Don Allan v Cleanaway Waste Management Company T/A Cleanaway Port Adelaide Solid Waste Services
[2021] FWC 20
•5 JANUARY 2021
| [2021] FWC 20 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Don Allan
v
Cleanaway Waste Management Company T/A Cleanaway Port Adelaide Solid Waste Services
(U2020/14190)
| Deputy President Anderson | ADELAIDE, 5 JANUARY 2021 |
Application for an unfair dismissal remedy - minimum employment period - truck driver - initial engagement via labour hire agency - subsequent direct employment - minimum employment period not served - application dismissed
On 28 October 2020 Don Allan (Mr Allan or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy concerning a dismissal on 8 October 2020. The named respondent to the application is Cleanaway Waste Management Company[1] (Cleanaway or the Respondent).
The application is opposed by Cleanaway which raises a preliminary objection. It says that Mr Allan did not serve the minimum employment period (of six months) to be eligible to make a claim. It says that Mr Allan was its employee for less than four months (29 June 2020 to 8 October 2020) and that in the three preceding months (March to June 2020) he was a labour hire employee engaged by a labour hire agency.
Mr Allan’s application was conciliated on 16 November 2020 but did not resolve.
I issued directions on 20 November 2020.
Materials were filed by Mr Allan and Cleanaway.
I heard the matter by telephone on 16 December 2020. Both parties were self-represented.
Facts
I heard evidence from both Mr Allan and from Cleanaway’s Senior Human Resources Business Partner Ms Priestley.
There are some disputed facts, though generally the relevant facts are agreed (but not the application of the facts to the law). Where there are differences, it is largely the product of recall. The documentary material assists in determining facts where recall of both witnesses was inexact.
In February 2020 Cleanaway placed two advertisements on seek.com for the employment of a Driver – Side Lift (two full time positions, same job, different locations).[2]
Mr Allan responded to the advertisement on 19 February 2020. He was referred by seek.com to Cleanaway.
Mr Allan was interviewed by Cleanaway at the Port Adelaide depot by two Cleanaway managers, Mr Hull and Mr Plummer. He was asked to undertake a medical, which he subsequently did.
Cleanaway conducted a selection process for the two driver positions from amongst the applicants it interviewed. Mr Allan was not selected. He was advised by Cleanaway that he was not a successful candidate.
In addition to engaging employees directly, Cleanaway use the services of labour hire agencies to supply labour for temporary purposes. These agencies include the Tecside Group (Tecside), Chandler Macleod and Hays.
Having interviewed Mr Allan, Cleanaway considered that he may be suitable for future work from within the pool of temporary labour hire workers it has access to via the agencies. In the days that followed, Cleanaway provided Mr Allan’s details to two such agencies, Chandler Macleod and Tecside.
Tecside is a labour hire supplier independent of Cleanaway. Cleanaway is one of its clients. It is not an associated entity.
Chandler Macleod contacted Mr Allan by email on 4 March 2020.[3] They invited Mr Allan to register with Chandler Macleod and arranged for Mr Allan to be interviewed. He did so. Mr Allan attended a medical requested by Cleanaway on 5 March 2020 (via their provider Jobfit).[4] Mr Allan then attended at Chandler Macleod on 6 March 2020 whereupon he presented his resume and drivers licenses. Work via Chandler Macleod did not eventuate.
On 16 March 2020 Tecside (via Tecside’s Senior Talent Specialist Daniel Jones) contacted Mr Allan by email. In the email Tecside invited Mr Allan to complete an online registration “to finalise your details and on board you as a potential new TECSIDE employee”[5] (emphasis in original). Tecside also sought details of relevant licenses and a resume.
Mr Allan went online via the link sent by Tecside and registered with Tecside (supplying the information sought).
Later that day (16 March 2020) Tecside sent Mr Allan an email attaching a “copy of your Employment Contract” as well as a Fair Work Information Statement and a Work Health and Safety Handbook.[6] The Employment Contract was expressed to be between “Interstate Enterprises Pty Ltd t/as Tecside Group and Casual Worker”.[7]
Mr Allan received the documents sent but as the Employment Contract did not require a signature or contain a return instruction he did not send the contract back to Tecside.
Mr Allan was immediately advised that he could commence work at Cleanaway the following day, 17 March 2020. Mr Allan agreed, and started driving Cleanaway vehicles as a casual driver from 17 March 2020.
There is a factual dispute as to whether Mr Allan was advised of this initial placement at Cleanaway by Cleanaway or Tecside. Mr Allan says it was by Cleanaway managers though in cross examination he accepted that it was Tecside which on 16 March 2020 directed him to meet a Cleanaway manager (Mr Plummer) at the Cleanaway depot at 830am the following day.[8] Ms Priestley says that it was not by Cleanaway but by Mr Jones of Tecside. In her second witness statement, Ms Priestley attached an email which she had (for the purposes of these proceedings) requested and been forwarded by Mr Jones.[9] In that email, Mr Jones provides details he says he sent to Mr Allan. Whilst the content of what Mr Jones records is plausible, the full text of that email (sender, recipient and date) is not in evidence. Nor was Mr Jones called to give evidence. However, to the extent relevant and given Mr Allan’s evidence that on 16 March 2020 it was Tecside which referred him to Cleanaway to start work after he had registered with Tecside, it is more likely than not that Tecside advised Mr Allan of the placement and then Cleanaway managers advised Mr Allan of the proposed roster for work the next day.
After working the first week, Mr Allan sought to correct his timesheet. He communicated with Tecside. Tecside responded by advising Mr Allan (by email) that all timesheets were to be submitted through Cleanaway. He was referred by Tecside to a Cleanaway email contact [email protected].[10]
Over the following three months (March to June 2020) Mr Allan drove Cleanaway vehicles on a casual (as required) basis from both the Port Adelaide and Lonsdale depots in suburban Adelaide. His weekly hours varied (between 9 and 61 per week but from May 2020 were regularly around 60 per week).[11]
Cleanaway sought the services of Mr Allan (and other casual drivers from the temporary labour hire pool) in the March to June 2020 period because it had acquired new municipal contracts (commencing from the start of May 2020) and had underestimated its labour requirements. It accessed the temporary labour hire pool over this period to supplement its directly employed drivers.
In the March to June 2020 period Mr Allan was provided notice of available and rostered shifts by Cleanaway managers, not by Tecside.
In the March to June 2020 period Mr Allan was paid by Tecside, not by Cleanaway.
Tecside routinely invoiced Cleanaway for costs associated with its engagement of Mr Allan on Cleanaway work. These invoices, which are in evidence, recorded “Tecside Personnel” as the “supplier” of labour and recorded “Cleanaway (Transpacific Industries) Pty Ltd as the “buyer” of the labour.[12]
In June 2020 Cleanaway, having reviewed its labour requirements in light of the new municipal contracts, decided to recruit a new intake of directly employed drivers to reduce its reliance on the temporary labour pool. It invited Mr Allan (amongst others) to apply for a casual driver position.
In June 2020 Mr Allan applied for a casual driver position in the direct employment of Cleanaway. This time, Mr Allan was successful. He was sent a letter of offer by Cleanaway dated 25 June 2020.[13] The letter of offer advised that he would be employed by Cleanaway as a Level 6 casual driver under the Cleanaway Solid Waste Services Southern Adelaide Enterprise Agreement 2019 (the Cleanaway Enterprise Agreement) commencing from 29 June 2020.
Mr Allan accepted the offer. He provided Cleanaway with his bank, tax and superannuation details. He commenced on 29 June 2020.
In the period after 29 June 2020 Mr Allan was paid by Cleanaway. He was no longer paid by Tecside.
In the period after 29 June 2020 Mr Allan was paid a different (and slightly higher) hourly rate of pay by Cleanaway than he had been paid by Tecside.
Whilst working in the period from 29 June to October 2020 Mr Allan was rostered by Cleanaway managers as operational requirements warranted. In the period after 29 June 2020 Mr Allan’s weekly hours were (with slight variations) regularly around 60 per week.[14]
From 29 June 2020 Mr Allan remained employed by Cleanaway (working out of both the Lonsdale and then Port Adelaide depots) as a casual driver until he was dismissed on 8 October 2020 for alleged misconduct (having been suspended from 2 October 2020).
Mr Allan filed these proceedings on 28 October 2020 believing that he had been unfairly dismissed.
Submissions
Cleanaway submit that Mr Allan had not served the minimum employment period of six months as its employee to be eligible to file an unfair dismissal claim. It submits that Mr Allan was only its employee for less than four months (29 June 2020 to 8 October 2020) It says that in the three preceding months (17 March 2020 to 28 June 2020) Mr Allan was a labour hire employee engaged by a labour supply agency, Tecside.
In support of its submission, Cleanaway relies on the following:
Mr Allan was rejected by Cleanaway for direct employment advertised in February 2020 and for which he applied, by decision of Cleanaway in March 2020;
in March 2020, Mr Allan was referred to a labour supplier used by Cleanaway (Tecside) and placed in a pool of persons available for casual labour hire;
Mr Allan’s Employment Contract and related employment documents sent on 16 March 2020 and under which he worked was with Tecside, and he was told by Tecside to report for work at Cleanaway the following day and did so on those terms and without demur;
in the March to June 2020 period, Mr Allan was paid by Tecside and employed according to the provisions of the Waste Management Award 2020 and not the Cleanaway Enterprise Agreement which covered its direct employees;
Mr Allan was paid different sums according to different industrial instruments in the March to June 2020 period compared to the July to October 2020 period;
in this initial period, Mr Allan was paid by Tecside which then invoiced Cleanaway for services supplied by Mr Allan and paid by Tecside;
being operationally provided rosters and having timesheets managed by a host client is a necessary incident of a labour hire arrangement;
· the process by which Mr Allan came to be employed directly by Cleanaway from 26 June 2020 was not seamless. It involved a new and independent employment recruitment process in which Mr Allan dealt directly with Cleanaway and accepted different employment terms offered by Cleanaway. It did not involve Tecside;
· it was not until he was directly employed by Cleanaway that Mr Allan provided Cleanaway with details of his financial institution, superannuation fund nomination and tax file number; and
· Mr Allan did not, in the period March to June 2020, push back against or protest being sent an Employment Contract by Tecside or being paid by Tecside. It was only after his dismissal that he asserted an employment relationship with Cleanaway in the March to June 2020 period, and has done so to advance an unfair dismissal claim which he is not otherwise eligible to make.
Mr Allan submits that he was employed by Cleanaway from 16 March 2020 until dismissed on 8 October 2020 (including in the period 16 March 2020 to 28 June 2020), and accordingly is eligible to make an unfair dismissal claim. He submits that Tecside was simply performing an administrative role for Cleanaway and was not his employer during the March to June 2020 period.
Mr Allan relies on the following:
he was recruited in March 2020 via a seek.com advertisement placed by Cleanaway;
he undertook a medical in March 2020 organised by Cleanaway;
his dealings, including rosters and time sheets, were with Cleanaway managers;
he did not sign the Employment Contract sent by Tecside, nor did he return it to Tecside;
in practice, Cleanaway funded his wage because it paid Tecside for his work;
he drove trucks owned and operated by Cleanaway;
he worked from Cleanaway depots and worked exclusively for Cleanaway over the March to June 2020 period; and
there was little practical difference in his dealings with Cleanaway in the March to June 2020 period from the July to October 2020 period. He worked from the same depots, drove the same trucks and was rostered by the same managers.
In the alternative, Mr Allan submits that during the March to June 2020 period he was jointly employed by both Tecside and Cleanaway. Being jointly employed, he was an employee of Cleanaway and thus (coupled with his service solely with Cleanaway from 29 June 2020 to 8 October 2020) he served the minimum employment period.
Consideration
Section 382(a) of the FW Act provides that a person is only protected from unfair dismissal if they are “an employee who has completed a period of employment with his or her employer of at least the minimum employment period”.
Where the employer is not a small business, that period is six months.[15]
It is not in dispute that Mr Allan needs to establish that he was an employee of Cleanaway for at least a six month period prior to his dismissal to be eligible to make this unfair dismissal claim.
The matter in issue is whether Mr Allan was employed by Cleanaway for at least that period.
It is not in dispute that Mr Allan was employed by Cleanaway from 29 June 2020 to 8 October 2020. What is in dispute is whether Mr Allan was an employee of Cleanaway whilst driving for Cleanaway between 16 March 2020 and 28 June 2020.
Identity of Mr Allan’s employer in first period
Was there an employment relationship between Mr Allan and Cleanaway in this first period?
It is trite to note a variety of relationships exist which result in work being performed. Not all are employment relationships. The common law distinguishes between a contract of service (being an employment relationship) and a contract for services (being a contractor/principal relationship). The prevalence of genuine independent contracting as well as labour hire (or on-hire) alongside direct employment and contractors are features of the modern economy.
A multi-factor test derived from court authorities has been applied by the Commission for determining whether an employment relationship exists and (if so) with whom.[16] The Commission is obliged to consider the totality of the relationship having regard to various indicia that might shed light on the true nature of the relationship.
Also well-established is that courts will look to the real substance of a relationship to determine if an employment relationship exists.[17] Another expression of this principle has been said by a full bench of the Commission to be “what might be described as the commercial authenticity of those arrangements”.[18] Whilst the ‘label’ parties give to their relationship is a relevant consideration, the parties cannot deem the relationship between themselves to be something which, in substance, it is not.[19]
I now turn to consider each of the indicia summarised in French Accent to the extent relevant to the facts in the first period of work from 17 March 2020 to 26 June 2020.
Control: Mr Allan was given driving shifts by Cleanaway managers. Once he accepted a shift he was required to comply with standards and rules applied by Cleanaway with respect to the operation of its vehicles. However, as a casual driver he was not obliged to accept an offered job.[20]
Entitlement to work for others: The Employment Contract forwarded to Mr Allan by Tecside required consent by Tecside (which the contract said would not be unreasonably withheld) to work for other businesses.[21] In practice, Mr Allan did not seek work for other businesses in this period. He worked exclusively for Cleanaway.
Separate place of work and advertising of services: Mr Allan’s place of work was either from Cleanaway’s Lonsdale or Port Adelaide depots. He did not independently advertise his services or apply for other jobs in this period (except for direct employment with Cleanaway).
Provision and maintenance of tools and equipment: Mr Allan drove vehicles owned and operated by Cleanaway. His vehicle license was personal to himself.
Entitlement to delegate or sub-contract work: Mr Allan was able to decline a shift, but was not able to sub-contract his work.
Right to suspend or dismiss: Under the Employment Contract, Tecside had the right not to offer shifts to Mr Allan[22], and Cleanaway had the right to inform Tecside that it no longer sought the services of Mr Allan[23].
Public presentation: The trucks (being owned by Cleanaway) were publicly identifiable as Cleanaway vehicles.
Deduction of income tax and GST: Cleanaway made no payments direct to Mr Allan during this first period and therefore made no deductions from his remuneration by way of income tax or otherwise.
Provision of invoices and periodic payment: Payment to Mr Allan was made by Tecside. Tecside had an arrangement with Cleanaway whereby Cleanaway would verify via Mr Allan’s timesheet and that a particular shift had been worked (and the hours worked) and Tecside would then pay Mr Allan. Tecside would then send a tax invoice[24] to Cleanaway to remit that amount to its (Tecside) account, and Cleanaway, upon payment, would send a remittance advice to Tecside.
Paid leave: As a casual worker, Mr Allan did not accrue paid leave from Tecside during the first period. Under the terms of the Employment Contract any periods of absence required approval of Cleanaway and notification to Tecside.[25]
Nature of the work: The work required Mr Allan to hold a licence to drive the relevant vehicles. Tecside’s placement advice required provision of the licence to Cleanaway[26] and it was to Cleanaway managers that Mr Allan provided this proof before driving its vehicles.
Creation of goodwill and other saleable assets: Aside from accruing further personal experience and expertise as a truck driver, there was no goodwill or saleable asset built by Mr Allan whilst driving for Cleanaway.
Proportion of remuneration spent on business expenses: There was no evidence of materials or equipment needing to be purchased or supplied by Mr Allan before or during the first period.
In this matter, the evidence supports a conclusion that Mr Allan was employed during the first period of work. The evidence does not support a conclusion that Mr Allan was an independent contractor. However the evidence, considered overall, does not support a conclusion that an employment relationship existed between Mr Allan and Cleanaway during the first period. Rather, the evidence supports a conclusion that Mr Allan was employed by Tecside during the first period under an orthodox and genuine labour hire arrangement between Cleanaway and Tecside in which Mr Allan’s labour was supplied by Tecside to Cleanaway.
The context and manner in which the arrangement to provide work was created is an important consideration. Mr Allan was not successful in his February 2020 application for direct employment with Cleanaway. He was referred by Cleanaway to the labour supply pool provided by Tecside. It was with Tecside that Mr Allan registered. It was Tecside who sent Mr Allan an Employment Contract and related employment documents. It was to Tecside that Mr Allan provided his bank and other details for payroll purposes. It was Tecside who placed Mr Allan with Cleanaway.
Whilst I accept Mr Allan’s evidence that these dealings with Tecside occurred because this was required of him by Cleanaway if he was to be assigned casual work from the temporary pool, and that it was Cleanaway managers to whom he provided proof of his licence to drive trucks and obtained rosters, the host client business assigning rosters and controlling operational work was a necessary incident of Mr Allan (at that point) having agreed to drive its trucks according to the operational standards, regulations and protocols applicable to Cleanaway.
Work was assigned under the terms of the Employment Contract sent to Mr Allan by Tecside. Mr Allan received the contract before starting work with Cleanaway. He knew it had come to him from Tecside. The contract’s express terms made the relationship abundantly clear:
·the contract was expressed between Mr Allan and Tecside;[27]
·the contract provided that “the Worker understands and acknowledges that the Worker is registering as a casual employee of Tecside and accepts the terms and conditions contained in this contract”[28];
·the Contract referred to work being performed “at various work sites of Tecside’s clients” and according to the “needs of Tecside’s particular client”[29]; and
·“the Worker acknowledges that…Tecside is the Worker’s employer when he/she is on a Placement”[30].
That Mr Allan did not return a signed copy of the contract to Tecside before working at Cleanaway made it no less applicable to the manner in which he was employed and by whom. He was not required by Tecside to return a copy. The contract itself provided that :
“The Worker registers with Tecside as a casual employee under this contract on the date this contract is signed, or otherwise accepted by the Worker.” (emphasis added)
By attending at Cleanaway after receiving the contract and after being told by Tecside to report to Cleanaway’s Mr Plummer for work the following day, Mr Allan’s conduct constituted acceptance.
Other conduct by Mr Allan during the first period constituted relevant and continuing acceptance of this arrangement:
when, after working for a week, Mr Allan needed to correct his timesheet, he initially contacted Tecside, not Cleanaway. It was Tecside which advised him that time sheets were managed through Cleanaway;
Mr Allan was paid wages by Tecside and accepted that arrangement. I do not accept Mr Allan’s submission that Tecside was simply an administrative intermediary. The payment of wages is not a mere administrative task. It is an obligation held by an employer, and an employer alone;
Mr Allan applied a second time for direct employment with Cleanaway in June 2020 and on that occasion he was successful. He knowingly entered into a fresh employment contract with a different entity and on different terms, including by providing Cleanaway for the first time with his personal details to facilitate payment of wages and superannuation; and
Mr Allan raised no issue or protest or confusion with either Tecside or Cleanaway about his contract with Tecside during the first period.
Nor do I consider the Employment Contract to have been a mere label or subterfuge to avoid obligations. In both form and in practice the triangular relationship was that of an orthodox labour hire arrangement for genuine business needs of the host client (Cleanaway). The practice of the three parties during the first period was consistent with its terms including the manner in which Mr Allan dealt with Cleanaway and Tecside during that period. The pattern of hours worked was consistent with Cleanaway accessing a pool of Tecside’s labour hire workers for legitimate business needs to supplement its direct employment. Once the new municipal contracts commenced in May 2020 Cleanaway accessed the pool on a more regular basis before concluding that it had underestimated its labour needs and then opened a fresh recruitment process to reduce its reliance on labour supplied by agencies.
Mr Allan’s evidence was that “in my mind, I was working exclusively for Cleanaway”.[31] This is an understandable sentiment in that operationally he was dealing with Cleanaway managers, driving exclusively for Cleanaway in the first period, and experienced little practical difference between the first and second periods.
However, this matter must be determined on objective factors, not a subjective belief. Mr Allan’s belief ignores not just the terms of the Employment Contract that governed his work in the first period but also its practice. It also ignores that he was paid by a different entity in the second period, paid a higher rate in the second period under a different industrial instrument, and worked in the second period after a fresh recruitment process and remitting (on line) a new and different letter of offer to that different entity.
Mr Allan referred to the decision of the Full Court of the Federal Court of Australia in Damevski v Guidice[32] to support his contention that an employment contract existed between he and Cleanaway, and that Tecside was a mere agent facilitating a payroll function. The Damenski case is readily distinguishable on the facts. Unlike the worker in that matter, Mr Allan was not first engaged as an employee. In fact, his first dealing with Cleanaway resulted in his application for employment being unsuccessful. No contractual relationship was created between Mr Allan and Cleanaway until his second employment application was successful in June 2020. Mr Allan’s obligations to Cleanaway in the first period arose under the express terms of his Employment Contract with Tecside, a labour supplier to Cleanaway, and not by an alternate or additional contract of employment with Cleanaway.
I therefore conclude that Mr Allan was employed by Tecside between 16 March 2020 and 28 June 2020.
I further conclude that Mr Allan was not employed by Cleanaway between 16 March 2020 and 28 June 2020.
Joint Employment
Nor do I accept the proposition that Mr Allan was jointly employed by both Tecside and Cleanaway. There is no legal foundation on which a claim of joint employment in respect of the same work can be made or sustained under Australian law. I adopt the observations of Hampton DP in Costello v Allstaff Industrial Personnel (SA) Pty Ltd[33] and the later observations of a full bench of this Commission in FP Group v Tooheys on this point where it was said:[34]
“the application of a concept of joint employment to labour hire arrangements would involve a very considerable development of the common law…we do not consider that the Commission’s role as a statutory tribunal extends to engagement in the development of the common law. That is a matter for the courts.”
Such an approach is consistent with observations made by a separate full bench in French Accent:
“[26] Moreover, the nature of the ultimate question is such that in any given case that is not clear cut, reasonable judicial minds may differ as to the correct answer in any given case. This was explicitly recognised in Roy Morgan. This necessarily means that there is an area of uncertainty for businesses that wish to engage only on the basis of independent contract and not on the basis of employment. Any change to the present approach is a matter for the legislature. Our duty is to continue to apply the established general law approach until legislation or the High Court requires otherwise.” (emphasis added)
Conclusion
For the aforementioned reasons, no contract of employment existed between Mr Allan and Cleanaway until 29 June 2020. Until then (and from 16 March 2020) he had been employed by Tecside. Mr Allan was an employee of Cleanaway during the period 29 June 2020 to 8 October 2020 only.
Mr Allan was not employed by Cleanaway for the minimum employment period required by section 382(a) of the FW Act to be eligible to make an unfair dismissal claim.
That being so, the application does not invoke the Commission’s jurisdiction. The application must be dismissed. An order[35] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
D. Allan, on his own behalf
S. Edwards and D. Priestley, for Cleanaway Waste Management Company
Hearing details:
2020.
Adelaide; telephone.
16 December.
[1] At the hearing, it was apparent that the correct identity of the Respondent which dismissed Mr Allan was Cleanaway Operations Pty Ltd
[2] R1 attachment DP1 advertisements 14 February 2020
[3] A1 Annexure C page 1/2
[4] A1 Annexure B
[5] A1 Annexure C page 2/2
[6] A1 Annexure D
[7] A1 Annexure D pages 2 to 6
[8] Audio transcript 16 December 2020 0 hour 57 minutes
[9] R2 paragraph 8 and attachment
[10] A1 Annexure E
[11] Applicant Submissions Annexure B
[12] R1 DP2 to DP16
[13] R1 DP17
[14] Applicant Submissions Annexure B
[15] Section 383
[16] Jiang Shen Cai trading as French Accent v Rozario[2011] FWAFB 8307 at [30] (French Accent) applying Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, Roy Morgan Research Pty Ltd v Commissioner of Taxation [1997] 37 ATR 528 and Hollis v Vabu [2001] HCA 44
[17] On call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 206 IR 252 at [89]
[18] FP Group Pty Ltd v Tooheys[2013] FWCFB 9605 at [22]
[19] Abdulla v Viewdaze Pty Ltd t/as Malta Travel (2003) 122 IR 215 at [34]
[20] A1 Annexure D Employment Contract clause 3(g)
[21] Ibid clause 6(d)
[22] Ibid clause 3(f)
[23] Ibid clause 21(a)(iv)
[24] R1 DP2 to DP16
[25] A1 Annexure D Employment Contract clause 18(c)
[26] R2 email attachment page 2
[27] A1 Annexure D Employment Contract recital
[28] Ibid clause 3(a)
[29] Ibid clause 3(b) and (d)
[30] Ibid clause 3(e)(i)
[31] Audio transcript 16 December 2020 1 hour 03 minutes
[32] [2003] FCAFC 252
[33] [2004] SAIRC 13; see also Trakas v BPL Adelaide Pty Ltd [2018] FWC 1530 at [118]
[34] FP Group Pty Ltd v Tooheys[2013] FWCFB 9605 at [41] and [44
[35] PR725960
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