Craig Ritchie v The Krause Bricks Unit Trust T/A Krause Bricks Pty Ltd
[2024] FWC 2976
•1 NOVEMBER 2024
| [2024] FWC 2976 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Craig Ritchie
v
The Krause Bricks Unit Trust T/A Krause Bricks Pty Ltd
(U2024/7661)
| COMMISSIONER REDFORD | MELBOURNE, 1 NOVEMBER 2024 |
Application for an unfair dismissal remedy
Background
Craig Ritchie (Mr Ritchie) commenced employment as a production labourer with The Krause Bricks Unit Trust T/A Krause Bricks Pty Ltd (Krause Bricks) on 19 April 2023. Krause Bricks is a brick manufacturing business located in the regional Victorian township of Stawell. Mr Ritchie’s employment was terminated on 20 June 2024 because he was told he was slow at stacking bricks.
On 2 July 2024 Mr Ritchie filed a Form F2 unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).
On 25 July 2024, Krause Bricks filed a Form F3 employer response. The response raised a jurisdictional objection, namely, that Mr Ritchie did not meet the minimum employment period.
On 15 August 2024 solicitors for Krause Bricks wrote to my chambers advising that the jurisdictional objection was withdrawn and requested that the matter be listed for a hearing on the merits.
The matter was listed for a determinative conference / hearing in the Commission at Melbourne on 2 October 2024. Mr Ritchie was represented at the hearing by Mr Gary Dirks and Krause Bricks by Ms Elizabeth Aitken. I granted both parties permission to be represented in the proceeding by a lawyer or a paid agent, because I was satisfied granting permission would enable the matter to be dealt with more efficiently. At the commencement of the proceeding, I indicated to the parties my provisional view was that given both parties were represented the matter should proceed by way of hearing. This was not opposed by the parties.
Each of the following persons gave evidence at the hearing and was subjected to cross-examination:
a.Mr Ritchie;
b.Mr Rohan Hine, the Operations Manager for Krause Bricks;
c.Mr Scott Shaw, formerly a Production Supervisor for Krause Bricks.
The jurisdictional objection
In Reply Submissions filed and served on 10 September 2024, Mr Ritchie claimed that in its Outline of Submissions, Krause Bricks had “re-agitated the jurisdictional issue” it had earlier withdrawn, through evidence it had filed. This matter was raised again at the commencement of the hearing, and I asked Krause Bricks whether it intended to make submissions about the jurisdictional objection, having withdrawn it. I was told in response that it was not a matter for Krause Bricks to “make submissions on or to lead evidence on today”[1], and that the jurisdictional objection had fallen away[2].
However, at the commencement of closing submissions for Krause Bricks, an indication was given that it may wish to reinvigorate its objection[3]. After seeking instructions in that regard, Krause Bricks’ representative confirmed that it did indeed seek to press its objection[4] and that it sought permission to file and serve additional evidence on this matter. After a lengthy exchange (including a short adjournment) and after having heard from the Mr Ritchie’s representative on the matter, I determined that the most efficient manner through which to deal with this somewhat unusual turn of events was to complete the merits hearing, but allow Krause Bricks a limited opportunity afterwards to file additional material in support of its jurisdictional objection, and for the parties to file further submissions on that matter. I indicated that I would consider the jurisdictional objection before I considered the merits of the application, which would not be necessary if the jurisdictional objection was upheld. I issued Directions to that effect on 3 October 2024.
On 4 October 2024 I received a letter from solicitors for Krause Bricks seeking the revocation of the Directions I had issued and also advising that “after taking further instructions and considering the jurisdictional question further (including in light of the Applicant’s oral submissions made about that question at the hearing), the Respondent wishes to advise the Commission that it does not intend to file further evidence or submissions in relation to the jurisdictional question.” I refused the request for the revocation of the Directions.
On 7 October 2024 I received from Krause Bricks containing a document called “Clocking Report” which appeared to show data in respect to Mr Ritchie’s work commencement and finishing times between 30 January 2023 and 1 February 2024.
On 9 October Krause Bricks filed an Outline of Submissions in relation to the jurisdictional objection in which it said:
9. The Directions are premised on the Respondent maintaining a jurisdictional objection. The Respondent, however, confirms that it does not press the jurisdictional objection:
a. that the Respondent withdrew on 15 August 2024;
b. that the Applicant himself revived and has pressed, and which the Applicant continues to treat as a live issue;
c. that the Respondent confirmed it considered was no longer a live issue in its opening submissions at the hearing of 2 October 2024;
d. that the Applicant nevertheless, and in spite of the Respondent’s confirmation in opening that the objection had been withdrawn, continued to press as an issue in the Applicant’s oral submissions;
e. that the Respondent briefly revived in its (subsequent) oral closing submissions for the purpose of adducing further evidence and making responsive submissions going that jurisdictional issue, after the Applicant had made the jurisdictional question a live one based upon oral submissions of the Applicant, and the Commission had accepted that the issue was live; and
f. that the Respondent, after taking further instructions and considering the jurisdictional question further, including in light of the Applicant’s oral submissions, quickly, fairly and reasonably advised it would not press (the day after receiving the Directions).
10. Jurisdiction is a matter as to which the Applicant bears an onus of proof. As the Applicant has enlivened the jurisdictional question by making detailed submissions after the Respondent had confirmed that its jurisdictional objection had been withdrawn, it is for the Applicant to satisfy the Commission that it relevantly has jurisdiction. As confirmed in the Letter, the Respondent does not seek to be heard on that question.”
On 11 October 2024 a Reply Submission was filed and served by Mr Ritchie in relation to the jurisdictional question.
Section 396 requires that the Commission decide several matters relating to an application for an unfair dismissal remedy before considering the merits of the application. Those matters are:
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.
Section 382 of the 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.
Thus, whether Krause Bricks’ jurisdictional objection is pressed or not, I am required to consider, among other things, whether Mr Richie completed the minimum employment period with Krause Bricks.
Was Mr Ritchie protected from unfair dismissal – the minimum employment period?
Section 383 of the FW Act sets out the minimum employment period as follows:
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
At the time of the dismissal of Mr Ritchie’s employment, Krause Bricks had 36 employees[5]. It is therefore not a small business employer for the purposes of the Act, and the minimum employment period in respect to Mr Ritchie is 6 months.
Mr Ritchie was employed between 19 April 2023 until 20 June 2024. He was engaged on what was said to be a casual basis between 19 April 2023 until 2 February 2024[6]. It is not contested that between the period 2 February 2024 and 20 June 2024 (about four and half months) Mr Ritchie was engaged on a permanent basis[7].
To make up the required minimum employment period, at least some of the time spent working by Mr Ritchie as a casual employee must be included. A period of service as a casual employee does not count towards the employee’s period of employment unless both of the following conditions are satisfied coincidentally in respect to the period of service to be counted:
a. The employee was a regular casual employee; and
b. The employee had a reasonable expectation of ongoing employment on a regular and systematic basis[8].
A “regular casual employee” is one who has been employed by the employer on a “regular and systematic basis”[9]. The correct approach to this term includes consideration of the following principles[10]:
a.It is the “engagement” that must be regular and systematic, not the hours worked pursuant to such engagement;
b.The term “regular” should be construed liberally;
c.It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged;
d.A “regular basis” may be constituted by frequent though unpredictable engagements and a “systematic basis” need not involve either predictability of engagements or any assurance of work at all.
Determining whether an employee had a reasonable expectation of ongoing employment on a regular and systematic basis requires consideration to be given as to whether the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis, and if so, whether the expectation is a reasonable one[11]. What the employer tells the employee must be relevant to this question, particularly if nothing happens subsequently to show that the expectation will not be fulfilled[12].
Mr Ritchie was employed by Krause Bricks after an initial conversation with Mr Shaw. During this conversation, Mr Shaw asked Mr Ritchie if he could work five days per week. Mr Ritchie said he could, and it appeared from Mr Shaw’s evidence that he was employed on that basis[13]. Mr Ritchie said that when he was offered the job, he was told his usual hours would be Monday to Friday 7:00AM to 4:00PM with breaks[14]. This evidence was not challenged and seemed largely consistent with Mr Shaw’s evidence[15].
During the period of casual engagement, it appears Mr Ritchie did work regularly, often five days per week, consistent with the terms of his engagement. Mr Hine conceded he was a “substantial part of the ongoing workforce” from the start of his employment[16]. A document provided by Krause Bricks to the Commission called “Clocking Report”, which apparently contains data from its system showing Mr Ritchie’s work days and hours, appears to show he usually worked at least four days per week from his first full week of employment, usually from 7:00AM to 4:00PM, and, from about the beginning of June 2023, usually five days per week, Monday - Friday. This data appeared similar to an Annexure to Mr Hine’s witness statement which showed Mr Ritchie’s engagements up until February 2024 – again showing Mr Ritchie worked for Krause Bricks every week and, from about June 2023, usually in excess of 35 hours a week.
In the end, it was not argued by the Respondent that Mr Ritche was not a regular casual employee or did not have a reasonable expectation of ongoing employment on a regular and systematic basis, during the period in which it is said he was engaged as a casual employee. It seems there is little evidence to support such an argument.
I consider that Mr Ritchie was told he was to be engaged “five days per week” when he was employed, and was so engaged, and worked regularly and systematically from the commencement of his employment, consistent with the expectation he had that he would do so, such expectation being reasonable given what he was told and the nature of the engagement.
It therefore follows that Mr Ritchie was employed for a period of more than six months taking into account the period of his employment as a regular casual employee.
Was Mr Ritchie protected from unfair dismissal – other matters?
I find as follows, and it is not contended otherwise, that Mr Ritchie was both covered by a modern award, and the sum of his annual rate of earnings is less than the high income threshold.
Mr Ritchie was a person protected from unfair dismissal.
Other matters
I find as follows, and it is not contended otherwise, that:
a.The application was made within the period required in subsection 394(2);
b.the small business code does is not relevant, because Krause Bricks has more than 15 employees;
c.This was not a case of genuine redundancy.
Further, there was no dispute, and I find, that Mr Ritchie’s employment with Krause Bricks terminated at the initiative of Krause Bricks effective 20 June 2024. I am therefore satisfied that Mr Ritchie has been dismissed within the meaning of ss 385 and 386 of the FW Act.
Given my findings in relation to these initial matters, I am required to determine whether Mr Ritchie was unfairly dismissed.
The witness evidence
I consider Mr Ritchie to have been a forthright and truthful witness. Under cross examination, he made concessions where appropriate, but his evidence remained consistent. For example, it was put to him on approximately nine separate occasions during cross examination, in different ways, that he was subjected to criticism about his work performance during his employment, and on each of these occasions, rather than becoming confused, defensive or exasperated with the repetition, he gave the same answer – that he was not[17]. I considered this to be an example of his reliability as a witness.
A submission was made for Krause Bricks that Mr Ritchie’s credibility is “a major question here”[18]. The basis for this assertion is that it is said Mr Ritchie denied having been spoken to by Mr Shaw about being “faster on the bricks”[19], despite having conceded in his Reply Witness Statement that Mr Shaw would occasionally make comments like “better get moving on the bricks” to him personally and to other employees as well[20]. On re-examination, Mr Ritchie clarified that when Mr Shaw said this, it was to a group of employees[21]. I do not consider anything significant turns on whether or not Mr Shaw said to Mr Ritchie that he “better get moving on the bricks” whether individually or in a group. I am certainly not convinced that Mr Ritchie’s description of these incidents in his oral evidence, under cross-examination, and his description of them in his Reply Witness Statement brings into “major question” his credibility as a witness.
On the other hand, there were discrepancies in Mr Hine’s evidence. The most notable of these was a correction Mr Hine appeared to attempt to make to the evidence in his Witness Statement, that Mr Ritchie did not have a license to perform a forklift role when he was employed[22]. In his Witness Statement, Mr Hine said that in “August 2023, the Applicant re-obtained valid forklift and truck operation licenses … from that date the Applicant occasionally operated the forklift”. At the start of his evidence Mr Ritchie affirmed the veracity of his Witness Statement under oath without correcting his assertion that “[w]hen he started, the Applicant was definitely not given the impression he was going to be a truck driver or forklift operator … he didn’t have the licenses to perform these roles”. However, later in his evidence, after appearing to concede that he may have seen Mr Ritchie’s forklift license when he commenced employment[23], Mr Hine said he was mistaken, and that Mr Ritchie did have a forklift license when he commenced employment[24]. His explanation as to why he gave evidence that Mr Ritchie obtained his forklift license in August 2023 (in circumstances where he already had one), and from this date began to use a forklift was not clear[25].
I note that Mr Ritchie did have a forklift license which he obtained on 6 April 2023 a copy of which was attached to his Reply Witness Statement[26]. I also find it to be likely that Mr Ritchie used a forklift from the commencement of his employment particularly because Mr Ritchie’s evidence to this effect was not challenged[27], Mr Shaw confirmed that the use of the forklift was a standard part of the process for stacking bricks[28] and Mr Hine, despite the evidence in his Witness Statement to the contrary, conceded that he did not dispute that Mr Ritchie had to drive the forklift from his very first day[29].
Mr Hine also suggested in his evidence he observed Mr Ritchie stacking bricks at a slow rate – at a rate of only 60 bricks in an hour – by observing him doing so on a CCTV camera[30]. Mr Hine was not able to provide any specific detail of these occurrences, such as precisely when they occurred, a note he made of them (which he said he didn’t), nor was the CCTV footage produced by Krause Bricks[31]. Mr Hine was also not able to explain the incongruity of his not having raised the matter with Mr Ritchie at the time of his observations, which he said he did not[32], in circumstances where stacking a pallet of bricks at that rate would take around five times longer than it normally would[33]. I find it very difficult to accept that upon observing an employee performing five times slower than was expected, that Mr Hine did not immediately ask a question of the employee (even in relation to his well-being), or did not provide corrective feedback or took no action of any kind. As I mention further below, I do not consider Mr Hine’s evidence, that Mr Ritchie’s brick stacking performance was sub-standard because of his observations of him on a CCTV camera to be reliable.
Where there were direct contrasts between the evidence of Mr Ritchie and Mr Hine, I prefer the evidence of Mr Ritchie.
Mr Shaw’s evidence was also afflicted by confusion over whether Mr Ritchie had a forklift license when he commenced employment, having given evidence in his Witness Statement to the effect that Mr Ritchie got his forklift license back in at some point during his employment[34], thus suggesting that Mr Ritchie did not have a forklift license when he began employment. Under cross examination however, Mr Shaw seemed to readily accept he “may well” have had a forklift license “all along”[35], and that he had a discussion with Mr Ritchie about this before he started employment[36] but could not recall whether a copy of the license was shown to him at the time, or a copy taken[37]. Mr Shaw’s evidence in this regard was somewhat similar to much of his oral evidence: he was not evasive, but his evidence was at times vague or afflicted by a lack of memory – perhaps reflective of some time now having been passed since he left employment at Krause Bricks.
Taking into account my assessments as to the quality of some of the evidence in this matter, the following picture can be gleaned from that evidence.
Evidentiary matters.
The duties Mr Ritchie performed during his employment
Mr Ritchie was employed as a production labourer. There was a controversy over whether, having been employed as a production labourer, Mr Ritchie should have spent most of his time at work stacking bricks, or doing other duties. It seemed central to Krause Bricks’ case, that, notwithstanding Mr Ritchie worked under supervision, he avoided the work he should have been spending most of his time doing – stacking bricks – to perform other work, such as forklift operation or truck driving.
Mr Ritchie’s job description describes his duties as including forklift operation, truck driving duties, loading, unloading and transporting raw material between storage and production sites, restacking and organising stock in the yard and raw materials storage areas (stacking and packing bricks) and working with the main truck drivers to reorganise major sections of the storage[38].
There is very little evidence to support the theory that Mr Ritchie “avoided” stacking bricks. As opposed to “avoidance”, undoubtedly, he was required to or directed to perform other duties, similar to those outlined in his job description, such as being asked by Mr Shaw, apparently on the instruction of Mr Hine, to become a regular driver of the dump truck, after a previous truck driver left the business[39]. There was no dispute that on occasion, Mr Ritchie was given the task of wrapping stacked bricks in plastic wrap[40]. It did not seem to be contested that towards the end of his employment, Mr Ritchie had been asked to clean up the yard and did so[41]. Mr Shaw gave evidence that towards the end of Mr Ritchie’s employment, due to the other duties he was being allocated, he may have been spending as little as only 30 per cent of his time as a “production worker” (stacking bricks)[42].
During his employment, Mr Ritchie did indeed stack bricks. Evidence was given about this process. Particularly based on the evidence given by Mr Hine, supported by evidence of Mr Shaw and Mr Ritchie, I understood the process to involve the following:
a.An operator using a forklift to obtain an empty pallet, taken by forklift to the brick stacking area[43].
b.Operators, working in teams of two, manually taking bricks from a stack, and placing them on the empty pallet in a stack of a prescribed size[44].
c.Once complete, an operator using a forklift to take the pallet, now stacked with bricks, to the “wrapping area” for them to be wrapped in plastic by a person designated with that job[45].
d.The process is then repeated by the production labourers.
In written submissions, Krause Brick submitted that Mr Ritchie’s “underperformance amounts to serious misconduct”[46]. The basis of this seemed to be the contention that Mr Ritchie demonstrated continued unwillingness to perform the core duties of his role and stack bricks productively and had deliberately stacked bricks slowly[47]. It was said in oral submissions that Krause Bricks’ position is not that the employment was terminated by reason of serious misconduct, but that an “element of misconduct” may be relevant to the question of remedy, if there is to be one[48].
The contention that when Mr Ritchie performed duties other than stacking bricks, he was doing so in order to deliberately avoid that task is unsupported by the evidence. I consider that while Mr Ritchie did indeed stack bricks as part of his job, his role involved the performance of other duties, which he was directed to and did perform.
Mr Ritchie’s work performance.
The case against Mr Ritchie’s work performance seemed to be based on the following propositions:
a.That Mr Ritchie sought to avoid stacking bricks in preference for performing other duties.
b.That Mr Hine had a low opinion of Mr Ritchie’s standard of work, because of what he was told by Mr Shaw and because he observed slowness on CCTV.
c.That Mr Shaw considered Mr Ritchie to be slow and did not have a high level of skill.
d.That Mr Hine spoke to Mr Ritchie about work performance issues on two occasions before termination, on 5 April 2024 and 2 May 2024.
I have said above that I am not persuaded that there is evidentiary support for the assertion that Mr Ritchie sought to avoid performing duties such as stacking bricks by deliberately opting to perform other tasks because all of the evidence of him performing other tasks indicates he did so because he was directed or required to.
Apart from the observations he said he made of Mr Ritchie’s work performance on CCTV, Mr Hine’s evidence about his assessment of Mr Ritchie’s work performance seems largely based on what he says he was told by others, including Mr Shaw[49]. I find Mr Hine’s evidence in this regard, in so far as it is said to be evidence of inadequacies in Mr Ritchie’s work performance, unpersuasive.
The evidence given by Mr Hine, that he observed Mr Ritchie on CCTV stacking bricks slowly, at the rate of 60 bricks per hour, is not reliable. Mr Hine was not able to provide clarity as to when he made these observations, or how the observations were made, particularly when bricks are stacked by a two-person team. Krause Bricks did not produce the CCTV footage of these occurrences. Mr Hine did not make a note of his observations, despite, as is dealt with below, making notes of two conversations he had with Mr Ritchie which are said to be in relation to this work performance. The rate of production Mr Hine says he observed is extremely low – 60 bricks per hour against an expectation of about 700 bricks per hour. And yet Mr Hine did not speak to Mr Ritchie at the time, to query why the rate was so slow.
In his Witness Statement, Mr Shaw gave evidence that he considered Mr Ritchie to be “particularly slow” in relation to brick stacking[50] and that his skill level was not very high[51]. He said he “would have spoken to him on a regular basis in an informal manner about his brick stacking performance”[52]. Under cross examination, Mr Shaw conceded such comments “would have” been made in a casual way[53] and were never formal[54]. He also conceded that he never actually sat and monitored how many bricks Mr Ritchie stacked per hour[55]. I consider it is reasonable to conclude that to the extent that Mr Shaw considered Mr Ritchie’s brick stacking to be slow, that any such underperformance is unlikely to be significant. It does not appear to have been significant enough for Mr Shaw to speak to Mr Ritchie about it, in anything other than in a casual way. And it was not apparently an assessment made through proper observation. It is a casual assessment at best.
It appears Mr Hine did have conversations with Mr Ritchie on 5 April 2024 and 2 May 2024 in which he said he raised performance issues with Mr Richie. Mr Hine’s evidence that these conversations occurred was corroborated by copies of diary notes which emerged during the hearing.
Both meetings took place in the work yard. In relation to the meeting which took place on 5 April 2024, Mr Hine suggests that he “took the opportunity to meet” with Mr Ritchie on this day[56]. Mr Ritchie said that he initiated the meeting, in order to request a pay increase[57]. To some extent, Mr Hine conceded this to be the case under cross examination[58].
Mr Hine says that in this meeting he made it very clear that he was not satisfied with Mr Ritchie’s performance and while he did not state that his employment would be ended if he didn’t improve, that his meaning “was very clear to a reasonable person”. Mr Hine’s meeting notes mention “ongoing complaints – SS” (presumably meaning Mr Shaw) and say, “spoke to Craig regarding his role and the need to combine labouring duties with driving … he must pack consistently at the same rate as everyone else … Scott has reported that he has regularly pointed out his need to improve …”.
Mr Ritchie claimed that the second meeting, which took place on 2 May 2024, was also initiated by him[59]. Mr Hine’s evidence in his witness statement was that the meeting occurred because he “felt it was necessary to have a formal conversation with the Applicant again”, due to a “lack of improvement and the continuing issues it was causing from an operational perspective”. The diary note Mr Hine made said “C.R – discussion regarding need to focus more when packing bricks and previously discussed with Scott Brunt that there is no permanent driving role … greater effort needed in stacking current output inadequate … made clear there is no driving role !!”.
I consider that the evidence of Mr Hine about the meetings which are said to have occurred with Mr Ritchie on 5 April 2024 and 2 May 2024, including the diary note Mr Hine kept of the meeting, is the only reliable evidence of any particular concern being raised with Mr Ritchie’s brick stacking performance during his employment, until he was terminated.
On one view, it seems unlikely Mr Hine would have had these conversations with Mr Ritchie if he was, as he claims, “one of the better packers and stackers”[60] or if there was no cause whatsoever for concern with the standard of his work. On the other hand, these are hardly conversations of the kind that an employer might have with an employee in respect of whom there is a concern about sub-standard performance which might, if it does not improve, lead to the termination of their employment. They occur in the yard, appear to be somewhat informal and may not have even been initiated by Mr Hine. I accept that from Mr Ritchie’s perspective they did not amount to anything like formal criticism of his work performance, much less warnings.
For completeness I note that while Mr Hine suggests that it should have been evident to Mr Ritchie during these meetings that his failure to improve his performance might result in the termination of his employment, this was not said to Mr Ritchie, nor do either of the diary notes record such an ultimatum. Mr Ritchie said that “in neither meeting did Mr Hine say or suggest that I might be dismissed for any reason[61]”. He was not challenged about this evidence in cross examination.
According to Mr Ritchie’s supervisor, Mr Shaw, towards the end of his employment, he may have been spending only about 30 per cent of his time stacking bricks. Throughout his employment he was required to perform a range of tasks, including driving the dump truck and operating a forklift. I note that there was no evidence, of any kind, critical of Mr Ritchie’s performance in these other aspects of his role, which at times, were substantive.
Mr Ritchie gave evidence that Mr Shaw told him he was one of the better packers and stackers and used words similar to the best packager and stacker. I do not think anything particularly significant turns on whether or not Mr Shaw told Mr Ritchie he was the best or one of the better brick stackers. It seems more significant that there is an absence of reliable objective evidence that Mr Ritchie was not performing to the required standard in relation to the work he was required to perform, including in relation to stacking bricks.
I find there is very little evidence to support the proposition that Mr Ritchie’s work performance was sub-standard.
Injury
From 29 May 2024 Mr Ritchie was absent from work due to illness relating to a heart condition. His absence continued until 17 June 2024 when he returned to work. He kept Mr Hine informed as to his absence from when it commenced until when he returned to work. It did not appear that anything significant turned on Mr Ritchie’s injury and his absence from work.
It was put to Mr Hine, on Mr Ritchie’s behalf that the real reason Mr Ritchie’s employment was terminated was because he had a serious illness due to a heart condition and he did not want somebody like that on his payroll, which Mr Hine denied. I deal with this matter further below.
Termination
In his Witness Statement, Mr Hine describes a conversation said to have occurred on or about 18 June 2024 with another employee of Krause Bricks, Mr Moutsos, (who did not give evidence in this proceeding), in which he outlined “the history of performance concerns with the Applicant”. He then says “[f]or these reasons, I considered it would be necessary to end the Applicant’s employment by reason of underperformance”[62].
In his Statement, Mr Hine then describes how on 20 June 2024 he convened a meeting with Mr Ritchie in the office, and after an initial welcome “advised the Applicant that we were intending to end his employment by reason of unsatisfactory performance”[63].
He then says that Mr Ritchie disputed that he was underperforming, and that he would be prepared to provide him with a Statement of Service.
In all relevant respects, Mr Ritchie’s account of this meeting was broadly similar. He said in relation to Mr Hine that “after saying hello to each other he told me that “we have to let you go because you are not stacking enough bricks”[64]. He said that he said he stacked bricks faster than many other people he worked with, but this was dismissed by Mr Hine[65].
In cross examination, Mr Hine’s account of this meeting appeared to change slightly. He said that the decision to terminate Mr Ritchie’s employment was not made until he brought Mr Ritchie into the meeting[66], and was made by him during the meeting, when he did not believe that the employee was going to take on the feedback about the issues with his performance[67].
When the apparent inconsistency between what Mr Hine said in his witness statement (which he swore to be correct) and what he said in his oral evidence, was put to him, he said “well, if I said ‘may’ instead of ‘would’ it would be right”[68].
Consistent with my concerns about Mr Hine’s credibility as a witness, I consider this answer to be an indication that Mr Hine’s alternative version of this meeting was an attempt to provide in his oral evidence a self-serving account of what transpired and is unreliable. I consider that Mr Hine had decided to terminate Mr Ritchie’s employment before he met with him on 20 June 2024, and, apart from some pleasantries, advised him of that decision without discussion. The brief protestation made by Mr Ritchie was dismissed and the employment was terminated.
Statutory provisions - unfair dismissal
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 factors, to the extent they are relevant to the factual circumstances before me[69].
Was there a valid reason for dismissal related to Mr Ritchie’s capacity or conduct?
It is well established that order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced” [70].
In respect to Mr Ritchie’s dismissal, a valid reason of this kind might well exist if the evidence showed that he was avoiding the duties he was responsible for, was deliberately slow at stacking bricks, stacked bricks in an inappropriate manner or was otherwise incompetent. But, as I have observed above, the evidence of such was less than compelling. At its highest, the evidence for Krause Bricks is that on 5 April 2024 and 2 May 2024, Mr Hine spoke to Mr Ritchie about greater effort being needed in stacking bricks because his current output was inadequate. These conversations occurred in the yard. They were informal and were not indicative of incompetence justifying dismissal.
Perhaps as an alternative, it might be said that even if Mr Ritchie was not slow at stacking bricks, he nevertheless sought to avoid this part of his role, in preference for other duties. But as I have observed above, the assertion as to deliberate avoidance was not supported by evidence.
Instead, the other duties Mr Ritchie performed were directed or required to be performed by Krause Bricks. They at times formed a substantial part of Mr Ritchie’s role and there was apparently no issue with his standard of performance in relation to those duties.
I find that neither the assertion that Mr Richie was slow at stacking bricks or that he deliberately avoided his duties is substantiated by the evidence, or is a sound, defensible and well-founded reason for dismissal. On the evidence before me there was no valid reason for the termination of Mr Ritchie’s employment relating to his capacity or conduct. This factor weighs in favour of a finding that the termination of Mr Ritchie’s employment was unfair.
It was submitted for Mr Ritchie that, in the absence of a valid reason for the dismissal, the only sensible conclusion that can be reached as to real reason for the decision was that Mr Ritchie had recently been absent from work due to illness, due to a heart condition, and that Krause Bricks no longer wanted him as part of its business for that reason. It did not appear to me that this submission was pressed to any great extent. Obviously if this was the reason for Krause Bricks’ decision to terminate Mr Ritchie’s employment, it would not constitute a valid reason within the meaning of the Act. However, I do not consider there is sufficient evidence before me to support such a proposition and it does not form part of my decision in this matter.
Was Mr Ritchie notified of the reason for dismissal?
Notification of the valid reason for dismissal must be given to the employee explicitly and in plain and clear terms. But crucially, this must occur before the decision to terminate the employment is made[71].
Mr Ritchie was told of the decision to terminate his employment in a meeting he had with Mr Hine on 20 June 2024. The decision to terminate his employment was made by Mr Hine sometime before this meeting.
The two prior occasions on which Mr Hine had raised brick stacking with Mr Ritchie were not conversations in which Mr Hine made Mr Ritchie aware that his brick stacking performance could lead to the termination of his employment. They do not amount to notification as to a valid reason for the termination of Mr Ritchie’s employment.
I find that Mr Ritchie was not notified by Krause Bricks of the reason for his dismissal before the decision was made to terminate his employment. This factor weighs in favour of a finding that the termination of Mr Ritchie’s employment was unfair.
Was Mr Ritchie given an opportunity to respond to the valid reason?
An employee protected from unfair dismissal should be notified of a valid reason for the termination of their employment before a decision is taken to terminate that employment[72].
While the opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly[73], the employee must be aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern[74].
Mr Ritchie was not provided with an opportunity to respond to the reason given to him for the termination of his employment because, as I have found, Mr Hine had already decided to terminate the employment before he told Mr Ritchie of the reason for that decision.
While Mr Hine raised with Mr Ritchie the issue of his brick stacking with him on 5 April 2024 and 2 May 2024, these were not circumstances in which the precise nature of Krause Bricks’ concern about Mr Ritchie’s performance was made known to him, such that he could address, through providing a response, the prospect that his employment was in jeopardy.
I find Mr Ritchie was not provided with an opportunity to respond to the reason for his dismissal. This factor weighs in favour of a finding that the termination of Mr Ritchie’s employment was unfair.
Did Krause Bricks unreasonably refuse to allow Mr Ritchie to have a support person present to assist at discussions relating to the dismissal?
There is no evidence that Mr Ritchie requested and was denied the ability to have a support person present at the meeting on 20 June 2024. This factor consequently weighs neutrally in my consideration.
Was Mr Ritchie warned about unsatisfactory performance before the dismissal?
It is well established that a “warning” for the purposes of s 387(e) of the Act should make it clear that the employee’s employment is at risk unless the performance is improved”[75].
There are only three possible instances in this matter in which it might be said that Mr Ritchie received a warning about unsatisfactory performance before the dismissal. One is the comments of Mr Shaw, made to Mr Ritchie and others, to “get moving on the bricks”. Undoubtedly these exhortations did not constitute “warnings” for the purposes of s 387(e). The other two possibilities are the conversations Mr Hine had with Mr Ritchie in the yard, on 5 April 2024 and 2 May 2024. As I have observed above, neither of these conversations provided Mr Ritchie with the requisite clarity that his employment was at risk.
I find Mr Ritchie was not warned about unsatisfactory performance before the termination of his employment. This factor weighs in favour of a finding that the termination of Mr Ritchie’s employment was unfair.
To what degree would the size of Krause Bricks’ enterprise or the absence of human resources management specialists be likely to impact on the procedures followed in effecting the dismissal?
Krause Bricks is a reasonably small business and does not appear to have dedicated human resources specialists. This is likely to have impacted on the procedures followed in effecting Mr Ritchie’s dismissal. It is however well established that these matters do not justify a dismissal to be conducted without procedural fairness or the employee being provided with a fair go[76]. To some degree, this factor weighs against a finding that Mr Ritchie’s termination of employment was unfair.
What other matters are relevant?
Mr Ritchie submitted that further factors which should weigh in favour of a finding that the dismissal of his employment was unfair included the impact of the dismissal on his personal or economic situation (particularly taking into account that it occurred just after he was absent from work due to a heart condition) and the absence of procedural fairness and the denial of natural justice.
I consider both these factors weigh in favour of a finding that the termination of Mr Ritchie’s employment was unfair.
Mr Ritchie also asked me to take into account the failure of Krause Bricks to consider any option apart from dismissal and also, what was alleged to be differential treatment with respect to other staff. I do not consider there is sufficient evidence before me about either of these matters such that it is appropriate I take them into account.
Mr Ritchie also submitted that I should take into account the inherent lack of opportunity to have a support person present to assist in discussions relating to the dismissal. Having found that Mr Hine had already determined to dismiss Mr Ritchie before the meeting held on 20 June 2024, it does not appear to me his failure to offer Mr Ritchie the opportunity to have a support person present would have impacted on what then transpired. I do not consider this matter weighs for or against a finding of unfairness in this particular matter.
Is the Commission satisfied that the dismissal of Mr Ritchie was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s.387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable[77]. Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Ritchie was harsh, unjust and unreasonable.
I find Mr Ritchie was unfairly dismissed.
Remedy
Being satisfied that Mr Ritchie:
a.made an application for an order granting a remedy under s.394;
b.was a person protected from unfair dismissal;
c.and was unfairly dismissed within the meaning of s.385 of the Act, I may, subject to the Act, order Mr Ritchie’s reinstatement, or the payment of compensation to Mr Ritchie.
Under s.390(3) of the Act, I must not order the payment of compensation to Mr Ritchie unless: (a) I am satisfied that reinstatement of Mr Ritchie is inappropriate; and (b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of Mr Ritchie inappropriate?
Mr Ritchie does not seek reinstatement[78], and it is opposed by Krause Bricks[79]. I find in these circumstances that reinstatement is inappropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Mr Ritchie has suffered financial loss in circumstances where I have found he was unfairly dismissed. Whilst it does not automatically follow that a payment of compensation is appropriate[80], in all the circumstances, I consider that an order for payment of compensation is appropriate.
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 Mr Ritchie in lieu of reinstatement including:
a.the effect of the order on the viability of Krause Bricks’ enterprise;
b.the length of Mr Ritchie’s service;
c.the remuneration that Mr Ritchie would have received, or would have been likely to receive, if he had not been dismissed;
d.the efforts of Mr Ritchie (if any) to mitigate the loss suffered because of the dismissal;
e.the amount of any remuneration earned by Mr Ritchie 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 Mr Ritchie 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 each of these matters below.
Effect of the order on the viability of Krause Bricks’ enterprise
The onus is on Krause Bricks to provide evidence of the financial situation of the business and the likely effect that an order of compensation will have on the viability of the business[81]. I was provided with no evidence in this regard. I consider this is a neutral factor in respect of the s 392(2) considerations.
Length of Mr Ritchie’s service
Mr Ritchie was employed by Krause Bricks for around 14 months in total where around four months of that period involved a permanent engagement, and ten months, a regular casual engagement. It was submitted for Krause Bricks that this period of service is relatively short and should weigh on any consideration given to how long Mr Ritchie’s employment may have continued, had he not been dismissed[82]. Mr Ritchie submitted that this length of service should not support reducing or increasing the amount of compensation ordered, and that the Commission has a broad discretion in this regard[83].
Below, I find that if a fair process had been provided to Mr Ritchie to address any concerns that may have existed in relation to his brick stacking, his employment should have continued for at least three months, to allow that process to occur properly. I have taken into account Mr Ritchie’s length of service in calculating that timeframe, and that is the extent to which I consider it should impact on the Order of compensation I intend to make in this matter.
Remuneration that Mr Ritchie would have received, or would have been likely to receive, if Mr Ritchie had not been dismissed
In determining the remuneration that Mr Ritchie would have received, or would have been likely to receive, I am required to address myself to the question of whether if Mr Ritchie’s employment had not been terminated, the employment would have been likely to continue or would have been terminated at some time by another means, and in doing so, make an assessment as to the anticipated period of employment[84].
It was submitted for Krause Bricks that if, instead of having dismissed Mr Ritchie on 20 June 2024, Mr Hine provided him with a warning in respect to his brick stacking performance, that his employment would not have continued for more than another week – particularly because of his alleged refusal to accept the criticism of his performance and the consequential unlikelihood that it would improve. I do not accept this submission. On the evidence before me, the meeting of 20 June 2024 is the first occasion on which anything like a formal criticism was raised with Mr Ritchie about his brick stacking performance. The previous two occasions when the matter was raised – in April and May – were informal counselling, at best. If there were problems with Mr Ritchie’s brick stacking performance at all, I consider that once he was properly informed of this, with requisite clarity, a procedurally fair process to provide him with a proper opportunity to turn his performance around would require more than a week. This is especially so where there is no evidence of any properly objective method of assessment of Mr Ritchie’s performance having been employed.
I also consider it particularly relevant that, at around this time, stacking bricks may have constituted significantly less than half of the duties Mr Ritchie was being required to perform by Krause Bricks. Perhaps for self-serving purposes, Krause Bricks attempted to make much out of the proposition that stacking bricks was Mr Ritchie’s core role. But on its own evidence, towards the end of his employment, Mr Ritchie was spending 70 per cent of his time doing other things.
In these circumstances, even if the meeting of 20 June 2024 was the commencement of a process in which Mr Ritchie was given fair warning that he needed to improve his brick stacking performance or his employment would end, I consider that a proper process to allow him to achieve that improvement, before it could be safely concluded that no such improvement would be achieved, would have extended for at least three months. This is the “anticipated period of employment”[85].
Mr Ritchie’s gave evidence as to his average weekly earnings in the 26 weeks leading up to the termination of his employment which was similar to the figure provided by Krause Bricks in its Form F3 Response to the Application. For the purposes of calculating compensation in this matter, I intend to use the figure provided by Krause Bricks (which is not less than the figures provided by Mr Ritchie). On this basis, Mr Ritchie’s annual salary was $65,545 plus superannuation. I calculate the remuneration Mr Ritchie would have been likely to receive working for Krause Bricks for three months from 20 June 2024 to 12 September 2024 to be $15,125.77 gross plus superannuation.
Efforts of Mr Ritchie to mitigate the loss suffered by Mr Ritchie because of the dismissal
Mr Ritchie provided evidence that he has made significant efforts to mitigate the loss of income he has suffered because of the dismissal, including by applying for forklift jobs, but also many jobs in the regional area in which he lives, at a range of locations. To some extent, that evidence was interrogated in cross examination, in response to which I consider Mr Ritchie emphasised, in his evidence, his efforts to mitigate the loss he has suffered because of the dismissal of his employment.
Amount of remuneration earned by Mr Ritchie from employment or other work during the period between the dismissal and the making of the order for compensation
Mr Ritchie’s evidence in his Witness Statement was that since dismissal he has earned $58.00 through collecting bottles and cans from recycling[86]. He gave evidence at the hearing, on 2 October 2024, that he had not had any further earnings in the past month[87].
Amount of income reasonably likely to be so earned by Mr Ritchie during the period between the making of the order for compensation and the actual compensation
There is no evidence before me that Mr Ritchie is likely to earn any income between the time of the Order[88] I intend to make that he be paid compensation and the date the actual compensation is paid to him.
Other relevant matters
It appeared there may have been a suggestion made on behalf of Krause Bricks that Mr Ritchie may have engaged in “misconduct”, perhaps in respect to a refusal to perform duties he was instructed to perform or an allegation that he sought to avoid performing duties such as brick stacking, and that this may be relevant to the question of remedy. To the extent that submission was raised, I do not consider it relevant to the question of remedy because I do not consider there was any evidence supporting the allegation that Mr Ritchie refused to or avoided performing duties he was expected to perform or engaged in misconduct.
Calculation of compensation
Below, I adopt the Sprigg formula to calculate the amount of compensation which should be awarded to Mr Ritchie in respect to this matter[89]. The formula is as follows:
a.Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
b.Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure to mitigate loss may lead to a reduction in the amount of compensation ordered.
c.Step 3: Discount the remaining amount for contingencies.
d.Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
I have estimated that Mr Ritchie would have remained employed by Krause Bricks for at least a further three months, until 12 September 2024.
The remuneration Mr Ritchie would have received, or would have been likely to have received, from the period from his dismissal on 20 June 2024 until 12 September 2024 is $15,125.77 gross, plus superannuation.
Step 2
Mr Ritchie’s evidence was that he had earned $58.00 since the termination of his employment.
A figure of $15,067.77 is left after the deduction for remuneration earned.
Step 3
As is mentioned above, the anticipated period of employment is from 20 June 2024 until 12 September 2024. Mr Ritchie’s evidence was that his earnings since termination, up until 2 October 2024 were $58.00.
Accordingly, I know Mr Ritchie’s earnings during the anticipated period of employment. I therefore do not need to make a deduction for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $15,067.77, plus superannuation, and leave taxation for determination.
Compensation – is the amount to be reduced on account of misconduct?
As I have said above, to the extent that it was submitted on behalf of Krause Bricks that an allegation of misconduct is relevant to the question of remedy, I do not accept that submission, because I do not consider there was any evidence supporting the allegation that Mr Ritchie refused to or avoided performing duties he was expected to perform or otherwise engaged in misconduct.
Compensation – how does the compensation cap apply?
The compensation cap[90] in this matter for the purposes is the total amount of remuneration received by Mr Ritchie or to which he was entitled in the 26 weeks immediately before the dismissal. Mr Ritchie said that earned $30,114.80 in the 26 weeks leading up to his dismissal[91], and this was not challenged.
Is the level of compensation appropriate?
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.”[92]
The application of the Sprigg formula has resulted in an outcome where Mr Ritchie would be awarded compensation of $15,067.77, plus superannuation.
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act.
Compensation order
Given my findings above, I will make an order[93] that Krause Bricks must pay Mr Ritchie $15,067.77 less taxation as required by law, plus a superannuation contribution into his nominated fund of $1,732.79, within 14 days of the date of this decision.
COMMISSIONER
Appearances:
Mr Gary Dircks for the Applicant
Ms Elizabeth Aitken for the Respondent
Hearing details:
2024
Melbourne
2 October 2024
<PR780640>
[1] Transcript PN32
[2] Transcript PN52
[3] Transcript PN844
[4] Transcript PN848
[5] Witness Statement of Rohan Hine [1]
[6] Witness Statement of Craig Ritchie [7]; Witness Statement of Rohan Hine [9]
[7] Witness Statement of Rohan Hine [13]
[8] Fair Work Act 2009 s 384(2)
[9] Ibid s 12
[10] Angele Chandler v Bed Bath N’ Table Pty Ltd[2020] FWCFB 306 [11] – [13]
[11] Bronze Hospitality Pty Ltd v Hansson (No 2) [2019] FCA 1680 [40]
[12] Ibid [43]
[13] Transcript PN682 – PN686
[14] Witness Statement of Craig Ritchie [1]
[15] Transcript PN686
[16] Transcript PN521
[17] Transcript PN99, PN102, PN110, PN112, PN115, PN116, PN118, PN133, PN135
[18] Transcript PN964
[19] Transcript PN964-965
[20] Reply Witness Statement of Craig Richie [44]
[21] Transcript PN223 See also Reply Witness Statement of Craig Ritchie [43]
[22] Witness Statement of Rohan Hine [17]
[23] Transcript PN345-346, 495
[24] Transcript at PN330, PN543
[25] Transcript PN494, 545
[26] Reply Witness Statement of Craig Ritchie, Attachment 2
[27] Reply Witness Statement of Craig Ritchie [16]
[28] Transcript PN702-703
[29] Transcript PN497
[30] Witness Statement of Rohan Hine [20]
[31] Transcript PN403 - 406
[32] Transcript PN409
[33] Transcript PN422-423
[34] Witness Statement of Scott Shaw [17]
[35] Transcript PN670
[36] Transcript PN671
[37] Transcript PN672-673
[38] Witness Statement of Rohan Hine, Annexure 2
[39] Transcript PN445, 722 - 724
[40] Reply Statement of Craig Ritchie [18]; Transcript PN746
[41] Transcript PN782, 786
[42] Transcript PN776, 782
[43] Transcript PN205-206; 700
[44] Transcript PN206
[45] Transcript PN207
[46] Respondent’s Outline of Submissions [10]
[47] Respondent’s Outline of Submissions [11]
[48] Transcript PN984-986
[49] Witness Statement of Rohan Hine [20] – [21], [30]
[50] Witness Statement of Scott Shaw [8]
[51] Witness Statement of Scott Shaw [10]
[52] Witness Statement of Scott Shaw [14]
[53] Transcript PN658
[54] Transcript PN660
[55] Transcript PN704
[56] Witness Statement of Rohan Hine [25]
[57] Reply Witness Statement of Craig Ritchie [50]
[58] Transcript PN440
[59] Reply Witness Statement of Craig Ritchie [50]
[60] Reply Witness Statement of Craig Ritchie [45]
[61] Reply Witness Statement of Craig Ritchie [59]
[62] Witness Statement of Rohan Hine [48]
[63] Witness Statement of Rohan Hine [50]
[64] Witness Statement of Craig Ritchie [34]
[65] Witness Statement of Craig Ritchie [37] – [38]
[66] Transcript PN453
[67] Trancript PN478
[68] Transcript PN476
[69] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]
[70] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 [373]
[71] Newton v Toll Transport[2021] FWCFB 3457 [182]
[72] Crozier v Palazzo Corporation (1996) 98 IR 137 [73]
[73] RMIT v Asher (2010) 194 IR 1 [14] – [15]
[74] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 [7]
[75] Sirijovski v BlueScope Steel [2014] FWCFB 2593 [37]
[76] Pecker Maroo Verano Pty Ltd v Stevens [2024] FWCFB 147 [110]
[77] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) IR 117 357 [51]; Edwards v Giudice [1999] FCA 1836 [6] – [7]
[78] Applicant’s Outline of Submissions [40]
[79] Respondent’s Outline of Submissions [28]
[80] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 [9]
[81] Vickery v Assetta [2004] FCA 555; D.A. Moore v Highpace Pty Ltd (1998) Print Q0871
[82] Transcript PN976
[83] Applicant’s Outline of Submissions [43(b)]
[84] He v Lewin [2004] FCAFC 161 [58]
[85] Ellawalla v Australian Postal Corporation Print S5109 [34]
[86] Witness Statement of Craig Ritchie [51]
[87] Transcript PN67
[88] PR780877
[89] Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21
[90] Fair Work Act 2009 s 392(5) and (6)
[91] Witness Statement of Craig Ritchie [9]
[92] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 [17]
[93] PR
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