Darryl Waitere, Darren Westlow, Mark Harvey v NewCold Melbourne No. 2 Pty Ltd
[2019] FWC 6594
•3 OCTOBER 2019
| [2019] FWC 6594 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darryl Waitere, Darren Westlow, Mark Harvey
v
NewCold Melbourne No. 2 Pty Ltd
(U2019/2507, U2019/2510, U2019/3084)
| Deputy President Millhouse | MELBOURNE, 3 OCTOBER 2019 |
Application for an unfair dismissal remedy – genuine redundancy – major change –redeployment – Sprigg.
This decision concerns applications made by Mr Darren Westlow, Mr Darryl Waitere and Mr Mark Harvey for unfair dismissal remedies under s.394 of the Fair Work Act 2009 (Cth) (Act).
The Applicants were employed as Team Leaders with NewCold Melbourne No.2 Pty Ltd (NewCold/Respondent). On 28 February 2019, the employment of Messrs Westlow and Waitere ended by reason of redundancy. On 4 March 2019, the employment of Mr Harvey ended by reason of redundancy. They each contend that they were unfairly dismissed.
NewCold denied that the Applicants were unfairly dismissed. It said that the Applicants were dismissed by reason of genuine redundancy within the meaning of s.389 of the Act.
For the reasons that follow:
(a) the dismissals were not a case of genuine redundancy within the meaning of s.389 of the Act, because NewCold did not discharge its obligations under s.389(2);
(b) each of the Applicants was unfairly dismissed within the meaning of s.385 of the Act;
(c) no order for compensation is made in respect of Messrs Westlow and Harvey; and
(d) I order compensation in the amount of $3,299.57 gross to be paid to Mr Waitere, less taxation as required by law.
Preliminary matters
The three applications were heard together and proceeded by way of a hearing.[1] The Applicants gave evidence on their own behalf. NewCold led evidence from Mr Brad Espie, Acting Operations Manager, Ms Julianne Slevison, Human Resources Manager, Mr Pasquale (Pat) Sorleto, Operations Manager and Mr Walter Toppi, Site Manager. The parties were legally represented, with permission.
For the purposes of s.396(a)-(c) of the Act, there was no dispute that the applications were made within the 21 day period required by s.394(2), and each Applicant was protected from unfair dismissal within the meaning of s.382. NewCold was not a small business employer pursuant to s.23 of the Act and accordingly, the question of compliance with the Small Business Fair Dismissal Code did not arise.
Sections 396(d) and 385(d) of the Act require determination of whether the dismissals were a case of genuine redundancy. The parties were in dispute about this matter.
Confidentiality request
On 2 July 2019, Mr Harvey made an application for his name to be anonymised based on a concern regarding prejudice to his newly acquired employment. The Respondent submitted that the identity of NewCold and the other parties in the proceedings is publically known and Mr Harvey has not pointed to a sufficient reason in support of his application.
In deciding whether or not to grant such an application, I must balance the principle of open justice against the effects of identification on Mr Harvey. However, the alleged prejudice that will be suffered by Mr Harvey has not been adequately explained. Mere embarrassment, distress or damage by publicity is not a sufficient basis to grant such an application.[2]
In the circumstances, I am not persuaded that there is any sound basis for the request that would outweigh the principle of open justice. Accordingly, I decline to make the order sought.
Background
NewCold stores and transports chilled and ambient goods for food producers. In October 2017, NewCold opened the Melbourne 2 site (MB2).[3] MB2 was primarily designed to serve a single customer, Fonterra Co-Operative Group (Fonterra).[4] NewCold planned the MB2 workforce on Fonterra’s forecast that NewCold would meet 80% of Fonterra’s storage needs.[5] However, that commitment was never met and in or around July 2018, Fonterra moved the majority of its ambient product to a different provider.[6]
The evidence disclosed that weekly pallet movements at the MB2 site were reduced by approximately 50% in the period between July 2018 and February 2019.[7]
On 24 January 2019, NewCold’s Managing Director, Mr Graham Harvey, asked Mr Sorleto to review potential organisational restructure possibilities as a result of the poor financial performance of MB2.[8]
On or around 18 February 2019, Mr Sorleto and Ms Slevison created a PowerPoint presentation (the PowerPoint) containing a restructure proposal for presentation to NewCold’s senior management team at the monthly meeting on 21 February 2019.[9] The PowerPoint included an organisational chart which set out a proposed reduction of the number of Team Leaders from nine to six and omitted the names of the Applicants.
On 18 February 2019, Ms Slevison sent an email to Mr Sorleto which attached a template “Redundancy Scorecard – Team Leaders MB2 Feb 2019” (scorecard) and the PowerPoint presentation, referred to as a “draft proposal.”[10] Ms Slevison asked Mr Sorleto and Mr Espie to assess the Team Leaders against the specified matrix criteria and complete the scorecard.
On 21 February 2019, Ms Slevison and Mr Sorleto presented the PowerPoint at the senior management meeting. NewCold’s Managing Director, Mr Harvey determined that the number of Team Leaders needed to be reduced from nine to six, and employees should be selected in accordance with a performance assessment scorecard.[11] A fourth position, Inventory Officer, then filled by Ms Georgina Latu, was also to be made redundant.
Between 18 February 2019 and 22 February 2019, Mr Sorleto and Mr Espie completed the scorecard. On 22 February 2019, Mr Sorleto emailed Ms Slevison the completed scorecards.[12] On Mr Sorleto’s and Mr Espie’s individual scorecards, the three Applicants scored the lowest.[13] Ms Slevison created a combined final scorecard.[14] In aggregate, the Applicants had the lowest scores relative to their colleagues and therefore were the three employees selected for redundancy.
On 26 February 2019, Ms Slevison and Mr Sorleto held a joint meeting with eight of the nine Team Leaders (Mr Harvey was the only Team Leader not in attendance). Ms Slevison said that she explained the business exigencies and said that three Team Leader roles would be made redundant as well as one Inventory Officer position.[15]
It was proposed that there be individual consultation meetings in the following days.[16] However, the Team Leaders unanimously wished to continue the process that evening. Accordingly, on 26 February 2019 Ms Slevison and Mr Sorleto met individually with Mr Westlow and Mr Waitere.
Meetings with Messrs Westlow and Waitere
During their individual meetings, Ms Slevison advised Messrs Westlow and Waitere of “the likely termination” of their employment.[17] They were each given a letter dated 26 February 2019 (Consultation Letter), which included the following:
“When we meet with you, we will discuss with you measures to avert or mitigate the adverse effects this change may have on you. In particular, we will discuss with you any redeployment positions that may be available with NewCold, the key requirements associated with those positions (e.g., any qualification or experience requirements required to perform the role) and how you can apply to be considered for one of those positions if you believe you have the suitable skills and experience.
If you apply for and are successful in obtaining a redeployment role, we will transfer you into that position and your employment with NewCold will continue.
However, if you do not wish to consider redeployment, or if you are not successful in your application for a redeployment role, your employment with NewCold will end because of redundancy…”[18]
Messrs Westlow and Waitere were also given three documents:
1. A Redeployment Opportunity Letter. This letter was dated 26 February 2019 and said, amongst other things:
Further to our individual meetings with you on 26 and 27 February 2019, we confirm a redeployment opportunity:
Position: Transport Officer
Location: Melbourne 2 Site
Salary: $60,000 gross per annum
Job Description: Refer attached JD
…
We confirm that the Transport Officers salary is lower than your current salary of $90,000 and as such if you applied for this role and were successful this would mean an adjustment of your base salary to $60,000 gross per annum.
Alternatively, if you chose not to apply for this role, the company confirm at present there are no other vacant positions, this would result in confirmation of your redundancy.”
2. A Redeployment Opportunity Notice. This was undated and summarised the job purpose, knowledge and skill expectations, and core responsibilities for the Transport and Administration Officer role.
3. The position description for a Transport and Administration Officer.
Ms Slevison said that neither Mr Westlow nor Mr Waitere were interested in the Transport and Administration Officer position, acceptance of which would have resulted in a salary reduction of $30,000 gross per annum.
Ms Slevison said that she told Messrs Westlow and Waitere that she would consider creating a Multi Skilled Associate (MSA) position.[19] This is a contested fact. Both Messrs Westlow and Waitere denied that the MSA position was canvassed with them as a redeployment opportunity at all.
Ms Slevison said that the meetings concluded with her advising Messrs Westlow and Waitere that a further meeting would be organised for 28 February 2019. Ms Slevison referred to this as the “termination meeting.”[20]
The termination meeting was a combined meeting attended by Mr Sorleto, Ms Slevison, Mr Westlow and Mr Waitere. Ms Slevison provided Messrs Westlow and Waitere with a termination letter, a statement of service and a pay summary. The termination letters were in identical terms. They were dated 27 February 2019 and included the following:
“As advised in our meeting 26 February 2019, as a result of restructure, the position of Team Leader is no longer required. As a result, this means your employment will terminate as of Thursday, February 28 2019.
NewCold has attempted to consider you [sic] redeployment for the position of Transport and Administration officer, however you have declined.”[21]
On 28 February 2019, Messrs Westlow and Waitere were dismissed. Each was paid two weeks’ pay in lieu of notice and a redundancy payment of four weeks’ pay.
Discussions with Harvey
Mr Harvey had a separate process because of his absence from the joint meeting on 26 February 2019. However, the Respondent said that it was, in all relevant respects, the same as the discussions with Messrs Westlow and Waitere.
On 27 February 2019, Ms Slevison and Mr Sorleto telephoned Mr Harvey. Ms Slevison explained that as a result of business downturn, “three Team Leader roles are redundant.”[22] Mr Harvey was asked if he would like “to go away and consider the situation and any options and measures that may mitigate the need for redundancies to occur,” however Mr Harvey asked to proceed immediately. Ms Slevison said that she would email Mr Harvey the Consultation Letter after the call.[23]
Ms Slevison advised Mr Harvey that he had the opportunity to apply for one of two Transport and Administration Officer positions and that NewCold would consider creating a MSA position. The evidence of Ms Slevison describes this discussion in the following way:
“Ms Slevison: The company is also willing to create a MSA role for you.
Mr Harvey: What are these jobs paying? Is there a pay drop?
Ms Slevison: The Transport Officer role has a salary of $60,000.”[24]
On 28 February 2019, Ms Slevison emailed Mr Harvey the Consultation Letter,[25] the Redeployment Opportunity Letter,[26] the Redeployment Opportunity Notice[27] and the Transport and Administration Officer Position Description.[28] These documents were in substantially the same form as had been provided to Messrs Westlow and Waitere.
Between 2 March 2019 and 4 March 2019, a series of emails passed between Mr Harvey and Ms Slevison, which ultimately led to Mr Harvey concluding that the redeployment opportunities presented to him were not acceptable. Mr Harvey’s employment was then terminated on 4 March 2019 and he was paid two weeks’ pay in lieu of notice and a redundancy payment of four weeks’ pay. His termination letter was similar to that provided to Messrs Westlow and Waitere, but also referred to a “Pick Packer” position as a potential redeployment opportunity:
“As a result of restructure, the position of Team Leader is no longer required. As a result, this means your employment will terminate as of Monday, 4 March 2019.
NewCold has attempted to consider you for redeployment for the position of Transport and Administration officer or Pick Packer position, however as you have declined these opportunities, we have no other alternative but to move forward with your termination.”[29]
WERE THE DISMISSALS A CASE OF GENUINE REDUNDANCY?
Section 389 of the Act provides the meaning of a genuine redundancy:
“389 Meaning of genuine redundancy
A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Were the Applicants’ jobs no longer required to be performed by anyone because of changes in the operational requirements of NewCold’s enterprise?
NewCold submitted that the Applicants were dismissed because of changes in MB2’s operational requirements arising from business challenges, which included:
(a) NewCold staffed MB2 on the basis of Fonterra’s commitment to store 80% of its overall forecasted volume at MB2, but this did not come to fruition;[30]
(b) Fonterra moved storage of its ambient product to another supplier. Exhibit WT-1 evidences a 50% reduction in pallet movement from July 2018 to February 2019;[31] and
(c) MB2 operated at a loss in the latter half of 2018.[32]
The Applicants contended that there was insufficient evidence that could satisfy the Commission that the redundancies were due to changes in operational requirements.[33] They submitted that their jobs still have to be done, so they were not redundant. These matters do not appear to be pressed in the Applicants’ closing submissions.[34] In any event, I do not accept the Applicants’ contentions for the reasons below.
MB2 was primarily designed to serve a single customer, Fonterra. I accept Mr Toppi’s evidence that there had been a downturn in business as a consequence of MB2 receiving less Fonterra product than expected. This left Team Leaders with fewer team members to manage and less work to do.[35]
NewCold undertook a review of MB2 operations and decided that the Team Leader roles would reduce from nine to six. I am satisfied that a definite decision was made in this respect on 21 February 2019. NewCold subsequently concluded, on 22 February 2019 upon completion of the combined scorecard, that the Applicants jobs were the three Team Leader roles that were no longer required to be performed by anyone.
The fact that the duties of a particular job or position which has been abolished have been reallocated to another position or positions as part of an employer’s restructure, does not alter the fact that the employer no longer requires that job to be performed by anyone.[36] The issue is whether the previous job has survived the restructure or downsizing, not whether the duties have survived in some form.[37]
I accept that the job previously performed by each Applicant is no longer required to be performed by anyone and the duties have been distributed to the remaining six Team Leaders.[38] I also accept Mr Sorleto’s evidence that there continue to be six Team Leaders and the Applicants have not been replaced.[39]
I am satisfied on the evidence that there was a change in the operational requirements of the Respondent’s enterprise. As a result, NewCold no longer required each Applicant’s job to be performed by anyone. The criterion in s.389(1)(a) of the Act is therefore satisfied in respect of each Applicant.
Did NewCold comply with any obligation to consult?
It is not in dispute that the Storage Services and Wholesale Award 2010 (Award) covered NewCold and each Applicant and applied to them at the relevant time. The consultation provision of the Award is contained at clause 9 and is set out at Annexure 1 to this decision.
NewCold made two alternative submissions. First, that the scale of the forced redundancies did not meet the definition of “major change” in clause 9.1 of the Award and accordingly, the Award consultation obligations were not engaged. Alternatively, if clause 9 of the Award was engaged, it says that the obligations were fulfilled.
Did NewCold make a definite decision to make major changes in production, program, organisation, structure or technology, likely to have significant effects on employees?
In respect of its first submission, NewCold said that the facts here are relatively indistinguishable from those in Port Kembla Coal Terminal Ltd v CFMEU[40] (Port Kembla). In Port Kembla, Jessup J observed that “the forced redundancy of three employees out of a workforce of about 98 did not of itself constitute a major change within the meaning of cl 7.1.”[41] The Respondent said that clause 7.1 was in substantially the same terms as the obligation in clause 9 of the Award. NewCold said that the redundancies of the three Applicants (or four employees, including Ms Latu, noting she was ultimately redeployed) out of 73 employees did not constitute a “major change.”
However, as White J noted in Port Kembla, a simple comparison between the number of employees to be dismissed and the number of employees in the workforce overall is not conclusive of whether there are major changes.[42] Much depends upon the circumstances of a case.
The Applicants submitted that the organisational charts and notes contained in the PowerPoint reveal a wider impact upon the MB2 workforce, constituting major change. They said there was no parallel with Port Kembla and referred to:
(a) changes to the reporting structure to the Operations Manager;[43]
(b) the abolition of four-on four-off rotating shifts;[44]
(c) the apparent creation of an overnight system;[45]
(d) changes in operational hours/a change in hours of the remaining shifts;[46] and
(e) a redistribution of workloads.[47]
The Applicants also contended that:
(a) there were redundancies of other positions, specifically Head Planners, Inventory Leaders and a Business Development Manager;[48] and
(b) the Team Leader roles were sufficiently senior such that a reduction by three had a significant effect for the entire organisation and the remaining employees.[49]
Each of these matters is considered below.
Reporting structure to the Operations Manager
The Applicants said that there were more reports directed to the Operations Manager as part of the restructure. However, when the “current” organisational chart[50] is compared to the organisational chart presented at the management meeting on 21 February 2019[51] titled “MB2 Restructure Proposal – Feb 19,” the only change in the reporting structure to the Operations Manager was the proposal for two Transport and Administration Officer roles. These roles were utilised for the purposes of offering redeployment opportunities to the Applicants and Ms Latu. Only one such position crystalised and is held by Ms Latu.[52]
Abolition of four-on four-off rotating shifts
The allegation that there has been an abolition of four-on four-off rotating shifts as part of the restructure is not supported by the evidence. Mr Sorleto said that the four-on four-off swings have continued at MB2, in addition to the performance of “set shifts.” He gave evidence that “the people that are in place at the moment” start their 12 hour shifts at either 12:00 noon or 4:00am.[53]
Creation of an overnight system
The Applicants pointed to the creation of an “overnight system.” I understand this to be a reference to the proposal to create a Shift Manager (PM) position. While this was a proposed change, the evidence revealed that it was never implemented. Ms Slevison said that this position was proposed by Mr Sorleto but was not approved.[54] Mr Sorleto also said that the role had not come to fruition.[55]
Changes in operational hours/hours of the remaining shifts
As to the contention that there was a reorganisation of the remaining Team Leaders into different hours and/or there were changes in hours of the remaining shifts, the Applicants did not direct me to any material that supports this position or which explains its purported effect. Accordingly, I am unable to attribute any weight to these matters.
Redistribution of workloads
While this argument was not the subject of detailed submissions, I understand this to be similar to the complaint earlier raised concerning the distribution of the Applicants’ duties to the remaining six Team Leaders. However, Ms Slevison and Mr Sorleto’s evidence was that the six remaining Team Leaders have been adequately performing the necessary duties since February 2019 because business at MB2 has not increased.[56]
Redundancies/changes to other positions
Ms Slevison and Mr Toppi gave evidence that one Head Planner position was made redundant in December 2018.[57] Also at this time, 10 casual staff were released from the retail picking division[58] and there were no casual forklift drivers on site.[59] In around October 2018, NewCold reduced one third of its daily shifts.[60] These changes to the organisation pre-dated, and therefore did not form part of, the definite decision made on 21 February 2019.
Ms Slevison and Mr Toppi also gave evidence (conflicting at times) of the following four roles also being made redundant:
(a) a second Inventory role;
(b) a second Head Planner role;
(c) an Implementation Manager position; and
(d) a Business Development Manager role.[61]
Mr Toppi said in his statement that Ms Slevison advised him that these redundancies occurred in February 2019. However, Mr Toppi was not an employee of NewCold at this time and therefore had no direct knowledge of these matters.[62] Ms Slevison’s direct evidence on this issue is that no other positions were made redundant in February-March 2019.[63] I prefer Ms Slevison’s direct evidence on this issue, noting her ongoing role as Human Resources Manager for NewCold.
I have also had regard to the organisational structure reflecting the “current” position at MB2 in January 2019. These four roles do not form part of the January 2019 organisational chart and do not form part of the list of positions at slide 5 of the PowerPoint, which informed the 21 February 2019 decision. Accordingly, I infer that these roles were made redundant before January 2019. As such, I do not consider them to be relevant to my assessment of the impact of the definite decision made on 21 February 2019.
Impact for organisation and remaining employees
It was said that the Team Leader roles held by the Applicants were sufficiently senior such that a reduction by three had a significant effect for the entire organisation and the remaining employees. On this basis, the Applicants contended that there had been a major change. The Team Leaders held supervisory responsibilities for shifts, but there is no evidence that a reduction by three had a significant effect on the organisation or the remaining employees. On the contrary, Ms Slevison said that the duties have been distributed amongst the six remaining Team Leaders since February 2019[64] and they have adequately undertaken all of the necessary duties, as business at MB2 has not increased.[65] This was supported by the evidence of Mr Sorleto.[66]
Conclusion on s. 389(1)(b) of the Act
The evidence has disclosed that NewCold made a definite decision on 21 February 2019 to reduce the Team Leaders by three and to remove the role of Inventory Officer. In the result, the FTE headcount at MB2 was reduced from 73 employees to 70 employees.
While the Applicants argued that the definite decision had a wider impact upon the MB2 workforce amounting to “major changes in production, program, organisation, structure or technology” within the meaning of clause 9 of the Award, the concerns that form the basis for this argument either lack evidentiary foundation, or are contrary to the evidence before the Commission and which I accept.
The Commission’s own analysis of the organisational charts also reveals that while there had been a proposal for three less Planner positions, this proposal was not implemented. Ms Slevison said that whilst a redundancy scorecard for Planners at MB2 was completed on or about 18 February 2019,[67] there were no redundancies of any Planners that followed either in February 2019 or to the date of the hearing in the matter.[68] Mr Sorleto also gave evidence that this proposal was not implemented.[69]
Furthermore, there appears to have been a proposal for a Customer Service role to report directly to the Site Manager (rather than reporting to the Senior Supervisor, Planning and Inventory). Whether this proposed change was effected was not the subject of evidence. However, even if the change did occur (which has not been established), there is no evidence that would enable me to conclude that an adjustment to this reporting line constitutes a major change in production, program, organisation, structure or technology that is likely to have significant effects on employees. I also make this observation in respect of the redeployment of Ms Latu into the position of Transport and Administration Officer, which had the effect of increasing the Operations Manager’s supervisory responsibilities by one, and decreasing by one the supervisory responsibilities of the Senior Superuser, Planning and Inventory.
While the redundancies of the Applicants had a significant effect upon them, the definite decision on 21 February 2019 was not a decision to make major changes in production, program, organisation, structure or technology. For the purposes of s.389(1)(b) of the Act, I find that there was no obligation to consult about the redundancy with each Applicant pursuant to clause 9 of the Award because the Award consultation obligations were not engaged. Having reached this conclusion, it is not necessary for me to consider the Respondent’s alternative argument, asserting compliance with the Award consultation obligations.
Would it have been reasonable in all the circumstances for the Applicants to be redeployed?
The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett[70] and Technical and Further Education Commission T/A TAFE NSW v Pykett (Pykett).[71] Those principles were summarised in Huang v Forgacs Engineering Pty Limited[72] as follows:
“(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances.[73]
(2) The question is concerned with circumstances which pertained at the time of the dismissal.[74]
(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.[75]
(4) A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job and the remuneration which it offered.[76]”
Transport and Administration Officer role
It is not in dispute that NewCold discussed with each Applicant the possibility of redeployment to a Transport and Administration Officer position. The Redeployment Opportunity Letter, the Redeployment Opportunity Notice and the position description provided to the Applicants makes this clear.
On the material before the Commission, each Applicant was unwilling to explore redeployment to this role on the basis that it would result in a reduction in salary of $30,000 per annum. This issue was not in dispute. Accordingly, I am not satisfied that it would have been reasonable in all the circumstances for the Applicants to be redeployed to a Transport and Administration Officer position.
MSA role
NewCold’s submitted that it offered to consult with the Applicants regarding the creation of new MSA positions at a salary of $75,000 per annum.[77] It said that consultation did not progress because the Applicants were not interested in redeployment to a MSA role.[78]
In any event, NewCold said that its obligation under s.389(2) of the Act did not extend to the creation of a new MSA position.
Messrs Westlow and Waitere said that NewCold did not raise the MSA role with them. Mr Harvey acknowledged that the MSA role was raised with him,[79] but denied knowing the salary.[80]
Ms Slevison said that she told the Applicants in their individual meetings that NewCold could create a MSA position for them.[81] In her witness statement, Ms Slevison said:
“NewCold also identified that it could also create 3 new Multi Skilled Associate (MSA) positions. At the time the work that the MSA positions would involve was undertaken by casual employees called in on an as needed basis. NewCold was willing to create a MSA position for any of the three Team Leaders facing termination as a result of the redundancies and the MSA position would have be [sic] remunerated at $75,000 per annum.”[82] (emphasis added)
Mr Sorleto also said a MSA position was discussed during the Applicants’ individual meetings.[83]
Messrs Westlow and Waitere denied that a MSA position was raised with them.[84] While this issue was in contest, I prefer Ms Slevison’s evidence that the MSA position was raised with Messrs Westlow and Waitere during their individual meetings. It is not in dispute that Ms Slevison raised the MSA role with Mr Harvey during his separate discussion. I accept the proposition advanced by the Respondent that Ms Slevison adopted a broadly uniform approach to her discussion with each Applicant. The content of Ms Slevison’s witness statement bears this out.[85]
Furthermore, despite the MSA role not being mentioned in the Redeployment Opportunity Letters, Ms Slevison’s evidence that the MSA role was raised with Messrs Westlow and Waitere is corroborated by Mr Sorleto.[86]
Did the MSA role constitute a job, position or other work within the enterprise?
NewCold’s alternative argument was that there was no obligation on it to create a MSA role for the purposes of redeployment. However, the Full Bench in Pykett confirmed that the proper construction of s.389(2) requires the Commission to find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which an employee could have been redeployed.[87]
The evidence disclosed that the MSA role was already in existence within the enterprise, being work performed by casual employees on an as required basis.[88] It was not argued by NewCold that it was unreasonable to redeploy the Applicants to the MSA roles in a permanent full time capacity because there was no “ongoing and generally predictable level of demand.”[89] Rather, Ms Slevison raised the possibility of redeployment to the MSA position in a permanent full time capacity with the Applicants in the first place.[90]
In these circumstances, I am satisfied that the MSA role was other work within the enterprise to which the Applicants could have been redeployed. Whether it would have been reasonable to redeploy the Applicants to a MSA role is considered below. It is first necessary to assess whether the Applicants knew the salary attached to the position.
Did the Applicants know the salary attached to the MSA role?
Ms Slevison said during her oral evidence that she did not specifically mention the MSA salary to the Applicants.[91] Rather, she said that it was a well-known fact that a MSA position attracted an annual salary of up to $75,000 per annum.
Each of the Applicants did not accept the proposition that the MSA salary was well known. Mr Westlow said that he had no exposure to the salary relevant to other people and other positions.[92] Mr Waitere denied that he knew the MSA salary or that it was well known on the warehouse floor.[93] Mr Harvey queried the MSA salary in an email to Ms Slevison on 4 March 2019. Ms Slevison’s response to this email advised him of the salary for the Transport and Administration Officer role and a “Pick Packer” position, but did not state the MSA salary.[94] It was not contended that the Pick Packer position is the same as the MSA role.
Ms Slevison said that the Applicants “would have known” the MSA salary.[95] However, this assertion is speculative and contrary to the direct evidence of each of the Applicants. I accept that the MSA salary was not known to the Applicants at the relevant time, noting that:
(a) Ms Slevison conceded under cross examination that she had never observed any of the Applicants discussing the MSA salary and had no direct evidence that they were aware of it;[96] and
(b) each of the Applicants deposed that they did not know the MSA salary.
Was it reasonable to redeploy the Applicants to a MSA role?
Mr Westlow
Ms Slevison said that Mr Westlow rejected the possibility of redeployment on the basis that he had another job opportunity with a new employer. At the hearing, Mr Westlow elaborated on this and said that he had attended an interview with Costa Group prior to the events of 26 February 2019, however he had not heard back from them.[97]
Mr Westlow secretly recorded the termination meeting on 28 February 2019. A transcript of the recording is in evidence.[98] During the meeting, Ms Slevison asked Mr Westlow, “Are you sure you [sic] not going to take redeployment?” Mr Westlow responded, “Oh positive.”[99]
NewCold relied upon the above evidence to conclude that Mr Westlow was not interested in redeployment. However, this position does not take into account the fact that Mr Westlow did not have all of the relevant information before him pertaining to the possibility of redeployment to the MSA position in order to make an informed decision about it. Given that the salary was not disclosed (or any other relevant details concerning the role), it cannot be said that Mr Westlow had the opportunity to properly consider redeployment to the position (and reject it).
It follows that any statements made by Mr Westlow to the effect that he was not “going to take redeployment” must, as a matter of logic, extend only to those redeployment options known to him at the relevant time. On the evidence, this is limited to the role of Transport and Administration Officer.
Mr Westlow said that he “would have definitely been interested,” in a MSA role at $75,000 per annum, as a “$15,000 drop is far more manageable than a $30,000 drop to take the Transport Officer job…”[100] During the hearing, there was the following exchange with Mr Westlow:
“Mr Champion: Good. Your position, sir, on 26 February is that you weren’t interested in any redeployment option. That’s the case, is it not?
Mr Westlow: Because the only redeployment option that was put to us was an application for a transport role.
Mr Champion: You weren’t interested in any redeployment options, sir?
Mr Westlow: If any other position was presented to us, at a higher rate than $60,000, it would have been applicable.”[101]
This is a matter that weighs in favour of a conclusion that it would have been reasonable in all of the circumstances for Mr Westlow to be redeployed into a MSA position. I note that it is not in dispute that Mr Westlow had the necessary skills, qualifications and experience to perform the role.
To be weighed against this are the other comments made by Mr Westlow during the termination meeting. The transcript recorded that Mr Westlow said words to the effect of, “I would not come back here,”[102] “the culture here is worse” than at his previous employer,[103] and referred to having “things lined up”[104] (which I understand to be a reference to having a potential new position lined up at Costa Group). While these statements may be reflective of Mr Westlow’s disappointment in losing his job, they nevertheless are relevant to an assessment of whether it was reasonable to redeploy him, given his views about the business and its culture.
I consider that Mr Westlow’s remarks concerning NewCold set out at [83] above are outweighed by his stated position that he would “definitely” have been interested in a MSA role. An assessment of all of the circumstances that pertained at the time of the dismissal leads me to conclude that, on balance, it would have been reasonable to redeploy Mr Westlow to a MSA role, being a job, position or other work within the Respondent’s enterprise.
Mr Waitere
Ms Slevison said that during Mr Waitere’s individual meeting, he said “No, I am not interested in redeployment at a lower salary level. I won’t consider the redeployment options unless they have the team leader salary…”[105]
However, Mr Waitere gave evidence that he was in the final stages of getting a home loan and would have been happy with a guaranteed $75,000 per annum role if it had been presented to him, but it was not.[106] He further said he would have “jumped” at the opportunity[107] but qualified this evidence somewhat during the hearing by indicating that he would have been interested, “maybe.”[108]
I have had regard to the fact that Mr Waitere is performing a new role on a casual basis for approximately $70,000 per annum.[109] Accordingly, I accept Mr Waitere’s evidence that he “would have been happy” with a guaranteed $75,000 per annum MSA role at NewCold. This matter weighs in favour of a conclusion that it would have been reasonable to redeploy Mr Waitere to a MSA position.
It is not in dispute that Mr Waitere had the necessary skills, qualifications and experience to perform the MSA role. An assessment of all of the circumstances that pertained at the time of the dismissal leads me to conclude that it would have been reasonable to redeploy Mr Waitere to a MSA position, being a job, position or other work within the Respondent’s enterprise.
Mr Harvey
Mr Harvey gave evidence that if he had known the salary attached to the MSA position, then he would have taken it, because he was seriously considering accepting a lesser paying role as he was in a “rough place.”[110]
The email correspondence passing between Mr Harvey and Ms Slevison on 4 March 2019 evidences that Ms Slevison failed to raise the MSA role with Mr Harvey in response to his query about what the MSA role would pay. Ms Slevison said:
“The Transport & Admin role was the redeployment position offered and salary details were provided for this role. That is a salary of $60,000 base gross.
The Pick Packer position is: 10.00am til 6pm $52,500 base gross. If you would like more information please advise prior to 3pm.”[111]
Mr Harvey concluded by stating in reply:
“None of these redeployment options will financially help me and my family I will be going from 92k to 52k in salary this is not a reasonable redeployment option for me.”
Rather than provide a direct response to Mr Harvey’s earlier query regarding the MSA salary, Ms Slevison concluded the conversation by stating:
“Thank you for considering these options, we understand there would be a significant drop in salary, they are the only positions we were able to offer for redeployment. We genuinely attempted to exhaust all avenues.”
The Respondent’s failure to properly engage with Mr Harvey in respect of the redeployment opportunity to a MSA role is apparent from the above exchange. I am satisfied that the MSA position was mentioned to Mr Harvey by its name only, in stark contrast to NewCold’s approach with the Transport and Administration Officer and Pick Packer roles.
Having regard to this evidence, I am satisfied that it would have been reasonable in all of the circumstances to redeploy Mr Harvey to a MSA position, being a job, position or other work within the Respondent’s enterprise. It is not in dispute that Mr Harvey had the necessary skills, qualifications and experience to perform the role.
I have formed this view notwithstanding that Mr Harvey commenced a new job two weeks after the dismissal, with a similar title and status to the Team Leader role he held at NewCold, at a salary of $90,000 per annum. The fact that Mr Harvey was able to entirely mitigate his loss quickly after the dismissal is not a circumstance pertaining at the time of his dismissal.
Finding on jurisdictional issue
The focus of the Respondent during the individual meetings was on the potential for redeployment to a Transport and Administration Officer position and, to a lesser degree in the case of Mr Harvey, a Pick Packer role. The Consultation Letter said that NewCold would discuss redeployment options and “the key requirements associated with those positions.” However:
(a) neither the Redeployment Opportunity Letter nor the Redeployment Opportunity Notice referred to the MSA role;[112]
(b) a position description for the Transport and Administration Officer role was provided to each Applicant, but not a position description for the MSA role; and
(c) there is no evidence of the Respondent putting any
“key requirements” of the MSA position to the Applicants.
Further, the termination letters referred to the attempts to redeploy to the Transport and Administration Officer role (and in the case of Mr Harvey, the Pick Packer position), but did not mention the MSA position.
For reasons that are not apparent, NewCold raised the possibility of redeployment to a MSA position with the Applicants, but did nothing more. This is not, in my view, sufficient to discharge its obligations under s.389(2) of the Act.
For the above reasons, I find that the dismissal of each Applicant was not a case of genuine redundancy because it would have been reasonable in all of the circumstances for the Applicants to be redeployed within NewCold’s enterprise. Having made this finding, I am required to consider the merits of each application.
WERE THE DISMISSALS HARSH, UNJUST OR UNREASONABLE?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[113]
Valid reason related to capacity or conduct (s.387(a))
I am satisfied that NewCold no longer required each Applicant’s job to be performed by anyone because of changes in the operational requirements of the enterprise. The reason for the dismissal of each Applicant was not related to their capacity or conduct.[114] As such, this is a neutral factor with respect to whether each Applicants’ dismissal was harsh, unjust or unreasonable.
Notification of that valid reason (s.387(b))
As stated above, the terminations of employment did not relate to capacity or conduct. This is a neutral factor.
Opportunity to respond (s.387(c))
This criteria deals with procedural fairness in respect of a reason for dismissal related to an employee’s capacity or conduct. The Applicants’ employment was not terminated for reasons related to their capacity or conduct. This is a neutral factor.
Support person (s.387(d))
NewCold advised the Applicants during their individual meetings that they may have a support person present to assist at the meeting.[115] Although not availed of, the opportunity to have a support person was not disputed by the Applicants. This is a neutral factor.
Unsatisfactory performance (s.387(e))
The dismissal did not relate to unsatisfactory performance by the Applicants. This is a neutral factor.
Size of the employer’s enterprise (s.387(f)) and human resource management (s.387(g))
NewCold said that it, and an associated business, employed approximately 141 employees at the time of the dismissals. There was no lack of dedicated human resource management specialists or expertise likely to impact on the procedures followed in effecting the dismissal. These are neutral factors.
Any other relevant matters (s.387(h))
Section 387(h) provides the Commission with broad scope to consider any other relevant matters. Chief amongst these relevant considerations is the finding I have made that NewCold failed to redeploy the Applicants pursuant to s.389(2) of the Act. This deprived the Applicants of the opportunity to remain in employment. In the circumstances of this case, this matter stands strongly in favour of a conclusion that the dismissals were unfair.
The selection process
The Applicants argued that they were earmarked for dismissal in around December 2018 when an earlier assessment was performed on all of the Team Leaders. Further, the Applicants said that the selection process was flawed on account of the following issues:
(a) the KPI performance of shifts were not included, in circumstances where they were the only objective measure available;[116]
(b) none of the participants had an opportunity to respond to the December 2018 assessment or the February 2019 scorecard;
(c) the assessment included capacity and conduct issues related to each Applicant that was earlier accepted or condoned;[117]
(d) Mr Westlow contended that he was targeted for dismissal by Ms Mathilde Lepont for personal reasons;[118] and
(e) Mr Harvey submitted that he was not fairly assessed.[119]
NewCold said that the selection process involved a relative assessment against rational criteria.[120] It was not about the Applicants’ performance being in and of itself deficient. It said that Mr Sorleto and Mr Espie, as the relevant managers of the Team Leaders, undertook the process and were “ideally placed”[121] to make the comparative assessments.
In any event, NewCold said that there was independent evidence to support Mr Sorleto and Mr Espie’s relative judgments:
(a) in December 2018, Mr Toppi’s assessment of the canopy leaders had also given Mr Waitere and Mr Harvey the lowest relative scores;
(b) Mr Harvey sent a text message to Mr Sorleto opining that Mr Westlow’s performance was unsatisfactory;[122]
(c) Mr Harvey by his own text message to Mr Espie had shown himself not ready to take responsibility in the chiller (beyond what he deemed to be his own job);[123] and
(d) Mr Waitere in his evidence accepted that he found data entry work tricky and made some errors.[124]
NewCold conceded that the Applicants names were omitted from the MB2 organisational structure in the PowerPoint presented to senior management on 21 February 2019. However, it said that this was done on a draft basis. Mr Sorleto explained that he relied upon the results of his December 2018 assessment of the Team Leaders to complete the proposed organisational chart in the PowerPoint. He said that he was asked to provide a proposal and that required him, in his view, to identify the lowest ranking Team Leaders.[125] Following the definite decision on 21 February 2019 to proceed with the redundancies, Mr Sorleto completed a new scorecard, which he provided to Ms Slevison on 22 February 2019. Again, on his assessment, the Applicants received the lowest scores relative to their colleagues.
Mr Sorleto gave evidence that he did not speak with Mr Espie about the scoring process and that he did not know what scores Mr Espie gave to the Team Leaders.[126] Mr Espie gave similar evidence that he did not discuss his scores with Mr Sorleto.[127]
Having regard to the evidence of Mr Sorleto and Mr Espie,[128] I am satisfied that there was an independent assessment of the Team Leaders in February 2019 against the specified matrix criteria. I accept the evidence of Mr Sorleto and Mr Espie that they independently scored the Team Leaders without discussing it with each other. The outcome of the combined scorecard in February 2019 was that the Applicants had the three lowest scores among the Team Leaders and were then selected for redundancy.
I find Mr Sorleto’s evidence that the December 2018 assessment process was for the purposes of keeping track of the Team Leaders to see how they were progressing[129] to be persuasive. This is not unusual, particularly in the context of a business that is operating at a loss.
There is no basis on the evidence for a conclusion that the Applicants were earmarked for dismissal in December 2018. Mr Sorleto’s independent assessment of the Team Leaders, in either December 2018 or February 2019, did not determine the employees to be made redundant. It is clear that Mr Espie’s scorecard contributed, in equal weight, to the decision made in respect of the Applicants. Mr Sorleto would not have been required to complete a second scorecard in February 2019 if his December 2018 assessment formed the basis of the decision to make the Applicants redundant.
I accept that the Applicants had not been informed that they were being evaluated according to the assessment criteria in February 2019 and that they held concerns that the KPI performance of shifts was not included. However, a review of the assessment process and the evaluation criteria does not demonstrate any unlawful or improper purpose. In the absence of such evidence, the Commission should not attempt to second guess the outcome determined by the employer.
Mr Westlow’s argument that he was targeted by Ms Lepont for personal reasons has not been made out.[130] Mr Espie and Mr Sorleto completed the scorecards, not Ms Lepont. Ms Lepont was among several employees consulted, however the transcript of the termination meeting on 28 February 2019 disclosed that Ms Lepont held only a maximum 5% role in the process.[131]
Mr Harvey also gave evidence to the effect that he believed he was not fairly assessed.[132] However, he pointed to no evidence that supports this assertion. There is no basis, upon the material before the Commission, upon which it could be concluded that Mr Harvey was not fairly assessed.
Accordingly, I do not consider that the selection process weighs in favour of a conclusion that the dismissal was harsh, unjust or unreasonable.
Conclusion on merits
Having considered each of the matters in s.387 of the Act separately, and in totality, the redeployment failing earlier identified leads me to conclude that the dismissal of the Applicants was unreasonable. I am therefore satisfied that each Applicant was unfairly dismissed within the meaning of s.385 of the Act.
REMEDY
I have found that the Applicants were protected from unfair dismissal at the time of being dismissed and that they were unfairly dismissed. Accordingly, s.390 of the Act prescribes that I may order reinstatement or compensation as a remedy.
The Applicants did not seek reinstatement. Given my finding that the Applicants’ positions were not operationally required by the Respondent, I am satisfied that it is inappropriate to order reinstatement.[133]
I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation.[134]
Section 392(2) of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation. The well-established approach to the assessment of compensation under s.392 is to apply the Sprigg formula, derived from the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[135]
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
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.
Mr Waitere
Remuneration that would have been received if the dismissal had not occurred – s.392(2)(c)
I consider that Mr Waitere’s employment would have been likely to continue for nine months, to 27 November 2019. This is an amount of 39 weeks. This estimate of how long Mr Waitere would have remained in employment is the “anticipated period of employment.”[136] I have reached this view, having regard to:
(a) the findings I have made regarding NewCold’s genuinely changed operational requirements;
(b) Mr Waitere’s evidence that that he had applied for a home loan before being made redundant,[137] indicating importance in the stability of his employment; and
(c) Mr Waitere’s relatively short period of employment of approximately 13 months.[138]
I have earlier concluded that NewCold failed to redeploy Mr Waitere to a MSA position. Accordingly, the anticipated period of employment must factor in that the MSA salary was a base of $75,000 annually. I have calculated this to be a gross amount of $1,442.31 per week ($75,000.00 per annum/52 weeks).
The gross remuneration that Mr Waitere would have received if the dismissal had not occurred is $56,250.09 ($1,442.31 per week x 39 weeks – to 27 November 2019). This is the starting point.
Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))
Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f) of the Act. Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula.[139]
Around three weeks after the dismissal (approximately 21 March 2019),[140] Mr Waitere gained work through Program Skilled Workforce as a casual worker on 38 hours per week for Graincorp in the role of Forklift Operator.
Mr Waitere’s YTD pay slip for Program Skilled Workforce for the period 21 March 2019 to 11 June 2019 was $15,692.46 gross.[141] This is a period of approximately 12 weeks. I have therefore calculated Mr Waitere’s weekly remuneration to be approximately $1,307.71 gross per week ($15,692.46/12 weeks).
Mr Waitere gave evidence at the hearing that this employment was ongoing.[142] Accordingly:
(a) for the one week period between the YTD payslip (which is to 11 June 2019), and the last date of the hearing on 18 June 2019, I have calculated Mr Waitere’s remuneration to be $1,307.71 gross; and
(b) from the date of the hearing to the conclusion of the anticipated period of employment, I have calculated Mr Waitere’s likely income to be $30,077.33 gross ($1,307.71 x 23 weeks – to 27 November 2019).
In summary therefore, the remuneration and income reasonably likely to have been earned by Mr Waitere between the date of dismissal and 27 November 2019 (representing the 39 week anticipated period of employment) is as follows:
| DATE | REMUNERATION/LIKELY INCOME |
| 21 March 2019 – 11 June 2019 | $15,692.46 |
| 12 June 2019 – 18 June 2019 (hearing date) | $1,307.71 |
| 19 June 2019 – 27 November 2019 | $30,077.33 |
| TOTAL | $47,077.50 gross |
Any other matters – s.392(2)(g)
I now need to consider the impact of contingencies. Any discount for contingencies depends upon the circumstances of a particular case. A discount for contingencies is a means of taking into account the various probabilities that might otherwise affect earning capacity.[143]
NewCold submitted that the Commission should apply a contingency deduction directly to Sprigg (Step 1), consistent with the observations made by a Full Bench in Lockwood Security Product Pty Ltd v Sulocki.[144] This submission is made on the basis that there was a need to reduce the warehouse workforce at NewCold. However, this approach is at odds with NewCold’s stated position that it could create three MSA positions for the Applicants facing termination.[145] It was not contended by NewCold that there would be a possibility that the Applicants’ redeployment to the MSA roles would have led to termination “fairly soon”[146] on account of ongoing operational issues. Therefore, I do not consider this approach to be appropriate in the circumstances of this case.
In line with other authoritative decisions concerning the application of the Sprigg formula, I consider that any discount for contingencies should be applied to an anticipated period of employment that is not actually known.[147] This accounts for future losses which “depend on the uncertainties of the future,” whereas the remuneration earned to the hearing date is capable of precise assessment.[148]
In relation to the anticipated period of employment that is not actually known, there is no general rule for discounting contingencies. According to a Full Bench in Enhance Systems Pty Ltd v Cox,[149] upon considering an anticipated period of employment of 12 months:
“It may well be that the percentage figure should be related to the length of the "anticipated period of employment", i.e. the shorter the "anticipated period of employment", the lesser the percentage. In this case, we are satisfied that, for the unknown portion of the estimated "anticipated period of employment", the amount of deduction for contingencies should be 15 per cent…”[150]
I consider it appropriate to apply a contingency of 15% against the estimate of Mr Waitere’s future earnings set out at [133](b) above (being $30,077.33 gross). Adjusted for contingencies, Mr Waitere’s likely income from the date of the hearing to the conclusion of the anticipated period of employment is $25,565.73 gross. Therefore, Mr Waitere’s remuneration and likely income for the anticipated period of employment is as follows:
| DATE | REMUNERATION/LIKELY INCOME |
| 21 March 2019 – 11 June 2019 | $15,692.46 |
| 12 June 2019 – 18 June 2019 (hearing date) | $1,307.71 |
| 19 June 2019 – 27 November 2019 (adjusted for contingencies – 15%) | $25,565.73 |
| TOTAL | $42,565.90 gross |
From the starting point of $56,250.09, I deduct the remuneration/likely income earned of $42,565.90 (which has been adjusted for contingencies). This results in provisional compensation of $13,684.19 gross.
From the provisional compensation of $13,684.19 gross, it is appropriate to make a deduction for the severance payment on the basis that in the hypothetical counter-factual, the severance payment would not have been received.[151] This was a gross amount of $6,923.08.[152]
Further, NewCold contended that a deduction should also be made for the payment in lieu of notice, consistent with the approach of a Full Bench in Bank of Sydney Ltd v Repici.[153] As with severance, I have also determined that it is appropriate to deduct the notice payment. This was a gross amount of $3,461.54.[154]
The deduction for severance and notice is represented as follows: from the provisional compensation of $13,684.19, I deduct $6,923.08 severance pay and $3,461.54 notice. This yields a figure of $3,299.57 gross.
In relation to taxation, compensation will be determined as a gross amount and it will be left to the Respondent to deduct any amount of taxation required by law.
While superannuation forms part of remuneration, I have not included it in my calculations because I have no evidence about the superannuation Mr Waitere earned from the work he undertook after he was dismissed from NewCold.
There are no other matters that I consider relevant to take into account in the determination of an amount of compensation in lieu of reinstatement for Mr Waitere, save from those in ss.392(2)(a), (b) and (d), s.392(3) and s.392(5) of the Act, which are addressed below.
Viability (s.392(2)(a))
NewCold submitted that this is a neutral factor and I consider it to be so.
Length of service (s.392(2)(b))
Mr Waitere’s period of service of 13 months does not justify any adjustment to the compensation amount that should otherwise be ordered.
Mitigation efforts (s.392(2)(d))
Mr Waitere has mitigated his loss.
Misconduct (s.392(3))
Misconduct played no part in the Respondent’s decision to dismiss Mr Waitere, so this has no relevance to the assessment of compensation.
Compensation cap (s.392(5))
The amount of $3,299.57 gross is less than the compensation cap in s.392(5) of the Act in relation to Mr Waitere.
Total compensation
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.[155] I am satisfied that the above analysis takes into account all the circumstances of the case and the matters set out in s.392(2) of the Act.
I consider it appropriate to make an order that the Respondent pay Mr Waitere the sum of $3,299.57 gross, less taxation as required by law, within 7 days of this decision. An application has not been made by NewCold for any compensation to be made by way of instalments and so no such order is made.[156]
The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to Mr Waitere.
Mr Westlow
Remuneration that would have been received if the dismissal had not occurred (s.392(2)(c))
I consider that Mr Westlow’s employment would have been likely to continue for 19.5 weeks, to 14 July 2019. A 19.5 week period reflects the approximate time taken by Mr Westlow to commence new employment following the dismissal. This estimate of how long Mr Westlow would have remained in employment is the “anticipated period of employment.”[157] I have reached this view, having regard to:
(a) the findings I have made regarding NewCold’s genuinely changed operational requirements;
(b) the evidence which disclosed that Mr Westlow was dissatisfied with his employment at NewCold, noting his comments that he “would not come back”[158] and his view concerning a poor workplace culture;[159]
(c) the evidence which disclosed that Mr Westlow had interviewed for employment with Costa Group prior to his dismissal and his belief that he had alternative employment “lined up,” indicating that he had plans to pursue employment opportunities outside of NewCold;[160] and
(d) Mr Westlow’s relatively short period of employment of approximately 13 months.[161]
Taken together, these matters weigh against a long anticipated period of employment.
I have earlier concluded that NewCold failed to redeploy Mr Westlow to a MSA position. Accordingly, the anticipated period of employment must factor in that the MSA salary was a base of $75,000 annually. I have calculated this to be a gross amount of $1,442.31 per week ($75,000.00 per annum/52 weeks).
The gross amount Mr Westlow would have earned but for the dismissal is therefore $28,125.05 gross ($1,442.31 per week x 19.5 weeks – to 14 July 2019). This is the starting point.
Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))
Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f) of the Act. Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula.[162]
On 6 April 2019, Mr Westlow commenced employment with a labour hire company, Shuttleworth, undertaking work for Bulla Dairy. Between the period 6 April 2019 and 12 May 2019, Mr Westlow earned a gross amount of $11,851.37.[163]
Following this, Mr Westlow attained employment through Logical Staffing Solutions and earned a gross amount of $159.10 for work performed on 27 May 2019.[164]
Mr Westlow attained employment through Chandler Macleod and was paid a gross amount of $361.07 for work performed on 6 June 2019 and 7 June 2019.[165]
On or about 10 June 2019, Mr Westlow was informed by Chandler Macleod’s client Linfox that he would be commencing in a permanent full-time position with the company within a month and the salary would be approximately $90,000 gross per year.[166]
Mr Westlow gave evidence at the hearing that he expected to be undertaking an ongoing casual role at 38 hours per week at a rate of $41.00 per hour until he commenced in a permanent full-time position with Linfox on or about 15 July 2019.[167] Accordingly:
(a) for the one week period between 10 June 2019 and the last date of the hearing on 18 June 2019, I have calculated Mr Westlow’s remuneration to be $1,558 gross (38 hours x $41 per hour); and
(b) from the date of the hearing to the conclusion of the anticipated period of employment, I have calculated Mr Westlow’s likely income to be $6,232 gross ($1,558 x 4 weeks – to 14 July 2019).
In summary therefore, the remuneration and income reasonably likely to have been earned by Mr Westlow between the date of dismissal and 14 July 2019 (representing the 19.5 week anticipated period of employment) is as follows:
| DATE | REMUNERATION/LIKELY INCOME |
| 6 April 2019 - 12 May 2019 | $11,851.37 |
| 27 May 2019 | $159.10 |
| 6 June - 7 June 2019 | $361.07 |
| 10 June - 18 June 2019 (hearing date) | $1,558.00 |
| 19 June 2019 - 14 July 2019 | $6,232.00 |
| TOTAL | $20,161.54 gross |
Other matters (s.392(2)(g))
Consistent with my observations at [137] and [138] above, I consider it appropriate to apply a contingency against the estimate of Mr Westlow’s future earnings set out at [164](b) above (being $6,232 gross). I have determined that the contingency amount should be 10% given the short anticipated period of employment. Adjusted for contingencies, Mr Westlow’s likely income from the date of the hearing to the conclusion of the anticipated period of employment is $5,608.80 gross. Therefore, Mr Westlow’s remuneration and likely income for the anticipated period of employment is as follows:
| DATE | REMUNERATION/LIKELY INCOME |
| 6 April - 12 May 2019 | $11,851.37 |
| 27 May 2019 | $159.10 |
| 6 June - 7 June 2019 | $361.07 |
| 10 June - 18 June 2019 (hearing date) | $1,558.00 |
| 19 June 2019 - 14 July 2019 (adjusted for contingencies – 10%) | $5,608.80 |
| TOTAL | $19,538.34 gross |
From the starting point of $28,125.05, I deduct the remuneration/likely income earned of $19,538.34 (which has been adjusted for contingencies). This results in provisional compensation of $8,586.71 gross.
From the provisional compensation of $8,586.71 gross, it is appropriate to make a deduction for the severance payment received on the basis that in the hypothetical counter-factual, the severance payment would not have been received. [168] This was a gross amount of $6,923.08.[169]
Further, NewCold contended that a deduction should also be made for the payment in lieu of notice, consistent with the approach of a Full Bench in Bank of Sydney Ltd v Repici.[170] As with severance, I have also determined that it is appropriate to deduct the notice payment. This was a gross amount of $3,461.54.[171]
The deduction for severance and notice is represented as follows: from the provisional compensation of $8,586.71, I deduct $6,923.08 severance pay and $3,461.54 notice. This leaves $0.00 in compensation.
There are no other matters that I consider relevant to take into account in the determination of an amount of compensation in lieu of reinstatement for Mr Westlow, save from those in ss.392(2)(a), (b) and (d), s.392(3) and s.392(5) of the Act, which I address below.
Viability (s.392(2)(a))
NewCold submitted that this is a neutral factor and I consider it to be so.
Length of service (s.392(2)(b))
Mr Westlow’s period of service does not justify any adjustment to the compensation amount that should otherwise be ordered.
Mitigation efforts (s.392(2)(d))
Mr Westlow has mitigated his loss.
Misconduct (s.392(3))
Mr Westlow secretly recorded Mr Sorleto and Ms Slevison at the termination meeting.[172] NewCold learned of the recording only upon receipt of the Applicants’ evidentiary material in this matter. NewCold argued that this is a matter I ought to take into account in considering any compensation order. However, this is a moot point in circumstances where the application of the Sprigg formula has resulted in nil compensation.
Compensation cap (s.392(5))
Noting that the application of the Sprigg formula has resulted in nil compensation, there is no adjustment to be made pursuant to s.392(5).
Total compensation
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.[173] I am satisfied that the above analysis takes into account all the circumstances of the case and the matters set out in s.392(2) of the Act.
No order of compensation will be made in respect of Mr Westlow.
Mr Harvey
Remuneration that would have been received if the dismissal had not occurred – s.392(2)(c)
I consider that Mr Harvey’s employment would have been likely to continue for nine months, to 3 December 2019. This is an amount of 39 weeks. This estimate of how long Mr Harvey would have remained in employment is the “anticipated period of employment.”[174] I have reached this view, having regard to:
(a) the findings I have made regarding NewCold’s genuinely changed operational requirements;
(b) Mr Harvey’s evidence that he was in a “rough place” and seriously considering accepting one of the lesser paying redeployment opportunities presented to him by NewCold,[175] indicating that he sought security in ongoing employment; and
(c) Mr Harvey’s relatively short period of employment of approximately 17 months.[176]
I have earlier concluded that NewCold failed to redeploy Mr Harvey to an MSA position. Accordingly, the anticipated period of employment must factor in that the MSA salary was a base of $75,000 annually. I have calculated this to be a gross amount of $1,442.31 per week ($75,000.00 per annum/52 weeks).
The gross remuneration that Mr Harvey would have received if the dismissal had not occurred is $56,250.09 ($1,442.31 per week x 39 weeks). This is the starting point.
Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))
Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f) of the Act. Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula.[177]
On 18 March 2019 (14 days after the dismissal), Mr Harvey commenced full time employment with a new employer, with an annual salary of $90,000 gross. I have calculated this to be an amount of $1,730.77 gross per week.
From the commencement of Mr Harvey’s new employment on 18 March 2019 to the date of the hearing, Mr Harvey’s remuneration was approximately $22,500.01 gross (13 weeks x $1,730.77 – to 18 June 2019).
From the date of the hearing to the conclusion of the anticipated period of employment, I have calculated Mr Harvey’s likely income to be $41,538.48 gross ($1,730.77 x 24 weeks – to 3 December 2019).
Any other matters – s.392(2)(g)
I consider it appropriate to apply a contingency of 15% against the estimate of Mr Harvey’s future earnings set out at [185] above (being $41,538.48 gross). Adjusted for contingencies, Mr Harvey’s likely income from the date of the hearing to the conclusion of the anticipated period of employment is $35,307.71 gross. Therefore, Mr Harvey’s remuneration and likely income for the anticipated period of employment is as follows:
| DATE | REMUNERATION/LIKELY INCOME |
| 18 March 2019 – 18 June 2019 (hearing date) | $22,500.01 |
| 19 June 2019 – 3 December 2019 (adjusted for contingencies – 15%) | $35,307.71 |
| TOTAL | $57,807.72 gross |
From the starting point of $56,250.09, I deduct the remuneration/likely income earned of $57,807.72. This results in $0.00 compensation (even before deductions for severance and notice are factored in).
There are no other matters that I consider relevant to take into account in the determination of an amount of compensation in lieu of reinstatement for Mr Harvey, save from those in ss.392(2)(a), (b) and (d), s.392(3) and s.392(5) of the Act, which are addressed below.
Viability (s.392(2)(a))
NewCold submitted that this is a neutral factor and I consider it to be so.
Length of service (s.392(2)(b))
Mr Harvey’s period of service does not justify any adjustment to the compensation amount that should otherwise be ordered.
Mitigation efforts (s.392(2)(d))
Mr Harvey has entirely mitigated his loss, noting that he secured employment at a similar salary to his Team Leader position which commenced within two weeks of his dismissal from NewCold.
Misconduct (s.392(3))
Misconduct played no part in NewCold’s decision to dismiss Mr Harvey, so this has no relevance to the assessment of compensation.
Compensation cap (s.392(5))
Noting that the application of the Sprigg formula has resulted in nil compensation, there is no adjustment to be made pursuant to s.392(5).
Total compensation
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.[178] I am satisfied that the above analysis takes into account all the circumstances of the case and the matters set out in s.392(2) of the Act.
No order of compensation will be made in respect of Mr Harvey.
Conclusion
I am satisfied that the dismissal of the Applicants was unreasonable and therefore unfair.
Having regard to the application of the Sprigg formula and s.392(2) of the Act I am satisfied that:
(a) no order for compensation is to be made in respect of Messrs Westlow and Harvey; and
(b) it is appropriate to make an order for compensation in the amount of $3,299.57 gross to be paid to Mr Waitere within seven days, less taxation as required by law. An order giving effect to this decision is separately issued.
DEPUTY PRESIDENT
<PR712663>
Appearances:
Mr G Dircks for Mr Darryl Waitere, Mr Darren Westlow, Mr Mark Harvey.
M Champion, of Counsel, for Newcold Melbourne No. 2 Pty Ltd.
Hearing details:
2019.
Melbourne.
June 17, 18.
Final written submissions:
Applicant, 18 July 2019.
Respondent, 16 July 2019.
ANNEXURE 1
“9. Consultation about major workplace change
9.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i)the introduction of the changes; and
(ii)their likely effect on employees; and
(iii)measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
9.2 For the purposes of the discussion under clause 9.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
9.3 Clause 9.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
9.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 9.1(b).
9.5 In clause 9:
significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
9.6 Where this award makes provision for alteration of any of the matters defined at clause 9.5, such alteration is taken not to have significant effect.”
[1] Section 399(1) of the Act.
[2] Moncreiff Fabrications Labour Services P/L Certified Agreement 2002, PR925178 (29 November 2002); Corfield [2014] FWC 4887.
[3] Witness statement of Mr Toppi, Exhibit 5 (Toppi statement) at [9].
[4] Toppi statement at [10].
[5] Ibid at [8] and [11].
[6] Ibid at [22].
[7] Annexure WT-1 to the Toppi statement.
[8] Transcript of proceedings (Transcript) [1182]-[1187].
[9] Exhibit 3.
[10] Ibid.
[11] Transcript [290]-[291].
[12] Supplementary witness statement of Mr Sorleto, Exhibit 7 (Supplementary Sorleto statement) at PS-7.
[13] Supplementary Sorleto statement at PS-6; witness statement of Mr Espie, Exhibit 10 (Espie statement) at BE-1.
[14] Exhibit 4.
[15] Witness statement of Ms Slevison, Exhibit 1 (Slevison statement) at [36].
[16] Ibid at [37].
[17] Ibid at [46] and [52].
[18] Annexure JS-7 and Annexure JS-11 to the Slevison statement.
[19] Slevison statement at [48] and [54].
[20] Ibid at [55]-[56].
[21] Annexure JS-13 and Annexure JS-16 to the Slevison statement.
[22] Slevison statement at [69].
[23] Ibid.
[24] Ibid.
[25] Annexure JS-23 to the Slevison statement.
[26] Ibid JS-24.
[27] Ibid JS-9.
[28] Slevison statement at [72]; Annexure JS-10.
[29] Annexure JS-26 to the Slevison statement.
[30] Toppi statement at [8] and [22].
[31] Ibid at [24]-[25].
[32] Slevison statement at [22].
[33] Applicants’ written submissions dated 14 May 2019 at [41].
[34] See [1] of Applicants’ closing submissions dated 2 July 2019.
[35] Toppi statement at [27].
[36] See Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308; cited in Ulan Coal Mines Ltd v Howarth and Ors [2010] FWAFB 3488 at [17] (Ulan).
[37] See Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 at [27].
[38] Supplementary Sorleto statement at [14]; Supplementary witness statement of Ms Slevison, Exhibit 2 (Supplementary Slevison statement) at [20].
[39] Supplementary Sorleto statement at [13].
[40] [2016] FCAFC 99.
[41] Ibid at [186]. See also Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd at [22]-[31].
[42] Ibid at [499].
[43] Applicant’s closing submissions dated 2 July 2019 at [35].
[44] Ibid at [33].
[45] Ibid at [33].
[46] Ibid at [33]-[34].
[47] Ibid at [34].
[48] Ibid at [37].
[49] Ibid at [41].
[50] Annexure JS-5 to the Slevison statement, slide “MB02 – Current.”
[51] Ibid JS-5. See also Exhibit 3, which contains a version of the PowerPoint but not the version said to have been presented to management.
[52] Transcript [1889]-[1890] and [2989].
[53] Ibid [1063]-[1080].
[54] Ibid [540]-[541], [681] and [684].
[55] Ibid [1502]-[1504], [1881].
[56] Supplementary Slevison statement at [20].
[57] Transcript [675]-[676]; Toppi statement at [30(c)].
[58] Transcript [800]-[803]; Toppi statement at [30(b)].
[59] Transcript [804]; Toppi statement at [30(a)].
[60] Transcript [798]-[799].
[61] Slevison statement at [23]; Toppi statement at [36].
[62] Toppi statement at [35]-[36].
[63] Transcript [665]-[667],[675]-[678].
[64] Supplementary Slevison statement at [20].
[65] Ibid at [21].
[66] Supplementary Sorleto statement at [14].
[67] Exhibit 3, p2; Transcript at [234]-[241].
[68] Transcript [241].
[69] Transcript [1891].
[70] [2010] FWAFB 7578, (2010) 199 IR 363.
[71] [2014] FWCFB 714, (2014) 240 IR 130.
[72] [2014] FWC 2264 at [34].
[73] Ulan at [26].
[74] Ibid at [28]; Technical and Further Education Commission t/a TAFE NSW v Pykett [2014] FWCFB 714 (Pykett) at [24].
[75] Pykett at [36].
[76] Ulan at [28].
[77] Respondent’s submissions dated 28 June 2019 at [81].
[78] Ibid at [132].
[79] Transcript [3126].
[80] Ibid [3127], [3131].
[81] Slevison statement at [48], [54] and [69]; Transcript at [303]-[304] and [322]-[330].
[82] Ibid at [30].
[83] Transcript [1136], [1144] and [1157].
[84] Ibid [2455]-[2456], [2512], [2764], [2774].
[85] Slevison statement at [44]-[49], [50]-[55] and [66]-[72].
[86] Transcript [1677]-[1678]
[87] Pykett at [36].
[88] Supplementary Slevison statement at [13].
[89] James Suridge v Boral Window Systems Pty Ltd T/A Dowell Windows[2012] FWA 3126.
[90] Supplementary Slevison statement at [13].
[91] Transcript [315], [323], [398], [418], [420].
[92] Ibid [2458]-[2460].
[93] Ibid [2767]-[2772].
[94] Annexure JS-25 to the Slevison statement.
[95] Supplementary Slevison statement at [19].
[96] Transcript [408]-[409].
[97] Ibid [2467]-[2473].
[98] Witness statement of Mr Westlow, Exhibit 12 (Westlow statement) at [85], Annexure DW2 to the Westlow statement.
[99] Annexure DW2 to the Westlow statement at 21:47-22:01.
[100] Westlow statement at [59].
[101] Transcript [2465]-[2466].
[102] Annexure DW2 to the Westlow statement at 21:28.
[103] Ibid at 08:35.
[104] Ibid at 33:28.
[105] Slevison statement at [54].
[106] Witness statement of Mr Waitere (Waitere statement) at [53].
[107] Waitere statement at [52].
[108] Transcript [2825].
[109] Ibid [2920]-[2922].
[110] Ibid [3131]-[3133], [3189].
[111] Annexure JS-25 to the Slevison statement.
[112] Ibid JS-8, JS-9, JS-12 and JS-24.
[113] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
[114] UES (Int’L) Pty Ltd v Harvey[2012] FWAFB 5241 at [42] (UES).
[115] Slevison statement at [46], [52] and [69].
[116] Transcript [1816]; Exhibit 9.
[117] Exhibit 8; Exhibit 11.
[118] Westlow statement at [79].
[119] Witness statement of Mr Harvey, Exhibit 17 (Harvey statement) at [18]-[19].
[120] Slevison statement at [26].
[121] UES at [71].
[122] Exhibit 8.
[123] Exhibit 11.
[124] Transcript [2845]-[2849].
[125] Ibid [1449]-[1452].
[126] Ibid [1536].
[127] Espie statement at [13]; Transcript [1998].
[128] Annexure BE-1 to the Espie statement; Annexure PS-6 to the Supplementary Sorleto statement; Exhibit 4.
[129] Transcript [1440].
[130] Ibid [2331]-[2334].
[131] Annexure DW2 to the Westlow statement at 18:04.
[132] Harvey statement at [18]-[19].
[133] Section 390(3)(a) of the Act.
[134] Section 390(3)(b) of the Act.
[135] (1998) 88 IR 21. This approach was articulated in the context of the Fair Work Act in Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431 and Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [16] (Double N Equipment Hire).
[136] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) (Ellawala) at [34].
[137] Transcript [2777]. See also Transcript [1145]-[1147].
[138] Waitere statement at [1].
[139] Double N Equipment Hire at [31].
[140] Transcript [2884].
[141] Exhibit 16.
[142] Transcript [2899].
[143] Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53, 184 CLR 485 at [497], Ellawalla at [43].
[144] Lockwood Security Products Pty Limited PR908053(AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001) (Lockwood) at [56].
[145] Slevison statement at [30].
[146] Ibid.
[147] See, for example, Ellawala, Roos v Winnaa Pty Ltd [2018] FWC 7394 and Slifka v J W Sanders Pty Limited (1995) 67 IR 316 (Slifka).
[148] Slifka at 328.
[149] PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001).
[150] Ibid at [39].
[151] Lockwood [42] and [55].
[152] Exhibit JS-18 to the Slevison Statement.
[153] Bank of Sydney Ltd v Repici [2015] FWCFB 7939 at [7].
[154] Exhibit JS-18 to the Slevison Statement.
[155] Double N Equipment Hire at [17].
[156] Section 393 of the Act.
[157] Ellawala at [34].
[158] Annexure DW2 to the Westlow statement at 21:28.
[159] Ibid at 08:35.
[160] Ibid at 33:28.
[161] Westlow statement at [1].
[162] above n 139.
[163] Exhibit 14.
[164] Exhibit 13.
[165] Ibid.
[166] Transcript [2592]-[2604].
[167] Ibid.
[168] Lockwood at [42] and [55].
[169] Exhibit JS-15 to the Slevison Statement.
[170] Bank of Sydney Ltd v Repici [2015] FWCFB 7939 at [7].
[171] Exhibit JS-15 to the Slevison Statement.
[172] Attachment DW2 to the Westlow statement; Attachment DW1 to the Waitere statement.
[173] above n 155.
[174] Ellawala at [34].
[175] Transcript [3131]-[3133], [3189].
[176] Harvey statement at [1].
[177] above n 139.
[178] above n 155.
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