Dulanjan Fernandopulle v Taylors Business Pty Ltd T/A Cash Converters Taylors Lakes

[2018] FWC 3557

[2018] FWC 3557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dulanjan Fernandopulle
v
Taylors Business Pty Ltd T/A Cash Converters Taylors Lakes
(U2018/1895)

COMMISSIONER WILSON MELBOURNE, 22 JUNE 2018

Application for an unfair dismissal remedy.

[1] Dulanjan Fernandopulle was employed by Taylors Business Pty Ltd T/A Cash Converters Taylors Lakes, referred to in this decision by its trading name, Cash Converters Taylors Lakes, for slightly more than three years, from 9 February 2015 until on or around 18 February 2018. The work that Mr Fernandopulle was required to perform is the subject of a dispute between the parties. Both parties acknowledge Mr Fernandopulle was employed as a Retail Sales/Buys Attendant, however Mr Fernandopulle contests that he was required to perform duties in the Cash Converters Taylors Lakes’ Personal Finance Department. The failure to perform those duties is put forward by the Respondent as the reason for Mr Fernandopulle’s dismissal.

[2] Mr Fernandopulle’s application for unfair dismissal remedy claims his dismissal was unfair since he alleges he was dismissed for voicing his objection against working in the company’s Personal Finance Department, which was outside the duties of his normal employment. He also claims that his dismissal was procedurally unfair since Mr Fernandopulle was never provided with an opportunity to respond to the reasons for his termination.

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Fernandopulle’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[4] Prior to the commencement of proceedings I sought the views of the parties regarding the form which the proceedings should take (s.399) and indicated to them that I considered it appropriate for the matter to proceed by way of a hearing since there were factual matters requiring determination. Mr Fernandopulle preferred the matter proceed by way of a hearing, whereas Cash Converters Taylors Lakes’s owner, Noel Borusso preferred the proceedings be through the less formal determinative conference methodology. After taking into account the views of the parties on the subject, and having formed the view that a hearing would be the most efficient and effective way to resolve the matter, I advised each party that the matter would proceed by way of a hearing.

[5] For the reasons set out below, I have found that Mr Fernandopulle was not unfairly dismissed and accordingly his application for unfair dismissal remedy must itself be dismissed.

PERMISSION FOR REPRESENTATION BY A LAWYER

[6] Mr Fernandopulle was represented in the proceedings by Raphael Papaspyropoulos, solicitor, having been granted permission for such appearance by me pursuant to the provisions of s.596(2)(a) of the Act. Cash Converters Taylors Lakes was represented by its owner, Noel Borruso who objected to Mr Fernandopulle being given permission to be represented by a lawyer. Mr Borruso’s submissions in that regard were to the effect that the matters before the Commission involved “a simple factual dispute concerning uncomplicated factual matters” with there being no jurisdictional issue to be determined. It was also put forward by Mr Borruso that it would be unfair to grant Mr Fernandopulle legal representation in circumstances where the Respondent will not be represented.

[7] On 16 May 2018, having considered the material provided by each regarding the application for permission for legal representation, I advised the parties that I would grant the application pursuant to s.596(2)(a) and that reasons for doing so would be provided in due course in the Commission’s merits decision.

[8] Section 596 of the Act, which regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employersthat is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[9] In granting Mr Fernandopulle’s application for permission for representation by a lawyer, I had regard to the proper interpretation of s.596, which was considered by Flick J of the Federal Court in Warrell v Walton 1:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.” 2

[10] It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission. 3 The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.4

[11] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused. 5 Sheer volume of documents or the existence of extraneous issues does not equate to complexity.6 While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.7 There may be many grounds for a consideration of “efficiency” and familiarity with the subject matter, the conceptualisation and organisation of argument in the statutory context and marshalling of relevant materials may be matters that assist in the efficient conduct of the hearing of a matter, as may the increased alacrity with which cross-examination may be carried out, as well as familiarity with the Act and authorities in the context of a jurisdictional question.8 The expertise and familiarity with the issues before the Commission of human resource practitioners or in-house counsel may also be relevant.9

[12] The relevant complexity in this particular matter is whether, in all the circumstances, the Respondent was entitled to direct Mr Fernandopulle to work in the Personal Finance Department, and whether he refused to do so.

[13] I was satisfied that resolution of that question is a relatively confined matter that would potentially be more efficiently dealt with through legal representation on at least one side, and so permission for legal representation was granted.

BACKGROUND

[14] Mr Fernandopulle commenced employment with Cash Converters Taylors Lakes on 9 February 2015 as a Retail Sales/Buys Attendant. While employed as a casual employee he worked more than 30 hours per week. 10 His employment had come about after responding to a seek advertisement which set out the following:

“Retail Sales/Buys Attendance

Cash Converters Taylors Lakes

A fantastic opportunity to now join our Taylors Lakes store. Apply no and be part of a team environment in a business where every day is different!

…

Retail Sales / Buys Attendant

An exciting opportunity has arisen at our Taylors Lakes store for a highly motivated and enthusiastic sales person.

Working on a permanent full time basis for 38 hours per week on a 7 day rotating roster. Weekend availability is essential.

This role will involve selling quality second hand goods and building on going relationships with our clientele.

To be considered for this role, you MUST be able to demonstrate the following:

• At least 12 months proven sales experience in a retail environment

• Excellent customer service and teamwork skills

• Proven ability to achieve and exceed targets

• The ability to work in a busy fast paced environment

• A high level of energy and enthusiasm

• A positive “Can DO” attitude

• The ability to clean and merchandise your designated area.

For this, you will be rewarded with a dynamic working environment and the opportunity to earn bonuses every week.

Those who wish to be considered for this role MUST be available to participate in a rotating seven (7) day a week roster.

To apply, please forward a cover letter explaining your previous retail experience along with your resume.

[email removed] (formatting from original)”

[15] The business operated by Cash Converters Taylors Lakes is in two parts, firstly the business is a licensed second hand dealer and pawnbroker; secondly it is a payday lender. 11 The payday lending function, performed through its Personal Finance Department, is a significant part of the overall business generating significant income and profit.12

[16] Mr Fernandopulle’s initial duties involved dealing with customers generally, but not in relation to the activities of the Personal Finance Department. That changed in the middle of 2016 when his duties broadened to include work in the store’s Personal Finance Department. Mr Fernandopulle’s evidence included that when he commenced working for Cash Converters Taylors Lakes he had no skills to perform duties as a second hand dealer or pawnbroker. Submissions on behalf of the Applicant put forward that in the middle of 2016 when he was asked to commence duties in the Personal Finance Department that he still did not possess the skills necessary perform those duties, but did so anyway, and in order to become proficient in such duties attended a training seminar at his own initiative thereby acquiring some of the skills required for the role. 13

[17] The work involved by Mr Fernandopulle in the Personal Finance Department did not become his whole job and he continued to undertake work as a Retail Sales/Buys Assistant. Mr Fernandopulle estimated that in the last six months of his employment the split of his duties was roughly three full days per week being spent in the Personal Finance Department with the balance of his working time being in performance of his original Retail Sales/Buys Assistant duties.

[18] Mr Fernandopulle submits that some, but not extensive, training was undertaken by him in 2016 on his own recognisance in order for him to be able to perform the Personal Finance Department duties. 14 Alternatively, Mr Borruso contends that Mr Fernandopulle was provided with the training required for the performance of work in the Personal Finance Department which “is necessary to meet the standards of the credit license that applies to the Respondent and the additional requirements of consumer credit legislation”.15 Mr Borruso contends that Mr Fernandopulle attended training relevant to the Personal Finance Department on four occasions, 18 and 19 October 2016 and 12 and 13 September 2017.16

[19] When Mr Fernandopulle commenced working in the Personal Finance Department he thought he should have been paid at a higher rate than he was paid to undertake the Retail Sales/Buys Assistant Duties, with his evidence on the subject of payment including:

“6. I did not receive higher salary for undertaking that position despite the fact that, in my opinion, I should have been granted due to both the demanding nature of such role and the remuneration of employees in the Personal Finance Department.

7. On or about the middle of 2016, I was asked to work in the Personal Finance Department for the first time.

8. I followed that instruction from the Respondent holding an honest belief that I would be properly remunerated and trained to undertake the demanding duties of Personal Finance Department attendant.” 17

[20] In July 2017 Mr Fernandopulle was issued what is characterised as a “first written warning” 18 following an error he made in respect of a customer who had arranged for a payday loan, but subsequently defaulted. The error came about after the Applicant took into account in assessing the customer’s application two payments which did not come from an employer. By taking those payments into account in the customer’s favour the loan was capable of approval when otherwise it may not. The error came to the Respondent’s attention when the customer subsequently defaulted on the loan. Mr Fernandopulle’s response on the matter included:

“Upon speaking to the customer she had told me she was employed and receiving Centrelink also. I fail to see that was just a bank deposit not a salary.” 19

[21] As a consequence of the matter the Applicant was booked for further training sessions and he was cautioned about what occurred with the consequences being specified as:

“Further disciplinary actions, ongoing training and possible termination from the PFC role if behaviour persists.” 20

[22] At the time of his termination of employment Mr Fernandopulle was being paid $25.11 per hour which is the casual employment rate for a Retail Employee Level 1 under the applicable modern award, the General Retail Industry Award 2010. 21 The Applicant was paid at that level for the entirety of his employment.

[23] The matter of the appropriate payment to be made to Mr Fernandopulle and in particular whether he should be paid more for undertaking the Personal Finance Department role became a matter of some discussion between the parties in early 2018 and ultimately led to his termination. It was submitted on his behalf that Mr Fernandopulle’s failure to refuse to undertake the Finance Department duties in the past was not consent by him of his acceptance of the need to perform those duties. The Applicant’s evidence on the subject included that he had been hired initially as a Retail Sales Assistant and at the time he was engaged he was not told that the Personal Finance function was something that would be required of him. The Applicant also gave evidence that at no stage was he directed or informed about having to undertake those duties.

[24] In response to questions from the Respondent about the amount of training that the Applicant had received in relation to finance functions, the Applicant conceded that he had undertaken some training in relation to the Finance Department duties in 2016 and had been booked on another course in 2017 but had been unable to attend due to illness. I took this to be a rebuttal by the Applicant that he had been sufficiently trained in the finance functions to be able to perform them or, that he had been trained sufficiently only in order to satisfy Cash Converters Taylors Lakes’ obligation to have trained people undertaking the Finance Department functions.

[25] For its part Cash Converters Taylors Lakes submits that from mid-January 2018 Mr Fernandopulle began putting forward that he was not prepared to serve customers in the Personal Finance Department. In particular it is Mr Fernandopulle’s evidence that around this time he made numerous calls to Mr Borruso, intending to raise with him his concerns about the working conditions in the Personal Finance Department. Mr Borruso however did not return those calls and as a consequence Mr Fernandopulle chose to write to Mr Borruso about the concerns he held.

[26] On 13 January 2018 Mr Fernandopulle wrote to Mr Borusso asking for a pay rise and connecting that request to the work that he was undertaking in the Personal Finance Department. In finality he indicated that he would be “stepping down from the PFC department”:

“Hi Noel,

I am writing to you to ask for a pay rise as I am working in all 3 departments and expected to do pricing as well, but am still ony the same pay structure as when I started here three years ago.

As I am required to do all the above mentioned, I think it unfair to still be on the same pay rate as others who are doing less than half the work which I am doing.

While I have been in the PFC department I have not been able to fake a full lunch break and on several occasions have had to stop my lunch to serve customers and as a result have had to throw away my lunch as it was no longer edible. I find this highly unfair that I am not getting compensated for this and are aware that I am not required to do this under my work place agreement.

I have also noticed that my hours have been cut down and I am no longer put down for an early start to come in and do the pricing anymore. The pricing gets done in the morning so as I am no longer on early starts I am only going to be serving customers as the other staff are doing throughout the course of the day.

I am not sure if you are aware but when i started here I took a $2000-$3000 pay cut a week as a result of closing my business to further my education. When i started at this job I was getting over $1000 clear a week and since then my hours have just been getting cut down to the point where some weeks I am only clearing $860 a week. I am in the process of applying for a [omitted] loan to build my house and alll the pre aprovals have been calculated on what I was getting prior to all these roster ammendments and now as a result this will greatly effect my borrowing capacity.

I have also noticed that you haven't been paying me the PFC referals which I have done. I have emailed you several times and tried to call also but to no avail.

Any store bonuses which arise for the most deals done for a week in the buys department like what has been offered for the last two weeks I am not able to fully participate as a result of being required to work in the PFC department at a minimum of two days a week. Considering I am not being paid any extra this is also a highly unfair situation.

I will be stepping down from the PFC department until I feel that I am being compensated for all the extra work which I am required to do on a daily basis.

I am going to leave it in your hands and would appreciate it if you could work with me to help this situation.

My contact number is [omitted] or my email is [omitted] if you should wish to contact me.

Thanking you

Dulan” 22

[27] Consistent with the matters in Mr Fernandopulle’s email of 13 January, Mr Borusso’s evidence includes information given to him by the Applicant’s supervisor, David Sutherland, who told him that on the following day, 14 January 2018 that Mr Fernandopulle had said that he “didn’t want to” serve customers in the Personal Finance Department after being asked to do so, with customers waiting at the time. 23 As is evident from the foregoing email at or around the same time Mr Fernandopulle had formed a view that the pay he was receiving in the Personal Finance Department, being the same as that paid when he worked in the Sales Department, was insufficient. He based this view on the belief that other employees working for Cash Converters, albeit not in the same store or franchise operation as him, were being paid higher amounts for what he perceived to be the same work as he was performing. In cross examination the Applicant however professed to not having sufficient knowledge of the employment arrangements pertaining to employees of unrelated Cash Converter franchisees.

[28] Mr Borruso’s evidence on the subject includes that a meeting was then held on the following Thursday, 18 January 2018 to discuss the matter between the Applicant, Mr Sutherland and a second in charge, Tohidul Hoque (noting that neither Mr Sutherland nor Mr Hoque gave evidence in this matter). Following the 18 January meeting Mr Borruso spoke to Mr Fernandopulle by telephone who confirmed that he had told Mr Sutherland he would continue to refuse to serve Personal Finance Department customers and that he would continue to do so until he received a pay rise. Mr Borruso gave evidence that in the phone call:

“15.1. I asked whether the Applicant had understood that when he commenced employment he would be expected to undertake personal finance work. The Applicant confirmed that he understood this.

15.2. I told the Applicant that personal finance work involved customer service (as do our retail and buys & loans operations) but did not involve management of staff. I indicated that the Applicant was not performing higher duties and that he was not underpaid. The Applicant confirmed he understood this.

15.3. I advised the Applicant that he was required to follow lawful instructions from his Supervisors, including an instruction to serve PFC. I advised that the Applicant could not pick and choose which tasks to perform. Further, I told the Applicant that by refusing to undertake tasks, he was placing his employment in jeopardy. The Applicant indicated that he understood this, however reiterated that he would not be working in PFC.” 24

[29] Following these matters, Mr Borruso responded in writing in detail to the Applicant on 4 February 2018 with a communication ostensibly being notes of the matters discussed in the phone call on 4 February 2018. Relevantly:

“3. Stepping down from PFC-

a. I asked if you were resigning from your employment. You advised you were not.

b. I asked you about an conversation occurring at around 3pm on Sunday 14 January 2018, your Supervisor David Sutherland asked you to serve customers in PFC as customers were waiting. You refused to do so. You were asked by David to explain why you were refusing and you responded with words to the effect " ... that you didn't want to ... ". You agreed this occurred.

c. I asked you about an conversation that occurred in the office this afternoon (Thursday 18 January 2018) present were David Sutherland and Tohidul Hoque (Supervisor 21C) and the topic was about you serving PFC customers in the coming days.

i. You told David that you would continue to refuse to serve customers in PFC. You agreed this had occurred.

ii. When David asked that you understood when starting your employment you were expected to serve customers in Retail, Buys & Loans and PFC, you told David you were aware of this. You agreed this had occurred.

d. I asked that if I understood your email correctly, you are refusing to serve PFC customers until you received a pay rise. You agreed I understood this correctly.

e. I asked whether you are claiming to be underpaid or you just wanted a pay rise. You confirmed you are wanting to negotiate a pay rise.

f. I asked that you understood when you commenced employment you would be serving customers in Retail, Buys & Loans and PFC. You agreed you understood.

g. I explained serving customers in PFC is simply entering customers data and you are not managing any staff. That you are not performing higher duties and not underpaid. You understood.

h. I advised you are required to follow lawful instruction by your employer. That you are to follow instruction from your employer to serve customers in PFC, that you have been fully trained to do so and you are required to do this. That you cannot pick and choose which duties you will perform. By refusing to do so you are placing your employment in jeopardy. You understood.”

…

“5. I returned the conversation back to your refusing to serve customers in PFC. I again confirmed you are required to serve customers in PFC and your refusal places your employment in jeopardy. You stated you will not be working PFC.” 25

[30] The correspondence also refers to a discussion between the two about what appears to be an allegation of a breach of store policies on Mr Fernandopulle’s part. The subject of the correspondence going to what could be characterised as an error on the part of the Applicant when applying the company’s Retail Warranty Policy in transactions undertaken by the Applicant in August 2017 after accurately being able to demonstrate understanding of the company’s policy. While raised in the correspondence of 4 February 2018 the matter has not subsequently been raised as a reason for the Applicant’s dismissal.

[31] Following further advice from Mr Sutherland that the Applicant was still not undertaking Personal Finance duties there was a further conversation between the two on 15 February which the Applicant is said to have again refused to undertake the Personal Finance Department work. Mr Borruso’s evidence is that:

“I reiterated to the Applicant that ongoing refusal may lead to termination of his employment. The Applicant indicated he understood that saying words to the effect of “yes, well if it comes to that Noel, then it comes to that”.” 26

[32] The tone of the communication was reiterated to the Applicant in an email from Mr Borruso on 16 February 2018 sent at about 9:14 AM. The email is again in the form of notes from the conversation the previous day with Mr Borruso setting out:

“9. I advised you that I now need to hold disciplinary meeting with you, explaining:

a. there are serious matters I needed to discuss with you concerning your employment and that you are welcome to have a support person present for the meeting;

b. the matters being discussed :

i. serving customers in PFC;

ii. attendance and timekeeping;

c. that you are required to attend a meeting tomorrow (Friday 16 February 2018) at 10am, to be held by telephone;

d. again I invited you to have a support person present;

e. that if you fail to cooperate fully this could lead to further disciplinary action, which could include termination of your employment;

f. that if you fail to attend, I will have to assume that you are refusing to meet and as a consequence I will take further action with respect of your employment and that will be done without any further input from you;

g. I advised you would receive confirmation of this meeting by an email sent to your employee mailbox.” 27

[33] Following this email, there was a further telephone meeting held the same day, 16 February 2018, between the Applicant, Mr Borruso and two others, Ricky Ghuman, a store employee and Mick Mills, a supervisor (neither of whom gave evidence in this matter). Mr Borruso’s evidence on the subject of the meeting includes:

“20. On 16 February 2018, I attended a meeting by telephone with Mr Ricky Ghuman (Employee) and Mr Mick Mills (Supervisor). During that meeting it was discussed with the Applicant that he had wilfully refused to follow reasonable and lawful directions from his employer. His failure to serve Personal Finance Customers had led to two days’ entire loss of PFC trade, which is a significant loss of revenue for the Respondent.

21. The Applicant was asked to respond to the allegations put to him. The Applicant reiterated that he would not undertake PFC work unless he was going to be paid more.” 28

[34] Mr Borruso says that after having given consideration to all the matters he determined to dismiss the Applicant for serious misconduct being his refusal to follow the Respondent’s “reasonable and lawful instructions”. 29 The Applicant’s dismissal was communicated to him by email sent on Friday, 18 February 2018 after the dismissal was communicated verbally. The text of the termination of employment letter is set out below:

“Dear Dulan,

Termination of your employment

I am writing to you about the termination of your employment with your Employer -- Taylors Business Ltd Pty t/a Cash Converters Taylors Lakes.

I refer to our meeting on Friday 16 February 2018 which was attended by you, Ricky Ghuman and Mick Mills. During the meeting we discussed that since mid-January 2018 you have wilfully refused to follow lawful and reasonable orders provided to you by your Employer.

I put to you the following preliminary conclusions arising from my investigations to date:

Since 3 August 2016 you served customers in Personal Finance (PFC). During this time you were fully trained to serve customers in PFC. The training was at the expense of the business and this training occurred during your rostered shifts. Since mid January 2018 you have refused to serve customers in PFC. You have a duty to carry out any lawful and reasonable direction from your employer. Your conduct resulted in the business having to refuse service to customers including, but not limited to, an entire days loss of PFC trade.

As discussed during the meeting, your conduct:

•  was wilful or deliberate behaviour by you that is inconsistent with the continuation of your employment.

•  caused a serious and imminent risk to the reputation, viability or profitability of the Employer's business in that your conduct resulted in the business having to refuse service to customers including, but not limited to, an entire days loss of PFC trade.

•  was wilfully disobedient of a lawful and reasonable order from the business.

I consider that your actions constitute serious misconduct warranting summary dismissal. You are not required to perform any further duties and are required to leave the worksite immediately. As you are aware company uniforms are, and remain, company property. I ask that all of your company supplied uniform items are returned to the store as soon as practical.

You will be paid any outstanding pay up to and including your last day of employment.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at sincerely,

Noel Borruso

Director

PLEASE KEEP A COPY OF THIS LETTER FOR YOUR RECORDS” 30

[35] Aside from the written evidence on the subject, the oral evidence of the two parties concerned also deal with the conversations on 16 February 2018.

[36] Mr Borruso’s characterisation of the two meetings is largely consistent with the foregoing.

[37] Mr Fernandopulle challenges Mr Borruso’s records as being an accurate reflection of the matters discussed in the meetings.

[38] Mr Fernandopulle’s evidence is that the first of the conversations was relatively short with the most significant part of the conversation being a declaration from Mr Borruso to Mr Fernandopulle to the effect that having sent him an email dealing with matters to be subject of consideration by Mr Borruso the latter said something to the effect that Mr Fernandopulle should show him some respect with Mr Borruso then hanging up the phone. Mr Fernandopulle says that the second of the meetings was even shorter, with the product of the meeting being a communication of Mr Borruso’s decision to terminate his employment.

[39] The evidence by the two witnesses is significantly divergent on key matters throughout the period of Mr Fernandopulle’s employment.

[40] There is a contest between the two about the content of the employment advertisement, and whether the duties specified within the advertisement extend to undertaking Personal Finance duties. Although that matter is ultimately unresolved I take into account that Mr Fernandopulle did not retain an exact copy of the job advertisement at the time he applied for the position and when it came to locate what he presented as a copy of that advertisement he did so by searching within the company’s records. It seems more likely than not that the advertisement before the Commission is not precisely the advertisement to which Mr Fernandopulle responded.

[41] More significantly there are also the following contests between the parties on their respective evidence:

•  There is a dispute between the parties as to whether or not the duties for which Mr Fernandopulle was employed extended to the undertaking of Personal Finance duties.

•  Relatedly there is a dispute between the two about whether Mr Fernandopulle was trained to the sufficient or requisite standard in the performance of the Finance duties.

•  The content of the matters discussed in the two meetings on 16 February 2018.

[42] The preparedness of Mr Fernandopulle to undertake Personal Finance duties, provided he was better remunerated is not disagreed.

[43] In considering the evidence before the Commission, I generally prefer that of Mr Borruso over that of Mr Fernandopulle to the extent that there are differences between the two. Mr Fernandopulle’s evidence was prone to embellishment as well as circumlocution. The overall effect of his evidence was formation of the view that he was unwilling to accept what may well have been inconvenient facts. Mr Borruso’s evidence was clearer and less prone to be embellished, however in certain key respects, and especially the content of the two meetings held on 16 February 2018, I am uncertain that I have received the accurate and unembellished retelling of the conversations. In the context of the overall evidence, both oral and written, Mr Borrusso’s written records of the two conversations as well as about other critical stages of the employment relationship strike the Commission as being somewhat well crafted, ex post facto accounts, rather than accurate, contemporaneous records of the conversations.

[44] Because of the difficulties evident in the written and oral evidence of both witnesses, it becomes necessary to discount some parts of the evidence of both and instead to consider those matters which are in a more or less agreed factual base. That is, while the differences between the witnesses referred to above are evident on the basis of the evidence that each gave, resolution of at least some of the differences between the parties is ultimately not required in order to make a decision under the matters presently before the Commission. That is because the reason Mr Fernandopulle was dismissed from his employment, and has relied upon by the employer in these proceedings is that set out in the termination of employment letter, dated 18 February 2018.

[45] In the correspondence Mr Fernandopulle was informed that his refusal to serve customers in the Personal Finance Department since mid-January 2018 has been contrary to his employer’s directions which in turn have led to losses to the company with Cash Converters Taylors Lakes ultimately forming the view that this conduct was both wilful or deliberate behaviour inconsistent with the continuation of his employment as well is it causing serious and imminent risk to the reputation, viability or profitability of its business.

LEGISLATION

[46] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

CONSIDERATION

[47] Determination of whether Mr Fernandopulle’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[48] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 31

“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

•  a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 32

• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 33

• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 34

• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 35 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

•  the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 36” (original references)

[49] I will deal with each of the criteria within s.387 in turn.

(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)

[50] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 37

[51] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 38 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.39 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.40

[52] At the heart of the reasons that led to Mr Fernandopulle’s dismissal is his decision, communicated in January 2018, was that he would cease undertaking work in the Personal Finance Department unless he was paid more. Mr Borruso made it clear over a number of discussions that such was not about to occur.

[53] The Respondent, not a small business within the meaning of the Act, but a small business nonetheless, formulates this conduct as a failure to carry out a lawful and reasonable direction from an employer with the resultant loss of business:

“Since 3 August 2016 you served customers in Personal Finance (PFC). During this time you were fully trained to serve customers in PFC. The training was at the expense of the business and this training occurred during your rostered shifts. Since mid January 2018 you have refused to serve customers in PFC. You have a duty to carry out any lawful and reasonable direction from your employer. Your conduct resulted in the business having to refuse service to customers including, but not limited to, an entire days loss of PFC trade.” 41

[54] In its termination of employment letter, the Respondent particularises this as conduct inimical to the continuation of the employment relationship in three respects, namely that his conduct:

•was wilful or deliberate behaviour by you that is inconsistent with the continuation of your employment.

• caused a serious and imminent risk to the reputation, viability or profitability of the Employer's business in that your conduct resulted in the business having to refuse service to customers including, but not limited to, an entire days loss of PFC trade.

• was wilfully disobedient of a lawful and reasonable order from the business.” 42

[55] The first and third of the misconduct elements relate to the endeavour by Mr Fernandopulle to no longer undertake duties in the Personal Finance Department. I am satisfied on the material before me that the work in the Personal Finance Department was by 2018 undoubtedly something for which Mr Fernandopulle was employed. For over 18 months the Applicant had been performing work in the Personal Finance Department. There is no explanation offered by him for not performing the work on a continuing basis other than it did not pay enough or that he was insufficiently trained. Mr Fernandopulle contends that he was not employed to perform the work, but instead only employed to perform general Sales Assistant duties. However, more compelling than that argument is the Respondent’s submission to the effect that the nature of the employment relationship changed between the time Mr Fernandopulle was first employed in February 2015 and when he was first asked 18 months later in the middle of 2016 to undertake Personal Finance duties that his job had changed and the nature of those changes had become part of his employment relationship. It is relevant to take into account that from that point forward Mr Fernandopulle undertook the duties without complaint, until late 2017 or early 2018 and when he did complain it was about his pay, not the actual duties themselves.

[56] There is no written contract of employment as such before the Commission. Instead the evidence about the contract between the two parties is that it was largely comprised of the discussions had around the time of the original engagement and the movements that then occurred in 2016. The parties also then accept that the General Retail Industry Award 2010 has application to their employment relationship. There is nothing within the documents before the Commission which would suggest that when Mr Fernandopulle was asked to undertake Finance Department duties that such would be contrary to the parties contract of employment. Neither is there anything within the overall evidence before the Commission which would suggest a finding that Mr Fernandopulle started performing those duties in anything but a willing manner.

[57] The Form F3 Employer Response Form submitted by Cash Converters Taylors Lakes asserts that Mr Fernandopulle was employed as a casual employee and classified as a retail employee level 1 under the General Retail Award 2010, with him being paid an hourly rate of $25.11. The accuracy of that assertion is not contested, in the sense that it was not put forward by the Applicant that he was paid at some other level or hourly rate, although of course it is asserted that he should have been paid a higher amount to perform the Personal Finance duties. The descriptors for a retail employee level 1 include:

“B.1 Retail Employee Level 1

B.1.1 An employee performing one or more of the following functions at a retail establishment:

• the receiving and preparation for sale and or display of goods in or about any shop;

• the pre-packing or packing, weighing, assembling, pricing or preparing of goods or provisions or produce for sale;

• the display, shelf filling, replenishing or any other method of exposure or presentation for sale of goods;

• the sale or hire of goods by any means;

• the receiving, arranging or making payment by any means;

• the recording by any means of a sale or sales;

• the wrapping or packing of goods for despatch and the despatch of goods;

• the delivery of goods;

• window dressing and merchandising;

• loss prevention;

• demonstration of goods for sale;

• the provision of information, advice and assistance to customers;

• the receipt, preparation, packing of goods for repair or replacement and the minor repair of goods;

• all directly employed persons engaged in retail stores in cleaning, store greeting, security, lift attending, store cafeterias and food services;

• Clerical Assistants functions Level 1; or

• work which is incidental to or in connection with any of the above.

B.1.2 Retail Employees will undertake duties as directed within the limits of their competence, skills and training including incidental cleaning. The cleaning of toilets is not incidental cleaning except in the case of a take away food establishment.

B.1.3 Indicative job titles which are usually within the definition of a Retail Employee Level 1 are:

• Shop Assistant,

• Clerical Assistant,

• Check-out Operator,

• Store Worker,

• Reserve Stock Hand,

• Driver,

• Boot/Shoe Repairer (Not Qualified),

• Window Dresser (Not Qualified),

• LPO,

• Photographic Employee,

• Store Greeter,

• Assembler,

• Ticket Writer (Not Qualified),

• Trolley Collector,

• Video Hire Worker,

• Telephone Order Salesperson,

• Door-to-door Salesperson, or Retail Outdoor Salesperson, and,

• Demonstrator and/or Merchandiser not elsewhere classified (including a Demonstrator and/or Merchandiser who is not a direct employee of the retailer).

B.1.4 Clerical Assistant means an employee accountable for clerical and office tasks as directed within the skill levels set out.

B.1.5 Employees at this level may include the initial recruit who may have limited relevant experience. Initially work is performed under close direction using established practices, procedures and instructions.

B.1.6 Such employees perform routine clerical and office functions requiring an understanding of clear, straightforward rules or procedures and may be required to operate certain office equipment. Problems can usually be solved by reference to established practices, procedures and instructions.

B.1.7 Employees at this level are responsible and accountable for their own work within established routines, methods and procedures and the less experienced employee’s work may be subject to checking at all stages. The more experienced employee may be required to give assistance to less experienced employees in the same classification.

B.1.8 Indicative typical duties and skills at this level may include:

• reception/switchboard, e.g. directing telephone callers to appropriate staff, issuing and receiving standard forms, relaying internal information and initial greeting of visitors;

• maintenance of basic records;

• filing, collating, photocopying etc;

• handling or distributing mail including messenger service;

• recording, matching, checking and batching of accounts, invoices, orders, store requisitions etc; or

• the operation of keyboard and other allied equipment in order to achieve competency as prescribed in Level 2.”

[58] The overall duties performed by Mr Fernandopulle were consistent with these descriptors. Consideration of the overall circumstance leads me to the perspective that the Respondent was within its rights to expect that Mr Fernandopulle both undertake the service of customers in the Personal Finance Department and for him to be expected to do so within the pay rate it actually paid to him.

[59] The second of the misconduct elements asserts that by refusing to serve customers in the Personal Finance Department he caused a serious and imminent risk to businesses reputation as well as that risk crystallising in an entire days loss of Personal Finance Department trading. While there is not extensive evidence on that subject for the Commission, there is sufficient evidence on the subject from Mr Borruso and which is capable of acceptance.

[60] The drafting of the allegation to Mr Fernandopulle is largely consistent with the language employed in the Fair Work Regulations for the definition of serious misconduct:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice

unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[61] As set out earlier, the Full Bench has held in respect of the regulatory definition of serious misconduct that “the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct)”. 43 I am satisfied on this occasion that Cash Converters Taylors Lakes considered Mr Fernandopulle’s conduct to meet the regulatory definition of serious misconduct and that in turn such consideration grounded its decision to dismiss him.

[62] On the basis of the regulatory definition of misconduct as well as the evidence, I am satisfied that the conduct alleged by Cash Converters Taylors Lakes to have been undertaken by Mr Fernandopulle actually took place.

[63] I am also satisfied that having made the finding that misconduct occurred, that Mr Fernandopulle’s dismissal for the misconduct was a valid reason for his termination of employment.

(b) whether the person was notified of that reason

[64] The evidence supports a finding that Mr Fernandopulle was notified of the reasons for his dismissal. The letter of termination provided to Mr Fernandopulle set out in some detail the reasons for the termination of employment with those reasons then being consistent not only with what Mr Borruso says he told Mr Fernandopulle about, as well as with what Mr Fernandopulle understood to be the reasons for his dismissal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[65] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal. 44 In Wadey v YMCA Canberra45 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:

“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.” 46

[66] In relation to whether he was given an opportunity to respond to the reasons held by Cash Converters Taylors Lakes for his dismissal, Mr Fernandopulle puts forward a markedly different version of the two conversations held with Mr Borruso on 16 February 2018 to that proffered by his employer. For the reasons referred to above regarding the difficulty in accepting without question the evidence of either witness I am satisfied that the truth of the two meetings is likely somewhere between the extremes postulated by either. Whereas Mr Borruso is likely to have been more brusque in the two meetings than he concedes, it is also likely that he was more communicative about the purpose of the meeting and his concerns about Mr Fernandopulle’s conduct. Mr Fernandopulle concedes that he was told about the need for a meeting prior to it taking place and that he seemed to have some concerns about the need for a meeting. He also concedes that he was asked whether he wanted to take a support person into the meeting and that in fact he did so.

[67] Consideration of the evidence as a whole leads to the conclusion that Mr Fernandopulle was given an opportunity to respond to the reasons relating to misconduct. Accordingly, this factor is a neutral consideration in my decision.

(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

[68] There was no refusal by Cash Converters Taylors Lakes for Mr Fernandopulle to have a support person in any discussions that were had about the future of his employment. He also concedes that he was asked whether he wanted to take a support person into the meeting and that in fact he did so. Accordingly, this factor is a neutral consideration in my decision.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[69] The reasons Mr Fernandopulle was dismissed are set out above. To the extent that they amount to unsatisfactory performance on his part, it then becomes necessary to consider whether a warning was required in respect of those failings, I am satisfied from the communication sent to him by Mr Borruso in January and February 2018 that he was on notice from Cash Converters Taylors Lakes that failure to take corrective action may well lead to his dismissal. 47

[70] I also note that a first warning was issued by Mr Borruso to Mr Fernandopulle in or around June 2017 which dealt with the circumstance of failure to follow proper finance guidelines in respect of a client receiving any Centrelink payments. I am satisfied that the provision of that warning was not a fundamental relied upon by the Respondent in these proceedings. Accordingly, this factor is a neutral consideration in my decision.

(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

[71] As set out above, Cash Converters Taylors Lakes is a small business, albeit not within the definition of the term in the Act. Notwithstanding its size, there is no evidence before the Commission that such impacted on the procedures it followed in effecting the dismissal of Mr Fernandopulle. Accordingly, this factor is a neutral consideration in my decision.

(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

[72] There is no evidence about the presence or absence of dedicated human resource management specialists or expertise in Cash Converters Taylors Lakes. Similarly there is no evidence that the absence of dedicated human resource management specialists or expertise in the enterprise, if that is the case likely impacted on the procedures that followed in effecting Mr Fernand pause dismissal. Accordingly, this factor is a neutral consideration in my decision.

(h) any other matters that the FWC considers relevant

[73] The Commission does not consider there are any other matters requiring to be dealt with in this decision.

[74] For the reason that it has been found that Cash Converters Taylors Lakes had a valid reason for Mr Fernandopulle’s termination of employment and that there are no other factors which would lead to a finding that his termination was otherwise unfair, it is my finding in this matter that he was not unfairly dismissed.

[75] As a result, Mr Fernadopulle’s application for unfair dismissal is dismissed and an order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr Papaspyropoulos, Solicitor for the Applicant

Mr N. Borruso on behalf of the Respondent

Hearing details:

2018.

Melbourne (video conferencing to Adelaide);

22 May.

Printed by authority of the Commonwealth Government Printer

<PR608202>

 1 [2013] FCA 291.

 2   Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

 3   Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869 [5].

 4   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 [19].

 5   King v Patrick Projects Pty Ltd[2015] FWCFB 2679 [15].

 6 Ibid [17].

 7   Singh v Metro Trains Melbourne[2015] FWCFB 3502 [16].

 8   Smith v James Cook University[2016] FWC 6010 [6]–[7].

 9 Ibid [18].

 10   Exhibit A1, Witness Statement of Dulanjan Fernandopulle, [4]; Exhibit A2, Applicant Outline of Submissions, [1].

 11   Exhibit R1, Witness Statement of Noel Borruso, [2].

 12 Ibid, [4] – [5].

 13 Exhibit A2, Applicant’s outline of submissions, [2] – [3].

 14   Fernandopulle, [9].

 15   Borruso, [6].

 16 Ibid, [8] – [9].

 17 Ibid, [6] – [8].

 18 Ibid, [26] – [28].

 19   Exhibit R2, Respondent’s Bundle of Documents, Attachment NB-6.

 20   Ibid.

 21   Borruso, [3].

 22   Respondent’s Bundle, Attachment NB-7.

 23 Borruso, [11] – [12].

 24   Ibid.

 25   Respondent’s Bundle, Attachment NB-3.

 26   Borruso, [18].

 27   Respondent’s Bundle, Attachment NB-4

 28   Exhibit R1.

 29   Ibid, [22].

 30   Fernandopulle, Attachment B.

 31   Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520.

 32   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 33   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 34   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 35   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 36   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 37   Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373.

 38   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7]

 39   Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

 40   Streeter v TelstraCorp Ltd (2008) 170 IR 1.

 41   Exhibit R2, Attachment NB-5.

 42   Ibid.

 43   Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520, with reference to Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33]-[34] and O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 44   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

 45 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85].

 46   Ibid.

 47   Exhibit R2, Attachment NB-3.