Eddie Kaplan v Unique Nutrition Kitchen Pty Ltd T/A Badman Fitness

[2019] FWC 8344

[2019] FWC 8344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eddie Kaplan
v
Unique Nutrition Kitchen Pty Ltd T/A Badman Fitness
(U2019/9704)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 20 DECEMBER 2019

Application for an unfair dismissal remedy.

Introduction

[1] On 29 August, Mr Eddie Kaplan filed an application for relief for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 9 September 2019, Mr Michael Badman lodged the respondent’s response to the application for relief for an unfair dismissal. The response made a jurisdictional objection to the application on the basis that Mr Kaplan was not an employee of the business, rather he was engaged as an independent contractor.

[3] The matter was listed for Mention/Directions by teleconference on 19 November 2019 with the substantive hearing being listed for jurisdictional and merit hearing on 2 December 2019.

[4] The following witnesses gave evidence during the jurisdictional and merit hearing:

•  Mr Eddie Kaplan, for the applicant;

•  Mr Michael Badman, Director of Unique Nutrition Kitchen T/A Badman Fitness, for the respondent; and

•  Ms Lauren Badman, Director and Manager of Unique Nutrition Kitchen T/A Badman Fitness, for the respondent.

Submissions

Mr Kaplan’s Submissions

[5] Mr Kaplan submitted the following with respect to his engagement with the respondent:

(1) He was employed in a casual capacity as a personal trainer providing personal training services to clients of the respondent for 5 years. The arrangement was made verbally with a flat fee of $32.00 per hour; 1

(2) All work performed was under the direction and control of Mr Badman; 2

(3) He held a Cert. IV in Fitness which was the appropriate qualification to work as a personal trainer with the respondent; 3 and

(4) During his employment there were three trainers, Mr Badman, Mr Christopher Scully, and himself. There had been other trainers work with the respondent over the years’, but they merely appeared to have been engaged to fill in gaps during periods of absence in the business. 4

[6] With respect to the working arrangement, Mr Kaplan submitted the following:

(1) There was a roster that was posted fortnightly and his hours were regular and systematic for the previous 2.5 years. Mr Kaplan submitted that he generally worked Monday, Tuesday, Thursday, Friday and Sunday however, there was some variation to the hours worked from time to time; 5

(2) Clients of the respondent had to be trained in accordance with programs developed within the business. There was little flexibility to change programs and all work was performed under the direction and control of Mr Badman. Clients would also schedule their own appointments through an application called ‘Mindbody’ which would keep a digital record of who was to be trained and on what day and time; 6

(3) All tools and equipment are owned by Mr Badman and to his knowledge, no trainers utilised their own equipment to train clients; 7

(4) He was not provided with payslips but there was an expectation that income tax would be withheld and contributions would be made to his superannuation fund; 8

(5) That at all times he appeared to represent the business as there was a requirement to wear a uniform that was branded with the business name “Badman Fitness”. 9

[7] Mr Kaplan submitted the following in relation to the reasons advanced by Mr Kaplan for his dismissal:

(1) He did not procure illicit drugs at the business Christmas party in December 2018 and in all conversations had with the respondent illicit drugs were never mentioned; 10

(2) He did not train own clients at the respondent’s training studio. All clients trained were the same as any other trainer at the studio and all clients trained were clients of the respondent. Mr Kaplan also rejects that he was providing private services to previous clients of the respondent; 11

(3) There was not a decline in business. In the weeks leading up to Mr Kaplan’s termination, another trainer was hired and following his termination a job advertisement was posted for a personal trainer; 12 and

(4) There were no client complaints made against him. Mr Kaplan asserts that at no time was this brought to his attention during his employment. 13

Mr Badman’s Submissions

[8] Mr Badman submitted the following with respect to the arrangement with Mr Kaplan:

(1) There is only one employee engaged within the business; 14

(2) In late September 2014, Mr Kaplan was engaged to provide personal training services as an independent contractor via a verbal agreement; 15 and

(3) The terms associated with the arrangement were for Mr Kaplan to provide personal training services to the respondent’s clients, that there would be a rate of $32.00 per hour, and when not working for the respondent the Applicant could train his own clients at the respondent’s studio at no charge. 16

[9] With respect to Mr Kaplan’s engagement in the business, Mr Badman submitted the following: 17

(1) There was no provision of payslips, no withholding of income tax, no contributions to superannuation, and no payments were made when the applicant was unable to work;

(2) Mr Kaplan would use the respondent’s training studio to train his own clients and would only receive work from the respondent where its full-time employee was at full capacity;

(3) Although Mr Kaplan was required to train clients in accordance with the respondent’s training programs, he was afforded with flexibility to deviate from these programs;

(4) Every second Wednesday Mr Kaplan sent an invoice via text message which provided for the hours worked in the past fortnight;

(5) Mr Kaplan was engaged to solely deliver training programs and was not engaged to develop training programs for clients;

(6) Mr Kaplan worked 15 to 30 hours per fortnight under a predetermined roster, however hours could vary to meet operational requirements. Mr Kaplan was free to accept these alterations subject to his availability; and

(7) There were no formal performance reviews and key performance indicators set in place for Mr Kaplan.

[10] Further to the above, Mr Badman made the following assertions about Mr Kaplan during his engagement with the business:

(1) On 8 December 2018 at 8:00 pm after a business Christmas party, Mr Badman observed Mr Kaplan leave the party to exchange something with another person in attendance at the party. Mr Badman advanced that he believed Mr Kaplan was in possession of illicit drugs. On 10 December 2018 a meeting was held where it was put to Mr Kaplan that he had purchased illicit drugs from another person in attendance at the party with Mr Kaplan apologising. It was also flagged in this meeting that Mr Kaplan’s fitness and nutrition qualifications were deemed too basic and should be improved through further training; 18

(2) Mr Badman submitted that he did not end the engagement of Mr Kaplan for the illicit drug incident as he was a contractor and did not view this conduct as being as serious if he was engaged as an employee of the business; 19

(3) There were several client complaints made about Mr Kaplan’s attitude with some clients who worked closely with Mr Kaplan cancelling their memberships. Mr Badman submitted that he suspected Mr Kaplan was providing private services to past clients of the respondent; 20 and

(4) There was a decline in business and Mr Kaplan’s workload reduced from 30 hours to approximately 15 hours per fortnight. On 18 August 2019, a meeting was held with Mr Kaplan where he was advised that his services were no longer required due to a reduction in the business, that there was displeasure with Mr Kaplan’s conduct at work with several complaints being made, that the unwillingness to undertaking further training demonstrated that there was not a meeting of the minds in terms of directions either side were moving in, and that the arrangement entered into between the parties was terminated with immediate effect. 21

Ms Badman’s Submissions

[11] Ms Badman submitted that:

(1) An arrangement was made between Mr Kaplan, Mr Badman and herself which would see Mr Kaplan be provided with a key to the training studio so as to allow him to train his own clients after hours; 22

(2) Mr Badman and herself often observed Mr Kaplan train his own clients after hours in the studio; 23 and

(3) She had conversed with some of Mr Kaplan’s clients while they were in the studio. 24

Authorities: Employee or Independent Contractor

[12] I have had regard to the decisions of the High Court in Hollis v Vabu 25 and Stevens v Brodribb Sawmilling,26 as summarised in Abdalla v Viewdaze Pty Ltd27 which were also considered in Jiang Shen Cia trading as French Accent v Do Rozario,28 (French Accent Case). The Full Bench of the Commission summarised the tests for an employment relationship in French Accent Case in the following terms:

“(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.”

[13] The Full Bench in the French Accent Case went on to provide a summary of the relevant indicia identified by other authorities. Each of these are addressed in turn below with consideration of the evidence and submissions produced by Mr Kaplan and Mr Badman in this matter.

[14] I find the following, and mostly by consent of the parties, who did their best to truthfully answer questions and put submissions. However, overall I prefer the evidence of Mr Kaplan, who was more accurate in his description of the employment relationship, and many of the findings below are based on his evidence. I had the opportunity to observe the witnesses giving evidence.

Private clients

[15] It was agreed that Mr Kaplan could train private clients, 29 but Mr Kaplan claimed that he only trained 2 over the 5-year engagement period, while Mr Badman said that he trained 10. Either way Mr Kaplan did not train anywhere near the 200 or more clients he trained with Mr Badman. At best Mr Kaplan’s private business was a small part of his work. He was not able to train during working hours but only after hours. There is little evidence of formal goodwill being built up, or that he was running a separate business in any significant way,30 although he did have an ABN number.

Assets

[16] Mr Kaplan did not create much goodwill or saleable assets in the course of his work. 31

Distinctness of the profession

[17] The work is compatible with either employment or independent contractor status.

Control of work

[18] There was some disagreement about the control of work. 32 Mr Badman was often or usually on the premises and able to supervise, and there is some evidence that he did by way of text messages setting out the work to be done.33 However, Mr Badman stressed flexibility, while Mr Kaplan stressed supervision.34 Mr Badman wanted Mr Kaplan trained in nutrition.35 It was agreed that an application called Mindbody was used to keep a digital record of who was being trained and what day and what time.36 In my view the degree of control was consistent with an employment relationship, given training plans and the like. I accept Mr Kaplan’s evidence on this point.

Hours of work

[19] Hours basically were set by a roster, 37 although there was some limited variation based on more hours becoming available for Mr Kaplan because of illness of others, demand, or other reason.38

[20] It was agreed that there was some regularity in the days, generally being Monday, Tuesday, Thursday, Friday and Sundays. 39

Uniform

[21] Mr Kaplan wore a uniform with the employer’s name on it and was held out as a representative of the business. 40

Subcontracting

[22] Mr Kaplan did not subcontract or delegate his work.

Wages and conditions

[23] Mr Kaplan did not receive annual or sick leave and was paid on presentation of a fortnightly text detailing his hours worked. 41

Equipment

[24] Mr Kaplan did not supply any equipment, and there were no assets he contributed to the business. He did not spend a significant or any proportion of his remuneration in expenses for the business. 42

Right to suspend or dismiss

[25] It is agreed that Mr Badman had the right to suspend or dismiss Mr Kaplan.

Reviews

[26] Mr Kaplan was not subject to any formal performance KPIs or performance reviews. 43

Other observations

[27] Mr Kaplan described the first 2 years of his 5-year engagement as being an independent contractor, although he said he was merely told this by the respondent. This does not count against an employment relationship.

Conclusion

[28] Having had regard to all of the above indicia, I find that most suggest there was an employment relationship that existed between Mr Kaplan and Mr Badman. At best the arguments for a contractor relationship rest on formal conditions such as wages and conditions, and a relatively few private clients. On the other hand, the arguments for an employment relationship include the work arrangements with the employer, various types of control of work, wearing a uniform, the lack of private equipment, the relative regularity of rosters and work, and the lack of any sort of obvious carrying on of a private business during ordinary working hours. The private business was after hours, and was limited in nature. The jurisdictional objection advanced by Mr Badman is therefore dismissed.

[29] I now turn to consider the relevant sections of the Act relating to whether Mr Kaplan has been unfairly dismissed.

The Act - Unfair Dismissal

[30] Section 396 requires me to first consider four matters which go to the merits of an application made for an unfair dismissal remedy:

“396 - Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[31] I am satisfied that subsections 396(a) and (b) are relevantly met. In relation to subsection 396(d), the respondent submits that the dismissal of Mr Kaplan was a case of the position held being subject to a redundancy.

[32] With respect to subsection 396(c), it was agreed that the business was a small business and therefore the Small Business Fair Dismissal Code (the Code) applies.

[33] The Code provides as follows:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

Consideration – Small Business Fair Dismissal Code (Summary Dismissal)

[34] It was agreed that Mr Kaplan was summarily dismissed without notice.

[35] With respect to the allegation of Mr Kaplan engaging in the sale or procurement of drugs at the staff Christmas party, Mr Badman was unable to lead any satisfactory evidence that Mr Kaplan had in fact engaged in such an act.

[36] It was agreed that Mr Badman wished Mr Kaplan to undertake further training, particularly in areas of nutrition. Mr Kaplan refused to engage in this type of further training.

[37] There was some dispute about whether or not Mr Kaplan’s hours were no longer required. Mr Badman advanced that the business had declined around 20-30 per cent in the last year. Mr Kaplan did not appear to be in a position to question this assertion made by Mr Badman.

[38] In relation to the Code’s “Other Dismissal” requirements, I find that this part of the Code was not followed. Mr Kaplan was not given a reason why he was at risk of being dismissed.

[39] Having had regard to the relevant requirements I find that there were no grounds to justify summary dismissal within the summary dismissal part of the Code. I therefore find that Mr Kaplan has been unfairly dismissed within the meaning of the Act.

Genuine Redundancy

[40] The respondent submits that Mr Kaplan was dismissed for lack of business. This raises the issue of whether or not there was a genuine redundancy.

[41] Section 389 requires that a consultation clause in an award applying to the employment be complied with for a dismissal to be a genuine redundancy. The Fitness Industry Award 2010 44 (the Award) covers employers throughout Australia engaged in the fitness industry and their employees in the classifications contained in the award.45 This award applies to the work in question, for example Schedule B - Classifications.

[42] The Award contains provisions relating to the requirement to consult about major workplace changes: 46

“8. Consultation about major workplace change

8.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

[43] Specifically, the award defines what constitutes a change that is likely to have significant effects on employees: 47

“In clause 8:

significant effects, on employees includes any of the following:

(a) termination of employment…”

[44] Mr Badman submitted that during the meeting on 18 August 2019, it was explained to Mr Kaplan, amongst other things, that his services were no longer required due to a reduction in business. 48 This would not constitute sufficient consultation about Mr Kaplan’s position becoming redundant within the meaning of the standard consultation clause contained within the Award, and there was no evidence of sufficient consultation overall. The requirements of s.389 are not satisfied. The dismissal was therefore not a genuine redundancy within s.396(d).

Section 387

[45] In the alternative, have the requirements of s.387 been met? There is no valid reason, for the reasons set out above. Given that there was no valid reason the factors in s.387(b) and (c) are also not met. For there to be a valid reason relating to redundancy the requirements of s.396 and s.389 have to be met. Mr.Kaplan was not notified of a valid reason, and was not given an opportunity to respond. The meeting held was brief and did not provide that opportunity. No support person was requested (s.387(d)), and the termination was not for unsatisfactory performance (s.387(e)). The business is small without specialist human resource managers (ss.387(f) and (g)). I have taken into account all submissions (s.387(h)). Overall the termination was harsh, unjust or unreasonable.

Remedy

[46] Mr Kaplan submitted that he was not seeking reinstatement and sought compensation as a remedy. I consider that reinstatement is inappropriate within s.390, and that an order of compensation is appropriate in all the circumstances of the case.

[47] Section 392 of the Act provides the criteria for deciding an amount for the purposes of issuing an order and provides the following:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[48] The approach to calculating an assessment of compensation under s.392 of the Act is to apply the “Sprigg Formula” derived from the decision of Sprigg v Paul Licensed Festival Supermarket. 49 Within the context of the Act, Bowden v Ottrey Homes Cobram and District Retirement Villages50 identified this process as follows:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”

[49] Mr Kaplan sought 4 weeks’ pay. This represented the amount he had lost between being dismissed and finding a new job. With respect to the subsections of s.392 of the Act:

•  S.392(2)(a): it was agreed that 4 weeks’ pay would not threaten the viability of the employer’s enterprise.

•  S.392(2)(b): it was agreed that the length of service of the applicant was approximately 5 years.

•  Ss.392(c), (d), (e) and (f): I note that if Mr Kaplan had remained in employment with the respondent and had been given proper notice or had engaged in the consultation required for a redundancy this would not have been more than one month. Mr Kaplan has been able to obtain suitable employment 4 weeks after being dismissed by the Respondent. The income lost by him was 4 weeks’ pay.

[50] An order to this effect will be issued with this decision and is contained in PR715007.

DEPUTY PRESIDENT

Appearances:

Mr E. Kaplan, the Applicant

Mr M. Badman, the Respondent

Hearing details:

2019.

Melbourne.

2 December.

Printed by authority of the Commonwealth Government Printer

<PR715006>

 1   Witness Statement of Eddie Kaplan at [1], [4].

 2 Applicant’s Outline of Submission at [1].

 3 Witness Statement of Eddie Kaplan at [3].

 4 Ibid at [5].

 5 Ibid at [6].

 6   Ibid at [8] and [10].

 7 Ibid at [9].

 8 Ibid at [20].

 9   Applicant’s Document List - documents 11 and 12. Filed 8 November 2019.

 10 Witness Statement of Eddie Kaplan at [12].

 11   Ibid at [13] and [17].

 12 Ibid at [15].

 13 Ibid at [16].

 14 Witness Statement of Michael Badman at [2].

 15 Ibid at [4].

 16 Respondent’s Outline of Submissions at [9].

 17 Witness Statement of Michael Badman at [6].

 18   Ibid at [7] to [8].

 19 Ibid at [9].

 20 Ibid at [10].

 21   Ibid at [11] to [12].

 22 Witness Statement of Ms Lauren Badman at [2].

 23 Ibid at [3].

 24 Ibid at [4].

 25 (2001) 207 CLR 21.

 26 (1986) 160 CLR 16.

 27 (2003) 122 IR 215.

 28   [2011] FWAFB 8307.

 29   Respondent’s Outline of Submissions in Reply at 3(c), Witness Statement of Michael Badman in Reply at [4], Witness Statement of Lauren Badman in reply at [2] – [4], Witness Statement of Michael Badman at [4(d)]], Respondent’s Outline of Submissions at [9(c)].

 30   Respondent’s Outline of Submissions at [22 (a) and (b)].

 31   Ibid at [22(b)].

 32   Outline of Submissions – Mr Eddie Kaplan at [1], Witness Statement of Eddie Kaplan at [[8], and Respondent’s Outline of Submissions at [22(c), (h)].

 33   Applicant’s Document List: documents 1 – 9.

 34 Witness Statement of Michael Badman at [6(c) and (g)], Respondent’s Outline of Submissions at [22(c)], and Witness Statement of Eddie Kaplan at [8].

 35   Witness Statement of Michael Badman at [12(c)].

 36 Witness Statement of Eddie Kaplan at [10].

 37   Applicant’s Document list: Roster 2018 and Roster 2019.

 38   Witness Statement of Eddie Kaplan at [6] and Witness Statement of Michael Badman at [6(f)].

 39   Witness Statement of Eddie Kaplan at [6]

 40   Applicant’s Document List: documents 12, 13 and 14.

 41   Respondent’s Outline of Submissions at [22(d) and (f)].

 42 Witness Statement of Eddie Kaplan at [9].

 43   Respondent’s Outline of Submissions at [22(i)].

 44   MA000094.

 45   Fitness Industry Award 2010 at cl.4.1.

 46   Ibid at cl.8.

 47   Ibid at cl.8.5(a).

 48 Witness Statement of Michael Badman at [12].

 49 (1998) IR 21; Print R0235.

 50   [2013] FWCFB 431 at [24] citing Ellawala v Australian Postal Corporation [2000] AIRC 1151 at [33] and [34]. See also, Sprigg v Paul’s Licensed Festival Supermarket (1998) IR 21; Print R0235.