that she would stop remotely managing bookings. He went on to state that Ms Nielsen ‘threatened to change the business bank account if I don’t return her access to the email system before ending the call’. 52 Ms Nielsen gave evidence that as soon as she got to the bank (approximately 10.37 am) she informed Mr Van Den Beuken that she was at the bank and was going to change the business bank account to joint signatories.53 It was Ms Nielsen’s recollection that Mr Van Den Beuken said, ‘I don’t believe you’ll do this’.54

[36] When it was suggested to Ms Nielsen that she had not informed Mr Van Den Beuken about changing the authorities on the Centre’s bank accounts, but simply had threatened to do that and then hung up the phone, Ms Nielsen replied that Mr Van Den Beuken was well aware that she was going to change the authorisation to joint signatories. She also noted it was incorrect to say that she had made a threat, again referring to the bank’s procedures to notify Mr Van Den Beuken. At paragraphs [219]-[221] of her witness statement, Ms Nielsen states:

[219] I warned Adam after my visit to the bank in May 2020 that I was considering making the Wonderland accounts require joint authorisation.

[220] I notified Adam of my intentions prior to visiting the bank in June 2020.

[221] The bank also informed me that they made a number of attempts to contact Adam directly regarding the change.

[37] Ms Nielsen acknowledged that she did not get any confirmation from the bank that Mr Van Den Beuken had been contacted by them to inform him of the change to the Centre’s account. She expressed that there was no need to, as Mr Van Den Beuken was aware of what she was doing - presumedly, when Ms Nielsen was in the line in the bank.

[38] While Mr Van Den Beuken spoke of having been contacted by Ms Nielsen later in the day on 18 June 2020 and informed again that she would change access to the Centre’s bank accounts if he did not change the emails back, 55 Ms Nielsen stated that this was not correct, noting that by 11 am, the bank had changed the business accounts to joint signatories. Ms Nielsen volunteered that she had made this request so as to protect her interests as 50% owner of the business.56

[39] At the bank, Ms Nielsen decided to withdraw $1000.00 from the business account to cover Centre expenses that she would otherwise have to pay out of her own money. Ms Nielsen explained that based on Mr Van Den Beuken’s previous behaviour, she was concerned that Mr Van Den Beuken would withhold consent for her to access funds and would not pay her salary, in retaliation for her actions.

[40] Ms Nielsen expressed that she was authorised to withdraw the $1000.00 from the Centre’s account as she was a person named on the account, and at the time, was a director of the Centre. 57 Ms Nielsen stated that using the Centre’s funds to pay for work-related expenses was something she frequently did in her work at the Centre.58

[41] Ms Nielsen observed that after she had approved for triple authorisation to use the Centre’s bank accounts, they were still being used absent her authority. 59 She called the bank on 22 June 2020 and asked them to disable the Centre’s business cards (presumably bank cards).60

[42] According to Ms Nielsen, the Centre’s staff were due to be paid on 22 June 2020 or 23 June 2020, the pays having been processed on the day before. 61 Ms Nielsen said that she had expected that over the weekend of 20 and 21 June 2020, Mr Van Den Beuken and her would make arrangements to attend the bank together on the next business day to authorise the funds to pay the staff members.62 However, Mr Van Den Beuken did not contact her.

[43] On 19 June 2020, Mr Van Den Beuken sent an email to Ms Nielsen regarding a meeting scheduled for 22 June 2020. The purpose of the meeting appeared to be to discuss the management of the Centre going forward. 63 While the email spoke of having an agenda attached, Ms Nielsen said that was not the case.64 On reading the email on 20 June 2020, Ms Nielsen said she responded by calling Mr Van Den Beuken and texting him, but she received no response.65

[44] Mr Van Den Beuken confirmed that he sent an email to Ms Nielsen on 19 June 2020 advising her that he had called a meeting for 22 June 2020 about the management of the Centre going forward. 66 It was Mr Van Den Beuken’s account that he was concerned about the effect the deterioration in cooperation was having on the business.67

[45] Email correspondence then ensued between Ms Nielsen and Mr Van Den Beuken. In short, Ms Nielsen expressed an inability to meet on 22 June 2020 and Mr Van Den Beuken rescheduled the meeting to 23 June 2020, as requested by Ms Nielsen. Ms Nielsen declined to meet on 23 June 2020, noting that she had an appointment and proposed the alternate meeting time of 25 June 2020. Mr Van Den Beuken declined to meet on 25 June 2020 and instead scheduled the meeting for 24 June 2020. In the process, he declined to conduct the meeting by video conference on the basis it would not be appropriate as Ms Nielsen was needed to sign things. 68

[46] It was on 22 June 2020, after Mr Van Den Beuken had confirmed that a meeting on 23 June 2020 was suitable, that he began processing payroll for staff. 69 Mr Van Beuken detailed that he was unable to perform any of the Centre’s banking transactions and his sister, Ms Van Den Beuken, was similarly restricted.70 He contacted the ANZ Bank and was told that the Centre’s accounts had been changed to a two-to-sign by Ms Nielsen and could not be operated by any method. Mr Van Den Beuken said he was informed that the two-to-sign authorisation meant that the Centre could not issue an Eftpos card and that Internet Banking for Business was required to set up online payments, instead of standard online banking.71 Mr Van Den Beuken used his own personal funds to pay the salaries.72

[47] Mr Van Den Beuken said that he checked the online banking and noticed that Ms Nielsen had withdrawn $1000.00 cash on the Thursday, the week before. 73 Mr Van Den Beuken observed that Ms Nielsen had not attempted to deliver the $1000.00 cash or resources (presumedly purchased with the cash).

[48] Ms Nielsen gave evidence that to the best of her understanding, Mr Van Den Beuken held a ‘Director’s Meeting’ on 24 June 2020, 74 at which Ms Nielsen was purportedly removed as a director of the Centre. At that same meeting, Ms Cathy Fulwood, a childcare worker and supervising officer of the Centre, attended, as did Ms Van Den Beuken. Ms Nielsen notes that the minutes of the Director’s Meeting of 24 June 2020 indicate that Ms Fulwood informed those in attendance at the meeting that Ms Nielsen was aware of the meeting and had informed her that she had no intention of attending.75 Ms Nielsen’s evidence was that she had not been provided with notice of the meeting, Mr Van Den Beuken had not confirmed the agenda and she had not been notified that a resolution would be sought removing her as a director at that meeting.76

[49] Mr Van Den Beuken explained that he informed Ms Nielsen on 23 June 2020 that he could not meet on the Thursday, and the meeting needed to be held sooner rather than later. 77 He further advised Ms Nielsen that Ms Van Den Beuken and Ms Fulwood had been instructed to attend the meeting on 24 June 2020.

[50] After sending the email to Ms Nielsen, Mr Van Den Beuken was informed by his sister that he needed to call Ms Fulwood. He contacted Ms Fulwood, who informed him that Ms Nielsen had told her that there was not going to be a meeting on 24 June 2020 but that he was not to know that, and that if Ms Fulwood was instructed to attend a meeting, she was simply not to show up. 78 Ms Fulwood was said to have informed Mr Van Den Beuken that Ms Nielsen had informed her not to inform Mr Van Den Beuken or his sister about their conversation. Ms Nielsen denies having such conversation with Ms Fulwood.

[51] Mr Van Den Beuken said he then contacted the Australian Securities and Investment Commission as he did not know how to fix the accounts if Ms Nielsen was refusing to meet. 79 Mr Van Den Beuken said that he was informed that there were two breaches of the Corporations Act, and he needed to lodge a formal complaint as soon as possible. He was also informed of a possible criminal offence. Mr Van Den Beuken noted that he was in addition, provided with guidance on how to remove directors. Mr Van Den Beuken saw that removing Ms Nielsen as a director would limit the potential for her to continue causing damage and allow him to revert the Centre’s accounts to normal should she not attend the meeting to resolve the crisis.80

[52] However, at hearing, Mr Van Den Beuken conceded that Ms Nielsen had authority to withdraw the $1000.00 from the Centre’s account if she put it to the correct purpose. He did not think it a criminal offence. However he continued that it was more about Ms Nielsen’s intention for the withdrawal of the money. He clarified that the Centre did not rely upon the withdrawal of the $1000.00 but rather Ms Nielsen’s reason for withdrawing the money, which Mr Van Den Beuken said was not to spend it on the Centre.

[53] Mr Van Den Beuken expressed that having withdrawn $1000.00, Ms Nielsen should have come straight to the Centre and bought food and fuel, but she had not come anywhere near the Centre for just on four months.

[54] On 23 June 2020, Ms Nielsen’s legal representative had sent Mr Van Den Beuken a letter regarding various issues. 81 The letter traversed:

a) Ms Nielsen’s inability to attend a meeting that week;

b) that the meeting would need to be postponed for a month unless otherwise agreed, pursuant to the Centre’s Constitution;

c) a request for a meeting agenda;

d) the reinstatement of Ms Nielsen’s email access to the Centre to enable Ms Nielsen to participate in the Centre’s operations;

e) Ms Nielsen’s concerns that her access to the Centre and its information was being obstructed and frustrated; and

f) noted various statutory provision, including the right of Ms Nielsen to access the Centre’s book in accordance with the Corporations Act 2001 (Cth).

[55] Mr Van Den Beuken confirmed he received the letter of 23 June 2020. Ms Nielsen said that she did not receive a response to the letter of 23 June 2020 that had been sent to Mr Van Den Beuken, and as such, no meeting was agreed upon, and the issues raised by her legal representative were not resolved. A follow up letter, requesting a response to the letter of 23 June 2020 was sent by Ms Nielsen’s legal representative on 26 June 2020. 82

[56] On 24 June 2020, Mr Van Den Beuken convened a meeting with Ms Van Den Beuken and Ms Fulwood. Ms Nielsen did not present for the meeting. Mr Van Den Beuken said that during the course of the meeting, Ms Nielsen was removed as a director. Ms Fulwood was subsequently appointed as a director.

[57] Mr Van Den Beuken gave evidence that he reviewed the Code and analysed rosters and payroll information to calculate that the Centre had nine employees employed on a regular and systematic basis and a further five employees currently active in payroll but who had not worked for five months. 83 Mr Van Den Beuken said he completed the ‘Fair Dismissal Checklist’ and was satisfied that Ms Nielsen’s conduct warranted summary dismissal – noting any other forms of dismissal would have delayed his ability to return the business accounts to full operation and given Ms Nielsen the opportunity to cause further damage.84

[58] Mr Van Den Beuken said that he prepared Ms Nielsen’s letter of termination and posted it without delay.

[59] On 29 June 2020, Ms Nielsen received a letter dated 24 June 2020, which notified her of her termination of employment. The letter of termination cited that ‘[U]pon advice from the Australian Securities and Investments Commission (ASIC) your appointment as a Director of the Company has been removed due to Director Misconduct’. 85 Whilst the letter of termination did not specify the misconduct, Ms Nielsen said that based on what she was informed by her legal representative, who had spoken to Mr Van Den Beuken’s legal representative, she had resigned as a director because of two breaches – the withdrawal of $1000.00 ‘without consent’ and ‘deliberately interrupting the payment of staff’.

[60] Ms Nielsen had contacted the ANZ Bank on 25 June 2020 regarding the Centre’s bank accounts. She was informed that Mr Van Den Beuken had removed her from the bank accounts because she was no longer a director of the Centre. 86

[61] Insofar as the staffing of the Centre was concerned, it was Ms Nielsen’s account that she was unsure of the exact number of employees at the Centre at the time of her dismissal. 87 However, she appeared to be aware that the Centre had at least some staff with regular shifts, including Mr Van Den Beuken, but the actual number of employees could be higher than the number advanced by the Centre.88

3 Submissions of Ms Nielsen

[62] Ms Nielsen’s position is that she is protected from unfair dismissal given her length of service and that her annual rate of earnings was less than the high income threshold at the relevant time. Insofar as she was ‘dismissed’, Ms Nielsen considers that the decision to terminate her employment was taken only by Mr Van Den Beuken and not at the directors’ meeting, where another director was appointed.

[63] Ms Nielsen appeared to question whether she had been dismissed given that there were two equal shareholders of the Centre, two equal directors (of which she was one), neither director was appointed as the managing director – and the decisions in the past about hiring and firing of staff were always worked on by Ms Nielsen and Mr Van Den Beuken together. Ms Nielsen submitted that at no stage, as a director of the Centre, was she consulted, and the meeting held on 24 June 2020 was not a true director’s meeting, it was a management meeting. It was evident that in the meeting of 24 June 2020, a decision was not made by Ms Fulwood and Mr Van Den Beuken to terminate Ms Nielsen’s employment.

[64] When it came to the reason for her dismissal, Ms Nielsen understood that the Centre had given two reasons. The first, her withdrawal of the $1000.00 from the Centre’s bank account, and the second, the change in authorisation on the Centre’s bank accounts. When one referred to Regulation 1.07 on what constitutes serious misconduct, it required wilful and deliberate conduct that was inconsistent with the contract of employment. Ms Nielsen’s position was that this had not been met.

[65] Ms Nielsen admits that on 18 June 2020, she withdrew $1000.00 on from the Centre’s bank account. However, she said that she did so in her capacity as a director of the Centre and was therefore authorised to do so for the purpose of making day to day purchases. It was Ms Nielsen’s view that there was clear evidence that she had every authority to withdraw the $1000.00, and at the time of dismissal, she had not expended the money at all. To the extent that it proved relevant, she noted that any money not spent on the Centre was returned. It was not, she said, a ground that warranted termination as there was no misconduct.

[66] Concerning the second reason for her dismissal, Ms Nielsen referred to the context in which the action to change the authority on the Centre’s bank accounts was taken. The situation was such, said Ms Nielsen, where there were two equal directors, they had separated, she had moved out of the family home, for many months both her and Mr Van Den Beuken had worked cooperatively, but then things went wrong. There was a lack of trust between her and Mr Van Den Beuken, and she held corporate governance concerns, which extended to Mr Van Den Beuken’s sister being able to simply go to the Centre’s bank account and withdraw money at any time.

[67] Whilst Ms Nielsen changed the authority on the Centre’s bank accounts, she claimed that there was no evidence that it caused discomfort, and the employees did not miss out on their pay. In Ms Nielsen’s view there was no reason why Mr Van Den Beuken could not have spoken to her on the Monday or Tuesday of pay week, to see what could have been done.

[68] In short, Mr Van Den Beuken had made the decision to terminate her employment when he had no right to do that. The termination letter did not explain what the misconduct was and Mr Van Den Beuken chose not to communicate with Ms Nielsen concerning her dismissal other than by ordinary mail. Having received the letter of termination on 29 June 2020, that was the date of the termination of her employment.

[69] Ms Nielsen pressed that she was entitled to relief and that in all the circumstances reinstatement was obviously not appropriate. It followed that she sought the maximum compensation permitted under the Act.

4 Submissions of Wonderland

[70] Wonderland submits that, at the relevant time, it was a ‘small business employer’ as that term is understood in the Act. It had nine employees, with five other staff members working on a casual basis – albeit that they had not worked for 5-6 months. Even if the five employees had an expectation of ongoing employment, said Wonderland, the absolute maximum number of employees there could be was 14, inclusive of Ms Nielsen and Mr Van Den Beuken.

[71] The Centre continued that Ms Nielsen was given notice that there was to be a meeting on 24 June 2020 and according to Ms Fulwood, Ms Nielsen was aware of this meeting. It was noted that Ms Fulwood’s evidence was that she was informed by Ms Nielsen not to attend the meeting and not to inform Mr Van Den Beuken that she had made such a request of Ms Fulwood.

[72] The Centre pressed that Ms Fulwood was duly appointed as a director and Ms Nielsen had been removed as a director of the Centre by the time she was dismissed. While Ms Nielsen appeared to be asserting that her dismissal and removal as a director was based on Mr Van Den Beuken retaliating for having received a letter from Ms Nielsen’s family lawyers, the Centre asserted that the contention could not be sustained as the application and witness statement manifested a timeline, which from a chronological point of view – made the argument impossible to sustain.

[73] Insofar as Ms Nielsen’s conduct was concerned, she had made changes to the bank accounts of the Centre and did not notify that the changes had been made. She had sent text messages to Ms Fulwood asking if she had been paid and, in doing so, was checking up to see if her time bomb had gone off – meaning that the change of accounts meant that no one could be paid.

[74] If Ms Nielsen was simply making changes to ensure the Centre’s business ran smoothly and in a different manner, she would have immediately identified the change in place, informing Mr Van Den Beuken, rather than setting in place the change and waiting for trouble to strike.

5 Agreed matters

[75] It was not pressed by either party that the dismissal was by way of genuine redundancy. 89 Further, I am satisfied that Ms Nielsen’s application was made within the required period as prescribed in s 394(2) of the Act. Neither party took issue with Ms Nielsen being protected from unfair dismissal. From the evidence provided, there was an agreement between the parties that Ms Nielsen’s annual rate of earnings and any other amounts were less than the high income threshold. However, from the evidence filed, it is difficult to discern whether it was actually the case that such earnings and other amounts were less than the high income threshold.

[76] However, having considered the evidence and submissions of both the Centre and Ms Nielsen regarding her duties, responsibilities, experience and qualifications, I am satisfied that she was covered by the Children’s Services Award 2010. 90

6 Was the Centre a small business employer?

[77] Having considered the evidence, I am satisfied that the Centre was a ‘small business employer’ as defined in s 23 of the Act for the following reasons. Mr Van Den Beuken was responsible for the rostering of employees and was therefore aware of the number of employees employed by the Centre. The evidence of Ms Nielsen was that at all times during their employment, it had been Mr Van Den Beuken who compiled the rosters – notwithstanding that Ms Nielsen attended to other human resourcing tasks.

[78] In an email dated 26 May 2020, Mr Van Den Beuken wrote to Ms Nielsen advising her of the staff roster for the rest of the term. Given the date of the email and its contents, in addition to the evidence of both Mr Van Den Beuken and Ms Nielsen, I am satisfied that there were less than 15 employees at the relevant time.

[79] Whilst Ms Nielsen gave evidence that she was unsure of the exact number of employees at the Centre at the time of her dismissal, 91 she drew the Commission’s attention to the Annual Information Statement 2019, Australian Charities and Not-for-profits Commission, for Wonderland (Information Statement). The Information Statement set out the Centre had two full-time employees and 15 casual employees. However, as the Centre had not submitted an Information Statement for the current year – 2020, the document did not assist in illuminating the number of employees for the relevant time.

[80] As I have found the Centre was a small business employer, it follows that the question to be presently resolved is whether it was compliant with the Code at the time of Ms Nielsen’s dismissal. Given the factual matrix presented, the focus initially rests on the Summary Dismissal aspect of that Code.

7 Was there compliance with the Code?

[81] Before considering the merits of an unfair dismissal application, the Commission is obliged to determine initial matters, one of which includes whether the dismissal was consistent with the Code. A person has not been unfairly dismissed where the dismissal is consistent with the Code. Of course, the Code is only relevant if the employer is a small business as defined in s 23 of the Act – which has been determined to be the case.

[82] The Code itself considers two types of dismissal and guidance on procedure. It provides:

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[83] The ‘Summary Dismissal’ section of the Code applies to dismissals that have ‘immediate effect’ as that term is understood by reference to the decision in Ms Li Li Chen v Australian Catering Solutions Pty Ltd T/A Hearty Health, 92 and are not dismissals on notice.93

[84] In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services (Ryman), a decision followed by subsequent Full Benches, 94 a useful synopsis of the proper approach to the construction and application of the Summary Dismissal aspect of the Code and its interaction with Regulation 1.07 of the Fair Work Regulations 2009 (Cth) (Regulations) was provided.

[85] In Ryman, the Full Bench considered the meaning of ‘summary dismissal’ and said that it referred to a dismissal without notice arising from ‘a breach of an essential term of the employment contract, a serious breach of a non-essential term or the contract, or conduct manifesting an intention not to be bound by the contract in the future on the part of the employee’. 95

[86] However, it is not the case that under the Code the Commission has to be satisfied that serious misconduct was the basis for the dismissal. 96 Rather, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal and one must also consider whether that belief was based on reasonable grounds.97 This element, which has been described as the second element,98 incorporates the concept that the employer has carried out a reasonable investigation into the matter.99 It is not necessary to determine whether the employer was correct in the belief that it held.100 Whether the employer had ‘reasonable grounds’ for the relevant belief is of course to be determined objectively.101

[87] The focus on ‘serious misconduct’ must be taken as identifying the subject matter and it appears to be accepted that this term gleans its meaning from s 12 of the Act and thereafter Regulation 1.07 of the Fair Work Regulations 2009 (Cth). 102

[88] In applying these requirements, I must also have regard to the procedural matters highlighted within the Code.

[89] If Ms Nielsen’s dismissal was consistent with the Code, it cannot be considered to be unfair within the meaning of the Act.

8 Consideration

[90] The Centre communicated to Ms Nielsen that her employment was terminated for misconduct and that the termination would take effect immediately. While the termination letter did not refer to ‘serious misconduct’, it nevertheless made it clear that a notice period would not be provided. In my view it was evident from the materials filed that Ms Nielsen had been dismissed, it was on a summary basis, and the reason for dismissal was misconduct – albeit the type was not particularised.

[91] Ms Nielsen questioned whether Mr Van Den Beuken had authority on behalf of the Centre to make the decision to dismiss her, and on that basis, she questioned the validity of the dismissal. Effectively, she questioned whether she had been dismissed. However, this issue was not expanded upon in her written submissions which were premised on an acceptance that her employment had been terminated at the initiative of the employer. Ms Nielsen purported that she was notified of her dismissal on 29 June 2020, the date on which she received the letter of termination. Further, Ms Nielsen’s actions tell of a person who considered that her employment had been ended, noting that she brought the unfair dismissal application within the requisite statutory period.

[92] The question turns to whether the Centre complied with the Code under its ‘Summary Dismissal’ provision. In assessing whether there was such compliance, it is necessary first to determine whether the Centre genuinely held the belief that Ms Nielsen’s conduct was sufficiently serious to justify immediate dismissal. It is self-evident that the belief held by the Centre can only relate to the conduct of Ms Nielsen about which the Centre was aware at the time of the dismissal’. 103

[93] Leaving aside at this juncture the issue of the $1000.00 withdrawal at the time of Ms Nielsen’s dismissal, it was evident that Mr Van Den Beuken was aware of Ms Nielsen’s conduct concerning the change to the authorisation of the Centre’s bank accounts.

[94] According to Mr Van Den Beuken, on 18 June 2020, he received a phone call from Ms Nielsen in the morning about the revocation of her email access. Discussion between the two followed in a separate call on that same day. In short, Mr Van Den Beuken recounts asking Ms Nielsen to confirm she would stop trying to remotely manage bookings, and if she did so, he would reactivate her email access. It was at this point, said Mr Van Den Beuken, that Ms Nielsen had threatened to change the authority on the Centre’s bank account if he did not return her access to the email system. About three hours after that phone call, Ms Nielsen purportedly called Mr Van Den Beuken back, she reiterated that she would change Ms Van Den Beuken’s access to the business bank accounts if he did not change the emails back. In this phone call, Mr Van Den Beuken said he again asked Ms Nielsen whether she would cease managing bookings remotely. She terminated the call.

[95] Whilst there is a glaring disparity between Ms Nielsen’s account and Mr Van Den Beuken’s account regarding the purported phone call in the afternoon of 18 June 2020, what is evident is that on the morning of 18 June 2021, Ms Nielsen conveyed information whether by way of ‘threat’ or notification, that she intended to change the signing authority on the Centre’s bank accounts.

[96] It was Mr Van Den Beuken’s evidence that he did not take Ms Nielsen’s assertion about the change of business bank accounts seriously. He cited several reasons why, all of which pertained to the former couple's interactions on a more personal front. These are unnecessary details, save to say that Ms Nielsen disputes those ‘reasons’.

[97] In Ms Nielsen’s witness statements, she went to lengths to detail her actions and communications on 18 June 2020 in relation to the visit to the ANZ Bank. Furthermore, she provided detail as to why she was motivated to vary the signing authority on the Centre’s bank accounts. 104

[98] However, what is resoundingly absent from those actions and communications is evidence of Ms Nielsen confirming to Mr Van Den Beuken that the signing authority on the Centre’s bank accounts had been changed, the implications this had for the Centre going forward, and the making of arrangements with Mr Van Den Beuken to ensure that payroll obligations were met within the requisite period.

[99] The evidence of Ms Nielsen was that she had checked with the bank and that they had told her they had called Mr Van Den Beuken several times, but he had not answered their calls. 105 Ms Nielsen’s oral testimony reveals a narrative that she did not receive confirmation from the bank that they had contacted Mr Van Den Beuken, and she considered there was no need for her to do so, as he was well aware of what she was doing when she was in line at the bank. When it was proposed to Ms Nielsen that having changed the signing authority on the Centre’s accounts, she did not communicate that to Mr Van Den Beuken, Ms Nielsen reiterated that he was well aware about the joint signatories. In short, Ms Nielsen gave evidence that it was the bank’s procedure to notify Mr Van Den Beuken.

[100] While there was further correspondence between the two over the course of 19 June 2020 to 22 June 2020, it was Mr Van Den Beuken’s evidence that no further correspondence from Ms Nielsen was received about the Centre’s bank accounts and the joint signatory authorisation.

[101] Ms Nielsen knew that the Centre’s staff were due to be paid on 22 June 2020 or 23 June 2020, 106 and she had expressed an expectation that over the weekend of 20 and 21 June 2020, Mr Van Den Beuken would make arrangements to attend the bank with her on the next business day to authorise the funds to pay the employees.107

[102] Ms Nielsen knew that come 22 June 2020, Mr Van Den Beuken would be unable to perform transactions on the Centre’s accounts to pay the Centre’s employees, yet she took no step to facilitate an arrangement to ensure the pays were transacted. While Ms Nielsen gave evidence that she took the steps she did to protect her interests as 50% owner of the business, 108 it was open to her to do so whilst still ensuring that the Centre could meet its obligations to pay its employees.

[103] Ms Nielsen purported that the change in authority on the Centre’s bank accounts caused no discomfort and the employees did not miss out on their pay. However, the assertion fails to appreciate the steps taken to militate the impact on employees, including the provision of pay from Mr Van Den Beuken’s personal account. Simply put, Ms Nielsen’s assertion belies the seriousness of her actions and is removed from the reality of the Centre’s circumstances at that time.

[104] Based on Ms Nielsen’s evidence, 109 it was open to find she was cognisant of the potential impact her action of changing the signing authority on the Centre’s accounts would have. Her text message on 22 June 2020 to Ms Fulwood of ‘hey let me know if you get paid or if you don’t’, shows, in my view, an awareness that employees of the Centre may not be paid, as and when their pay fell due.

[105] However, returning to the issue of the change in signatories, it is not the case that Wonderland is required to establish serious misconduct as the basis for Ms Nielsen’s dismissal. What is required is that it held a belief that the Ms Nielsen’s conduct was sufficiently serious to justify immediate dismissal and that the belief was based on reasonable grounds.

[106] Whether Mr Van Den Beuken’s belief that Ms Nielsen’s conduct was sufficiently serious to justify immediate dismissal requires consideration of whether the belief was based on reasonable grounds. This relevantly incorporates that the employer has carried out a reasonable investigation into the matter.

[107] Mr Van Den Beuken was cognisant of the communication he had with Ms Nielsen on 18 June 2020 regarding her assertion that she would change the signing authority on the Centre’s accounts. While initially forming the view that Ms Nielsen would not take such action, having attempted to process the payroll for the Centre on 22 June 2020, he realised he was unable to do so. Thereafter, he attempted to run the Centre’s payroll via Ms Van Den Beuken, but again was unable to do so. The evidence given was that he contacted the bank on 22 June 2020 and was informed that Ms Nielsen had made a change of ‘two to sign’.

[108] Mr Van Den Beuken did not take steps to dismiss Ms Nielsen at that point on 22 June 2020. Instead, he sought to meet with Ms Nielsen to sort the situation. The evidence shows disagreement between Mr Van Den Beuken and Ms Nielsen about a meeting date. However, at all times from 18 June 2020, it remained open for Ms Nielsen to have facilitated arrangements to ensure the payment of employees. She did not take such steps. Instead, she made two enquiries. One, in a text to Ms Fulwood on 22 June 2020 to ascertain if Ms Fulwood had been paid, and another via her lawyers on 23 June 2020.

[109] Mr Van Den Beuken said that having completed the ‘Fair Dismissal Checklist’ he was satisfied that Ms Nielsen’s conduct warranted summary dismissal, noting that other forms of dismissal would have delayed his ability to return the Centre’s accounts to full operation and cease Ms Nielsen’s opportunity to cause further damage.

[110] On an objective level, it is open to finding that Mr Van Den Beuken had ‘reasonable grounds’ for holding the belief that Ms Nielsen was conducting herself in a manner that was harmful to the continued operations of the Centre.

[111] Mr Van Den Beuken’s belief that Ms Nielsen had acted in a manner which had caused disruption to the Centre’s operation was a reasonable belief in light of the change to the signing authority for the bank accounts in circumstances where Mr Van Den Beuken was not notified the change had been made, and Ms Nielsen had not taken steps to make alternative arrangements to ensure employees were not impacted by her actions. Understandably, Ms Nielsen sought to protect her interests in the business. However, the steps she took manifested a disregard of the Centre’s interests.

[112] The evidence supports the finding that Mr Van Den Beuken had enquired into the actions taken by Ms Nielsen by first attempting to transact using Ms Van Den Beuken’s account and thereafter contacting the bank. While he had attempted to meet with Ms Nielsen to discuss the management of the business, Mr Van Den Beuken was met with opposition from Ms Nielsen concerning the date proposed, and on 23 June 2020, he received correspondence from Ms Nielsen’s legal representatives regarding issues concerning the Centre. While that correspondence noted that Mr Van Den Beuken had not provided Ms Nielsen with information about ‘which bank account staff wages were paid on 22 June 2020’, the letter evinced no proposition to facilitate arrangements so that the Centre could pay its employees from its own bank accounts. While Ms Nielsen appears to have formed the expectation that Mr Van Den Beuken would contact her to facilitate arrangements, the expectation was misplaced given it was her conduct that gave rise to the circumstance that pays could not be made from the Centre’s account. While Ms Nielsen may have been acting in her interests, it was open to Mr Van Den Beuken to form the view that she was not acting in the interests of the Centre.

[113] Serious misconduct as understood in the Code, takes its meaning from Regulation 1.07 and in doing so includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the employment contract. In light of my aforementioned consideration of the matter, I consider there was credible basis for a belief being held that Ms Nielsen’s actions, as described, would amount to serious misconduct.

[114] I am therefore satisfied that at the time of dismissal, the Centre held a belief that Ms Nielsen’s conduct was sufficiently serious to justify immediate dismissal and the belief was based on reasonable grounds. It follows that the Centre complied with the Code in relation to Ms Nielsen’s dismissal and consequently her application is dismissed. Given my conclusion in this matter, it has proved unnecessary to consider whether Ms Nielsen was unfairly dismissed as understood by reference to ss 385 and 387 of the Act. With regard to the withdrawal of the $1000.00, I make the following observations. As was conceded by Mr Van Den Beuken in his oral testimony, Ms Nielsen was at all material times authorised to make such withdrawal. While Mr Van Den Beuken spoke about Ms Nielsen holding the wrong intent regarding the withdrawal of the $1000.00 and cited her failure to provide resources to the Centre soon after the withdrawal, it was not open on the evidence to find that Mr Van Den Beuken’s belief was a ‘reasonable’ belief. In short, he assumed that Ms Nielsen was acting with ill intent where there was no evidence to suggest this. As observed, at all material times Ms Nielsen had authority to make the withdrawal.

DEPUTY PRESIDENT

Appearances:

Ms Maria Saraceni for the Applicant;
Ms Caris Tysoe for the Applicant;
Ms Candice Nielsen, the Applicant;
Mr Roger Lewis for the Respondent;
Mr Adam Van Den Beuken for the Respondent.

Hearing details:

Perth;

February 16 and 17;

2021.

Printed by authority of the Commonwealth Government Printer

<PR726525>

 1   PR728978.

 2   Witness Statement of Candice Nielsen (Nielsen Statement) [20].

 3 Ibid [22].

 4 Ibid [23].

 5 Ibid [24].

 6 Ibid [26].

 7 Ibid [28].

 8 Ibid [29].

 9 Ibid [34].

 10 Ibid [37].

 11   Ibid [60], [61].

 12 Ibid [62].

 13   Ibid.

 14   Ibid [80], [82].

 15 Ibid [84].

 16 Ibid [88].

 17   Witness statement of Mr Adam Van Den Beuken (Van Den Beuken Statement) [17].

 18 Van Den Beuken Statement [19].

 19 Ibid [21].

 20   Ibid [22] – [23].

 21 Ibid [27].

 22 Ibid [31].

 23   Ibid.

 24 Nielsen Statement [90].

 25 Ibid [95].

 26   Ibid.

 27 Ibid [96].

 28   Ibid.

 29 Van Den Beuken Statement [33].

 30   Ibid, Annexure AV08.

 31 Nielsen Statement [99].

 32   Ibid.

 33 Ibid [102].

 34 Ibid [104].

 35 Van Den Beuken Statement [35].

 36 Nielsen Statement [93].

 37   Ibid.

 38   Ibid.

 39 Ibid [94].

 40 Van Den Beuken Statement [42].

 41 Ibid [44].

 42   Ibid.

 43 Nielsen Statement [106].

 44 Ibid [107].

 45 Van Den Beuken Statement [52].

 46 Ibid [57].

 47 Nielsen Statement [108].

 48 Ibid [111].

 49 Van Den Beuken Statement [60].

 50 Ibid [61].

 51 Nielsen Statement [109].

 52 Van Den Beuken Statement [61].

 53   Ms Nielsen’s Further Statement in Response (Further Statement) [38].

 54   Ibid.

 55 Van Den Beuken Statement [62].

 56 Further Statement [39].

 57 Nielsen Statement [120].

 58 Ibid [120].

 59 Ibid [117].

 60 Ibid [118].

 61 Ibid [163].

 62   Ibid.

 63 Ibid [164].

 64   Ibid.

 65 Ibid [165].

 66 Van Den Beuken Statement [67].

 67   Ibid.

 68 Nielsen Statement [166].

 69 Van Den Beuken Statement [71].

 70   Ibid [71], [72].

 71 Ibid [74].

 72 Ibid [82].

 73 Ibid [77].

 74 Nielsen Statement [173].

 75 Ibid [179].

 76 Ibid [180].

 77 Van Den Beuken Statement [86].

 78 Ibid [88].

 79 Ibid [89].

 80 Ibid [91].

 81 Nielsen Statement [168].

 82 Ibid [171].

 83   Van Den Beuken Statement [99]-[103].

 84 Ibid [104].

 85   Nielsen Statement [187] Annexure CXN-025.

 86 Ibid [185].

 87 Ibid [193].

 88 Ibid [194].

 89 Section 382 of the Act.

 90   [2020] FWCFB 5766; PR724047.

 91 Nielsen Statement [193].

 92   [2017] FWC 3930 [62]-[64].

 93   Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWCFB 5264 [36] (‘Ryman’).

 94   Gainbridge Limited v Mrs Diane Wiburd [2017] FWCFB 6732; TIOBE Pty Ltd T/A TIOBE v Cathy (Yaqin) Chen[2018] FWCFB 5726.

 95   Ryman [27].

 96   Ibid [37] – [38]; Grandbridge Limited v Mrs Diane Wiburd[2017] FWCFB 6732 [28].

 97   Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2012] FWAFB 1359.

 98 Ibid [29].

 99   Ibid [29] cited in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 and referred to in Grandbridge Limited v Mrs Diane Wiburd[2017] FWCFB 6732 [39].

 100   Ibid.

 101   Ibid.

 102   Grandbridge Limited v Mrs Diane Wiburd[2017] FWCFB 6732 [28]; Ryman [37].

 103   [2017] FWCFB 6732 [30].

 104 Nielsen Statement [122].

 105 Ibid [116].

 106 Ibid [163].

 107   Ibid.

 108 Further Statement [39].

 109   Nielsen Statement [182(a)].