Catherine Hocroft v Verifact Pty Ltd

[2018] FWC 6115

[2018] FWC 6115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Catherine Hocroft
v
Verifact Pty Ltd
(U2018/2852)

COMMISSIONER CAMBRIDGE SYDNEY, 5 OCTOBER 2018

Unfair dismissal - no valid reason for dismissal - significant procedural deficiencies - harsh, unjust and unreasonable dismissal - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 19 March 2018. The application was made by Catherine Ann Hocroft (the applicant) and the respondent employer was identified to be Verifact Pty Ltd (ABN: 59 708 957 461) (the employer or Verifact).

[2] The application indicated that the date that the applicant’s dismissal took effect was 1 March 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) which has involved a Hearing conducted in Sydney on 5 July 2018.

[4] At the Hearing, each of the Parties were unrepresented. The applicant gave evidence as the only witness called in support of her unfair dismissal claim, and the employer’s General Manager Corporate Services, Ms V Allen, was the only witness who provided evidence for the employer. Ms Allen cross-examined the applicant, who then in turn, cross-examined Ms Allen.

Factual Background

[5] The applicant commenced employment on a casual basis in June 2017, and in September 2017 she was appointed to a full-time position pursuant to a documented employment agreement which stated that “employment was with Verifact Pty Ltd (ACN 120 091 590) as trustee for the Verifact Unit Trust (Verifact)” 1. However, despite this identification of the entity with which the employment was created, the pay advice provided to the applicant was made by another entity named as “ Verifact Traffic Pty Ltd” with an ABN of “95 156 231 793”2. For the purposes of these proceedings the entity identified in the Form F3 - Employer Response to Unfair Dismissal Application has been considered to be the employer.

[6] The applicant was engaged in a position that was described as a Health Professional (Paramedic). The applicant worked at the Mount Arthur Coal Mine located in the New South Wales Hunter Valley (the Mine), and which is operated by the BHPBilliton Company (BHP). The employer was contracted by BHP to provide, inter alia, onsite drug and alcohol testing, and the applicant performed duties, which included the onsite drug and alcohol testing of workers and contractors engaged at the Mine.

[7] The employer has in excess of 400 employees and it is described as a diversified services group of dynamic businesses providing key business services in the areas of; health, security, investigations, traffic and integrated services. The employer has headquarters in Queensland, and offices in all Australian States and the ACT.

[8] In January and February 2018 complaints were made about aspects of the applicant’s conduct at work. These complaints included what could be described as allegations that the applicant conducted certain drug and alcohol testing procedures in an officious and unnecessarily insensitive manner. Complaints about what might be generously described as the undiplomatic manner of the applicant were raised by BHP with the employer. However, the employer did not particularise or otherwise discuss these complaints with the applicant before BHP removed the applicant’s site access to the Mine.

[9] In February 2018 the applicant also raised certain employment issues with the employer including questions about her job description and leave entitlements. Although the applicant raised these employment issues directly with the relevant representative of the employer, she copied her email communications to her employer into a BHP management representative. That BHP management representative subsequently advised the applicant that she did not need to include him in her email communications with her employer about concerns that she had regarding aspects of her employment entitlements as these were matters that she needed to resolve directly with the employer. Further, the employer directed the applicant to refrain from involving their client (BHP) in any further correspondence regarding the applicant’s employment. The employer advised the applicant that her actions represented an act which brought the employer into disrepute, and breached the applicant’s employment contract.

[10] On 26 February 2018, the employer sent the applicant an email which requested her attendance at a meeting to discuss employment related matters. The applicant was advised that she could be accompanied by a support person at the proposed meeting. Subsequently, on 1 March 2018, the applicant met with, inter alia, the employer’s Regional Manager, Mr Wayne Slater.

[11] At the commencement of the meeting held on 1 March, Mr Slater provided the applicant with a pre-prepared termination of employment letter. Mr Slater told the applicant that as BHP had blocked her access from the Mine site its “hands had been tied” and, by implication, her employment had to be terminated. The termination of employment letter handed to the applicant on 1 March 2018, indicated that the reasons for dismissal involved what was described as inappropriate behaviour regarding incidents where the applicant had allegedly conducted drug and alcohol testing procedures in a manner that the employer deemed to be inappropriate conduct. Further, the letter of dismissal mentioned the conduct of the applicant whereby the employer’s client (BHP) was provided with correspondence regarding the employment matters between the applicant and the employer as providing further reason for dismissal. The applicant was provided with one week’s payment in lieu of notice.

[12] Approximately two weeks after the dismissal, the applicant obtained other employment. The other employment obtained by the applicant has generated a reduced rate of remuneration than that obtained from employment with the employer.

[13] The applicant has not sought reinstatement as a remedy for her alleged unfair dismissal but has instead sought payment of monetary compensation.

The Case for the Applicant

[14] The applicant made oral submissions during the Hearing, and she provided documentary material which included various submissions together with written reply material. The applicant submitted that her dismissal was unfair.

[15] The applicant said that in the seven months of employment at no time had she been advised of any issue concerning her conduct or performance. The applicant submitted that there was simply no evidence that there had been any form of counselling, or meeting, or other discussion, with her regarding her behaviour, or workplace policies, procedures or anything that related to the matters that were included in the termination of employment letter.

[16] The applicant said that she rejected the allegations regarding two incidents which were said to have involved some inappropriate procedure for dealing with drug and alcohol testing in the workplace. The applicant said that she believed that the allegations regarding these two incidents were false. Further, the applicant said that the first time that she had been made aware that BHP had removed her access to the Mine site was at the commencement of the termination of employment meeting on 1 March 2018.

[17] The submissions by the applicant also stressed that there had been no contemplation by the employer of any retraining or other employment but instead the employer simply decided to immediately dismiss her. The applicant also mentioned that she was seeking compensation because she had made certain financial undertakings upon the assumption that she would have at least completed the one-year contract of work at the Mine site. The applicant said that she was seeking compensation for the remuneration lost as a result of the employment coming to an end before the completion of the one-year contract.

[18] The applicant also submitted that her dismissal was unfair, unwarranted and unjust. The applicant submitted that her dismissal had stemmed out of her claim for the appropriate rate of annual leave and the provision of personal safety equipment, which were matters that she had raised in her communication about her concerns regarding various employment entitlements.

[19] In summary, the applicant submitted that her dismissal was unfair. The applicant clarified that she was seeking financial compensation for remuneration lost for the balance of the contract with the employer, less wages that had been earned in alternative employment since the dismissal.

The Case for the Employer

[20] Ms Allen appeared on behalf of the employer and she submitted that the dismissal of the applicant was not unfair. Ms Allen had filed a written outline of outline of argument document which became Exhibit 4, and she supplemented this material with verbal submissions.

[21] The submissions made by Ms Allen asserted that the employer had been placed in a very unfortunate circumstance whereby, on 21 February 2018, the employer was notified that the applicant’s Mine site access had been removed. Further, according to Ms Allen, the employer had no other site in New South Wales or other position available to place the applicant in until the end of her contract of employment date.

[22] Further, the submissions made by Ms Allen stated that the employer had arranged a face-to-face meeting with the applicant prior to her returning to her shift after it had been advised of the removal of Mine site access. The applicant was advised that the employer had no other position available and therefore the only option was to cease her employment.

[23] The submissions made on behalf of the employer acknowledged that the applicant was not provided with an opportunity to respond to the reasons for her dismissal. However, Ms Allen said that she believed that BHP staff had spoken to the applicant about the incidents of inappropriate conduct involving drug and alcohol testing procedures. Ms Allen acknowledged that there had not been any written complaint made by BHP as it had “all been verbal”.

[24] The submissions made by Ms Allen stressed that the employer did not have another site where they could place the applicant. Ms Allen said that although the employer operated at other sites those sites had nurses on them not paramedics, and therefore there really wasn’t a position available in which to place the applicant, and consequently the employer had taken the action to dismiss the applicant.

[25] The submissions made by the employer indicated that it did not agree that the applicant was entitled to compensation particularly as the applicant had only a seven month period of employment, and further, she was paid a notice period, and she was the first employee to be dismissed from the Mine site over a period of five years that the employer had serviced the contract with BHP. Further, it was submitted that the employer had incurred costs in having to find a replacement for the applicant. The employer further submitted that the conduct of the applicant was “bordering on misconduct with Ms. Hocroft leaving inappropriate messages for fellow workers on items in shared areas.” 3

[26] In concluding remarks, Ms Allen stated that the dismissal of the applicant was something that was a very unfortunate circumstance, particularly as it did not provide for the applicant to be given an opportunity to respond to the incidents which had led to BHP removing the applicant’s Mine site access.

Consideration

[27] The unfair dismissal provisions of the Act include section 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[28] In this case, there was no dispute that the determination of the matter was confined to that element contained in s. 385 (b) of the Act, being whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[29] The reasons for the dismissal of the applicant were stated by the employer in the termination of employment letter dated 1 March 2018. The termination of employment letter mentions two incidents of alleged inappropriate conduct of the applicant during workplace drug and alcohol testing procedures which were said to have occurred on 15 and 18 February 2018 respectively. In addition, the termination of employment letter refers to the applicant including its client (BHP) in correspondence regarding employment matters between the applicant and the employer, and which purportedly brought the employer into disrepute. The letter also mentions an issue involving the applicant leaving inappropriate messages on personal items such as foodstuffs which were left in shared areas of the workplace. However the action involving the inappropriate messaging was described as “bordering on misconduct” and appears to have been a matter that was incidental to, rather than a direct reason for the dismissal of the applicant.

[30] It is conceivable that the reasons for dismissal as stated in the termination of employment letter, could represent valid reason for dismissal. However, the evidence established that the employer had not properly established that the two incidents of alleged inappropriate drug and alcohol testing had actually occurred. The employer had simply accepted the circumstances that had been conveyed to it by BHP personnel. Consequently, in respect to the two incidents of inappropriate drug and alcohol testing the employer had not undertaken any reasonable investigation of those matters so as to enable it to be in a position to have satisfactorily established the factual circumstances of the particular incidents.

[31] Therefore, to the extent that the reason for dismissal of the applicant relied upon the two incidents of alleged inappropriate drug and alcohol testing, such reason had not been factually established, and could not represent a reason that was sound, defensible or well-founded. Indeed, these aspects of the reason for dismissal of the applicant were plainly not well-founded because the employer had undertaken no investigation or other inquiry so as to enable it to satisfactorily establish the factual basis for the reasons upon which it relied.

[32] That aspect of the stated reasons for dismissal which involved the applicant including the employer’s client (BHP) in communications involving her concerns regarding employment entitlements was a matter of documented fact. Further, on any reasonable and objective assessment the actions of the applicant would clearly have resulted in some reputational damage or other denigration in the standing of the employer. Further, the applicant’s attempted justification for her actions when questioned about this matter by the Commission provided unconvincing answers which are reflected from the following extract of transcript:

“Why would you need to be telling your employer’s client about what you essentially raise as problems regarding matters such as annual leave and sick leave? --- It was just that that was an inclusion in the letter.

Fairly obviously that would potentially at least make your employer look bad in the eyes of its client, wouldn’t it? --- It wasn’t meant to. It was meant to point out that I was keeping my scope of practice within the limit that I was employed. And that concerned me. I was trying to get clarification and I wasn’t getting answers so I need to say, “Well, if can’t get answers, I can’t do these drugs or can’t issue this, because that’s not within that scope of practice.” So clinically I was concerned.” 4

[33] Consequently, the particular reason for the applicant’s dismissal which involved her actions in including the employer’s client (BHP) in communications involving her concerns regarding employment entitlements could represent valid reason for dismissal. This was action that would, on any objective contemplation, damage the standing of the employer. The employer was entitled to treat this action of the applicant as misconduct. However, it was clear from the employer’s response to the applicant’s email of 15 December, that the employer treated the applicant’s actions as conduct that unless it was continued would not establish reason for dismissal. In respect of this conduct the employer advised the applicant as follows:

“Please refrain from involving our client in any further correspondence regarding your employment. Verifact is interpreting this action as an act which brings Verifact into disrepute, this is a breach of your employment contract.” 5

[34] The employer subsequently sought to rely upon the applicant’s actions involving her inclusion of the employer’s client (BHP) in communications regarding her employment entitlements as a reason for dismissal. However, this action was the subject of the warning contained in the email to the applicant on 16 February, and there was no evidence that the conduct was repeated. Therefore, this issue, as a stated reason for dismissal mentioned in the termination of employment letter, was not a reason that was sound and defensible because it was conduct that had previously warranted warning and had not been continued.

[35] Therefore, when the three principal reasons for dismissal that were included in the termination of employment letter are properly analysed, they do not provide for valid reason for the dismissal of the applicant. Further, a careful examination of the totality of the evidence has established that the reasons for dismissal that were stated in the termination of employment letter did not represent the true reason for dismissal. The true and actual reason for the dismissal of the applicant was the removal by the employer’s client (BHP) of Mine site access for the applicant.

[36] There was clear evidence that the employer had established contractual arrangements with its client (BHP) which permitted BHP to remove Mine site access for specified employees. There appeared to be little capacity for the employer to challenge any determination made by BHP in the exercise of this contractual right. Further, the practical consequences of any exercise of this contractual arrangement would logically jeopardise ongoing employment for any of the employees of the employer who were engaged in any work at the Mine site. In the absence of any reasonable alternative employment opportunity, the exercise by BHP of its contractual right to remove Mine site access for the applicant resulted in the dismissal of the applicant.

[37] Consequently, the real and actual reason for the dismissal of the applicant was the decision made by BHP to exercise its contractual right to remove Mine site access for the applicant. In the termination of employment letter the employer endeavoured to establish reason for dismissal of the applicant which related to the apparent basis for BHP to remove Mine site access for the applicant. However, as a matter of practical reality, the contractual arrangements between the employer and its client meant that the client, BHP, could exercise its contractual right irrespective of whether there was justifiable basis for such action. Therefore, any inquiry into the reason for the actions of BHP was essentially futile. As a practical consequence, the employer had to accept the decision of its client whether or not that decision could be established to have been sound, defensible or well-founded.

[38] In summary, the evidence has established that the applicant was dismissed because the employer’s client (BHP) had removed Mine site access for the applicant. There was no practical requirement for there to be any established justification for the decision taken by the employer’s client. In the absence of any reasonable alternative employment opportunity for the applicant, the employer dismissed the applicant because of the actions taken by its client when it exercised an established contractual right.

[39] The dismissal of the applicant was therefore for reason of the exercise of a contractual right of a third party which was, in effect, unchallengeable. As a result, the reason for dismissal was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant.

S. 387 (b) - Notification of Reason for Dismissal

[40] The employer provided notification of dismissal in the form of the termination of employment letter handed to the applicant shortly after the commencement of the meeting held on 1 March 2018.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[41] The employer conceded that it had not provided any opportunity for the applicant to respond or provide any form of explanation for any of the conduct that was alleged by its client (BHP), and which it accepted without question or further investigation.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[42] Although the applicant was assisted by a support person who was in attendance at the meeting held on 1 March, the decision to dismiss the applicant had been taken before the commencement of that meeting. Therefore the presence of any support person could not have assisted at any stage of a process involving contemplation and then determination of dismissal. Instead, the role of any support person was confined to aiding the applicant in respect to her reaction to the predetermined decision to dismiss.

S. 387 (e) - Warning about Unsatisfactory Performance

[43] There was evidence that the complaints that had been raised by BHP involved what might have been properly established to have represented unsatisfactory work performance associated with the applicant’s approach to the drug and alcohol testing procedures. This was conduct that had it been properly established, may have been satisfactorily rectified following appropriate warning and counselling. Regrettably, there was no process adopted by the employer which may have remedied the concerns of BHP before it took the decision to remove the applicant’s Mine site access.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[44] The employer is a business of sufficient size that it should have adopted a standard and practice of procedure that provided the applicant with an opportunity to be heard before the decision to dismiss was made.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[45] There was no evidence that the employer did have dedicated human resource management specialists. However, the absence of such specialists could not justify the adoption of a procedure whereby the decision to dismiss the applicant was taken without providing any opportunity to hear from the applicant.

S. 387 (h) - Other Relevant Matters

[46] There were no other relevant matters identified by the Parties as requiring consideration. However, that aspect of the established conduct of the applicant involving her inclusion of the employer’s client (BHP) in her communications with the employer regarding her employment entitlement concerns has represented established misconduct. As previously mentioned, this particular misconduct was not something that the employer initially considered as proper basis for dismissal, but instead a subject for warning and a requirement for there to be no continuation of such conduct. Nevertheless, any reasonable and objective assessment of the actions of the applicant must recognise that a level of misconduct was clearly established, and this is a factor that must be evaluated in the overall consideration of the applicant’s claim for unfair dismissal remedy.

Conclusion

[47] In this case, the reasons stated by the employer for the dismissal of the applicant could not be established to have represented valid reason for dismissal. The employer had conducted no investigation or other inquiry upon which it could have established a reasonable basis for a belief that two particular incidents which it purported to rely upon, had any basis in fact. Further, it sought to rely upon other particular conduct which it had previously dealt with by way of warning, and for which there was no evidence of repeated conduct.

[48] The true reason for the dismissal of the applicant was the decision taken by the employer’s client to remove the applicant’s access to the place of employment, the Mine site. The employer had established contractual arrangements with its client (BHP) which had, as a practical consequence, allowed the determination made by its client to result in the dismissal of the applicant. The employer had, in practical terms, outsourced the decision to dismiss the applicant so that the dismissal could occur for any reason or even for no reason. Consequently the dismissal of the applicant was not for valid reason.

[49] The procedure that the employer adopted whereby it advised the applicant of her dismissal shortly after the commencement of a meeting held to deal with employment issues about which the applicant had no prior knowledge, was plainly unjust, manifestly unreasonable, and unnecessarily harsh.

[50] In summary, the dismissal of the applicant was without valid reason involving established misconduct or capacity inadequacy. Further, the dismissal involved an entirely unjust and unreasonable process including the complete absence of any opportunity for the applicant to be heard before the decision to dismiss was made. Consequently, upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable. Therefore, the applicant’s claim for unfair dismissal remedy has been established.

Remedy

[51] The applicant has not sought reinstatement as a remedy for her unfair dismissal. In the circumstances, particularly as the employment of the applicant was established upon a fixed term basis, reinstatement would not be an appropriate remedy.

[52] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.

[53] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that have been established in the Full Bench Decisions of; Sprigg v Paul’s Licensed Festival Supermarket 6 and, Smith and Ors v Moore Paragon Australia Ltd 7 and, more recently, the cases of McCulloch v Calvary Health Care Adelaide8 and Balaclava Pastoral Co Pty Ltd v Nurcombe9.

[54] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[55] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[56] There was no evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise.

[57] The applicant had been employed for a period of approximately 7 months and was anticipated to continue in the employment for a further 5 months. The applicant would have been likely to have received remuneration of approximately $1,682 per week if she had not been dismissed.

[58] There was evidence to provide basis to conclude that the employment of the applicant may not have continued for a significant period of time because of, inter alia, the deteriorating relationship between the applicant and the employer arising from the manner in which she included the employer’s client in communications regarded her employment entitlements. Further, there was evidence of other difficulties and friction arising in the workplace including the applicant writing offensive messages on foodstuffs that were stored in shared areas of the workplace.

[59] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if she had not been dismissed, I have notionally considered that the employment of the applicant would have continued for at least a further 10 weeks. Therefore, the total remuneration that would have been received in the notional period of 10 weeks following dismissal amounted to a figure of $16,820.

[60] Approximately two weeks after the dismissal, the applicant secured alternative employment. The evidence of remuneration received from further employment during an 8 weeks period from 26 March to 24 May amounted to $7,338. The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated by projection of the average earnings of the applicant in alternative employment in the 8 weeks period from 26 March to 24 May 2018 ($7,338) for the 10 week period of anticipated further employment. The total for the period between dismissal and the making of the Order of compensation has been calculated as $16,820 less $9,172 giving a resultant figure of $7,648.

[61] Thirdly, in this instance there was some established misconduct of the applicant regarding the inclusion of the employer’s client in communications concerning her employment entitlements. This misconduct could be construed to have contributed to the employer's decision to dismiss. However, in the circumstances, I have decided to make no reduction to the amount of compensation to be provided to the applicant on account of this misconduct.

[62] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[63] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[64] Consequently, for the reasons outlined above I have determined that the amount of compensation to be provided to the applicant should be $7,648.

[65] Accordingly, separate Orders [PR700970] providing for unfair dismissal remedy in these terms will be issued.

COMMISSIONER

Appearances:

Ms C Hocroft appeared unrepresented.

Ms V Allen appeared for the employer.

Hearing details:

2018.

Sydney:

July, 5.

Printed by authority of the Commonwealth Government Printer

<PR700969>

 1   Exhibit 3 - Contract of employment document.

 2   Exhibit 3 - Payslips documents.

 3   Exhibit 4 - @ page 11 of 15.

 4   Transcript @ PN231 and PN232.

 5   Exhibit 3 - Email dated 16 February 2018.

 6 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 7   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 8   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.

 9   Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.