Geraldine Hooker v Coffee Break Cafe

[2013] FWC 8021

[2013] FWC 8021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Geraldine Hooker
v
Coffee Break Cafe
(U2013/8883)

COMMISSIONER LEWIN MELBOURNE, 24 OCTOBER 2013

Application for relief from alleged unfair dismissal - jurisdiction - whether termination on the employers initiative - employee leaves work without notification or reason - employee later returns to enquire of employment status - initiative to terminate the employment not that of the employer.

[1] This Decision concerns an application under s.394 of the Fair Work Act 2009 (the Act), for relief in relation to the alleged termination of the employment of Ms Geraldine Hooker, by Coffee Break Cafe (Coffee Break).

[2] The matter was heard on Tuesday, 3 September 2013, at Melbourne. At the hearing, permission was sought by the Applicant to be represented by a lawyer, the permission was not granted. Reasons for Decision were issued on 11 September 2013 1 for not granting the permission sought. Consequently, Ms Hooker was self represented. Ms Esther Chen appeared on behalf of Coffee Break. Ms Chen is the proprietor of the business.

[3] It was established at the hearing that Coffee Break is a small business and is consequently subject to the provisions of s.388 of the Act and the Small Business - Fair Dismissal Code.

Jurisdictional Objection

[4] Coffee Break objected to the Fair Work Commission (Commission) dealing with the application on the ground that Ms Hooker was not dismissed from her employment with Coffee Break and was therefore not a person protected from unfair dismissal, at the time of the termination of her employment. 2

[5] Ms Hooker was engaged as a waiter by Coffee Break. Ms Hooker submitted in her application that the employment commenced in March 2008 and was terminated on 24 April 2013. However, as I understand the case for Ms Hooker it is submitted that Ms Chen initiated the termination of the employment on 23 April 2013 by telling Ms Hooker “to go” or either initiated or confirmed the termination on 24 April 2013.

[6] Coffee break submit that Ms Chen did not initiate the termination of the employment either on 23 April 2013 or on 24 April 2013.

[7] Coffee Break submit that Ms Hooker left the employment with Coffee Break of her own volition, after a discussion with Ms Chen about an amount of $8.50 alleged to be missing from the cash register on 23 April 2013.

Preliminary decision required

[8] S.396 of the Act stipulates that the Commission must consider the matters raised by Coffee Break before further dealing with the application. The relevant provisions are set out below:

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.

Relevant Statutory Provisions - protected from unfair dismissal?

[9] A person cannot be protected from unfair dismissal unless the person has been dismissed. S.385 of the Act prescribes accordingly as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[10] For the purposes of s.385 of the Act, A person can only be dismissed in accordance with the definition of dismissal in s.386 of the Act, as follows:

386 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

The evidence

[11] Ms Chen’s evidence is that during service of customers at the cafe on 23 April 2013 a discussion took place between her and Ms Hooker, concerning payment by a customer. Ms Chen’s evidence is that she asked Ms Hooker if the customer had paid. Ms Hooker answered in the affirmative. Ms Chen’s evidence is that she checked the history of the transactions on the cash register and established that an amount payable for the service of $8.50 was not recorded on the register and that the amount of money in the cash register did not include that amount. Rather, Ms Chen testified, she established that the money in the cash register corresponded correctly and balanced with the transactional history recorded. That transactional history showed the relevant value of the services as $5.00, whereas the value was $13.50.

[12] Ms Chen’s evidence as contained in her witness statement is that she asked Ms Hooker to think about the transaction and the missing money as follows:

1, it was in the morning on 23 April 2013. Geraldine served two customers soon after cafe opened. When customers left the cafe, I asked Geraldine whether the customers had paid. She told me they paid $13.50. I went to check the cash-register and printed out the report of last sales. There were no digits “$13.50” on the report by $5.00 only. It put me in doubt. I printed the daily report, and then counted all the cash in the register. Consequently I found there was $5 both recorded in the report and left in the draw (the report has been kept as evidence). She was just next to me. I asked her: “please tell me where the rest 8 dollars and fifty cents are? You served that table and collected the money.” She said she didn’t know. I said “I hope you could tell me after recall it clearly later. After a while, she threw the apron away and took her handbag with her, and said to me, “I don’t know”. Then she went away.

[13] On 3 September 2013, at the hearing, under cross examination by Ms Hooker, Ms Chen provided viva voce evidence about how the employment came to an end.

MS HOOKER: If you say you did not dismiss me, why did you tell me to go home on the morning of 23 April and why did you tell me the next morning that you sacked me?

THE INTERPRETER: As the incident happened on 23 April around 8.30, all I say to Geraldine was, “Please have a clear think about what’s the money happening, and then can you please tell me later.” I wasn’t telling her going home, and the next day I haven’t say that, “You are not working for me.” I have not say this kind of sentence.

MR HOOKER: Why did you telephone Ellie that day and ask her to come in to do my shift, and also the next day and the rest of the week?

THE INTERPRETER: On 23 April, as the things happen, you just walk away without any explanation. I have to run the shop. Of course I have to get someone to replace you, and so, as you hadn’t clearly indicated you’re coming the rest of the week or not, everything is leave in the air, so I have to get someone to do your shift.

[14] Ms Hooker, in her witness statement, provided evidence concerning the transaction as follows:

9. On 23 April 2013 at approximately 8:30am a regular customer called James, who is about 17 years old, came in with his carer. If his mother is with him she usually pays however the carer came up and ordered a toasted sandwich for himself. I told him it was $5.00 and was waiting for him to pay. I entered the $5.00 into the till. The carer then said he would pay for James’ food and as well. The carer placed the money on the top of the till (consisting of a $10 note and loose change) and I placed it in the till and closed the till up. I thought nothing further of this transaction and had not realised I did not input the extra $8.50 into the till.

10. Shortly after this I went into the kitchen to assist the chef, Harry, before coming back out to the front of the cafe. Esther then approached me and asked if James and the carer paid. I explained that the carer did pay $13.50. Esther commenced looking at the records and could not see the $13.50. She asked me where it was and I said I did not know. She told me to go away and think.

11. I realised that I placed $13.50 into the till though I hadn’t inputted $8.50 of that in the till. I explained to her that I rang up the $5.00 and forgot to ring up the $8.50 but that all the money was put into the till. I then returned to the kitchen and could see Esther counting the money in the till. I then went out again and she said that there was $8.50 missing. I explained to her that it could not be missing. Esther said that she was a banker in China. I asked her to look at the CCTV footage. Esther told me that she would look at the footage after work.

12. Esther told me to leave the store which I did. As I was leaving the cafe Esther followed me and asked me to return the key to the store.

[15] At the hearing, Ms Hooker also provided viva voce evidence of the relevant circumstances on 23 April 2013. Ms Hooker’s viva voce evidence was that Ms Chen asked her whether a customer had paid, to which Ms Hooker answered “Yes, they did, $13.50”. 3 When questioned by Ms Chen about where the alleged missing $8.50 had gone, Ms Hooker gave evidence that the money was not on the register of transactions but that she had placed it in the till.4

[16] Ms Hooker alleged that after she had made an attempt to explain what had happened with the transaction, Ms Chen asked her to leave the cafe using the words “you need to go”. 5 Ms Hooker gave evidence that as she was leaving the cafe, Ms Chen followed her and asked her to return the key to the cafe, at which point Ms Hooker stated that she took the key out of her bag and gave it to Ms Chen who took it off Ms Hooker’s key ring.6

[17] Ms Chen however, told the Commission that the shop was busy at the time Ms Hooker left on the 23 April 2013, and that she did not have time to ask Ms Hooker for the key. Ms Chen stated that Ms Hooker left the key on a table. 7

[18] Ms Hooker and her daughter gave evidence that they returned to the cafe the following day. Ms Hooker’s evidence in her witness statement is as follows:

14. On 24 April 2013 I returned to work with my daughter Melissa and asked Esther if I worked at the cafe anymore and she said no. I asked her if she looked at the CCTV footage and she said no that she did not need to. I asked for a copy of the footage and she said she would not provide a copy. Esther said that she spoke to the carer and he never saw me put the money in the till. Esther told us that we had to leave as we were scaring the customers and that we were not allowed to return to Coffee Break Cafe.

15. I asked Harry to pass me some items I had left in the kitchen and when he passed them to me I informed him that my employment had been terminated.

16. I then began to leave and as I did James, his carer and his mother were about to enter the cafe. I explained to the carer what happened and I asked if I could have his mobile number. My daughter explained to him what Ester had said about speaking to him and the carer replied that Ester had never spoken to him.

[19] Ms Hooker’s daughter stated the following in her witness statement:

5. On 24 April2013 I accompanied Geraldine to Coffee Break Cafe, where we arrived at Sam. As we entered two customers called out to her, saying ‘we were just asking where you were.’ Geraldine told her that she would talk to them after she had spoken to Esther.

6. Geraldine walked over to the customer side of the bench and told Esther that they needed to talk, asking “have I still got my job?” Esther replied that no, Geraldine didn’t work there anymore. Geraldine asked Esther if she was sacking her. Esther replied that she was. Geraldine then asked Esther if she had looked at the tapes. Esther said she had not, as she didn’t have to.

7. Geraldine was upset and went to talk to the two customers. I stayed behind and asked Esther why she refused to view the tapes. Esther told me she didn’t have to as she counted the money and $8.50 was missing. I asked Esther how that was possible seeing as the carer had given Geraldine a $10 note and coins, and that would mean that Geraldine would have had to put the money in the till and then take it out. Esther said she that she had spoken to the carer and the carer had told her that Geraldine took the money from him and did not put it in the till. I told Esther that she could not accuse Geraldine of stealing without proof, but she said that it was her business and she could.

8. Geraldine then came over and asked Esther for a copy of the tapes. Esther told Geraldine and I that we had to leave as we were scaring the customers. She told us that we were not allowed to return to Coffee Break Cafe.

9. Geraldine asked Harry, the chef, to pass her some items that she had left in the kitchen. When he was passing her the items she informed him that he had been sacked.

10. We were in the cafe for approximately 25 minutes.

[20] Ms Chen’s evidence concerning Ms Hooker and her daughter returning to the cafe is as follows:

2, around 9 am, 24 April, I was busy in making coffee. Geraldine and a woman came to my cafe. It’s already late for working hours. The strange thing is that she did not come in time to work nor asked for leave, but just came to collect a bag and then went.

Consideration

[21] Given that the events of 23 April 2013 are the subject of conflicting evidence from Ms Chen and Ms Hooker, which is uncorroborated, it will be necessary for me to reach a conclusion about those events, as best I can, having regard to all that is before me. When doing so I will be required to arrive at the requisite findings of fact necessary on the civil onus. That is, my findings will comprise of what, as a matter of fact, is more likely than not to have occurred. It will then be necessary to apply the relevant statutory provisions to those findings in order to determine the jurisdictional objection.

[22] It is a well established procedure when considering conflicting evidence without the benefit of corroboration of one account or another for a decision maker to have regard to all of the surrounding events and the inherent probability of particular factual circumstances arising or occurring in those circumstances, in aid of arriving at a considered judgement and necessary findings. 8

[23] In this respect, I turn to consider the return to the cafe by Ms Hooker accompanied by her daughter. On my evaluation of this visit, it is not consistent with Ms Hooker having been the subject of the termination of her employment on 23 April 2013. Rather, it seems to me this visit was for another purpose. Had Ms Hooker’s employment been terminated on 23 April 2013 the visit would seem superfluous. Nor do I consider it more probable than not that Ms Hooker returned that day to continue in her employment. The factual matrix is not consistent with that intention and no evidence indicates that Ms Hooker attempted to commence work or was ready to do so despite her suggestions to the contrary. If Ms Hooker is to be believed and her employment was terminated previously on Ms Chen’s initiative, one would think that the purpose would have an independent motivation.

[24] One must, in the circumstances, attribute some relevance and meaning to Ms Hooker’s decision to have her daughter accompany her. It appears tolerably clear from the evidence that Ms Hooker’s daughter was present for the purpose of an engagement with Ms Chen concerning the employment of her mother. There is no plausible suggestion that Ms Hooker would have had anything to fear from Ms Chen when returning to the cafe, had her employment in fact been terminated previously by Ms Chen.

[25] The visit was clearly a specifically considered and organised act by Ms Hooker. I cannot help but think the purpose of the return related to the question of the termination of the employment.

[26] This evidence raises the inherent probability of what had occurred on the day before. If Ms Chen had terminated the employment on the previous day then the necessity and purpose of the visit is dubious. If on the other hand Ms Hooker had simply left the workplace, in response to Ms Chen’s questioning about the $8.50 in the circumstances described and Ms Chen had not given utterance to any words indicating the termination of the employment, the purpose of the visit is readily explicable. The visit would, in those circumstances, be to establish beyond any doubt what the consequence for Ms Hooker’s employment was of her behaviours on the previous day. Indeed the relevant evidence of Ms Hooker and her daughter seems directed to a corroborative account of Ms Chen making a statement that the employment had come to an end, rather than for the purpose of attending for work. Collaterally, it seems there was something to be collected and some farewell interaction with other staff.

[27] I accept the evidence of Ms Chen that Ms Hooker collected some belongings and farewelled other employees as an incident of this visit.

[28] Clearly, Ms Hooker’s daughter was present as a witness. I consider it inherently probable that this formed at least part if not the sole purpose and reason for her attendance. However, while Ms Hooker would have me accept that the interaction between herself, her daughter and Ms Chen during this visit confirmed that her employment was terminated, at Ms Chen’s initiative on that day, if not before, I am not so persuaded.

[29] Ms Hooker’s motivation for this visit is more consistent with her unilaterally leaving the premises on 23 April 2013, in response to Ms Chen’s questioning of her about the $8.50 amount. It is consistent with Ms Chen’s evidence that she did not utter words terminating the employment on 23 April 2013. I accept Ms Chen’s evidence to this effect accordingly. I do so because I was more impressed by her evidence and because the visit on 24 April 2013 of Ms Hooker and her daughter cause me to conclude that, after leaving the cafe on 23 April 2013 in the manner in which she did, Ms Hooker was unsure of whether her employment had thereby ended or would be terminated and returned to establish the relevant fact.

[30] It is a logical inference that when Ms Hooker left the cafe without notice or explanation on 23 April 2013, without her belongings and without Ms Chen saying anything to the effect that her employment had been terminated, it would, after reflection on Ms Hooker’s part, at least give rise to some ambiguity about the continuity of the employment. It could well give rise to a consideration on Ms Hooker’s part that by her actions she had bought the employment relationship to an end. In this respect, any perceptions of such ambiguity inherent in the factual situation, on Ms Hooker’s part, would be entirely rational. She could well have wondered whether her employment came to an end because of this abrupt, unnotifed, unjustified and unexplained departure or whether Ms Chen would forgive it.

[31] Moreover, in my view, by identifying the date of termination in the application as 24 April 2013, Ms Hooker did not have in mind that the employment had been terminated on Ms Chen’s initiative on 23 April 2013, when the application was made.

[32] When Ms Hooker, with her daughter as a witness, visited the Cafe on 24 April 2013 I think it was to resolve that situation. I accept their evidence that Ms Chen stated in one way or another that Ms Hooker no longer worked at the cafe. It is inherently improbable on what is before me that a contrary situation arose. However, I am reluctant to accept any precision of the words stated by Ms Chen advanced by Ms Hooker and her daughter. This is because the evidence clearly is self interested on Ms Hooker’s part, to establish that Ms Chen terminated the employment that day and because her daughter cannot be considered an independent witness. The possibility of discussion of their evidence of what precisely was said by Ms Chen on 24 April 2013 is also apparent.

The question to be determined

[33] In Mohazab v Dick Smith Electronics Pty Ltd [No 2] 9 the Industrial Relations Court of Australia considered the ordinary meaning of the word ‘initiative’ as contained in the authoritative dictionaries as follows:

‘The word “initiative” is relevantly defined in the New Shorter Oxford Dictionary in the following way:

“initiative 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.”

and in the Concise Macquarie Dictionary in the following way:

“initiative 1. an introductory act or step; leading action; to take the initiative. 2. Readiness and ability in initiating action; enterprise: to lack initiative.’

[34] The question which therefore must be answered accordingly is as follows; having regard to the facts, was the employment relationship between Ms Hooker and Coffee Break terminated at the initiative of Ms Chen? I think not. I consider Ms Hooker, without notification or explanation of any kind, without good reason, simply left the employment on 23 April 2013 at her initiative, before the cessation of her duties, after taking offence at the implied accusation of Ms Chen that she was responsible for there being $8.50 missing from the cash register, for which she was asked to provide an explanation.

[35] Incidentally, in my judgement, Ms Hooker repudiated the most fundamental term of her contract of employment, that is to be ready, willing and able to perform her duties unless a reasonable basis existed for her not doing so. I find that Ms Hooker simply left her employment during her working hours on 23 April 2013, without explanation.

[36] At common law this would constitute repudiation of a fundamental term of the contract of employment, of sufficient seriousness to allow acceptance of the breach as termination of the contract of employment, by the employer.

[37] However, the criterion for the determination of the jurisdictional objection in this matter is set out in s.386 (1) (a) of the Act, which requires that I determine if the employment relationship 10 between Ms Hooker and Coffee Break “has been terminated on the employer’s initiative”.

[38] It is therefore not a simple matter of applying the common law principles, but rather applying the statutory criterion to the facts as I have found them and answering the question; was it on Ms Chen’s initiative that the employment relationship was terminated? 11 When doing so however, it would be entirely artificial to proceed as if the legal concept of an employee repudiating their duties and responsibilities was nonexistent.12

[39] In the case of  13GlaxoSmithKline Australia Pty Ltd re Gauci the Full Bench of the Australian Industrial relations Commission made the following observation:

“[19] There is an additional contention advanced by the respondent’s counsel which requires comment. It was argued that even if the respondent had abandoned his employment that would not constitute termination. It would constitute repudiation of the contract. Because GSK had elected to treat the repudiation as terminating the contract the employment was terminated at GSK’s initiative. This argument raises an issue of potential significance in any case involving conduct by an employee which constitutes repudiation of the contract of employment. It is not necessary to decide the issue in this case, however, because we have not disturbed the finding that there was no abandonment and therefore the question of repudiation does not arise. But we observe that the argument may blur the distinction between termination of employment and termination of the contract of employment. The question posed by the statute is whether the employment was terminated at the initiative of the employer. An analysis based on contractual notions of repudiation and acceptance may not always correspond with the statutory concept.”

[40] In the case of ABB Engineering Construction Pty Ltd v Doumit 14(which has been quoted by the Full Bench of Fair Work Australia15 with concurrence) referring to the Decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2),16 the Full Bench of the Australian Industrial Relations Commission stated as follows:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end...

In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required . . .’

[41] In the factual circumstances here I must decide if it was Ms Chen who was the primary or moving force in some way initiating the end of the employment relationship, rather than determining whether there was a breach of the employment contract by repudiation and acceptance thereof by the employer.

[42] I consider that it was the action of Ms Hooker leaving her duties in the circumstances described (on 23 April) which initiated the end of the employment relationship. Ms Hooker and her daughter, in my judgement, returned to interrogate the consequences of Ms Hooker’s actions on 24 April 2013. Ms Chen effectively informed Ms Hooker that those actions meant that Ms Hooker had bought the employment relationship to an end. Up to the departure from the duties of her employment by Ms Hooker, on 23 April 2013, Ms Chen had merely asked Ms Hooker to consider an explanation for the amount of $8.50 allegedly missing from the cash register.

[43] Coincidently, some intersection between the relevant principles of the common law in circumstances where an employee repudiates the contract of employment by refusal to perform its terms and consideration of the statutory formulation “if the person’s employment has been terminated on the employer’s initiative” would seem apparent.

[44] In my opinion, that intersection is essentially conceptual. It may be that an employer proceeds on the basis that employment of a person has ended because of an act or acts of significant seriousness which the common law would deem to be repudiation. The relevant factual circumstances are critical for such an assumption to be reasonable and legally effective. If the facts are so then it is not appropriate, for the purposes of s.386(1)(a) of the Act, to assign to the employer the status of the initiating party to the termination of the employment relationship.

[45] In my view, that is the case in this matter. In my judgement of the facts, Ms Hooker walked out on her employer during her shift of work without reasonable excuse, left her apron and her keys to the premises and departed without notice or explanation. Ms Hooker gave evidence that her possession of the keys was for the purposes of opening the premises in the mornings. Her return visit on 24 April 2013 merely confirmed that by taking this action she apprehended that it was most likely her who, in the circumstances in which it occurred, had initiated the end of the employment relationship unless Ms Chen was prepared to forgive it. That Ms Chen effectively indicated that Ms Hooker had left the employment, adds nothing to the proper characterisation of the direction from which the termination of the employment relationship emanated and who it was that initiated the termination of that relationship; which was by the actions and in the person of Ms Hooker, on 23 April 2013. It was, to paraphrase the references to the ordinary meaning of the word ‘initiative’ above, Ms Hooker’s action that constituted the first step and leading action which brought the employment relationship to an end.

Conclusion

[46] For all of these reasons, in the factual circumstances of this case, I judge that Ms Hooker’s employment was not terminated on Ms Chen’s initiative.

[47] Accordingly, the employment came to an end in circumstances where Ms Hooker was not dismissed within the meaning of the Act. Ms Hooker, therefore, is not and was not a person protected from unfair dismissal in relation to her employment with Coffee Break. Ms Hooker cannot bring an application before the Commission under s.394 of the Act in relation to that employment.

[48] I uphold the jurisdictional objection. An Order dismissing the application will issue accordingly.

Appearances:

Ms G Hooker, self represented Applicant.

Ms E Chen, for the Respondent.

Hearing details:

Before Commissioner Lewin

2013

Melbourne:

3 September 2013.

Final written submissions:

15 October 2013, submissions by Applicant

24 July 2013, submissions by Respondent

 1   [2013] FWC 6657.

 2   Fair Work Act 2009 s.396 (b).

 3   PN399.

 4   PN408 - PN413.

 5   PN441.

 6   PN457- PN486.

 7   PN488.

 8   Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50.

 9 (1995) 62 IR 200.

 10   Searle v Moly Mines Limited, [2008] AIRCFB 1088 at [22].

 11   Termination at the initiative of the employer has been extensively considered judicially by the Full Court of the Industrial Relations Court of Australia; see Mohazab v Dick Smith Electronics Pty Ltd (No 2), (1995) 62 IR 200 at 205. See also consideration by the Full Bench of Fair Work Australia in Geoff Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at [24].

 12   Searle v Moly Mines Limited, [2008] AIRCFB 1088 at [39].

 13   [2008] AIRCFB 439.

 14   (1996) (unreported, AIRC (FB), N6999.

 15   Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3789.

 16 (1995) 62 IR 200.

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