Dana Eagland v BMW Melbourne Pty Ltd T/A BMW Melbourne
[2018] FWC 649
•31 JANUARY 2018
| [2018] FWC 649 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dana Eagland
v
BMW Melbourne Pty Ltd T/A BMW Melbourne
(U2017/9609)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 31 JANUARY 2018 |
Application for an unfair dismissal remedy.
[1] On 4 September 2017, Mr Dana Eagland made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by BMW Melbourne Pty Ltd T/A BMW Melbourne (Respondent) (BMW Melbourne).
[2] Mr Eagland was employed by BMW Melbourne from 9 April 2002 until he was dismissed for serious misconduct on 1 September 2017. At the time of his dismissal Mr Eagland was employed as an Assistant Sales Manager in Port Melbourne. Mr Eagland submits that his dismissal was unfair.
Procedural Background
[3] This matter was conciliated on 28 September 2017 however remained unresolved. The matter was subsequently listed for a second conciliation on 24 November 2017, and when it did not resolve the parties attended a directions hearing that same day. I determined, pursuant to s.399 of the Act, that the matter was most appropriately dealt with in a formal hearing. The matter proceeded to a hearing before me on 6 December 2017.
[4] I granted permission for the parties to be represented pursuant to section 596 of the Act, accepting the submission that neither party would be able to represent themselves effectively.
[5] Mr Eagland was represented by a paid agent and gave evidence in support of his own application.
[6] BMW Melbourne was represented by a lawyer. The BMW business was sold to Officer Auto Sports Group (ASG), and each of the witnesses called by BMW Melbourne held their respective positions with BMW Melbourne until 1 November 2017, at which time they commenced employment with ASG. BMW Melbourne called evidence from the following witnesses:
● Mr Geoff Briscoe, Dealer Principal;
● Mr Adam Hurst, Financial Controller;
● Ms Amanda Alizzi, HR Business Partner; and
● Ms Michelle Nugent, Payroll Officer.
Preliminary Matters
[7] Section 396 of the Act requires that the following matters be decided before the merits of the application may be considered:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 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 (the Code);
(d) whether the dismissal was a case of genuine redundancy.”
[8] These matters were not in dispute. I find that:
● The application was made within the 21 day period required by s.394(2);
● The Applicant was protected from unfair dismissal for the purpose of s.382 of the Act. I am satisfied that Mr Eagland’s annual rate of earnings was less than the high income threshold and he had completed the minimum employment period;
● BMW Melbourne is not a “small business employer” as defined in s.23 of the Act, therefore the Small Business Fair Dismissal Code does not apply in this case (s.396(c)); and
● No issue of redundancy arose in the proceedings. I find the dismissal was not a case of genuine redundancy (s.396(d)).
Factual Background
[9] Mr Eagland was dismissed for reasons of serious misconduct. His termination letter, dated 5 September 2017, states that Mr Eagland had been dismissed for forging a customer’s signature on a Form 5 Statutory Warranty form, known as a LMCT form, placing BMW’s Motor Car Traders Licence at risk, and wilful neglect of his duties as a BMW Melbourne Used Cars Representative 1.
[10] The parties filed an agreed statement of facts 2 providing that Mr Eagland commenced employment with BMW Melbourne on 9 April 2002 as a Sales Executive. Between 2004 and 2005, Mr Eagland received two written warnings for underperformance.3
[11] In 2006, Mr Eagland participated in a dealer qualification program assisting BMW Brilliance to set up dealerships in China. He returned to Australia and commenced in the role of Used Car Sales Executive for BMW Melbourne on 31 May 2009. 4
[12] Mr Eagland commenced in the role of Assistant Used Car Manager on 22 August 2016. Mr Eagland’s employment contract stated that he;
“(a) must “in all respects conform to and comply with all reasonable administrative directions given and policies and procedures made by the Employer including the wearing of appropriate business attire”.
(b) must not ‘be guilty of serious misconduct’ and
(c) must not ‘conduct himself in such a way as to prejudice or potentially prejudice the name, reputation, standing and/or commercial interests of the Employer.” 5
[13] On 12 May 2017, Mr Eagland’s position of Assistant Used Car Manager became redundant and he accepted a redeployment position of Sales Consultant - Used Cars. Mr Eagland signed an addendum letter which stated, inter alia, that ‘all other terms and conditions of your original contract remain the same and unchanged’. 6
[14] In his role as Sales Consultant - Used Cars, Mr Eagland was responsible for the sales process for used cars from end to end and his duties included liaising with customers, negotiating on pricing, arranging the preparation of vehicles for sale and completing all administrative tasks until the completion of the sale, which included finalising paperwork. 7
Regulatory Environment
[15] BMW Melbourne was a motor car trader which sold new and used cars. As such, BMW Melbourne’s business was regulated by the Motor Car Traders Act 1986 (Vic) (MCT Act). 8
[16] Section 7 of the MCT Act requires that all motor car traders carrying on the business of trading in motor cars have a Motor Car Traders Licence (Licence). A Licence allows a dealership to retail motor vehicles to end users and to operate out of particular premises in order to sell vehicles. Applications for a Licence are submitted to the Business Licensing Authority. 9
[17] Section 52(6) of the MCT Act also requires a motor car trader to ensure that the purchaser of a used car signs a Statutory Warranty form, known as an LMCT form, on the sale of a used motor car. Failure to comply with this obligation may result in the imposition of financial penalties under the MCT Act, as well as causing reputational damage to the dealership. Repeated breaches may put a motor car trader’s Licence at risk. 10
[18] The LMCT form contains various details about the car which, in accordance with the MCT Act, are required to be brought to the purchaser’s attention before the sale of a used car. These details include the distance travelled by the car, the cash price of the car and the nature of the warranty applicable to the car. 11
[19] BMW Melbourne required LMCT forms to be completed and this was heavily pushed by BMW Melbourne management. 12
Events Leading to the Termination
[20] In August 2017, Victoria Police attended BMW Melbourne’s premises in Port Melbourne as part of an investigation into a criminal incident involving one of the cars Mr Eagland had sold to an interstate customer. The car was some time later reported stolen and had allegedly been involved in a drive-by shooting. It was discovered that the purchaser had purchased the car in a fraudulent manner. 13
[21] During their visit to BMW Melbourne the police officers spoke to Mr Nathan Nielsen-Beck, Group Finance Manager, and Mr Eagland regarding the car. The police officers inspected the file of sale documents relating to the relevant vehicle. One of the file documents was the LMCT form which appeared to have the purchaser’s signature on it. Mr Eagland informed the police officers that he had signed the LMCT form rather than the purchaser. 14
Meeting 1 September 2017
[22] On 1 September 2017, Ms Amanda Alizzi and Mr Geoff Briscoe met with Mr Eagland at BMW Melbourne premises. Ms Alizzi informed Mr Eagland that they were aware he had admitted to forging a purchaser’s signature on a LMCT form and that this was a serious matter. Mr Eagland did not deny that he had signed the LMCT form on behalf of the purchaser. 15
[23] Mr Briscoe sought a response from Mr Eagland as to why he had signed the form, stating words to the effect that ‘BMW Melbourne did not cultivate a culture which encourages its employees to forge signatures in order to get paid their commissions’. Mr Eagland responded with words to the effect ‘come on, you’ve been around long enough to know we are under pressure to get deals done’. 16
[24] Mr Briscoe said words to the effect that BMW Melbourne does put pressure on Sales Consultants to make sales but only while following correct protocols and that their employees are never pressured to forge signatures in order to close deals. Mr Eagland responded with words to the effect ‘come on, you’re living in a dream world’ and that forging customers signatures on LMCT forms was a commonly occurring practice within BMW Melbourne. Mr Briscoe denied being aware of any such practice and that he was aware Mr Eagland had admitted to having forged the purchaser’s signature on the LMCT form to the Police and Ms Alizzi. 17
[25] At the conclusion of the meeting Mr Briscoe informed Mr Eagland that his employment with BMW Melbourne would be terminated immediately on the basis that he had admitted to forging a purchaser’s signature on an LMCT form and that this conduct put the dealership’s Licence at risk and posed a significant risk to the business. Mr Eagland was subsequently sent a letter of termination by mail on the 5 September 2017. 18
[26] It is not in contention that Mr Eagland had forged the customer signature on the LMCT form. Mr Eagland had at no time during the police investigation or the disciplinary meeting attempted to deny that the conduct occurred. However the parties differ in that Mr Eagland submits the conduct was not serious enough to justify dismissal and the dismissal was disproportionate, he had 15 years of service with BMW and had not received any warnings pertaining to his conduct or performance. He submits that the conduct was not inconsistent with the employment contract as the conduct was commonly accepted and condoned by BMW Melbourne management. 19
[27] BMW Melbourne submit that the conduct was not common practice and at no time had they encouraged or accepted such behaviour. They submit that the forgery constituted serious misconduct which of itself warranted summary dismissal.
[28] BMW Melbourne further submit that even if the conduct did not amount to serious misconduct, Mr Eagland’s conduct nonetheless constituted a valid reason for dismissal. Mr Eagland’s dismissal was a consequence of a substantiated instance of forgery; an act they say contravened the MCT Act and risked BMW Melbourne’s licence.
Evidence
Was the conduct common practice and condoned?
[29] Mr Eagland’s evidence was that BMW Melbourne had gone through a period of time in around 2009 or 2010 where they did not complete the LMCT forms. 20 Since Mr Briscoe commenced employment with BMW Melbourne some 2-3 years ago the new administration has required the LMCT forms be completed for customers.21 Mr Eagland says completing the forms is unnecessary and he was placed under immense pressure to fill them out in time for them to be counted in the end of month sales figures.
[30] Mr Eagland says he has not received any training explaining the relevance of the LMCT form or how to correctly fill it out. The LMCT forms are for statutory warranties for used cars and his initial evidence was that they are not needed for the cars that he sells as they are still covered by the new car warranties. 22
[31] In cross examination Mr Eagland conceded that he had completed the LMCT form for all cars “if they can get the customer to sign” the form, regardless of whether it is covered by a new car warranty or used car. 23 Mr Eagland’s evidence was that it was common practice for employees to sign LMCT forms and transfer paperwork.24
[32] His evidence was that Mr Briscoe required the forms to be completed, they were put in the dealer packs and they had the customers sign. 25 He says Mr Briscoe was constantly putting pressure on him for sales and deliveries to be completed26 and that Mr Briscoe would ring him and make statements to the effect of;
“There’s a lot of leads there. What’s going on? How many of those leads”- if we need to go out and see people, “how many deals have we done for the day? How many deliveries have we got covered?” 27
[33] He also submitted that Management would often tell himself and other employees that they did not care how the paperwork for the deals got done, they were just required to get it done. 28 Mr Eagland says he was under particular pressure on this occasion from Mr Coia in the Finance department to get the paperwork completed as the customer was making a number of complaints about the process.29
[34] Mr Briscoe does not deny that he had put pressure on Mr Eagland to follow up on leads and make sales 30 however he denies that he has ever requested this be done at the expense of following the correct processes. He says he had never asked employees to falsely complete paperwork and he was not aware of any circumstances where this had happened. 31
[35] Mr Eagland submits that the management and processes surrounding the LMCT forms were lacking. He submitted that he had attempted to have an interstate policy introduced for the transfer of vehicles to ensure continuity and prevent the problems of interstate purchasers failing to sign documents, however this was rejected by the respondent. 32
[36] The forms in the dealer pack were raised by BMW Kings Way through stock control and there were a number of compliance issues with the accuracy of paperwork within BMW Melbourne. 33 It is not in contention that the LMCT form in question had not been completed accurately and was missing the cash price which was a requirement of the form. The compliance date on the LMCT form was also inaccurately recorded.
[37] Mr Briscoe’s evidence was that BMW Melbourne was conscious of the immense financial and reputational damage of compliance issues. 34 During cross-examination Mr Briscoe conceded that there were a number of issues with the accuracy of the paperwork being completed by members of the sales team.35 However he sought to draw a distinction between administrative errors as opposed to fraudulent conduct. Mr Briscoe’s evidence was that there was a difference when it came to someone making an error by incorrectly completing a form as opposed to someone committing an act of fraud.36 He gave evidence that the other individual who acted fraudulently in this matter, the business manager who was found to have falsely certified the purchaser’s driver’s license in reference to financing, also had his employment terminated.37
[38] Mr Hurst’s evidence was that the obvious errors in the form in question were an administrative error. 38 He says it is the function of his team to ensure all the documentation was present within the pack on completion of the sale.39 All the details should have come from the contract of sale, which should have been part of the pack, and his team should have checked that this was the case.40 Mr Hurst later corrected this statement stating the LMCT form needed to be completed prior to the contract being filled out.41 Mr Hurst’s evidence was that once distributed the dealer packs were then completed by different parts of the business such as sales consultants, sales managers and finance and that each of those areas had responsibility for the completion of different documents within the pack.42 It was Mr Briscoe’s evidence that if there were any errors or issues within the paperwork it was the role of the sales consultants and sales managers to attend to as their reporting line.43 Mr Eagland denied that ensuring the necessary paperwork was properly finalised was a big part of his job, stating that it is his role to get sales and deliveries done.44
[39] On the specific occasion that led to the dismissal of Mr Eagland, his evidence was that the customer was interstate and he had emailed the form to the customer to sign. The customer had not returned the form, it was end of month and the car had to go out. 45 Mr Eagland signed the form in the customer’s name and submitted the paperwork. His evidence was that they used to have interstate customers come down to sight the cars, sign the paperwork and then they could arrange for the cars to be transported back or they (the customer) would drive them back, however this went by the wayside and they now just do the sales over the phone.46
[40] Mr Briscoe’s evidence was that even though some customers purchased cars over the phone or by email, they still needed to complete the paperwork. He submitted that this paperwork could be completed and certified interstate. 47
[41] It was put to Mr Eagland in cross-examination that he had customers sign the LMCT form because the MCT Act required him to do so. He responded by stating that this had never been explained to him and the MCT Act was 176 pages long. 48 I took this to mean that Mr Eagland had not read the MCT Act.
[42] However Mr Eagland under cross-examination agreed that the LMCT form stated the requirements of the Act, being that if a car was not more than 10 years old and has been driven less than 160,000km, the LMCT form had to be signed by the purchaser and not Mr Eagland on behalf of the purchaser. Mr Eagland’s evidence was that he was aware that this was a requirement of the MCT Act. 49 He also again gave evidence that Management had required that the forms be completed.50
[43] Mr Eagland says he raised the issue of interstate customers signing the LMCT form at some stage during his employment however was unable to provide any specific details on this matter. 51 When Mr Eagland was asked to provide more details on this matter he instead responded stating that he had offered to go into the filing cabinet during his disciplinary meeting to show management it was common practice for sales consultants to sign LMCT forms.52
[44] Mr Eagland’s evidence was that he had done this himself on numerous occasions when there was an interstate transaction. 53 His evidence was that he had previously been directed by a manager to sign the LMCT form and put them through by the end of the month. Mr Eagland named one specific manager, who had not been called as a witness by either party.54 BMW Melbourne objected to this evidence, stating that it was not contained within his witness statement nor was this information contained within Mr Eagland’s submission. This was the first time such evidence had been put forward therefore BMW Melbourne did not have an opportunity to respond, further, Mr Eagland made no attempt to call the manager as a witness.
[45] BMW Melbourne submitted that, had they been put on notice that Mr Eagland was going to give evidence to the effect of the above, they would have arranged to have the Manager give evidence and no adverse inference should be drawn from the absence of the witness in these circumstances. The representative for Mr Eagland submitted that it was not his intention to call the Manager to give evidence and, when given the opportunity, he declined to make any submission as to what inference should be drawn by the Commission if any. After considering the submissions and the evidence of the parties on this matter, I am not inclined to make an inference of the kind to be found in Jones v Dunkell 55.
[46] Mr Eagland’s evidence was that it was common practice for employees of BMW Melbourne to sign the LMCT forms on behalf of customers and that he was aware of two other occasions in the month prior to his dismissal where his co-workers had signed forms on behalf of customers. 56 He declined to provide any details as to who those co-workers were.57
[47] However he did give evidence that there was one reported occasion where Mr Daniel Struan had fraudulently signed I8 forms and he had “sarcastically” raised this with Ms Alizzi. 58 Mr Hurst’s evidence was that the matter raised by Mr Eagland had been investigated and it was a case where a husband had purchased a car for his spouse and signed the contract of sale under an authority to do so, there had been no instance of forgery, rather an above board transaction. He submitted that the husband had attended the dealership providing all the identity documents required and a signature of authority letter so that he could purchase the vehicle for his wife.59 Mr Eagland conceded he was not aware of the full circumstances of the matter.60
[48] Mr Eagland’s evidence was that during the disciplinary meeting he mentioned to Mr Briscoe that it was common practice within the organisation for the signing of LMCT forms. 61 He says the discussion became heated and he offered to go into the files and show him files where he had been asked to sign “transfer, L forms”. However Mr Briscoe told him that it wasn’t necessary and they would conduct their own audit on the files.62
[49] Mr Briscoe conceded that Mr Eagland may have asked to go into the files and show him some documents he claims to have been fraudulently signed. 63 Mr Eagland was provided with the opportunity to provide details however in the absence of Mr Eagland being able to provide any specifics as to whom and when, he was not going to permit Mr Eagland to conduct a “witch hunt”. Mr Briscoe had decided that BMW would conduct an audit of the paperwork instead.64
[50] Mr Eagland’s evidence in cross-examination was that he didn’t know of any specific sales consultant or specific time that a LMCT form had been forged other than by himself, however he knew if he had the opportunity to go through the files he could check the signatures on driver’s licences and match them against the signatures on the LMCT form he would be able to find some examples. 65
[51] In Mr Eagland’s view there were no consequences to the form not being signed and processed, and whilst he was unsure of the consequences if the form was signed by himself and not the customer, 66 he still chose to sign the form in the customer’s name and not his own. He denies having practiced the purchaser’s signature stating he only signed the form once. He further denied that he had tried to replicate the customer’s signature, although he conceded in cross-examination that the signature he forged was very similar to the signature on the copy of the customers driver’s licence and less similar to his own signature.67 Mr Eagland conceded that he had intentionally attempted to make it look like the customer had signed the form and not that he had signed it himself.68 He also conceded that this would not have been necessary if the form was merely an administrative form.69
Mr Eagland’s obligation under his contract of employment
[52] In cross-examination Mr Eagland gave evidence that he understood, signed and agreed to the terms of his contract. He understood that the contract of employment required him to act properly in carrying out his duties and obey lawful and reasonable direction as well as comply with BMW Melbourne’s policies and procedures, and that he was prohibited from engaging in serious misconduct. Mr Eagland’s evidence was that he understood the conditions of the contract required him to not act in a way as to prejudice or potentially prejudice the name, reputation, standing and/or commercial interest of BMW Melbourne. 70
[53] Mr Eagland also gave evidence that he was aware that as a licenced motor vehicle trader, BMW Melbourne had obligations under the MCT Act and that there was a requirement to ensure that all of the relevant paperwork for the sale of a used car was completed, stating that this was the case if the paperwork was supplied correctly. 71 I took this to mean that Mr Eagland was of the opinion that if the paperwork wasn’t accurate then he couldn’t take responsibility for those inaccuracies.
Dismissal meeting
[54] In his witness statement Mr Eagland says he was called into a meeting at 4:30pm with Mr Briscoe and Ms Alizzi. He submitted that he did not know what he was heading into and was not offered the opportunity to have a support person. 72
[55] Mr Eagland’s oral evidence was that he had a missed call from Ms Alizzi around 4pm on 1 September 2017. He returned the call and was informed he was to meet with Mr Briscoe and Ms Alizzi at the Southbank site. He attended the meeting in which he discussed the incident from earlier that morning involving the police investigation. Mr Briscoe informed him that he would be taking action and he has no choice due to the compliance requirements with Volkswagen and that they currently had other non-compliance issues. Mr Eagland says he got a little angry as Mr Briscoe was basically blaming him for the vehicle being stolen. 73
[56] Ms Alizzi’s evidence was that around lunch time on 1 September 2017 she sent Mr Eagland a calendar invite to a meeting, and that 20 minutes later Mr Eagland called her to ask what the meeting was about. She explained that it was about the LMCT form. Ms Alizzi provided as evidence a printed copy of the calendar invite showing the meeting scheduled on that day. 74
[57] Mr Eagland’s evidence was that he did not receive the calendar invite and the copy of the invite supplied by Ms Alizzi as evidence had been doctored. He also denied that the call took place. 75
[58] Ms Alizzi gave evidence that Mr Eagland must have known about the meeting otherwise how would he have known to head over to Southbank. She denied doctoring the meeting invite, explaining that she would have produced the original meeting invite however since they had been acquired by AGS the servers had been removed and they had lost a lot of emails. She advised that she may still be able to obtain the original however she was unsure as to whether or not it was still available. 76
[59] Mr Briscoe’s evidence was that he had met with Mr Eagland and asked for his explanation as to what had happened. He was concerned that Mr Eagland’s view of the matter was that it was a minor matter and that it was unimportant. 77
[60] It is not disputed that Mr Eagland raised during the meeting the issue of there being a culture of fraud in that others had signed the LMCT forms in customers’ names. Ms Alizzi’s evidence was that although Mr Eagland had raised this issue, they were dealing with Mr Eagland’s fraudulent act in this instance and not that of others, therefore she did not see that it was necessary to investigate the conduct of others prior to dismissing Mr Eagland. 78
The Audit
[61] After Mr Eagland was dismissed BMW Melbourne conducted an audit of the files. Mr Hurst oversaw the audit, which was conducted by Ms Nugent, the Payroll Officer. Ms Nugent conducted an audit of the sales files from June 2017 to September 2017. She was specifically instructed to look for “anything that didn’t look right’. 79 Ms Nugent found three errors during her audit, two of which were Mr Coia’s.80 Ms Nugent stated in her evidence that she checked signatures on the contracts and LMCT forms against the photocopies of the driver’s licences held on file. Ms Nugent concedes she is no expert in the field of examining handwriting and therefore it is reasonable to deduce that she was not likely able to accurately identify any fraudulently signed documents.81
Consideration
Harsh, Unjust Unreasonable
[62] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”
[63] The Fair Work Regulations 2009 (the Regulations) define serious misconduct for the purposes of the Act as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
[64] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.82 McHugh and Gummow JJ explained as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”83
[65] I will now consider each of the matters set out in s.387 of the Act.
Was there a Valid Reason for the dismissal- s.387(a)
[66] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 84 The reason for the dismissal should be “sound, defensible and well founded”85 and should not be “capricious, fanciful, spiteful or prejudiced.”86
[67] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 87 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).88
[68] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.89 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 90
[69] In considering whether there was a valid reason for a dismissal under s.387(a), the reasons being considered are the employer’s reasons. In cases relating to alleged conduct, the Commission must make a finding, whether, on the balance of probabilities, the conduct occurred not whether the employer has reasonable grounds to believe that it occurred. 91
[70] BMW Melbourne submit the reason for the dismissal was Mr Eagland’s act of forgery when he signed the LMCT form in the customer’s name, and that the forgery constituted serious misconduct which of itself warranted summary dismissal. 92 They submit even if the dismissal did not amount to serious misconduct, Mr Eagland’s conduct constituted a valid reason for dismissal.93
[71] There is no contention between the parties that the conduct occurred. What is in contention is whether the conduct was serious misconduct and whether it was a common practice condoned by BMW Melbourne.
[72] I am satisfied that there was a valid reason for Mr Eagland’s dismissal. I am not satisfied that Mr Eagland has established that the fraudulent behaviour for which he was dismissed was either common practice or condoned.
[73] Mr Eagland was not a new or junior employee of BMW Melbourne and he had previously held various roles with BMW including New Car Sales Manager, Used Car Manager and Used Car Sales Consultant. 94 He completed a large number of LMCT forms on a monthly basis over a period of at least 3 years.
[74] The LMCT form is a Statutory form required under section 54 of the MCT Act. Section 52(6) of the MCT Act states;
“(6) On the sale of a used motor car to which subsection (1) applies, the motor car trader must ensure that the purchaser signs a copy of the prescribed form referred to in that subsection and, subject to and in accordance with the regulations, must retain the copy.
Penalty applying to this subsection: 10 penalty units.”
[75] The LMCT form itself, directly under the signature of the purchasers box, states;
“On the sale of the motor car the purchaser must sign and be given a copy of this form under section 52(6) and 83C(1) of the Motor Car Traders Act 1986 and Regulation 28 of the Motor Car Traders Regulations 2008.”
[76] It was not disputed that a breach of the MCT Act may result in penalties against BMW Melbourne.
[77] There is no evidence before me that would satisfy me that the practice of sales consultants signing LMCT forms was either common practice or condoned by BMW Melbourne. The paperwork may have been sloppy and at times not completed accurately however I accept the evidence of Mr Briscoe that BMW Melbourne’s quality control issues are a separate matter to condoning fraudulent behaviours.
[78] If it were custom and practice to have sales consultants sign the LMCT forms without repercussion from doing so then it would not have been necessary for Mr Eagland to forge the customer’s signature in the manner to which he did, but rather he could have signed the LMCT form in his own name on behalf of the customer, or in the customer’s name, without going to the length he did to ensure it was similar to that of the customer.
[79] The evidence establishes that Mr Briscoe did place pressure on Mr Eagland to perform in his role, however I am not satisfied that Mr Eagland has been able to establish that Mr Briscoe or any other manager condoned the practice of consultants signing the LMCT forms. Likewise I am not satisfied that the evidence of Mr Eagland establishes that it is custom and practice for consultants to sign the forms on behalf of customers.
[80] It was not in contention that Mr Eagland’s contract of employment required that he not act in any way that would prejudice or potentially prejudice the name, reputation, standing and/or commercial interests of BMW Melbourne. Serious misconduct includes conduct that places the employer’s reputation, viability or profitability at risk. Serious misconduct also includes engaging in fraudulent activity. Mr Eagland was aware of the terms and conditions of his contract and therefore he was required to conduct himself in a manner that did not prejudice the reputation of BMW Melbourne.
[81] I am not satisfied that Mr Eagland was able to establish that there was a culture of fraud or that the behaviour he had engaged in had been condoned by the management at BMW Melbourne. Mr Eagland’s evidence on this matter was not convincing and he was unable to provide any convincing examples or evidence of the fraudulent conduct by any other employees. The evidence of Mr Eagland was that during the disciplinary meeting, if he had been given access to the filing cabinet, he would have been able to demonstrate other occurrences where he himself had fraudulently signed documents, claiming he had done this under instruction of management. He did not offer up any evidence of other employees doing the same and instead merely asserted that he had worked with colleagues who had admitted to signing the forms. 95
[82] Therefore, I accept Mr Briscoe’s evidence that during the disciplinary meeting Mr Eagland was unable to provide any instances, other than those of his own conduct, to support his proposition that the fraudulent conduct was common place. I accept that Mr Eagland offered to go to the filing cabinet to go through files so he could identify other instances where employees may have fraudulently signed the LMCT forms, however at no time did Mr Eagland suggest to Ms Alizzi or Mr Briscoe that the conduct had been condoned by management. I accept the evidence of Mr Briscoe that Mr Eagland’s request to access the filing cabinet was simply a witch hunt.
[83] Mr Eagland gave evidence that demonstrated he was well aware that, as a licensed motor vehicle trader, BMW Melbourne had obligations under the MCT Act and that there was a requirement for him to ensure that all of the relevant paperwork for the sale of a used car was completed. I accept that in the normal course of his employment Mr Eagland had been pressured to make sales and complete the paperwork. However I am also satisfied that Mr Eagland had not been required to fraudulently complete the paperwork and that the fraudulent practice Mr Eagland had engaged in had gone unnoticed by Mr Briscoe and was not condoned. Whilst Mr Eagland says the conduct was common practice within BMW Melbourne there was no evidence to support this proposition.
[84] There is nothing remarkable about the language contained within the LMCT form. It is not confusing or difficult to understand. In considering the evidence, it is simply not plausible that Mr Eagland was unaware or did not understand the requirements of the LMCT form. His submission that he was confused about the LMCT form as he hadn’t had any training is difficult to reconcile against the evidence.
[85] Mr Eagland sent the form by email to the customer and gave no reason as to why he would do this if there was no requirement to have the form signed. His evidence was that “it was end of the month and the car had to go out”. Mr Eagland signed the form because he wanted to have the sale included in the month end figures and he stood to gain from doing so. Therefore, I am satisfied that Mr Eagland was well aware of the statutory requirement for the customer to sign the form and, by Mr Eagland’s practice of signing the LMCT forms in the name of the customer, he acted fraudulently. This behaviour was inconsistent with the terms of his contract, therefore there was a valid reason for his dismissal.
Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)
[86] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 96, and in explicit97 and plain and clear terms.98 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[87] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 99
[88] Mr Eagland attended a meeting on 1 September 2017 with Mr Briscoe and Ms Alizzi. Mr Briscoe sought a response to the allegations from Mr Eagland. After a heated exchange Mr Briscoe informed Mr Eagland that his employment with BMW Melbourne would be terminated immediately on the basis that he had admitted to forging a purchaser’s signature on an LMCT form and that this conduct put the dealership’s licence at risk. Mr Eagland was subsequently sent a letter of termination by mail on the 5 September 2017 detailing the reasons for his termination. 100
[89] Accordingly, on the basis of the evidence before me, I am satisfied Mr Eagland was notified of the reason for the termination of his employment after Mr Briscoe had sought a response to the allegations.
[90] Ordinarily, an employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 101
[91] It is an agreed fact that Mr Eagland had the allegations put to him during the meeting 1 September 2017. Mr Eagland provided his response to the allegations and did not deny he had forged the customers signature. His response also included an allegation that the conduct was common practice in the workplace.
[92] I accept that Mr Eagland offered to go through the sales files to support his contention however at no stage during the meeting did he did provide any examples other than those of his own conduct.
[93] Mr Briscoe considered what Mr Eagland had put to him and it was his reasoning that, in the absence of Mr Eagland being able to provide any specific examples or details, the best course of action would be to conduct their own audit.
[94] I am satisfied at the time of the meeting Mr Eagland had raised the issue that the behaviour was a commonly occurring practice and that they were being pressured to get deals done, however on the evidence before me there was no discussion to the effect that the behaviour had been condoned by Management. If this was the case then it would have been prudent and necessary for Mr Briscoe to take the time to consider Mr Eagland’s response and investigate the matter prior to dismissing him.
[95] Accordingly, on the basis of the evidence before me Mr Eagland did respond to the reasons put to him by Mr Briscoe and Mr Briscoe considered those reasons. In light of the admittance by Mr Eagland to the conduct alleged it didn’t take Mr Briscoe long to decide to dismiss him. Given the admittance of the fraudulent conduct and the absence of any specific details supporting Mr Eagland’s allegation that the conduct was common practice, taking additional time before informing Mr Eagland of the outcome would have been disingenuous of Mr Briscoe.
Unreasonable Refusal of a Support Person – s.387(d)
[96] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.102 With respect to this consideration, the Explanatory Memorandum states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”103
[97] Ms Alizzi’s evidence was that she had sent Mr Eagland a calendar invite and he had called her shortly after she had sent the invite. 104 She submitted that she told him that the meeting was about the LMCT form and that it was a serious matter.105
[98] In his witness statement, Mr Eagland says that at 4:30 he was called into a meeting without knowing its purpose and was not offered the opportunity to have a support person with him. He submits that, had he known what he was walking into, he would have organised for a support person to attend the meeting with him. 106 In his oral evidence Mr Eagland says he became aware of the meeting half an hour before it was due to take place.107
[99] Mr Eagland’s evidence on this matter was inconsistent. Therefore, I prefer the evidence of Ms Alizzi, her supporting evidence was a calendar record that she had sent to Mr Eagland. Ms Alizzi was straight forward and did not attempt to evade any questions put to her. I have no reason to doubt the evidence of Ms Alizzi. However, even if Mr Eagland had found out about the meeting only a half hour before it took place, he was aware what the meeting was about. He did not request a support person and was at no time denied the opportunity to have one if he had sought to do so.
Warnings regarding Unsatisfactory Performance – s.387(e)
[100] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.108 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.109 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.110
[101] The Respondent submits Mr Eagland had received two prior warnings for underperformance. Those warnings were back in 2005 and 2006. 111 A significant amount of time has passed since those warnings were issued and I do not consider those warnings to be relevant. In any event, this was a case of summary dismissal for serious misconduct, therefore subsection (e) of s.387 is not applicable to these circumstances.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)
[102] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.112 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.113
[103] BMW Melbourne is a reasonably large employer with an established human resource function and considerable expertise in this area. I do not consider that the matters dealt with in s.387(f) affect the circumstances in this matter.
[104] Mr Eagland submits that there were a number of flaws in the process adopted in the termination of his employment. He submits there was a failure to provide him with a valid, factually and legally substantiated reason for the decision. I have previously found that Mr Eagland was provided with a reason for the dismissal and it was a valid reason.
[105] He also submits BMW failed to conduct an investigation into the serious allegations. It is not in contention that the conduct was admitted to by Mr Eagland and therefore there was no contention between the parties as to whether the conduct had occurred or not, therefore it was not necessary for BMW to embark on an investigation.
[106] Mr Eagland submits that there was a failure to interview him about the allegations. It is evident from Mr Eagland’s own evidence he was questioned by Mr Briscoe and he provided his responses to those questions.
[107] Mr Eagland submits the respondent failed to consider his conduct in comparison to the conduct of other employees, which is of an equal or worse calibre. Again the evidence establishes that a manager involved in the same incident had been terminated from his position prior to the dismissal.
[108] Mr Eagland also submits that the decision to terminate his employment was pre-determined and that BMW Melbourne had failed to consider his conduct in the broader context of his years of service. Whilst I do not accept the decision to terminate Mr Eagland’s employment was pre-determined, it is evident that after the meeting became heated Mr Briscoe formed the view that Mr Eagland was not going to take any responsibility for his conduct and therefore he would not be able to retain him in his employment. It is likely that Mr Briscoe did not take into consideration other factors such as Mr Eagland’s length of service with BMW Melbourne. However due to the nature of the conduct of Mr Eagland I do not consider this procedural failure to be indicative of unfairness.
Other Relevant Matters – s.387(h)
[109] Mr Eagland submitted that the Commission should have regard to the case of Samaras v BoysTown 114, which he argued was comparable on the facts. In this case, the Commission found as follows:
“[75] It is reasonable to expect from Mr Samaras that he would have rendered his services to his employer in an honest way, and not have acted to undermine the integrity of its case management procedures, which is premised on client empowerment.
[76] But Mr Samaras’ conduct must be contextualised.
[77] His actions were not intended to procure a benefit for himself. Or at most, the only benefit that he accrued was being able to conclude the administrative requirements of archiving files more expeditiously than by completing the required procedures. That is, the forging of the signatures saved him some time.
[78] The signatures that were forged were in relation to three clients who had completed the Youth Connections program some nine months previously. The files were inactive, and were being closed, once again, for purposes of archiving.
[79] Mr Samaras’ breaches of procedure appear to be confined to a particular time period - one day it appears - and are not manifest across a wide number of files (but three only). Indeed, Mr Samaras’ conduct extended across some three client files against what was a much larger number for which he had otherwise been responsible.
[80] There was no pattern - or evidence of any further or more widespread - incidences of signatures being forged by Mr Samaras at anytime.
[81] While his employer is right to sanction Mr Samaras’ conduct in this regard, viewed objectively I do not consider the conduct to have been maliciously motivated or to be of such consequence (for the purposes of funding or perceptions by external stakeholders) that it warranted his dismissal. Putting aside the breaches of the policies and procedures, Mr Samaras did not derive a benefit from his conduct, and the files were closed in the manner they were for the purposes of archiving, and were no longer active.
[82] In addition, there does not appear to have been any discernible damage (to BoysTown’s public reputation or its funding prospects) arising from Mr Samaras’ conduct. I will say more in relation to this below, under s.387(h) of the Act.
[83] In essence, Mr Samaras unwisely overlooked his training and the obligations imposed upon him by his contract of employment and his employer’s procedures manuals, and (as he put it) lazily rushed to close a small number of files.
[84] Though not a compelling factor for determining whether an employer’s dismissal decision is based on a valid reason, I do note that upon disclosure of his conduct, the state of the evidence was that Mr Samaras was immediately remorseful.
[85] When viewed in this important, wider context, I do not consider Mr Samaras’ conduct to be of such an extreme nature that it warranted his dismissal. Nor do I consider that the scale and nature of the conduct was such that it on its own was sufficient to sever the bond of trust and confidence between Mr Samaras and BoysTown.
[86] To be sure, BoysTown seeks to manifest a very high regard for procedural accuracy and seeks to ensure a strong reputation for transparency and ethical dealings. Its reaction to Mr Samaras’ conduct is testimony to this corporate-level sensitivity.
[87] But in my view, Mr Samaras’ conduct warranted a disciplinary response short of dismissal. Consequently I conclude that the employer did not have a valid reason for Mr Samaras’ dismissal.”
[110] Mr Eagland had forged a signature on a statutory form, by doing so he was able to gain access to his commission payment earlier than he would have otherwise been entitled to, therefore he stood to gain a benefit from his conduct in a way that Mr Samaras would not have.
[111] The Applicant further submitted that the matter of Candido v Hi Fi Supermarket 115 is analogous to the facts at hand. In Candido, the Commission considered as follows:
“[20] In my view, there is a matter of substance which I consider highly relevant. In this case that matter is the issue of parity or equity of treatment of Mr Candido and the other employees who were also smoking the marijuana joint with him. Those employees, in my view, were treated with considerable leniency. Moreover, since the termination of Mr Candido’s employment the Respondent has discovered that one of the store managers has been smoking marijuana in inappropriate circumstances. None of these employees have been the subject of suspension or termination. Indeed disciplinary warnings to these employees seem to have been issued in a somewhat desultory manner. Their offences, in my view of the evidence, have been treated with a conspicuous lack of gravitas such as attended the suspension and termination of Mr Candido’s employment. Moreover, the warning issued to Mr Candido emanates from one of the Respondent’s marijuana smoking employees who was in a supervisory position.
[21] On the other hand, to some extent, it is appropriate to weigh Mr Candido’s initiation of the relevant event and his leadership in encouraging other employees to join him in this respect. There is also an issue concerning the alleged verbal warning given to Mr Candido in relation to smoking marijuana as an issue of conduct, as opposed to performance, already referred to. However, I think the circumstances in which this warning arose substantially detracts from its credible effectiveness for the purposes of my consideration in relation to this issue. Nevertheless, whilst according it conditional weight I will take it into account for the purposes of my consideration.
[22] The differential treatment of employees in the same, substantially similar or otherwise relevant circumstances has been judged to be relevant for consideration in matters such as this by a number of decisions of Full Bench’s and single members of the Commission. Several of those decisions are cited below. Having given consideration to the principles and guidance therein I have taken this matter into account.
[23] It should be remembered that whilst, in my view, a valid reason for the termination of Mr Candido’s employment arose that is not the conclusion of the Commission’s considerations. In Windsor Smith v. Liu and others a Full Bench of the Commission said as follows:
“Whether there was a valid reason for the termination is only one of four separately specified matters which the Commission must now have regard to. The Commission must also have regard to any other matter it considers relevant. There is no causal connection between a finding that there was no valid reason for the termination and a conclusion that the termination was harsh, unjust or unreasonable. In summary, the question of whether there was a valid reason for termination of employment is no longer the critical question in determining whether the termination was contrary to the Act. Under the IR Act provisions if no valid reason existed then the Applicant was prima facie entitled to reinstatement or compensation. Under the Workplace Relations Act 1996 the principal question is whether the termination was harsh, unjust or unreasonable. In considering that question the Commission is to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
[24] Balancing the relevant matters in light of the evidence, I consider that Mr Candido was treated harshly and unjustly. The termination of his employment, despite his obvious contrition, was out of proportion to the way in which other employees were treated. In addition the employer relied upon a warning of dubious validity having regard to the circumstances in which it was given.”
[112] As stated earlier in my decision, BMW Melbourne had terminated another employee involved in the same incident as Mr Eagland prior to his dismissal. Further, there is no evidence before me that leads me to conclude that there were other employees engaging in similar conduct to that of Mr Eagland.
Finding
[113] When making my finding as to whether Mr Eagland’s dismissal for misconduct was harsh, unjust or unreasonable, I have taken into account all material before me. I have considered the broader context in the workplace in which the incident occurred as well as the fact that Mr Eagland has not in recent years received any warnings. There is no evidence as to any personal or private circumstances presented by Mr Eagland for me to consider that may have affected his conduct on that day.
[114] I have considered those matters together with the other matters dealt with in s.387 of the Act, and in all the circumstances I am not satisfied that the dismissal was harsh, unjust or unreasonable.
[115] Mr Eagland knowingly forged a customer’s signature on a statutory warranty form, conduct he admitted to performing on more than one occasion. Mr Eagland had been pressured to make sales and complete paperwork, however there is no evidence to suggest that he was pressured to do this in a fraudulent manner. Further, there is no evidence that BMW Melbourne encouraged or condoned this fraudulent behaviour.
[116] I am satisfied, taking into account all of the material before me, that the termination of Mr Eagland was neither harsh, unjust nor unreasonable.
[117] Given the findings I have made, I find that Mr Eagland’s dismissal was not unfair and the application for an unfair dismissal remedy is dismissed. An order 116 dismissing the application is attached to this decision.
COMMISSIONER
Appearances:
G. Pinchen for the Applicant;
A. Pollock for the Respondent;
Hearing details:
2017
Melbourne
6 December
<PR599972>
1 Exhibit A1, Attachment A
2 Exhibit MA1
3 Exhibit MA1, 1.1 – 1.3
4 Exhibit MA1, 1.4 – 1.5
5 Exhibit MA1, 1.6
6 Exhibit MA1, 1.7
7 Exhibit MA1, 1.8
8 Exhibit MA1, 2.1
9 Exhibit MA1, 2.2
10 Exhibit MA1, 2.3
11 Exhibit MA1, 2.4
12 Exhibit MA1, 2.5
13 Exhibit MA1, 3.1
14 Exhibit MA1, 3.1 – 3.2
15 Exhibit MA1, 4.1 – 4.2
16 Exhibit MA1, 4.3
17 Exhibit MA1, 4.3 – 4.5
18 Exhibit MA1, 4.6 – 4.8
19 Exhibit A2, [8]
20 Transcript PN426-427
21 Exhibit A1, [6]
22 Exhibit A1, [7]
23 Transcript PN178
24 Exhibit A1, [9]
25 Transcript PN424-430
26 Exhibit A1; Transcript PN 114
27 Transcript PN115
28 Exhibit A1, [11]
29 Transcript PN67
30 Transcript PN498
31 Exhibit R1, [11], [23]
32 Exhibit A2, [17]
33 Transcript PN86-87
34 Exhibit R1, [6]
35 Transcript PN569-585
36 Transcript PN627-629
37 Transcript PN568-619
38 Transcript PN989
39 Transcript PN979
40 Transcript PN990-992
41 Transcript PN995
42 Transcript PN979
43 Exhibit R1, [10]
44 Transcript PN 129
45 Transcript PN422
46 Transcript PN423-425
47 Transcript PN635-640
48 Transcript PN179
49 Transcript PN178-205
50 Transcript PN204-205
51 Exhibit A1, [12]
52 Transcript PN241-243
53 Transcript PN236-250
54 Transcript PN267-271
55 [1959] HCA 8; (1959) 101 CLR 298
56 Exhibit A1, [9]
57 Transcript PN383-386
58 Transcript PN389
59 Transcript PN914
60 Transcript PN390
61 Exhibit A1, [23]
62 Transcript PN76
63 Transcript PN660
64 Transcript PN660-671
65 Transcript PN 380
66 Transcript PN294-298
67 Transcript PN317-325
68 Transcript PN327-328
69 Transcript PN327-329
70 Transcript PN167-173
71 Transcript PN173-177
72 Exhibit A1, [21]
73 Transcript PN75-76
74 Exhibit R4, [27] - [29]
75 Transcript PN338-352,
76 Transcript PN764-767
77 Transcript PN657
78 Transcript PN836-837
79 Exhibit R6, [7]
80 Exhibit R6, [9]
81 Transcript PN1082-1083
82 (1995) 185 CLR 410.
83 Ibid at 465.
84 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
85 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
86 Ibid
87 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
88 Ibid.
89 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
90 Ibid
91 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1
92 Exhibit R1
93 Exhibit R7, [24]
94 Transcript PN142
95 Transcript PN382
96 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
97 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
98 Previsic v Australian Quarantine Inspection Services Print Q3730
99 RMIT v Asher (2010) 194 IR 1 at 14-15
100 Exhibit MA1, 4.1 – 4.8
101 RMIT v Asher (2010) 194IR 1, 14-15.
102 Fair Work Act 2009 (Cth) s.387(d).
103 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].
104 Exhibit R4, [27] – [28]
105 Exhibit R4, [28]
106 Exhibit A1, [21]
107 Transcript PN75
108 Fair Work Act (Cth) s.387(e).
109 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
110 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
111 Exhibit R7, [44]
112 Fair Work Act (Cth) s.387(f).
113 Fair Work Act (Cth) s.387(g).
114 [2015] FWC 1762
115 (AIRC, Lewin C, 4 August 2003) PR935645
116 PR599973
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