Constanza Ahumada v The Trustee For Kokoparadise
[2024] FWC 628
•8 MARCH 2024
| [2024] FWC 628 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Constanza Ahumada
v
The Trustee For Kokoparadise
(U2023/8867)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 8 MARCH 2024 |
Application for relief from unfair dismissal – no valid reason – dismissal found to be unfair – order for compensation appropriate
Introduction and outcome
On 15 September 2023, Ms Constanza Ahumada made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with The Trustee For Kokoparadise (Respondent).
The Respondent owns and operates a café called the Shed in the Macarthur Square Shopping Centre in Campbelltown, New South Wales. Ms Ahumada was employed by the Respondent as the Manager of the café on a permanent full-time basis on or about 1 November 2022 until she was dismissed on 14 September 2023.
The Respondent summarily terminated Ms Ahumada’s employment after Ms Ahumada provided the Respondent with two weeks notice of her intention to resign. The Respondent claimed in the F3 – Employer response to unfair dismissal application that Ms Ahumada resigned voluntarily and there was no dismissal.
In summary, I have found that Ms Ahumada was dismissed by the Respondent and there was not a valid reason for the dismissal. On this basis of this and other findings, I have determined that Ms Ahumada’s dismissal was harsh, unjust and unreasonable and that an order for compensation is appropriate.
Directions and determinative conference
The matter was listed for a case management conference before me on 14 November 2023. Ms Ahumada represented herself at the conference and there was no appearance for the Respondent. Directions were made for the filing and serving of evidence and submissions. On 21 November 2023, Ms Ahumada filed material in accordance with the directions. No material was filed by the Respondent.
The matter was listed for determinative conference at 10:00am on 15 December 2023. Ms Ahumada represented herself at the conference and there was no appearance for the Respondent. At 10:10am the Commission received a medical certificate by email from Ms Karolina Gjorsevski, one of the Directors of the Respondent. The certificate provided that Ms Gjorsevski was unable to work from 15 December 2023 to 21 December 2023. There was no covering email or letter provided with the certificate. I assume that Ms Gjorsevski’s intention in sending the certificate was to explain why she was not in attendance at the conference, although the certificate did not refer to Ms Gjorsevski’s fitness to attend the conference. As the Respondent did not request an adjournment, the conference proceeded as scheduled.
Background facts
Ms Ahumada was employed by the Respondent as the Manager of its café on a permanent full-time basis from on or about 1 November 2022 until 14 September 2023. The Directors of the Respondent are Karolina and Louie Gjorsevski. Ms Ahumada worked Sunday to Thursday each week and was paid an annual gross salary of $66,809.
On 11 September 2023, Ms Ahumada was rostered to work from 7:30 am to midday. Ms Ahumada notified Mr Gjorsevski by phone that morning to advise that she would be leaving work early to see her doctor and left work at 11:15am. Ms Ahumada submitted a medical certificate to the Respondent advising that she was unfit for work from 11 to 13 September 2023.
At 4:10pm on 11 September 2023, Ms Ahumada sent an email to Ms Gjorsevski advising of her resignation and stating that her last day of employment would be Monday 25 September 2023. At 4:24pm, the following exchange took place between Ms Ahumada and Ms Gjorsevski by text message:
Ms Gjorsevski: Hey connie
Can you give me some feedback as to why you have resigned?
Ms Ahumada: Hi Karolina I’m happy to schedule a meeting or phone call when I’m back at work as I’m quite sick at the moment.
After exchanging messages about a payment which had been incorrectly made to Ms Ahumada, Ms Gjorsevski again asked Ms Ahumada why she was resigning. A further exchange by text message took place as follows:
Ms Ahumada: As mentioned before, I’m more than happy to talk about it when I am back to work on Thursday and recovered from illness.
Ms Gjorsevski: You can tell me in a text as I need to hire someone as the staff that you’ve recently hired will not replace your position.
On Thursday 14 September 2023, Ms Ahumada returned to work and was rostered from 7:30am to 3:00pm. Ms Ahumada left work at 2:00pm after she was threatened by Mr Gjorsevski during a conversation about her resignation which made her feel unsafe and uncomfortable. After attempting to discuss her reasons for resignation Mr Gjorsevski threatened to ruin Ms Ahumada’s reputation by finding her wherever she went and calling places to make sure she was ruined. Mr Gjorsevski also told Ms Ahumada that he would not pay any of her entitlements such as annual leave and superannuation.
Before leaving the Macarthur Square Shopping Centre, Ms Ahumada went to the help desk to report her conversation with Mr Gjorsevski. She then sent the following text message to Mr Gjorsevski:
Hi Louie, Letting you know I left as soon as Bella came back from break I didn’t get a chance to clock out.
Everything that was said to me by you this morning was threatening and made me feel very uncomfortable and unsafe to stay in that work environment.
I’m heading to the doctors now to get a certificate for work stress.
After leaving the Macarthur Square Shopping Centre, Ms Ahumada went to see her doctor and told her what happened and was requested to complete a mental health questionnaire. The doctor issued a doctor's certificate which reflected Ms Ahumada’s scores on her mental health assessment questionnaire. The certificate stated that Ms Ahumada was unfit for work during the period from 14 September to 25 September 2023 as she was undergoing an acute stress reaction due to work conditions.
Later that day, the following exchange took place between Ms Ahumada and Ms Gjorsevski by text message:
Ms Gjorsevski: Bring back tips immediately. Also all the almond milk that you have taken will need to be paid for so I can process your pay. I think its best we waive your employment effective immediately. I’ve tried reaching out and talking to you. You don’t answer your phone so this is the next step unfortunately.
Ms Ahumada: Hi Karolina, I have a medical certificate. I am more than happy to bring in the tip. All Almond milk has been paid. Last almond milk payment was left in a container cup in the safe. My doctor said she can write a more in-depth report if required.
Ms Gjorsevski: I don’t want your doctors certificates your employment has been waived no one has been bullied your partner has no right to approach Louis and bully him.
…..
On 15 and 18 September 2023, Ms Ahumada sent Mr and Ms Gjorsevski two emails in relation to outstanding pay and entitlements but did not receive a response. Ms Ahumada has not received outstanding annual leave and other entitlements from the Respondent.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that Ms Ahumada was protected from unfair dismissal at the time of being dismissed; and
(b) Ms Ahumada has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether Ms Ahumada was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Ms Ahumada was so protected, whether Ms Ahumada has been unfairly dismissed.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(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.
Initial matters
A threshold issue to determine is whether Ms Ahumada has been dismissed from her employment.
Ms Ahumada provided notice to the Respondent on 11 September 2023 of her intention to terminate the employment relationship effective from 25 September 2023. During the notice period and while she was at work on 14 September 2023, Mr Gjorsevski behaved in a threatening manner towards Ms Ahumada which caused Ms Ahumada to leave the workplace and take sick leave. The period of sick leave was authorised by a medical certificate which provided that Ms Ahumada was unfit for work until 25 September 2023. Ms Gjorsevski then advised Ms Ahumada that ‘effective immediately’ her employment would be ‘waived’. The Respondent did not pay Ms Ahumada sick leave for the period covered by the medical certificate which was also the balance of Ms Ahumada’s notice period.
As Ms Gjorsevski did not attend the conference, there is no evidence before the Commission about what Ms Gjorsevski meant when she advised Ms Gjorsevski that her employment would be ‘waived’ effective immediately. It may have been that Ms Gjorsevski was conveying to Ms Ahumada that the notice period in respect of Ms Gjorsevski’s resignation would be waived but this is not something that Ms Gjorsevski had the ability to do without Ms Ahumada’s agreement. Given that no further payments were made to Ms Ahumada by the Respondent, the evidence establishes that the employment relationship ceased prematurely on 14 September 2023 rather than on 25 September 2023 in accordance with Ms Ahumada’s resignation. The issue I need to determine is whether Ms Ahumada or the Respondent initiated the termination of Ms Ahumada’s employment.
Ms Ahumada’s uncontested evidence is that she left work early on 14 September 2023 because she was threatened by Mr Gjorsevski and that she felt uncomfortable and unsafe in the work environment. She sent a text message to Mr Gjorsevski explaining the reasons for her departure and that she was going to her doctor. Ms Ahumada then went to the doctor and obtained a medical certificate which she provided to her doctor. In my view, all of these actions are consistent with Ms Ahumada maintaining the employment relationship and wishing to remain employed until the conclusion of her notice period. If Ms Ahumada wished to conclude the employment relationship immediately, there was no reason for her to send a text message to Mr Gjorsevski after her departure or submit a medical certificate to the Respondent.
Ms Gjorsevski’s actions in advising Ms Ahumada that she did not want her doctor’s certificate and not paying Ms Ahumada sick leave demonstrates that the Respondent wished to end the employment relationship prior to the conclusion of the notice period. On this basis, I believe that in advising that Ms Ahumada’s employment was ‘waived’, Ms Gjorsevski was conveying to Ms Ahumada that the Respondent wished to terminate her employment immediately.
The evidence therefore establishes that Ms Ahumada’s employment was terminated at the initiative of the Respondent. As such I am satisfied that Ms Ahumada has been dismissed within the meaning of s.385 of the FW Act.
Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
I have decided these matters below.
Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
The evidence establishes that Ms Ahumada was dismissed from her employment on 14 September 2023 and made the application on 15 September 2023. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Under s.383 of the FW Act, ‘the minimum employment period’ is one year if the employer is a small business employer and 6 months in all other cases. The period ends at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal. Section 23 of the FW Act defines a small business employer as an employer who employs fewer than 15 employees. When calculating the number of employees, a casual employee is not to be counted unless the employee is a regular casual employee of the employer.
Ms Ahumada was employed by the Respondent for approximately 10 months. The Respondent claimed in the F3 – Employer response to unfair dismissal application that it had 8 employees at the time of the dismissal. Ms Ahumada gave evidence that at least 17 employees who worked on a regular and systematic basis were employed by the Respondent at the time of the dismissal. The effect of this evidence is that these employees were either permanent or regular casual employees. As the Respondent did not provide evidence at the conference, I accept Ms Ahumada’s uncontested evidence in relation to the number of employees at the time of her dismissal. I therefore find, that at the time of dismissal, Ms Ahumada had completed at least the minimum period of employment with the Respondent, and that the Restaurant Industry Award 2020 applied to Ms Ahumada’s employment.
I am therefore satisfied that, at the time of dismissal, Ms Ahumada was a person protected from unfair dismissal.
Based on the evidence and submissions filed, I find, that Ms Ahumada’s dismissal was not a case of genuine redundancy and that the Small Business Fair Dismissal Code does not apply.
Having considered each of the initial matters, I am required to consider the merits of the application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[1]
I set out my consideration of each of these criteria below.
Was there a valid reason for the dismissal related to Ms Ahumada’s capacity or conduct?
Ms Ahumada was dismissed after she provided notice of resignation to the Respondent which was a reasonable and lawful action for her to take. Mr and Ms Gjorsevski did not react well to this news. Ms Gjorsevski repeatedly pressed Ms Ahumada to provide reasons for her resignation while on sick leave and Mr Gjorsevski made threats to Ms Ahumada which caused Ms Ahumada to feel unsafe and leave the workplace. The termination occurred after Ms Ahumada left work due to these safety concerns and when Ms Ahumada provided a medical certificate to Ms Gjorsevski. There is no evidence that the dismissal related to Ms Ahumada’s capacity or conduct. I therefore find that there was no valid reason for the dismissal related to Ms Ahumada’s capacity or conduct.
Was Ms Ahumada given an opportunity to respond to any valid reason related to her capacity or conduct?
As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[2]
Did the Respondent unreasonably refuse to allow Ms Ahumada to have a support person present to assist at discussions relating to the dismissal?
There were no discussions between Ms Ahumada and the Respondent relating to the dismissal before it occurred.
Was Ms Ahumada warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
There was no evidence or submissions made by either party in relation to this matter.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
There was no evidence or submissions made by either party in relation to this matter.
What other matters are relevant?
As noted above, the dismissal occurred after Mr and Ms Gjorsevski did not react well to the news that Ms Ahumada resigned. An employee is free to leave employment in accordance the terms of the contract and/or industrial instrument that governs the employment relationship. This should occur without any negative consequences for the employee. There was therefore absolutely no basis for Mr and Ms Gjorsevski to object to Ms Ahumada’s resignation or feel aggrieved by it. However, both Mr and Ms Gjorsevski engaged in aggressive and unreasonable behaviour towards Ms Ahumada. Ms Gjorsevski insisted that Ms Ahumada provide a reason for the resignation although Ms Ahumada was not obliged to do so. Further Ms Gjorsevski demanded that Ms Ahumada provide this information while she was on sick leave.
Once Ms Ahumada returned to work three days after providing her resignation, she discussed her reasons for resignation with Mr Gjorsevski. Mr Gjorsevski then threatened to ruin Ms Ahumada’s reputation by finding her wherever she went and calling places to make sure she was ruined. Mr Gjorsevski also told Ms Ahumada that he will not pay any of her entitlements such as annual leave and superannuation. Mr Gjorsevski caused Ms Ahumada to feel unsafe at work and to see her doctor, who diagnosed Ms Ahumada as having a mental health condition. It appears that Mr Gjorsevski carried out his threat to withhold Ms Ahumada’s entitlements as her evidence is that she has not received outstanding annual leave and other entitlements.
The behaviour of Ms Gjorsevski and Mr Gjorsevski towards Ms Ahumada was unacceptable and potentially unlawful. It caused Ms Ahumada distress and resulted in Ms Ahumada being certified as unfit for work. Given that employers are obliged to comply with the FW Act and workplace health and safety legislation, the conduct of Ms Gjorsevski and Mr Gjorsevski calls into question their suitability to run a business and be an employer. These matters are relevant to my assessment and weigh heavily in favour of a finding that the dismissal was unfair.
Is the Commission satisfied that the dismissal of Ms Ahumada was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[3]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Ms Ahumada was harsh, unjust and unreasonable because there was no valid reason related to Ms Ahumada’s capacity or conduct, and because of the behaviour of Ms Gjorsevski and Mr Gjorsevski on behalf of the Respondent which was unreasonable, aggressive and caused Ms Ahumada to feel unsafe.
I am therefore satisfied that Ms Ahumada was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
Being satisfied that Ms Ahumada made an application for an order granting a remedy under s.394, was a person protected from unfair dismissal, and was unfairly dismissed within the meaning of s.385 of the FW Act, I may, subject to the FW Act, order Ms Ahumada’s reinstatement, or the payment of compensation to Ms Ahumada.
Under section 390(3) of the FW Act, I must not order the payment of compensation to Ms Ahumada unless:
(a) I am satisfied that reinstatement of Ms Ahumada is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of Ms Ahumada inappropriate?
Ms Ahumada has not sought reinstatement and the Respondent has not made any submissions in relation to this matter. On this basis I consider that reinstatement is inappropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, ‘[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…’[4]
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[5]
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Ms Ahumada in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Effect of the order on the viability the Respondent’s enterprise
There was no evidence adduced by either party as to whether an order for compensation would not have an effect on the viability of the employer’s enterprise so I make no findings in relation to this matter.
Length of Ms Ahumada’s service
Ms Ahumada’s length of service was approximately 10 months. I consider that Ms Ahumada’s length of service does not support reducing or increasing the amount of compensation ordered.
Remuneration that Ms Ahumada would have received, or would have been likely to receive, if Ms Ahumada had not been dismissed
Ms Ahumada would have been employed until 25 September 2023 if she had not been dismissed. Ms Ahumada would have earned a gross amount of $2,024.88 for the period from 14 – 25 September 2023.
Efforts of Ms Ahumada to mitigate the loss suffered by Ms Ahumada because of the dismissal
Ms Ahumada was unfit for work from 14 – 25 September 2023 so did not have the ability to mitigate her loss during this period.
Amount of remuneration earned by Ms Ahumada from employment or other work during the period between the dismissal and the making of the order for compensation
There is no evidence about the amount of remuneration earned by Ms Ahumada from employment or other work during the period between the dismissal and the making of the order for compensation. However, the evidence establishes that Ms Ahumada did not earn any remuneration during the period from 14 – 25 September 2023.
Amount of income reasonably likely to be so earned by Ms Ahumada during the period between the making of the order for compensation and the actual compensation
There is no evidence about the amount of income reasonably likely to be so earned by Ms Ahumada during the period between the making of the order for compensation and the actual compensation. However, this is not relevant as the compensation is limited to the period from 14 – 25 September 2023.
Other relevant matters
I find that Ms Ahumada was deprived from receiving remuneration during her notice period as a result of the dismissal and therefore has suffered financial loss as a result of the Respondent’s actions.
Compensation – how is the amount to be calculated?
As noted by the Full Bench, ‘[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[6] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[7]’.[8]
Applying the Sprigg formula, I believe that it is appropriate that the Respondent pay Ms Ahumada the amount that she would have earned until the conclusion of the notice period on 25 September 2023 which is a gross amount of $2,024.88 plus superannuation.
I am satisfied that the amount of compensation that I have determined takes into account all the circumstances of the case as required by s.392(2) of the FW Act and that the amount does not include a component compensating for shock, distress or humiliation.
Compensation – is the amount to be reduced on account of misconduct?
I am satisfied that Ms Ahumada did not engage in misconduct. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.
Compensation – how does the compensation cap apply?
Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
(a) the amount worked out under section 392(6); and
(b) half the amount of the high income threshold immediately before the dismissal.
The amount worked out under section 392(6) is the total of the following amounts:
(a) the total amount of the remuneration:
(i)received by Ms Ahumada; or
(ii) to which Ms Ahumada was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if Ms Ahumada was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by Ms Ahumada for the period of leave in accordance with the regulations.
Ms Ahumada was not on leave without pay or without full pay during the 26 weeks immediately before the dismissal.
I find that the total amount of the remuneration received by Ms Ahumada and to which she was entitled during the 26 weeks immediately before the dismissal was $33,404.50.
The high income threshold immediately before the dismissal was $167,500. Half of that amount is $83,750.
The amount of compensation ordered by the Commission must therefore not exceed $33,404.50. I have determined the amount of compensation as $2,024.88 gross plus superannuation which is below this amount.
Conclusion
I have found that Ms Ahumada was protected from unfair dismissal at the time of being dismissed and that the dismissal was harsh, unjust and unreasonable. I have determined that that an order for compensation is appropriate and the Respondent should pay compensation to Ms Ahumada in the sum of $2,024.88 gross plus superannuation less taxation as required by law in lieu of reinstatement within 7 days of the date of this decision.
An order giving effect to this decision is published with this decision.
DEPUTY PRESIDENT
Ms C. Ahumada for the Applicant.
No appearance for the Respondent.
Hearing details:
2023
December 15
Sydney
[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[2] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[3] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[4] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[5] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[6] (1998) 88 IR 21.
[7] [2013] FWCFB 431.
[8] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
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