Duncan Gemmill v Eastern Guruma Pty Ltd
[2024] FWC 829
•5 APRIL 2024
| [2024] FWC 829 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Duncan Gemmill
v
Eastern Guruma Pty Ltd
(C2023/7935)
| COMMISSIONER LIM | PERTH, 5 APRIL 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – not dismissed – objection sustained – application dismissed
Introduction
Mr Duncan Gemmill has made an application to the Commission pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act), alleging that Eastern Guruma Pty Ltd (Respondent or Eastern Guruma) contravened Part 3-1 of the Act by dismissing him from his employment.
Mr Gemmill was engaged as a Project Manager on 10 March 2021. On 22 November 2023, Mr Gemmill resigned from his employment with the Respondent during a protracted workplace investigation into alleged misconduct. Mr Gemmill contends that the Respondent repudiated Mr Gemmill’s employment, and therefore there was a dismissal within the meaning of s 386(1)(a). In the alternative, Mr Gemmill argues that he was forced to resign and there was a dismissal within the meaning of s 386(1)(b).
The Respondent objects to Mr Gemmill’s application on the basis that there was no dismissal.
It is uncontroversial that for the matter to proceed, Mr Gemmill needs to have been dismissed. In Coles Supply Chain Pty Ltd v Milford[1], the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the Commission must determine that issue before exercising its powers under s 368 of the Act.[2]
Accordingly, the matter was allocated to my Chambers. Directions were issued to the parties for the filing of material in relation to the jurisdictional objection.
Prior to the hearing of the matter, my Chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.
I conducted an in person hearing on 29 February 2024. Permission was granted for Mr Gemmill to be represented by Mr Patrick Mullally and for the Respondent to be represented by Ms Venetia Bennett of counsel.
Having considered the evidence and submissions of the parties, I have found that Mr Gemmill was not dismissed within the meaning of the Act. His application must be dismissed.
My detailed reasons for my decision follow.
Evidence
Mr Gemmill gave evidence in support of his case, which can be summarised as follows:
a. Mr Gemmill commenced his role as a Project Manager with the Respondent on 10 March 2021. At this time, he was managing a project on a BHP site. In August 2021, Mr Gemmill was reassigned to the Respondent’s rehabilitation projects with Rio Tinto. Mr Gemmill became responsible for a road project at Brockman 2 and was mobilised to the Paraburdoo/Channar project in February 2022.[3]
b. In mid-2023, issues arose regarding the payment of a Site Uplift Allowance (SUA). Mr Gemmill and other employees of the Respondent received the SUA in their contracts.[4] On 27 July 2023, two employees were stood down over the SUA issue. Mr Gemmill says this caused unrest among employees and so he called a meeting on 4 August 2023 with Managing Director Denis Parsons and Deputy Operations Manager Samson Mazara. HR Manager Terrille Andre also attended this meeting.[5]
c. Mr Gemmill raised the issue of the SUA and how the HR manager and the commercial manager were treating the site administration. Mr Parsons did not want to hear what he had to say, and Mr Parsons told Mr Gemmill that he had trouble with authority. Further, that there was a toxic work culture on his project site.[6] Mr Parsons informed Mr Gemmill that he would be stood down immediately. Mr Gemmill asked for everything to be put in writing and left the meeting in a state of shock.[7]
d. Mr Gemmill says that he was stood down without any communication from the Respondent for weeks on end with no idea why he had been stood down.[8]
e. On 4 October 2023, Mr Gemmill lodged an application for stop-bullying orders with the Commission (AB Application).
f. On 26 October 2023, the Respondent sent Mr Gemmill a detailed show cause letter. In summary it relevantly provided:[9]
·On or around 24 July 2024, the Respondent received a complaint from another employee regarding the approval of timesheets by a Project Manager, when the Project Manager knew, or ought to have known, that the information stated was false and/or in contradiction of the Respondent’s policies and procedures.
·As a result of the complaint, the Respondent commenced an investigation into the practices at the Paraburdoo/Channar Project.
·The investigation had been finalised.
·That Mr Gemmill had impeded the investigation by redirecting and/or preventing Ms Gill from her inquiries.
·That the Respondent alleges Mr Gemmill engaged in misconduct and if the allegation is made out the Respondent may take disciplinary action, including termination of employment.
·Mr Gemmill had until 30 October 2023 to provide a written response. Further, that a show cause meeting would be conducted on 30 October 2023.
g. Mr Gemmill says that this was the first time the Respondent identified its concerns with him.[10]
h. Mr Gemmill says that Ms Gill was tasked with gathering information from different sites as part of a business improvement process to improve administrative processes. Mr Gemmill was not told that Ms Gill was on site to conduct an investigation. With regards to Ms Gill’s visit to his project around 2 to 3 August 2023, Mr Gemmill says that he assisted Ms Gill with her travel arrangements and assisted her with visiting parts of the site as requested. Mr Gemmill also says that he communicated with Mr Parsons during this time regarding operational restrictions in assisting Ms Gill.[11]
i. Mr Gemmill says that the Respondent made a permanent appointment to his position as Project Manager of the Paraburdoo/Channar site. He says that it was clear once his AB Application was made, that the Respondent wanted to dismiss him prior to a hearing date.[12]
j. On 27 October 2023, Mr Gemmill’s doctor certified him as unfit for work.
k. On 3 November 2023, Mr Gemmill and the Respondent attended a conference regarding the stop-bullying application.
l. On 22 November 2023, Mr Gemmill reached the decision that he had no option but to resign. Mr Gemmill sent the following email to the Respondent:
“The Board of Directors
EASTERN GURUMAI hereby tender my resignation in accordance with my contract with 2 weeks’ notice as per the NES.
The company’s conduct and course of conduct has forced me to do this as I had planned on a significant career with EG.
This conduct has proven to me that I can’t expect procedural justice or natural justice.
Management engaged in significant bullying and harassment by standing me down on the 4th August 2023 without any reason or justification.
The company then continued to ignore me as an employee until after I had commenced an application to the Fair Work Commission to stop the bullying.
Corporations Law breaches have been revealed in that no minutes were kept by the company or Mr Parsons for important meetings.
My health has been so seriously affected by this conduct that I cannot contemplate a return to the workplace or am medically allowed to do so.
Overall, you have repudiated my employment contract, a repudiation I accept and resign.
Dated this 22th November 2023.
DUNCAN GEMMILL”
I found that Mr Gemmill did not give his evidence openly. He was unnecessarily combative during cross-examination and refused to make concessions even when they were in line with his written evidence. This impacted the credibility of his evidence.
The Respondent called Mr Joeseph Autridge, Talent Acquisition Specialist and Human Resources Officer, to give evidence. Mr Autridge’s evidence in summary is:
a) Mr Gemmill was suspended on full-pay from around 4 August 2023. This was pending an investigation into his conduct.
b) On 16 August 2023, HLS Legal sent a letter to Mr Gemmill which confirmed that he had been suspended on full pay and that the Respondent was undertaking an investigation into his conduct. The letter stated that the investigation process was time consuming, but that they anticipated liaising with him next week about the progress of the investigation.[13]
c) On 18 September 2023, HLS Legal emailed Mr Gemmill to remind him of the direction from the Respondent to not contact other employees during the course of the investigation.[14]
d) On around 4 October 2023, Mr Gemmill met with and was interviewed by the Mr Bowman, the independent investigator.[15] Following this meeting, Mr Gemmill filed his AB Application against the Respondent and Mr Parsons.[16]
e) On 25 October 2023, the Respondent filed its response to Mr Gemmill’s AB Application.
f) On 26 October 2023, HLS Legal sent Mr Gemmill the show cause letter.
g) On 27 October 2023, the Respondent received a medical certificate from Mr Gemmill stating he was unfit for work until 1 November 2023. That same day, Mr Gemmill’s representative, WorkClaims Australia, wrote to HLS Legal regarding the show cause letter. The letter sought an extension of time for Mr Gemmill to provide a written response to the show cause letter and to re-schedule the show cause meeting to a later date.[17]
h) HLS wrote back the same day confirming that Mr Gemmill had until 3 November 2023 to provide a response to the show cause letter and that the show cause meeting would be rescheduled to 3 November 2023.[18]
i) On 1 November 2023, WorkClaims Australia wrote to HLS Legal stating that 3 November 2023 was premature and seeking that Mr Gemmill be given seven days after he recovers to provide his written response and attend a show cause meeting.[19]
j) On 2 November 2023, HLS legal responded to WorkClaims Australia, confirming that the show cause meeting scheduled for 3 November would proceed if Mr Gemmill is fit for work.[20]
k) On 2 November 2023, Mr Gemmill provided the Respondent with a medical certificate stating that he was unfit for work until 16 November 2023.[21] On 16 November 2023, Mr Gemmill provided a further medical certificate stating that he was unfit for work until 14 December 2023.[22]
l) On 16 November 2023, Mr Gemmill discontinued his AB Application.[23]
The probative value of Mr Autridge’s evidence was limited, as he was not directly involved in Mr Gemmill’s employment or the events that led to the end of the employment relationship. His evidence was appropriately confined to the provision of correspondence that had been exchanged between the parties.
Mr Gemmill was cross-examined on Mr Parsons’ notes from the 4 August meeting. It was put to Mr Gemmill that Mr Parsons’ notes relevantly make reference to:
· The board being aware of matters of concern in relation to Para/Channar, and the board directing cooperation with an investigation.[24]
· A site admin investigation where all sites were cooperative but Mr Gemmill’s.[25]
· Ms Gill complaining about access to Ms Shelley Edwards and Mr Gemmill asking Ms Gill to leave Ms Edwards.[26]
· “Workplace investigation: EG board have become aware of issues in payroll and flights. Investigation into [Tom Price].[27]
· “Parallel due diligence across the business had revealed similar at Para/Channar and will be investigated similarly”.[28]
Mr Gemmill did not deny that Mr Parson’s notes from the 4 August meeting have the above words, however his evidence is that they are not reflective of the conversation that occurred,[29] and that he was never told that he was being stood down for impeding Ms Gill’s investigation.[30]
I accept that Mr Parson’s notes represent an accurate summary of what was discussed during that meeting on 4 August 2023 when Mr Gemmill was stood down. Mr Gemmill confirmed that Mr Parsons was writing notes during the meeting. Mr Parsons’ notes also make reference to the culture on Mr Gemmill’s site being toxic and Mr Gemmill having issues with authority, aligning with Mr Gemmill’s evidence of what was said in the meeting. I further find that Mr Gemmill was told that there was an investigation into his conduct and how it affected Ms Gill’s site visit and investigation.
Mr Gemmill was asked during his cross-examination whether he was asked questions regarding Ms Gill’s attendance at the Parabardoo/Channar site during the interview with Mr Bownan on 4 August 2023. Mr Gemmill denied this, as at the start of the interview he asked for all questions and allegations to be put in writing before he would answer any questions.[31] This meant that the interview effectively did not proceed.
Mr Gemmill was challenged on his assertion that the Respondent had permanently replaced him. Mr Gemmill’s evidence drew on an internal memo dated 18 September 2023. The memo relevantly provided that, “Keith Billington will remain the Project Manager for Para/Channar and Brockman 2, with the support of Phillip Knowles at Para/Channar.”[32] Mr Gemmill agreed during cross-examination that the memo does not say that a permanent replacement had been appointed, and that the memo detailed the movement of various staff.[33]
I find that the internal memo does not support a conclusion that the Respondent had permanently replaced Mr Gemmill in his position as Project Manager.
During his cross-examination, Mr Gemmill could not identify which corporate laws he was concerned Mr Parsons was not complying with,[34] and confirmed that that he never raised his concerns before he was stood down.[35]
Mr Gemmill also gave evidence that he intended to repudiate the employment contract, contrary to what he says in his written evidence.[36]
Relevant legislation
The Application was made pursuant to s 365 of the Act, which provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:
“Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
It is helpful to traverse some of the authorities relevant to this section.
In Mohazab v Dick Smith Electronics Pty Ltd (Mohazab),[37]a decision made prior to the passage of the Fair Work Act, the Full Court of the Industrial Relations Court of Australia considered the meaning of ‘termination at the initiative of the employer’. The Full Court stated:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (“David Graphics”), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as:-
“... a termination of employment at the instance [of] the employer rather than of the employee”.
and at 5: -
“I agree with the proposition that termination may involve more than one action.
But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” (our emphasis added)”
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa),[38] a Full Bench of the Commission considered an appeal of a decision where the member at first instance found that the dismissal was within the meaning of s 386(1). The matter concerned a ‘forced resignation’, and the Full Bench provided the following guidance at [33] on the definition of dismissal in s 386(1):
“Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer.
(see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations;
·where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
·where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
And at [47]:
“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
The Full Bench in City of Sydney RSL & Community Club Limited v Balgowan (Balgowan)[39] set out that the question of whether there has been a repudiation of the contact of employment is to be determined objectively. A repudiation may exist where an employer reduces the wages of an employee without the employee’s consent or whether there is a serious non-consensual intrusion on the employee’s status and responsibilities in a way that is not permitted by the contract. Similarly, if an employer seeks bring about changes that are not within the scope of the express or implied terms of the contract of employment, such conduct may evince an intention to no longer be bound by those terms.
Submissions
4.1 Gemmill
Mr Gemmill’s submissions can be summarised as follows:
(a)The Respondent repudiated the employment contract through the unlawful conduct of Mr Parsons. If properly accepted by Mr Gemmill, the repudiation was at the Respondent’s initiative and constitutes a dismissal within the meaning of s 386(1)(a) at the time he accepted the repudiation and resigned.[40]
(b)As well (or alternatively), there was a forced resignation pursuant to s 386(1)(b) f the Act. The Respondent’s conduct in how it conducted the investigation into Mr Gemmill, replacing Mr Gemmill’s position and the false accusations against him drove him to resign.[41]
With regards to the first argument, Mr Gemmill relies on the High Court decision of Koomphatoo Local Aboriginal Land Council v Sanpine (Koomphatoo),[42] which described repudiation as conduct of a party, “which evinces an unwillingness or an inability to render substantial performance of the contract”, or “which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations”.[43] The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.[44]
Mr Gemmill submits that this test for repudiation carries over to the employment context. The determination must be made on objective acts and omissions and not on uncommunicated intention.[45] Mr Gemmill also submits that repudiation can be in relation to a specific term of the contract, or of the contract overall.[46] Mr Gemmill further submits that as the innocent party, he had the right to elect to terminate the contract, which he did, on 22 November 2023.[47]
Mr Gemmill submits that the Respondent evinced an intention to no longer be bound by the employment contract by standing him down unlawfully, taking his role as Project Manager away from him permanently, being left in industrial limbo and allowing him to be managed by a Director who was in disregard of his duties under corporate laws and work health and safety laws.[48]
In the alternative, Mr Gemmill relies on the second limb of s 386(1) and asserts that the Respondent’s conduct was the operative reason for his dismissal. Mr Gemmill relies on the principles outlined in the Full Bench decisions of Bupa and Sydney Water Corporation v Yelda (Yelda).[49]
4.2 The Respondent
The Respondent submits that Mr Gemmill voluntarily resigned his employment and the Respondent did not repudiate the employment contract.
The Respondent submits that in the context of employment contracts, a significant reduction in remuneration, status or responsibility may constitute repudiation.[50] Repudiation may also arise when there has been a sufficiently serious breach of a non-essential term,[51] and unless such terms are known and identified, it is impossible to say whether or not any particular conduct is a breach of such importance to incite a repudiation of a contract.[52]
The Respondent contends that the grounds Mr Gemmill relies upon at [31] are firstly, not supported by the evidence, and secondly, even if correct, do not rise to the bar of repudiatory conduct.[53]
With regards to Mr Gemmill’s alternative argument that he was forced to resign, the Respondent submits that an employee being subject to a disciplinary procedure is not, in itself, sufficient to demonstrate that a resignation was forced by the employer’s actions.[54]
The Respondent’s position is that the evidence shows:
(a)In response to reasonable concerns, the Respondent commenced an investigation into Mr Gemmill’s practices on 28 July 2023. This was impeded by Mr Gemmill.
(b)As a result, the Respondent reasonably stood Mr Gemmill down on full pay pending an investigation.
(c)The Respondent’s solicitors communicated with Mr Gemmill during the investigation, and Mr Gemmill participated in an interview with the investigator.
(d)After the investigation was complete, a show cause process commenced, which ultimately did not progress at Mr Gemmill’s request on account of his health.
(e)The show cause process was incomplete when Mr Gemmill resigned on 22 November 2023.
The Respondent submits that accordingly, Mr Gemmill has not established that he did not resign voluntarily.
Consideration
I make the following findings:
(a)On balance, I find that Mr Gemmill did know there was an investigation occurring into the practices surrounding the SUA. Mr Gemmill’s own evidence confirms that he knew there were issues and that employees were being stood down in connection with the SUA.
(b)The Respondent has not brought sufficient evidence that speaks to whether Mr Gemmill was specifically told the purpose of Ms Gill’s visit. As such, I accept Mr Gemmill’s evidence that he did not know Ms Gill was on site to specifically investigate the SUA issue.
(c)As outlined in [16], I find that at the meeting on 4 August 2023 when Mr Gemmill was stood down, Mr Parsons told Mr Gemmill that there was an investigation into his conduct during Ms Gill’s site visit.
(d)I do not accept that the Respondent permanently replaced Mr Gemmill’s position as Project Manager on the Parabardoo/Channar project before the employment relationship ended.
(e)I accept that HLS Legal on behalf of the Respondent sent correspondence via email to Mr Gemmill on 16 and 18 August 2023. I also accept that Mr Gemmill’s evidence that he did not see the correspondence come through at the time.
(f)The interview with the independent investigator on 4 October 2023 did not substantively proceed as Mr Gemmill sought the allegations or questions in writing.
(g)Mr Gemmill received the comprehensive allegations for the first time on 26 October 2023 when he received the show cause letter.
(h)I am not convinced that Mr Parsons’ alleged breaches of ‘corporate law’ and work health and safety laws were the genuine reason for Mr Gemmill’s decision to resign. Mr Gemmill could not identify what the ‘corporate law’ was, nor did he raise these concerns with any management during his employment. The issues with Mr Parsons’ conduct were not raised until after Mr Gemmill was stood down.
I do not accept Mr Gemmill’s argument that the Respondent’s conduct amounted to repudiation of the contract, either of a specific term or overall.
I find that the investigative process conducted by the Respondent did leave much to be desired. Though I accept that the Respondent tasked HLS Legal with contacting Mr Gemmill on 16 and 18 August 2023, HLS Legal did not provide any proper details as to the allegations and the process. Mr Gemmill should have been provided these in writing much earlier than 26 October 2023. Mr Gemmill should have also been provided written notice of what the independent investigator would be discussing at the meeting on 4 October 2023.
However, I do not find that the Respondent’s sub-standard handling of the investigation rises to the bar of repudiating the term of Mr Gemmill’s contract that he would be engaged as a Project Manager[55] or evinced that the Respondent no longer intended to be bound by the employment contract generally. Mr Gemmill was stood down on full-pay. He was aware that there was an investigation into the SUA issue and into his conduct during Ms Gill’s site visit.
Similarly, I do not accept Mr Gemmill’s argument that he effectively had no choice but to resign. I cannot see on any of the material that at any point Mr Gemmill provided a response to the show cause letter or the allegations he impeded Ms Gill’s investigation. That was a course of action Mr Gemmill should have exercised. Generally, it cannot be said that by engaging in a disciplinary process a company has forced an employee to resign, and that remains the case in Mr Gemmill’s case, even though the investigation should have been conducted in a more transparent and efficient manner.
Accordingly, I find that Mr Gemmill resigned his employment. He was not dismissed within the meaning of s 386 of the Act and his application must be dismissed for want of jurisdiction. An order to this effect will issue separately.[56]
COMMISSIONER
Appearances:
P Mullally of Workclaims Australia for the applicant.
V Bennett of Counsel for the respondent.
Hearing details:
2024.
Perth:
February 29
Final written submissions:
Applicant, 22 February 2024.
Respondent, 15 February 2024.
[1] [2022] FCAFC 152.
[2] Ibid at [51].
[3] Digital Court Book (DCB), page 33, [4] – [6].
[4] Ibid, [8].
[5] Ibid, page 33, [11] – [12].
[6] Ibid, page 33, [13].
[7] Ibid, page 34, [14].
[8] Ibid, page 34, [15].
[9] Ibid, pages 86-90.
[10] Ibid, page 34, [17].
[11] Ibid, pages 34-35, [20] – [31].
[12] Ibid, page 37, [36].
[13] Ibid, page 242.
[14] Ibid, page 244.
[15] Ibid, page 193, [13].
[16] Ibid, page 193, [14].
[17] Ibid, page 155.
[18] Ibid, page 284.
[19] Ibid, page 297.
[20] Ibid, page 298.
[21] Ibid, pages 300-301.
[22] Ibid, pages 320-321.
[23] Ibid, page 331.
[24] Transcript, PN63-PN66.
[25]Ibid, PN70.
[26] Ibid, PN71-PN72.
[27] Ibid, PN79.
[28] Ibid, PN81.
[29] Ibid, PN85.
[30] Ibid, PN86.
[31] Ibid, PN90-PN95.
[32] DCB, page 46.
[33] Transcript, PN131-PN137.
[34] Ibid, PN145.
[35] Ibid, PN146.
[36] Ibid, PN160-PN162.
[37] [1995] IRCA 625.
[38] [2017] FWCFB 3941.
[39] [2018] FWCFB 5, [18].
[40] DCB, page 23, [6].
[41] Ibid, page 23, [7].
[42] [2007] HCA 61.
[43] Ibid at [43]-[48].
[44] Ibid at [44].
[45] Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092, [119].
[46] Transcript, PN301.
[47] See: dissenting decision of Easton DP in NSW Trains v Mr Todd James [2022] FWCFB 55, [183]-[184].
[48] DCB, pages 28-29, [32]-[33].
[49] [2022] FWCFB 67.
[50] Fishlock v Campaign Palace Pty Ltd [2013] NSWSC 531 (Fishlock), [126] citing Cameron v Asciano Services Pty Ltd [2011] VSC 36, [44] - [46].
[51] City of Sydney RSL and Community Club Ltd v Balgowan[2018] FWCFB 5, [17] citing Koompahtoo.
[52] Ibid, [20] citing North v Television Corporation Ltd (1976) 11 ALR 599, 609.
[53] DCB, page 186, [32].
[54] Moore v Woolworths Group Limited (t/a Big W) [2020] FWC 963, [26] citing Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555, [38].
[55] Transcript, PN302-PN303.
[56] PR772931.
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