Girardi v Allergan Australia Pty Ltd

[2016] FWC 107

[2016] FWC 107

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Daniel Girardi
v
Allergan Australia Pty Ltd
(U2015/8594)
COMMISSIONER HAMPTON	ADELAIDE, 15 JANUARY 2016

Application for relief from unfair dismissal – whether dismissal harsh, unjust or unreasonable

– senior sales role – whether claimed expenses in breach of policy and without legitimate

business reasons – whether serious misconduct – trip was a combination of business and

personal reasons – some business performed – applicant not open with employer but not in

breach of express policy – valid reason for dismissal falling short of serious misconduct –

major procedural deficiencies – procedural unfairness relevant given that it led to findings

and actions not reasonably open to the employer – dismissal harsh and unreasonable –

remedy – reinstatement not appropriate – compensation ordered.

1.          Background and case outline

[1] Daniel Girardi has made an application under s.394 of the Fair Work Act 2009 (the

FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, Allergan

Australia Pty Ltd (Allergan).

[2]        Allergan is a large supplier of pharmaceuticals, equipment and medical materials to

the medical profession. Mr Girardi was at the time of his dismissal employed as a Product

Specialist, Neurosciences, which in effect, required him to sell Botox for the treatment of

movement disorders, chronic migraine, and other medical conditions. His territory included

the whole of South Australia and the Northern Territory.

[3]        Mr Girardi was dismissed by Allergan on 12 June 2015 following a meeting

conducted on the previous day to discuss a claim that he had made for the reimbursement of

expenses associated with travel to Mount Gambier (and other locations in the South East of

South Australia) in early May 2015. The dismissal also took place in the context of a recent

“final” warning issued to Mr Girardi by Allergan associated with what the employer

considered to be an improper attempt to retrospectively reclassify days worked as sick leave

and annual leave days.

[4]        Allergan concluded in an email sent to Mr Girardi, which communicated the dismissal,

that his conduct and recent events “demonstrate(s) a clear breakdown between you and the

Company. As such your recent behaviour leaves us with no option but to terminate your
[2016] FWC 107

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employment, effective immediately”. Allergan also advised that although it was not required

to do so, it would provide one month’s pay in lieu of notice.

[5]        There is no dispute that Mr Girardi was protected from unfair dismissal within the

meaning of s.382 of the FW Act and there is a valid application before the Commission.

[6]        Mr Girardi was represented, with permission, by Mr Harbord, and contends that there

was no valid reason for termination and that it was unfair. In particular, the applicant contends

that:

	He did perform work duties on 1 May and 2 May 2015 during the Mount Gambier
trip, the expenses claimed were legitimate work expenses, and he was not guilty
of the alleged misconduct;
	The “final” warning relied upon by the employer was not justified and was based
upon the reclassification of leave that was approved by his Manager and not done
for any personal benefit;
	The employer drew inferences which would not have been reasonably drawn from
the material before it and reached a prejudiced conclusion without any proper
investigation;

 He was not guilty of series misconduct which could justify a dismissal in the

circumstances;

 The termination was clearly harsh in its consequences given his personal and

economic situation, and given that he was a dedicated and leading salesperson for

the employer; and

	The termination was, in any event, disproportionate to the gravity of the alleged
misconduct having regard to the actual expenses incurred by Allergan for the trip.

[7]        Mr Girardi also contends that:

 He was not informed of the reasons for dismissal prior to the decision;

 He was not given an opportunity to respond to any reasons relied upon by the

employer and in fact the decision was taken by the employer prior to the time

provided by Allergan for him to access his diary and other materials and to make

a response;

 He was in practice denied the opportunity to have a support person attend the

meeting, which was called at very short notice, on 11 June 2015;

 He was not given a prior warning about the alleged breaches of policy or

procedure apparently relied upon by Allergan; and

	The absence of procedural fairness could not be explained given that Allergan is a
large “international” employer with significant resources including dedicated
human resource expertise.

[8] Mr Girardi primarily seeks reinstatement to his former position and contends that there

is no objective basis for any breakdown in the relationship between himself and the employer.
[2016] FWC 107

[9]        Allergan was, with permission, represented by Mr Boyce and contends that the

Commission should not interfere with its decision to dismiss Mr Girardi. In particular, it

contends that there was a valid reason for dismissal based upon the following propositions:

 The “final” warning was justified based upon the applicant’s conduct including

threatening remarks made about another employee (Ms White) and Mr Girardi’s

attempts to retrospectively reclassify sick leave and annual leave days for a period

some eight months earlier in circumstances where this was not an accurate or true

reflection of the events;

 Mr Girardi lied about the purpose for the trip to Mount Gambier and sought to

justify it after the event when called upon to support the expenses claim;

 The expenses claimed for a meal in Penola with a local Pharmacist, for another

meal at a Mount Gambier Hotel, and some accommodation were not legitimate

business expenses;

	There were no appointments or meetings arranged in advance and the main reason
given for the trip, being to attend a meeting of healthcare professionals (General
Practitioners) in Mount Gambier, which did not occur, was a fabrication;

 Mr Girardi failed to follow correct procedures in that he did not obtain prior

approval for the trip and the alleged expenses;

	Mr Girardi sought to distance himself from a jazz festival held in Mount Gambier
that was attended by his wife and son on the weekend of the trip in question in a
vain attempt to justify his visit to the South East as being work related; and

 Given the applicant’s role as a senior territory business manager who largely

worked autonomously, Mr Girardi’s conduct was serious misconduct warranting

dismissal.

[10]      Allergan also contends that the concept of “procedural fairness” is not proscribed by

the FW Act and that any issues associated with the procedure adopted by it must be weighed

against the factual matrix, including the applicant’s conduct. Further, the employer submits

that there was nothing now provided by Mr Girardi that would change the fairness of the

dismissal decision.

[11]      Allergan opposed any form of remedy and contends that the breakdown in trust and

confidence and the wages paid in lieu of notice, despite the justification that existed for

summary dismissal, must also be taken into account.

[12]      Given the various significant factual disputes, this application was subject to an

extensive hearing following consultation with the parties as contemplated by s.399 of the

FW Act.

2.          The evidence before the Commission

[13]      Mr Girardi provided a comprehensive witness statement and gave sworn evidence. He

also relied upon the evidence of the following:

	Mrs Margaret Girardi – wife of the applicant who accompanied him on the trip to
the South East and who also gave evidence about the circumstances associated

[2016] FWC 107

with their son’s attendance at the jazz festival in Mount Gambier on the weekend

in question;

	Dr Rey Casse – a Physician who worked with the applicant for about 4 years and
who, as a specialist, dealt with Mr Girardi in his practice and gave evidence about
the role of General Practitioners (GPs) in the marketing of Botox as a therapy; and

 Dr James Rice – a Consultant in Rehabilitation Medicine who was a significant

client of Allergan who visited the South East and was involved in a presentation

to medical practitioners on the use of Botox conducted in October 2014 in Mount

Gambier which was attended by the applicant.

[14]      Allergan relied upon the following witnesses, both of whom provided witness

statements and sworn evidence:

 Mr Victor Diago – Regional Manager ANZ of the Neurosciences Division of

Allergan, who was the applicant’s manager and the person who, in effect made

the dismissal decision; and

 Ms Lesley Pinter – Human Resources Director ANZ for Allergan, who was

involved in the meeting with the applicant conducted on 11 June 2015 and the

dismissal decision.

[15]      Allergan also relied upon the evidence of Ms Margaret Williams, a Pharmacist in

Penola who was visited by the applicant during the Mount Gambier trip and met him at a

restaurant; and Dr Charitha Perera, who is a significant client of Allergan and dealt with the

applicant and met him briefly at the jazz festival and on one other occasion during the trip in

question. Both Ms Williams and Dr Perera were summoned to give evidence at the request of

Allergan.

[16]      In addition, the Commission received into evidence a large volume of written material

including various contracts of employment, policy and marketing documents and materials,

various emails exchanges between relevant persons, the applicant’s hand written notes

associated with the meeting conducted on 11 June 2015, and various documents connected

with the Mount Gambier trip.

[17]      Some of the material was provided in response to orders for production sought by one

of the parties. This included material provided by the owners of the Quality Inn Motel at

Mount Gambier where Mr Girardi and his wife stayed on Saturday 2 May 2015. There is a

controversy about the timing of the booking made in relation to that night’s accommodation

which is also associated with the dispute about an expense claimed by Mr Girardi at another

Mount Gambier Hotel; namely Macs Hotel.

[18]      I found the evidence of Mr Girardi to be unconvincing in many respects. As a witness,

he was argumentative and sought to advocate and debate his case and I gained the impression

that he was attempting to fill in some of the gaps in the evidence to suit his case. This means

that I treat his evidence with considerable caution. However, this does not mean that I found

his evidence to be completely unreliable as contended by Allergan.

[19]      In assessing the evidence of Mrs Girardi, I have taken into account the fact that she

was in my view being supportive of her husband. Despite that understandable position, she

was also seeking to provide an accurate account of matters that she was directly involved
[2016] FWC 107

with. The difficulty is that Mrs Girardi was not directly involved in most of the critical events

at issue here and in many instances was merely an observer. I accept Mrs Girardi’s evidence

about the timing of the decision for their son to attend the jazz festival.

[20]      In relation to the evidence of Mr Diago and Ms Pinter, I have also taken into account

that their evidence was given in the context of defending a decision which they, in effect,

made. This in my view influenced some of their evidence, including in relation to the reach

and impact of some policies, but not to the point of attempting to mislead the Commission. I

do note that there was some subjective “evidence” about the fairness of matters which are

properly issues for the Commission to determine.

[21]      I have no reservations about the veracity of the evidence of Dr Casse, Dr Rice,

Dr Perera and Ms Williams. I do note that Ms Williams could not recall all of the detail of the

events at the restaurant on 1 May 2015, given the lapse of time and absence of any great

significance of those events for her. However, where she had a direct and confident recall of

events, I accept Ms William’s evidence where it conflicts with the evidence of others.

[22]      The evidence of the three Doctors is relevant and sets some of the context in which the

factual disputes are to be resolved. However, little of that evidence goes directly to the central

issues in dispute. In some respects, their evidence about the absence of prior arrangements for

the Mount Gambier trip is potentially significant.

3.          The facts of the matter

3.1 Background

[23]      The following arises from the evidence, is largely uncontroversial, and sets the context

for the major disputed events.

[24]      Mr Girardi commenced employment with Allergan in late April 2008 and was based

in Adelaide. He holds a Bachelor of Science degree majoring in biotechnology, anatomical

science and pathology. He has previously worked in both technical and medical sales roles.

[25]      Allergan is a large company, with international connections, which sells medical

pharmaceuticals, equipment and materials to medical practitioners and to pharmacies. Its

(Australian) head office is in Sydney.

[26]      At the time of his dismissal, Mr Girardi was employed as a "Product Specialist,

Neurosciences". He was responsible in that role for developing promotional strategies, for

approval by senior management, and for achieving or exceeding an agreed sales target for the

pharmaceutical product, Botox. Mr Girardi was responsible for selling Botox to specialists

such as neurologists, dermatologists and rehabilitation consultants. This product, in the

present context, is used to treat movement disorders, juvenile cerebral palsy, spasticity and

other medical conditions.

[27]      At the time of his dismissal, Mr Girardi’s base salary was $100,988 and he was also

entitled to bonuses, based upon sales revenue, and an allowance for a motor vehicle. He

reported to Mr Diago. Mr Girardi’s most recent employment contract reinforced the

obligations to be familiar with, and abide by, relevant policies and included the prospect of
[2016] FWC 107

disciplinary action, including summary dismissal, for serious misconduct and dismissal on

notice.

[28]      Mr Girardi's territory in 2015 was the whole of South Australia and the Northern

Territory and he worked from his home given that Allergan did not have an office in

Adelaide. His hours of work were somewhat flexible and involved a minimum of 37.5 hours

per week, generally between Monday and Friday. However, work above those hours was

undertaken, including during sales trips, and such might involve some weekend work. In

general terms, specific approval for a trip to service regional areas was not required, subject to

the need for expenditure and other approvals in some cases.

[29]      Mr Girardi’s role primarily involved working with medical specialists to promote the

use of Botox and this included establishing and working with networks of “injectors” and

others, including GPs, who might have a role in referring patients for that purpose. Although

it was not usual for the applicant to directly work with GPs and Pharmacies (except those

located in a hospital setting), such was not outside of the scope of his role. Generally

however, this would be done in conjunction with a specialist as part of a particular

promotional strategy.

[30]      Mr Girardi generally had a good sales record and often achieved or exceeded sales

targets. He was also well regarded by the major clients of Allergan in South Australia who

gave evidence in this matter. In early 2015, Mr Girardi was acting as a national “team

champion” for a particular sales strategy (the NEXT program) and this was, at least in part,

recognition for his sales achievements in relation to Botox.

[31]      Mr Girardi was issued with a company credit card for use in relation to business

2

expenses and there was a policy in operation regarding the use of the card and the claiming

3

of expenses more generally. Further, the ANZ Business Travel and Entertainment Policy,

which is primarily focused upon travel requiring airline and similar bookings, did provide

some parameters relevant to an exercise of the nature of the Mount Gambier trip. The

combination of these policies included the establishment of limits on the nature and amount of

certain expenses that could be claimed and the need for prior approval in some cases, such as

where Allergan was to host a function. In addition, prior approval was required for spouse

travel on business trips and some arrangements were made for combined business and

personal trips. Expenses, including those incurred through the credit card, were to be

submitted for approval through the relevant computer system to the relevant manager, who

might approve the expenditure, seek further information, or refuse the reimbursement request.

I will return to the practical application of these policies in due course.

[32]      Allergan also operated with a policy document entitled "Standard Operating Procedure

4

- Interactions with Health Care Professionals Review and Approval". This policy was

designed to ensure that appropriate steps were taken to ensure that all sponsorship activities

conducted by Allergan met all regulatory, legislative and industry code of conduct

requirements. This is important in the context in which Allergan operates but is directed

primarily at sponsorship activities on the part of Allergan. That policy makes no reference to

circumstances where Allergan is not sponsoring an activity.

[33] There was also a document relied upon by Allergan known as "Julie's 10

5

Commandments". This document refers, amongst other matters, to seeking “approval from

the Angels as well as the Gods for all meetings and sponsorships". This document, which was
[2016] FWC 107

issued by an Executive Assistant, is not written in the style of a policy or a direction from

management and contemplates those that are deemed to best follow the commandments will

be given a gift voucher at the next team meeting. More importantly, the balance of the

evidence does not support the notion that prior formal approval for a sales trip within the

applicant’s region had been required in the past where it did not involve some form of

sponsorship or interstate travel.

[34]      In June 2014, Mr Girardi was placed on an improvement plan associated with certain

issues arising from his failure to win a promotional role and his efforts to assist with the

induction and acclimatisation of the successful candidate. Mr Girardi disputed the allegations

however this plan was subsequently completed in August 2014 in the context of significant

sales results produced by the applicant.

[35]      In mid-August 2014, Mr Girardi broke his leg whilst at soccer training. During the

period that followed, he undertook some work but also had some time off. This event sets

much of the original context leading to the final warning, which was issued on 15 May 2015,

and I will return to this aspect separately.

[36]      On the evening of Tuesday 21 October 2014, Mr Girardi attended a seminar in Mount

Gambier with GPs and other health professionals with an interest in rehabilitation (child

development) and Botox, at which Dr Rice gave a presentation.

[37]      The trip to Mount Gambier that has primarily led to this application was undertaken

using Mr Gerardi’s vehicle on Friday 1 May 2015 with the applicant returning to Adelaide on

Sunday 3 May 2015. I will also deal with the detail of the trip and the associated disputes

separately. Expenses were claimed by Mr Girardi in relation to accommodation on the two

nights and for some of the meals during that period and involved the following:

“Penola:

Accommodation - $175.95,

Meals: Dinner Margaret Williams: $131, Breakfast (Sat 2 May): $12.50,

Lunch/Dinner (Sat 2 May): $66.65.

Mt Gambier:

Accommodation: Hotel $275

6

Meals: Breakfast (Sun) $12.05 (McDonalds)”

[38]      The claim was submitted through the required channel and on 9 June 2015, Mr Diago

sought clarification of the justification for the expenses. The following response was provided

by Mr Girardi:

“… Territory coverage from Adelaide to Mt Gambier. Visited GP Clinics, pharmacists

etc. sourcing new business in the country as discussed with team members at late

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January and recent team meeting”.

[39]      On the following day, 10 June 2015, Mr Girardi also advised Mr Diago that:

“Margie Williams, Pharmacist at Penola is on my list of customers to be added for Q3

when we change them at the start of the quarter….. Margie Williams is a valuable

[2016] FWC 107

wealth of knowledge and has great influence in the South East as she has been a

8

Pharmacist in the area for 30+ years.”

[40]      On the same day and again the following day, 11 June 2015, Mr Girardi sought

clarification as to whether he should resubmit the expense claim and Mr Diago advised that he

should do so.

[41]      Mr Diago did not approve the expenses. I note that at some point Allergan paid (or

assumed the debt for) $670.48 associated with these expenses. It is not clear on the evidence

whether this was all associated with the corporate credit card.

[42]      During late May and early June 2015, Mr Girardi sought to have some further time off

and to take this as sick leave. This led to further issues about the treatment of the days that

were originally taken off associated with the applicant’s soccer injury.

[43]      On 9 June 2015, Mr Girardi was also required to complete a weekly plan template, in

the context of a claim by the employer that nobody knew of the whereabouts of the applicant

when he missed a rehabilitation appointment. I note that Mr Girardi had apparently advised a

team member in advance that he could not attend that meeting.

[44]      Mr Girardi was in Sydney working with a Sydney-based colleague to promote a sales

program on 10, 11 and 12 June 2015. On 11 June, he received an urgent instruction to come

into head office to meet with Mr Diago. Mr Girardi was advised that it was a meeting to

discuss his expenses. There was an exchange about whether the applicant could also have a

support person attend and I will deal with this later in the decision.

[45]      The meeting involving Mr Diago, Ms Pinter and Mr Girardi was conducted in the

early afternoon on 11 June 2015 and although I will deal with the detail of that meeting in due

course, it ended on the basis that Mr Girardi was to return to Adelaide and review his diary

and other notes and provide details of who was visited on 1 and 2 May 2015, and the GP

meeting, including who organised and cancelled it, by 12 noon (Sydney time) on the

following day; being 12 June 2015. This latter detail was confirmed in an email to Mr Girardi

shortly after the conclusion of the meeting.

[46]      On the morning of 12 June 2015, without waiting for any response from the applicant,

Mr Diago advised Mr Girardi of the termination of his employment by email.

[47]      Soon after his dismissal, Mr Girardi lost access to Allergan’s computer network

however he retained a large number of earlier (already printed) emails and documents as part

of his home office. It is also possible that he retained some access to the emails that were

already on the computer’s hard drive prior to losing access to the network.

9

[48] Mr Girardi was paid 162.5 hours of pay “in lieu of notice” but was not paid any pro-

rata Long Service Leave (LSL). There was also a deduction made from the final payment

connected to some of the expenses associated with the Mount Gambier trip. I note that the

applicant contends that this was in breach of s.323 of the FW Act (deducted without express

or other authority) and the respondent denies that assertion on the basis that any deduction

was authorised under s.324(1)(a) given a written condition and authority signed by Mr Girardi

associated with the corporate credit card. This is not matter for the Commission in the present

context and I do not need to deal with this aspect.

[2016] FWC 107

3.2 The events leading to the “final” warning

[49]      The first of the significant factual disputes concerns the facts leading to, and the

fairness of, the final warning.

[50]      The general context for the final warning has been set out earlier in this decision.

Mr Girardi was informed by Mr Diago on 15 May 2015, in the context of an ad hoc

discussion during a seminar, that he would be receiving a final written warning. There was no

prior discussion with Mr Girardi about the potential for a warning to be issued.

[51]      There were two elements of the warning, both associated with the treatment of days

that occurred in the context of Mr Girardi’s soccer injury and his attempts to alter how they

were characterised after the event.

[52]      The first element involves a warning about comments allegedly made by Mr Girardi at

a sales conference in Auckland, New Zealand. I am satisfied that the comment, “if Hayley

White was here, I would run here over” was said by Mr Girardi in the presence of Mr Diago

and others. This occurred, at least in part, in the aftermath of a dispute about the

reclassification of the days in question. Whether said in gest or otherwise, this was

inappropriate and warranted sanction.

[53]      The second element concerns the request by Mr Girardi to have the days reclassified

and the view formed by Allergan that this was grossly improper and based upon a false

premise.

[54]      As outlined earlier, in the aftermath of the soccer injury, Mr Girardi took some time

off of work to recover. However, during this period he also attended some local sales

meetings and performed other work. Mr Diago was aware that Mr Girardi was attending at

least some appointments although he had offered to cover for the applicant and urged

10

Mr Girardi to take care.

[55]      The various days were recorded by Mr Girardi into the internal systems as either sick

leave or days worked, with some work activity also being noted into the sales recording

system (Salesforce.com).

[56]      At some stage in early 2015, there was a discussion between Mr Girardi and

management about the fact that the applicant had too much annual leave. Mr Girardi

requested that some annual leave be paid out and was advised that this was not possible under

the terms of the relevant modern award.

[57]      On 1 April 2015, Mr Girardi sought approval for various days in August, September

and October 2014 to be, in effect, reclassified as Sick Leave, and in some cases, Annual

Leave. This was put through the internal leave system (ConnX) and was originally approved.

[58]      The request for reclassification of these days was subsequently rejected by Allergan.

[2016] FWC 107

[59]      On 16 April 2015, Mr Girardi advised Human Resources that he required certain leave

and salary details in the context of a personal injury claim arising from his soccer injury. This

was provided by Allergan.

[60] On 4 May 2015, Ms White requested details of the basis upon which the

reclassification of the days worked as leave was being sought and Mr Girardi advised by

email as follows:

“I attended clinics and/or appts sporatically (on most days one apt). I was not suppose

(sic) to be working and was unable to drive so was dropped off and picked up. I

discussed this with Victor at the time and that I would manage my territory a best as

possible.

By me having the leave days registered as off in ConnX is to Allergan’s advantage as I

also worked to keep my territory ticking over.

I mentioned to Victor a few weeks ago that the days were not recorded in ConnX but

we’re (sic) in my diary and I would sort them adapt (sic). I understood that when I

broke my leg, that the days had been entered based on my certificate/s.

11

I noticed my error and corrected it.”

[61]      In late May 2015, Mr Girardi was advised that he did not have sufficient sick leave

remaining to cover some time off in that period. This was later revised in light of the sick

leave, which was reclassified and then not approved, being re-credited.

[62]      The position of Allergan on this issue is recorded in the final warning letter itself. The

allegation was put in the following terms:

“...

I refer to matters arising from your recent request to Allergan to re-classify several

work days in 2014 as sick days. As detailed below, this does not meet standards

expected of Allergan employees.

Firstly, during the period (in question) of recuperation from a leg fracture, you logged

activity in salesforce.com. These include full days that you spent in clinic, as well as

days of more sporadic or scant activity.

None of these days, which you have now requested to be reclassified as sick leave,

were submitted into ConnX at the time as sick leave, in accordance with Allergan’s

policy. It is clear from correspondence between us that you intended to work during

this period. However, some 8 months later, in circumstances where you are making a

personal injury claim against a third party, you are proposing that these days were

always intended to be sick days, but that you were working while incapacitated for the

benefit of Allergan. Therefore it is your contention that these days should be

reclassified.

Secondly, when an explanation was sought for your request, you have made

accusatory statements about you treatment by office staff in a voice message to me on

6 May 2015. In this same message, you have also repudiated matters relating to your
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previous Performance Improvement Program (PIP), which you have signed and agreed

to.

These episodes raise serious matters of honesty, integrity and personal accountability.

The standards demonstrated do not meet the requirements for your role, and for

employment at Allergan.

Specifically:

You have sought to have the company reclassify leave records without evidence that

this was an accurate reflection of events, and in circumstances where there is evidence

that the reclassification is not accurate or appropriate. Having been neither asked nor

expected to work, you chose to do so, and now wish for this record to be altered. We

have reason to suspect that this request has been made to gain some kind of advantage

in your personal injury claim against a third party.

When challenged to provide an explanation for your request, you have chosen to

disparage Allergan and Allergan staff by making accusations of active victimisation

and poor treatment in connection with you working, at your own initiative, during

your recuperation, as well as refuting previous performance matters.

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...”

[63]      In submissions, Allergan has also contended that, contrary to the applicant’s evidence,

there was no agreement to reclassify the dates and no request by management that this be

done, either directly or by implication. It was also suggested by the employer that the

applicant’s approach would have involved it in breaching the National Employment Standards

and not keeping proper records as required by the FW Act, at s.535.

[64]      Mr Girardi contends in final submissions that:

“115.	There was no dispute that Mr Girardi had suffered a broken leg in
August 2014. He should have taken sick leave at the time. However because
he was wanting to continue his work and increase his sales he did visit
customers and clinics (on his crutches), and worked from home as well.
There is no dispute that Mr Diago was well aware of this.

116.      The evidence of Mr Girardi is that Mr Diago then requested that he take

some leave. Instead he then offered to have his annual leave days cashed

out. He was not permitted to do so. Mr Girardi then offered to have the days

that he had been working reclassified as both sick leave and annual leave.

Mr Girardi says that Mr Diago agreed to this.”

[65]      This is a difficult issue. At one level, Mr Girardi undertook work when he should have

been recuperating with his broken leg. This is consistent with his commitment to the work and

his desire to maintain his good sales record. He then seeks to have the days worked

reclassified as sick and annual leave days. Although this would not be an accurate reflection

of what occurred, Mr Girardi was at the time actually injured and eligible to take that time as

sick leave (or annual leave) if he wished to.
[2016] FWC 107

[66]      The assumption originally made by Allergan that this request was associated with the

personal injury claim being made in the context of the soccer injury was, and is, largely

speculation and I consider that the response by the employer on the basis that the request was

fundamentally corrupt at the time, was an overreaction.

[67]      However, there are implications for the applicant’s position in this matter more

generally. There is some substance in the concerns held by the employer that Mr Girardi was

not up front with them about the reason for the change. Whatever the true motivation for the

request to reclassify the days, the explanation provided to Ms White was not accurate. That is,

the days were not entered as days worked in error, this was a deliberate decision taken at that

time with the knowledge of Mr Diago.

[68]      Secondly, the suggestion by Mr Girardi during this case that the reclassification of the

leave was agreed, is at best, a gloss on the events. The objective written and other evidence is

consistent with a discussion about the need to reduce annual leave accruals being held.

Further, it is the case that the original request to reclassify the days was approved by

Mr Diago on the basis that Mr Girardi was correcting an earlier mistake. To suggest that this

means that the reclassification was agreed in any real sense or that Mr Girardi was doing what

he was told, is not supported by the evidence, and on the balance of probabilities, is a

distortion of the facts.

3.3 The Mount Gambier trip

[69]      The events surrounding and arising from the Mount Gambier trip are also in dispute

and form the focus of this matter.

[70]      At the outset, I find that it was entirely reasonable for Allergan to be highly suspicious

about the trip to Mount Gambier and to question the expenses sought by Mr Girardi in that

context.

[71]      Against the background of Mr Girardi’s role and the various requirements placed upon

him, Allergan was faced with the following at the time of the 11 June 2015 meeting:

	There was no specific reference in any of the territory business plans submitted by
Mr Girardi to a trip to Mount Gambier – although the strategy of involving GPs in
the marketing plans was a feature in general terms;
	There was no business case proposal made in relation to the trip – although it was
the reasonable understanding of Mr Girardi that this was only required if there
was to be expenditure on sponsorships or where Allergan was hosting events;
	There was no record in the Salesforce.com system of any interaction with a Retail
Pharmacist (Ms Williams) and this form of interaction would not be the norm –
there was however an indication from Mr Girardi (when questioned) that
Ms Williams was to be added to the list of customers in Quarter 3 and would be a
valuable source of knowledge and influence in the South East;
	The only recorded sales activity for that weekend was a call made with Dr Perera;

 The explanation provided was that Mr Girardi had “visited GP clinics,

pharmacists etc. sourcing new business in the country as discussed with team

13

members at last January and recent team meeting”;

[2016] FWC 107

	Expenses had been claimed covering (in part) Friday 1 through to Sunday 3 May
2015; and

 There were no known medical related events in the South East on the weekend

concerned but there was a major jazz festival held in Mount Gambier at that time.

[72]      Mr Girardi attended the meeting on 11 June 2015 at short notice and without

immediate access to his diary, the Salesforce.com data, or any records associated with the

Mount Gambier trip. There is a dispute about the detail of the discussions and there are in

effect, three versions of that detail; being from those that attended – Mr Diago, Ms Pinter and

Mr Girardi. Mr Girardi took some notes during the meeting but these were incomplete and

were later conflated with his subsequent recollections and his views generally. Neither

Mr Diago nor Ms Pinter took contemporaneous notes but each made subsequent notes that are

consistent as to the themes but different in terms of some of the detail. There is also a

predictable tendency in each case to recall more of the detail of each person’s own

contribution.

[73]      Based upon my view of the evidence, the following, or at least discussions to this

effect, occurred at that meeting:

 The meeting transpired over an hour or so;

 It commenced with Mr Diago indicating that the purpose of the meeting was to

discuss the expenses claimed for the Mount Gambier trip on the basis that the

responses provided so far by Mr Girardi were not satisfactory. This included the

reasons for the trip and the dinner expense claimed in relation to the Retail

Pharmacist;

	Mr Girardi initially questioned why Mr Diago had requested that he resubmit the
expenses and indicated that he was prepared to pick up the expenses, even though
he was working at the time;

 Mr Girardi indicated that he had travelled to attend a GP meeting in Mount

Gambier that he had been invited to. On the way down he also stopped at GP

clinics and dropped off materials about chronic migraine and hyperhidrosis;

	Mr Daigo indicated that calling on GPs was not part of the company’s strategies
and Mr Girardi indicated that he had discussed this approach at the (team)
conference in January;

 Mr Girardi was questioned about why he had not entered any details into the

Salesforce system, including into the free text area, and indicated that he only

entered calls in relation to key customers, and that he did make one entry into the

Salesforce system associated with the trip;

	When questioned about who the GPs were, Mr Girardi indicated that he could not
recall but that he had them listed in his diary (which was not with him);
	Mr Girardi was questioned about whether he had travelled with his family and
about whether he had attended the jazz festival. He indicated that Mrs Girardi had
travelled with him, that he had called into the festival as his son was playing there,
but that had not attended the festival itself;
	Mr Diago accused Mr Girardi of travelling to Mount Gambier for the purpose of
attending the jazz festival and this was denied;

[2016] FWC 107

 In relation to the dinner with Ms Williams, Mr Girardi indicated that this was a

business dinner to gauge potential business in the area and that it arose following

a suggestion by Ms Williams. Mr Girardi also indicated that Mrs Girardi sat at

another table during the dinner with Ms Williams;

	Mr Girardi was questioned as to why he had not submitted a business case and he
advised that he was not required to do so unless Allergan was required to pay the
expenses of a dinner or meeting that was to be conducted and that he and others
had made country trips on a regular basis in the past without business cases being
provided;
	Mr Girardi was requested to provide details as to who had organised the alleged
meeting of GPs and invited him to attend, and who had cancelled the meeting.
Mr Girardi could not recall those details;
	Mr Diago questioned the applicant as to why he did not return to Adelaide when
he became aware that the GP meeting had been cancelled (on that morning).
Mr Girardi advised that he already had a booking, it (the travel home) was too far,
that his leg was hurting and Mrs Girardi did not like to drive that far;
	The time of the booking of the Saturday night accommodation was discussed in
the context of a suggestion by Mr Girardi that he may also have stayed that night
because the accommodation had already been paid for;

 The discussion with Dr Perera, which had been entered into the Salesforce.com

data, was discussed and Mr Girardi explained that he had discussed some work

issues during, in effect, chance meetings and this type of discussion was logged

into the Salesforce.com;

 Mr Girardi indicated that he felt unwell and on a number of occasions sought

access to his diary and other records; and

	The meeting concluded on the basis that Mr Girardi would provide details of who
was visited on 1 and 2 May 2015, and the GP clinic meeting and who organised
and cancelled it, by 12 noon (Sydney time) on the following day; being 12 June
2015.

[74]      It is also probable that in the meeting or in associated discussions:

 Mr Diago accused Mr Girardi of attempting to falsify the leave records in

connection with the reclassification of leave, which was denied; and

	Mr Diago also indicated that he was not aware that Mr Girardi was travelling to
Sydney and the applicant indicated that he used the correct process to book the
flights, had advised Mr Diago and others that he was attending when his flights
were delayed and that other managers knew that he was attending (which was
confirmed during the discussion).

[75]      The termination decision was made and communicated at 9.00am Sydney time

(8.30am Adelaide time) on 12 June 2015 - prior to the 12.00 noon deadline. This meant that

there was little practical opportunity for Mr Girardi to provide a response, given his travel

back to Adelaide. There was also no further investigation undertaken by Allergan including

whether Mr Girardi did actually visit any GP clinics and Retail Pharmacies as claimed.

Mr Diago did however review the yearly and quarterly sales plans for Mr Girardi and noted

that a trip to Mount Gambier in early May was not included in any of those plans.

[2016] FWC 107

[76]      Based upon the evidence now before the Commission, I find on the balance of

probabilities as follows in relation to the Mount Gambier trip:

 There was a meeting of General Practitioners and potentially other health

professionals in Mount Gambier foreshadowed for early May 2015 which arose

from the October 2014 meeting attended by Mr Girardi. The concept of further

meetings in Mount Gambier of this nature was also foreshadowed by Mr Gerardi

to Dr Rice in early 2015;

	If such a meeting was held, Mr Girardi’s attendance at such a meeting would have
been broadly in line with the sales strategies and with the general approach being
adopted in conjunction with Dr Rice (and to a degree - Dr Casse), however any
May 2015 meeting did not involve Dr Rice (or any other Specialist working in
conjunction with Allergan) and Dr Rice was not aware of any details of such a
meeting;
	Although the sales business plans are high-level, there was no specific or implied
reference to a follow-up meeting with the GPs in Mount Gambier, however
Mr Girardi had some discretion as to how to service his territory and build the
networks required, including with GPs;

 It is unlikely that the details of this foreshadowed meeting were subsequently

confirmed with Mr Girardi at any stage, and even accounting for the apparent loss

of access to his email records, the inability of Mr Girardi to initially recall almost

any of the details of who was involved and when is significant. In any event, he

took no steps to confirm that the meeting would actually be held prior to

organising, and leaving for, his trip to Mount Gambier;

	There is no record of Mr Girardi having made prior arrangements with any of the
GPs or Retail Pharmacists and I do not accept his evidence about having done so.
This meant that it would be a matter of chance that the relevant Doctors and
Pharmacists would be available to see him and the organisation of such a trip
covering the Saturday was even more problematic;
	The concept of visiting the GPs (and to a lesser extent Retail Pharmacists) was not
inconsistent with the sales strategy being used by Allergan and Mr Girardi,
however it was not expressly endorsed and was only very loosely discussed with
the other team members and the relevant medical specialist – Dr Rice;
	Mr Diago was not expressly informed of the Mount Gambier trip, and no approval
for a combined personal and business trip or spouse travel, was sought;

 The main work purpose of the visit was originally the GP meeting and the cold

calling of GPs and Retail Pharmacies was originally a supplementary purpose,

albeit that that aspect became more important when the justification for the trip

was questioned;

 The notes in Mr Girardi’s diary record only travel to Mount Gambier with

reference to a number of towns on the way, and in some cases, clinics and names

as follows – “Tailem Bend/ Keith (Tristor)/ Naracoorte (sic) (Kincraig)/Penloa”

with material (“CM and Spasticity” noted); the dinner with Margaret Williams;

the “Mount Gambier Rehab Meeting” (with “cancelled” noted); the name of

“C Perera” noted; and “Ferrers/Hawkins (closed)” and “Millicent”;

[2016] FWC 107

 Mr Girardi dropped into Ms William’s pharmacy on 1 May 2015 and when she

indicated that she could not see him during business hours, it was in due course

suggested that she drop in on the meal that Mr and Mrs Girardi were going to

have. This did occur and Ms Williams did eat at least one course that was ordered

for her whilst a brief discussion about Botox was held with Mr Girardi. During

this time, Mrs Girardi moved along the bench table where they were sitting,

having already had dinner with the applicant. The applicant’s evidence about the

two meals he consumed and the details of how the dinner arose was

unsatisfactory;

 Mr Girardi did also cold call a number of GP clinics on his way to Mount

Gambier on 1 May 2015 and in the area during 2 May 2015 and left

promotional/educational material concerning the use of Botox;

 When, during Saturday 2 May 2015, Mr Girardi became aware that the GP

meeting was not being held, he decided to stay in Mount Gambier because of the

time of the day and the length of the trip home and because his wife and son were

in Mount Gambier and it was convenient for his wife (and potentially their son) to

travel home with him on the Sunday;

 The meetings with Dr Perera were simply matters of chance and were not

organised and could hardly, in the circumstances (a brief discussion on the

outskirts of the jazz festival and at McDonalds), be described as being a sales visit

or meeting;

 Mr Girardi declined an invitation from Dr Perera to join him and his wife for

dinner on the evening of 2 May 2015 on the basis that he was to undertake some

work - and may have done so, however this did not involve the entry of

information about the contacts made or actions arising from the Mount Gambier

trip into Salesforce.com and little contact or other information was recorded into

his diary; and

	It is likely that the accommodation at the Quality Inn was not prearranged and was
booked or confirmed by phone on the afternoon of 2 May 2015. This would be
consistent with the fact that Mr Girardi was ringing around accommodation
venues on that afternoon and the indication provided by the Quality Inn in
response to a production order. The Quality Inn accommodation was preferred by
Mr Girardi to the original booking at Macs Hotel and it is unclear as to whether
the expense charge from Macs Hotel was for the unused accommodation
converted to a meal as claimed by the applicant.

[77]      In my view, it was convenient that the trip coincided with the jazz festival in the sense

that Mr Girardi’s son was participating and Mrs Girardi would be able to also attend by

travelling down to Mount Gambier. The fact that Mrs Girardi could also accompany her

husband in the circumstances of his continuing leg problems, does not in my view change the

motivation for the trip. Mr Girardi did not attend the jazz festival, other than for a brief period

on the Saturday afternoon. However, the convenience of the two events coinciding was

probably the reason why Mr Girardi did not more actively seek to confirm whether there was

actually a GP meeting proceeding in the lead up to the trip.

[78] The Mount Gambier trip did involve some work being undertaken and there was some

limited work purpose achieved. It was not a complete fiction as contended by Allergan but
[2016] FWC 107

represented a recklessly organised and largely unproductive exercise that facilitated some

work being done during a trip that otherwise suited Mr Girardi for personal reasons.

4.          Was the dismissal of Mr Girardi unfair within the meaning of the

Act?

[79] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal

(1) 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.”

[80]      Mr Girardi was dismissed, the employer is not a small business within the meaning of

the FW Act, and the concept of a genuine redundancy is not relevant here.

[81]      On that basis, the dismissal will be unfair if it is found to be harsh, unjust or

unreasonable.

[82]      The FW Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or

unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s

capacity or conduct (including its effect on the safety and welfare of

other employees); and

(b)	whether the person was notified of that reason; and
(c)	whether the person was given an opportunity to respond to any reason

related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a

support person present to assist at any discussions relating to dismissal;

and

(e) if the dismissal related to unsatisfactory performance by the person—

whether the person had been warned about that unsatisfactory

performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely

to impact on the procedures followed in effecting the dismissal; and

[2016] FWC 107

(g) the degree to which the absence of dedicated human resource

management specialists or expertise in the enterprise would be likely to

impact on the procedures followed in effecting the dismissal; and

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

[83] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature

of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of

considerations that must, where relevant, be treated as a matter of significance in the decision

making process and weighed up accordingly.

[84] It is convenient to use the various provisions of s.387, with reference to the relevant

circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to

Mr Girardi’s capacity or conduct (including its effect on the safety and welfare of other

employees)

[85]      Valid in this context is generally considered to be whether there was a sound,

defensible or well-founded reason for the dismissal. Further, in considering whether a reason

is valid, the requirement should be applied in the practical sphere of the relationship between

an employer and an employee where each has rights, privileges, duties and obligations

conferred and imposed on them. That is, the provisions must be applied in a practical,

14

common sense way to ensure that the employer and employee are each treated fairly.

[86]      In applying this approach, it is also important to recognise that conduct occurs in a

context and this must also be taken into account. This might include the circumstances in

15

which any misconduct occurs and the events leading to that point.

[87]      There is a difference of emphasis between Mr Diago and Ms Pinter as to the reasons

16

for the dismissal. This includes whether there was ever a GP “Division” meeting planned

for Mount Gambier, whether Mr Girardi had failed to follow the correct procedures in gaining

prior approval for the Mount Gambier trip and failed to record information as required into

Salesforce.com, and whether the entire trip was a sham and no work related activities

occurred at all.

[88]      It is however clear from the authorities that the reason for termination must be

defensible or justifiable on an objective analysis of the relevant facts before the Commission.

That is, it is not enough for an employer to rely upon its reasonable belief that the termination

17

was for a valid reason. Equally, facts justifying dismissal, which existed at the time of the

termination, should be considered, even if the employer was unaware of those facts and did

18

not rely on them at the time of dismissal.

[89]      Based upon the positions advanced at the hearing and my findings, there are three

elements to what might be considered to form a valid reason for dismissal. Namely, a breach

of policies, the alleged misleading of the employer about the facts leading to the final warning

and the justification for the Mount Gambier trip, and the loss of trust and confidence held by

Allergan in Mr Girardi. These are all related and it is the overall conduct and circumstances

that must be considered by the Commission.

[2016] FWC 107

19

[90] In Woolworths Limited (t/as Safeway) v Cameron Brown a Full Bench of the AIRC,

after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach

20

of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast, considered when

failure to abide by a policy of an employer would amount to a valid reason for termination of

employment and when it would not:

“In summary, a breach of an employer’s policy involving or amounting to a failure to

obey a lawful and reasonable direction of the employer sufficient to justify dismissal at

common law will amount to a valid reason for termination of employment within the

meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-

founded.” A failure to comply with a direction to do or refrain from doing something

in compliance with an employer’s policy will not provide a valid reason for

termination of employment where:

(a)	the policy, or a direction to comply with the policy, is illegal;
(b)	the policy does not relate to the subject matter of the employment or

matters affecting the work of the employee; or

21

(b) the policy, or a direction to comply with the policy, is unreasonable.”

22

[91] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd, Deegan C

determined that:

“Not every breach of a policy will provide a valid reason for termination of

employment. However in circumstances where the policy is both lawful and

reasonable and an employer has stressed the importance of the particular policy to the

business and made it clear to employees that any breach is likely to result in

termination of employment, then an employee who knowingly breaches that policy

will have difficulty making out an argument that there is no valid reason for the

23

termination.”

[92]      I have earlier considered the evidence about the respective policies and their

application to the circumstances of Mr Girardi. Whatever the intended reach of the policies

that may require prior approval for a trip to cold call GPs and others, and to attend a meeting

of GPs when Allergan is not sponsoring any events, it was the reasonable understanding of

Mr Girardi, based upon experience, that such was not required.

[93]      In terms of any breach of policy associated with the expense claims themselves, the

actual claims were consistent with the relevant policy in terms of the amounts claimed –

provided they were legitimate business expenses. However, the real issue is whether some or

all of the claims were legitimate business expenses at all.

[94]      It would be evident from my earlier findings, that some of the inferences sought to be

drawn by Allergan from the events were not reasonable in the circumstances. The view that

the trip was a complete fiction from a work point of view was not sustainable and the

employer failed to undertake the kind of investigation that was required to reach an informed

position in that regard.

[95] However, Mr Girardi was not completely open and honest with Allergan about the full

context of, and the purpose for, the Mount Gambier trip and there are many unanswered
[2016] FWC 107

questions arising from the applicant’s position surrounding the proposed meeting of the GPs

and the utility and worth of the trip. The convenience of the trip for personal reasons, the

exact circumstances of the “dinner” with Ms Williams, the “cancelled” GP meeting, the

decision to stay over on Saturday night, and the arrangements with Macs Hotel (whatever they

may have been) should all have been more openly provided to Allergan. The precise basis of

24

the expense related to Macs Hotel is also unclear. The attempts by Mr Gerardi to boost the

work elements undertaken during the trip beyond the reality are also of significant concern.

The manner in which the 11 June 2015 meeting was arranged provides some basis for the lack

of openness about these matters, however real questions remain about these issues and the

applicant’s integrity in that regard.

[96]      The explanation provided to Allergan, and more expressly to the Commission, about

the request to reclassify the days associated with the soccer injury, as opposed to the request

itself, also provides some additional objective basis for concern about Mr Gerardi’s conduct.

[97]      Serious misconduct is defined by Regulation 1.07 in the following terms:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious

misconduct has its ordinary meaning.

(2)	For subregulation (1), conduct that is serious misconduct includes both of the
following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with

the continuation of the contract of employment;

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

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

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

(3)	For subregulation (1), conduct that is serious misconduct includes each of the
following:
(a) the employee, in the course of the employee’s employment, engaging in:

(i)    theft; or

(ii) fraud; or

(iii) assault;

(b)	the employee being intoxicated at work;
(c)	the employee refusing to carry out a lawful and reasonable instruction

that is consistent with the employee’s contract of employment.

(4)	Subregulation (3) does not apply if the employee is able to show that, in the
circumstances, the conduct engaged in by the employee was not conduct that
made employment in the period of notice unreasonable.
(5)	For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s
faculties are, by reason of the employee being under the influence of
intoxicating liquor or a drug (except a drug administered by, or taken in [2016] FWC 107
accordance with the directions of, a person lawfully authorised to administer
the drug), so impaired that the employee is unfit to be entrusted with the
employee’s duties or with any duty that the employee may be called upon to
perform.”

[98]      Given my earlier findings, the demonstrated actions of Mr Girardi are properly

described as being very poor judgement on his behalf, combined with a lack of openness and

integrity with the employer. This is misconduct that impacted upon the necessary trust and

confidence in the employment relationship, but in the circumstances, falling short of the kind

of serious wilful behaviour contemplated by the FW Act for dismissal without notice.

[99]      Of course, the existence of a valid reason for dismissal does not require findings of

serious misconduct and I note that Allergan paid in lieu of notice, despite its view that this

was not required.

[100]    On balance, I am satisfied that a valid reason for Mr Girardi’s dismissal existed related

to Mr Girardi’s capacity or conduct.

Section 387(b) – whether Mr Girardi was notified of the reasons for dismissal

[101]    This consideration requires the Commission to assess whether the applicant concerned

was relevantly notified of the reasons leading to the dismissal before that decision was

25

taken.

[102] The evident purpose of this consideration is that notification of the valid reason to

terminate must be given to the employee before the decision to terminate the employee is

made and the notification needs to be in explicit and plain and clear terms.

[103] There was some tension in the reasons relied upon by Allergan. Despite my

reservations about the conduct of the meeting on 11 June 2015, which I shall return to, and

the conclusions reached by the employer, the key issues that ultimately led to the decision and

to the valid reasons were ventilated during the course of that meeting.

[104]    On that basis, I am satisfied that Mr Girardi was notified of the relevant reasons.

Section 387(c) – whether Mr Girardi was given an opportunity to respond to any reason

related to his capacity or conduct

[105] The relevant reasons are those arising from the valid reasons found by the

Commission. This consideration is therefore directly related to the above discussion.

[106] This process contemplated by the Act does not require any formality and is to be

applied in a common sense way to ensure the employee has been treated fairly. The question

becomes whether Mr Girardi was aware of the precise nature of the employer’s concern about

26

his conduct and had a genuine opportunity to respond to these concerns.

[107]    The opportunity that was provided was principally the meeting of 11 June 2015. The

calling of the meeting without notice and the decision to proceed with the dismissal without

waiting for the response that was clearly necessary given the circumstances, including the
[2016] FWC 107

timing of the meeting and lack of access to Mr Girardi’s own records and information, means

that he was not given the opportunity contemplated by this consideration.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Girardi a

support person

[108]    Mr Girardi sought to have a support person in the discussions on 11 June 2015. He

also sought that the meeting be delayed to give him time to organise that support.

[109]    The meeting was called at short notice and Mr Girardi was visiting in Sydney. At the

time he was notified, he was visiting clients with a Sydney-based work colleague. Mr Diago

insisted that the meeting proceed as soon as possible.

[110]    The suggestion by Mr Diago that Mr Girardi could bring anyone, but he had to come

immediately, was not in practice a genuine opportunity given that the only person who might

have been available was Mr Girardi's work colleague. This would have required her to leave

her own work and appointments, and she was not necessarily an appropriate support person

from the applicant’s perspective.

[111] In practice, Mr Girardi had no realistic opportunity to have legal or other assistance

present or to have any other person present who would be a support person. I am satisfied that

in practice, there was an unreasonable refusal by Allergan to allow Mr Girardi to have a

support person present.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Girardi

– whether he has been warned about that unsatisfactory performance before the

dismissal.

[112] This consideration relates to performance of the job. Performance in this context

includes the employee’s capacity to do the work, and the diligence and care taken with that

27

work.

[113]    The dismissal is primarily related to conduct.

[114] To the extent that the alleged failure to follow policy and procedure is relevant,

Mr Girardi was not warned about those matters in any real sense as contemplated by this

consideration.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be

likely to impact on the procedures followed in effecting the dismissal.

Section 387(g) – the degree to which the absence of dedicated human resource

management specialists or expertise in the enterprise would be likely to impact on the

procedures followed in effecting the dismissal.

[115]    Allergan is a very large employer and has dedicated human resources staff. There are

elements of the process followed by the employer that leave much to be desired from a

procedural fairness objective.

[2016] FWC 107

[116] There is no basis associated with size or nature of Allergan’s business that provides

any context or justification for those elements.

Section 387(h) - other matters considered to be relevant

[117] Amongst other considerations, the Commission should consider the impact of the

dismissal upon the applicant given all of the circumstances. This includes consideration of

whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct

28

found by the Commission.

29

[118] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo, the Full Bench observed:

“[24] ... The existence of a valid reason is a very important consideration in any

unfair dismissal case. The absence of a valid reason will almost invariably render the

termination unfair. The finding of a valid reason is a very important consideration in

establishing the fairness of a termination. Having found a valid reason for termination

amounting to serious misconduct and compliance with the statutory requirements for

procedural fairness it would only be if significant mitigating factors are present that a

conclusion of harshness is open.”

[119]    The factors to be considered in this context include the nature of the conduct and the

circumstances of the workplace, and the circumstances of Mr Girardi and the impact of the

dismissal upon him.

[120] I have considered the nature of the conduct found by the Commission and the

circumstances of Mr Girardi and the workplace, including:

 The conduct fell short of serious misconduct, but nevertheless provided a valid

reason for dismissal;

	the nature of his role and the fact that he largely worked autonomously – and the
level of trust that is required;
	Mr Girardi was considered to be an excellent salesperson who was recently given
a sales leadership role and had a very good sales track record,

 The loss of a position in which Mr Girardi had been employed for over seven

years;

30

 The loss of a (guaranteed right) to his LSL accruals; and

 The nature of the industry in which Mr Girardi was employed and the likely

consequences of a dismissal upon him.

[121]    The balance of these factors is consistent with a finding that the dismissal was, in all

of the circumstances, harsh.

[122] I have also found serious shortcomings in the procedure adopted by Allergan in

reaching and finalising its conclusions and the dismissal decision.
[2016] FWC 107

[123] As outlined earlier, the FW Act requires a global assessment having regard to the

various relevant statutory considerations. In that context, procedural unfairness is an

important consideration, given the provisions of the Act but does not necessarily mean that

the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair

Dismissal of the FW Act in s.381 which relevantly provides as follows:

“381 Object of the Part

…

(2)	The procedures and remedies referred to in paragraphs (1)(b) and (c), and
the manner of deciding on and working out such remedies, are intended
to ensure that a “fair go all round” is accorded to both the employer and
employee concerned.

Note:	The expression “fair go all round” was used by Sheldon J in in re Loty
and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[124]    As revealed in various decisions of the Commission (and the Court), each case must

be considered in its own circumstances and it is appropriate, amongst other factors, to have

31

regard to whether the procedural deficiencies made any difference to the outcome.

[125]    In this case, the procedural deficiencies led, or contributed to, the making of certain

findings that were not reasonably open to the employer and in my view these deficiencies are

relevant to the characterisation of this dismissal.

Conclusion on the nature of the dismissal

[126] On balance, I consider the dismissal of Mr Girardi to be harsh and unreasonable. It

was accordingly, unfair within the meaning of the FW Act.

5.          Remedy

[127]    Mr Girardi seeks reinstatement as the primary remedy in this matter.

[128] Division 4 of Part 3-2 of the FW Act relevantly provides as follows:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1)	Subject to subsection (3), the FWC may order a person’s reinstatement,
or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair

dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

[2016] FWC 107

(2)	the FWC may make the order only if the person has made an application
under section 394.
(3)	the FWC must not order the payment of compensation to the person
unless:

(a) the FWC is satisfied that reinstatement of the person is

inappropriate; and

(b) the FWC considers an order for payment of compensation is

appropriate in all the circumstances of the case.

Note:	Division 5 deals with procedural matters such as applications for
remedies.

...

391 Remedy—reinstatement etc.

Reinstatement

(1)	An order for a person’s reinstatement must be an order that the person’s
employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was

employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions

no less favourable than those on which the person was employed

immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately

before the dismissal is no longer a position with the person’s

employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an

associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was

employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no

less favourable than those on which the person was employed

immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it

appropriate to do so, the FWC may also make any order that the FWC

considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

[2016] FWC 107

(b) the period of the person’s continuous service with the employer,

or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it

appropriate to do so, the FWC may also make any order that the FWC

considers appropriate to cause the employer to pay to the person an

amount for the remuneration lost, or likely to have been lost, by the

person because of the dismissal.

(4)	In determining an amount for the purposes of an order under subsection
(3), FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned

by the person during the period between the making of the order

for reinstatement and the actual reinstatement.

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.

[2016] FWC 107

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

32

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.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may

permit the employer concerned to pay the amount required in instalments

specified in the order.”

[129]    The prerequisites of ss.390(1) and (2) have been met in this case.

[130] Section 390 makes it clear that compensation is only to be awarded as a remedy where

the Commission is satisfied that reinstatement is inappropriate and that compensation is
[2016] FWC 107

appropriate in all the circumstances. As a result, it is proper to firstly consider whether

reinstatement is appropriate.

33

[131] In Australia Meat Holdings Pty Ltd v McLauchlan a Full Bench of the AIRC, having

considered the language of the Act, which is comparable to the present provision, said:

“In our view a consideration of the appropriateness of reinstatement involves the

assessment of a broader range of factors than practicability.

...

We accept that the question of whether there has been a loss of trust and confidence is

a relevant consideration in determining whether reinstatement is appropriate. It is one

factor to be taken into account, but it is not necessarily conclusive.

In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full

Court of the Industrial Relations Court said:

"... We accept that the question whether there has been a loss of trust and

confidence is a relevant consideration in determining whether reinstatement is

impracticable, provided that such loss of trust and confidence is soundly and

rationally based.

At the same time it must be recognised that, where an employer, or a senior

officer of an employer, accuses an employee of wrongdoing justifying the

summary termination of the employee's employment, the accuser will often be

reluctant to shift from the view that such wrongdoing has occurred, irrespective

of the Court's finding on that question in the resolution of an application under

Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed

the relationship of trust and confidence between employer and employee, and

so made reinstatement impracticable, an employee who was terminated after an

accusation of wrongdoing but later succeeded in an application under the

Division would be denied access to the primary remedy provided by the

legislation. Compensation, which is subject to a statutory limit, would be the

only available remedy. Consequently, it is important that the Court carefully

scrutinise any claim by an employer that reinstatement is impracticable because

of loss of confidence in the employee.

Each case must be decided on its own merits."

While Perkins was decided under the former statutory scheme the above observations

remain relevant to the question of whether reinstatement is appropriate in a particular

case.”

[132] More recently, a Full Bench of the Commission further considered the statutory

scheme surrounding the remedy provisions including the role played by an alleged loss of

34

trust and confidence felt by the employer. In Colson v Barwon Heath,	the Full Bench found
as follows:

[2016] FWC 107

“[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing

remedies if a dismissal is found to be unfair, which is one element of the object of Part

3–2. Section 381(2) of the Act requires as part of the object that a “fair go all round” is

accorded to both the employer and employee concerned in deciding on and working

out remedies under Part 3–2. Section 390(3) of the Act provides that the payment of

compensation should not be ordered unless the Commission is satisfied that

reinstatement of the person is inappropriate (and an order for compensation is

appropriate).

...

[31] The approach of the Deputy President is consistent with that of the Full Bench in

Regional Express Holdings Limited trading as REX Airlines v Richards which stated:

“[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a

remedy is appropriate, compensation must not be ordered unless the tribunal is

satisfied that reinstatement is inappropriate. Seen in the proper context the

Commissioner’s statement that reinstatement is the presumptive remedy is not

indicative of any error in the decision. The section provides that compensation

must not be ordered unless reinstatement has been found to be inappropriate.

There is no basis for concluding that the Commissioner interpreted the section

differently. Rex’s first submission on remedy must fail.

[24] In relation to remedy, therefore, the first question is whether reinstatement

is appropriate.”

[133] The Full Bench further observed that consideration of reinstatement involved a

35

balancing of the relevant considerations based upon evidence, and that the approach outlined

in Perkins remains sound and requires consideration of the “rationality” of the basis of the

36

employer’s concerns.

[134] In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese

37

Community Ethnic School South Australian Chapter	the Full Bench conveniently
summarised the approach required as follows:

“[27] The following propositions concerning the impact of a loss of trust and

confidence on the question of whether reinstatement is appropriate may be distilled

from the decided cases:

 Whether there has been a loss of trust and confidence is a relevant

consideration in determining whether reinstatement is appropriate but while it

will often be an important consideration it is not the sole criterion or even a

necessary one in determining whether or not to order reinstatement.

 Each case must be decided on its own facts, including the nature of the

employment concerned. There may be a limited number of circumstances in

which any ripple on the surface of the employment relationship will destroy its

viability but in most cases the employment relationship is capable of

withstanding some friction and doubts.

[2016] FWC 107

 An allegation that there has been a loss of trust and confidence must be

soundly and rationally based and it is important to carefully scrutinise a claim

that reinstatement is inappropriate because of a loss of confidence in the

employee. The onus of establishing a loss of trust and confidence rests on the

party making the assertion.

 The reluctance of an employer to shift from a view, despite a tribunal’s

assessment that the employee was not guilty of serious wrongdoing or

misconduct, does not provide a sound basis to conclude that the relationship of

trust and confidence is irreparably damaged or destroyed.

	The fact that it may be difficult or embarrassing for an employer to be required
to re-employ an employee whom the employer believed to have been guilty of
serious wrongdoing or misconduct are not necessarily indicative of a loss of
trust and confidence so as to make restoring the employment relationship
inappropriate.

[28]      Ultimately, the question is whether there can be a sufficient level of trust and

confidence restored to make the relationship viable and productive. In making this

assessment, it is appropriate to consider the rationality of any attitude taken by a

party.”

[135]    I would emphasise that as confirmed above, the discretion to award reinstatement as a

remedy is not confined to the question as to whether there is a rational basis for any loss of

trust and confidence. The FW Act requires consideration as to whether reinstatement is

inappropriate and this is likely to involve a broad range of factors.

[136]    Mr Girardi seeks reinstatement and contends, in effect, that this is the primary remedy

under the Act. He further contends that there was no basis for any finding of loss and trust in

the employment relationship and, in effect, the remedial benefit of reinstatement should be

granted.

[137] Allergan contends that there has been a breakdown in trust and confidence, that

Mr Girardi did not make out his case seeking reinstatement, and that such would be

inappropriate particularly given the applicant’s lack of contrition or any admission of fault.

[138]    I have found that a valid reason for dismissal existed but, on balance, termination was

harsh given the all of the circumstances including the nature of the conduct and the impact

upon the applicant. I have also found significant procedural deficiencies. The potential

remedial benefit of an order for reinstatement is also an important matter that I have carefully

considered.

[139] However, each case must be considered on its own facts and there is no automatic

38

relationship between the findings on merit and remedy. In this case, I have found that some

of the conclusions reached by Allergan were not objectively justified and this is a factor to be

weighed in favour of the applicant’s position. However, I have also found the existence of a

valid reason for dismissal and the fact that the applicant’s integrity was seriously questionable

in light of the events as they unfolded. That is, there was some rational and objective basis for

the loss of trust and confidence given all of the evidence now before the Commission.

[2016] FWC 107

[140]    At various points during the course of the hearing in this matter, Mr Girardi was very

animated and demonstrable about his scepticism and lack of respect for both Mr Daigo and

Ms Pinter.

[141]    Even if I were to make some considerable allowance for the emotion of the hearing

and the artificial nature of exchanges in that context, this attitude is nonetheless not a good

foundation for an on-going employment relationship. In any event, given the conduct and

circumstances as I have found them to be, including the largely autonomous work undertaken

by Mr Girardi and the nature of the reporting arrangements with the company, I do not

consider that reinstatement is appropriate in this case.

[142] Accordingly, despite the potential remedial benefit of reinstatement to Mr Girardi, I

am satisfied that an order of that nature is inappropriate in this case.

[143] As set out above, under the FW Act, it is then necessary to consider whether

compensation in lieu of reinstatement is appropriate, and if so, to what extent.

39

[144] A relatively recent Full Bench in McCulloch v Calvary Health Care Adelaide

(McCulloch) confirmed, in general terms, that the approach to the assessment of

40

compensation as undertaken in cases such as Sprigg remains appropriate in that regard.

[145]    Section 392(2) of the Act requires me to take into account all of the circumstances of

the case including the factors that are listed in paras (a) to (g). Without detracting from the

41

overall assessment required by the Act, it is convenient to discuss the identified

considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of Allergan

[146]    Nothing has been put to the Commission on this issue.

The length of Mr Girardi’s service with Allergan

[147] Mr Girardi had been employed with Allergan for over seven years and this

consideration is supportive of an award of compensation being made. The period of service is

also to be taken into account in determining the level compensation, including when making

an assessment of the remuneration that would likely have been received if not for the

termination.

The remuneration Mr Girardi would have received, or would have been likely to

receive, if he had not been dismissed

[148] This involves in part a consideration of the likely duration of Mr Girardi’s

employment in the absence of what I have found to be an unfair dismissal.

[149]    In all of the evident circumstances it is reasonable to assess the compensation in this

matter on the basis that the applicant would, on the balance of probabilities, have remained in

employment for a further period of five months, including a period of notice. This arises from

the length and nature of Mr Girardi’s employment, the nature of the conduct, the nature and

timing of the earlier final warning, and the circumstances of the applicant and the workplace

more generally.
[2016] FWC 107

[150] Mr Girardi’s gross salary at the time of his dismissal was $100,968.00 per annum.

In addition, he received bonuses per quarter which averaged about $6,000.00 net per quarter

42

in 2014.

[151] On that basis, the projected remuneration loss over the five month period is

$52,070.00.

The efforts of Mr Girardi to mitigate the loss suffered by him because of the dismissal

[152]    Mr Girardi has sought and obtained some alternative employment; albeit not the same

nature, security or remuneration as the position that he held with Allergan. He has also

applied for other positions in his field, without success. I accept that he has made reasonable

efforts to mitigate his losses.

[153] No discount to the amount of compensation is warranted based upon this

consideration.

The amount of any remuneration earned by Mr Girardi from employment or other

work during the period between the dismissal and the making of the order for

compensation

The amount of any income reasonably likely to be so earned by Mr Girardi during the

period between the making of the order for compensation and the actual compensation

[154]    Mr Girardi was paid $10,144.00 (gross) in lieu of notice and this should be taken into

account.
[155]	Mr Girardi has obtained some casual work at a local produce market commencing on

22 July 2015. This work is intermittent and involves between 15 and 18 hours per week and

an income of $410.00 gross per week when required.

[156]    There is no evidence as to whether this income has continued since the hearing in this

43

matter however it is a reasonable inference that it continued at least for the period of the

projected remuneration loss (five months) commencing five weeks after the dismissal.

Accordingly, 17 weeks of that income should be taken into account.

[157] In giving effect to the considerations in s.393(2)(e) and (f) of the FW Act, the

remuneration set out above should be taken into account and deducted from the lost projected

remuneration amount.

Any other matter that the FWC considers relevant and the remaining statutory

parameters

[158] I have taken into account the anticipated loss of remuneration and the actual

remuneration from the new employment over a period that has already transpired. In that

light, and given the circumstances of this case, it is not appropriate to make a further

44

allowance for contingencies.

[2016] FWC 107

[159]    There is some demonstrated misconduct that should be taken into account as provided

by s.392(3) of the Act. That is, there is misconduct that contributed to the decision and in the

circumstances it is appropriate to make a deduction on the amount of compensation otherwise

due. In the circumstances, a further deduction of 25 per cent of the projected remuneration

loss figure is appropriate.

[160]    In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or

humiliation that may have been caused by the dismissal.

[161] The maximum compensation limit in this case would be the lesser of 26 weeks

45

remuneration or $66,500.	The amount of compensation that arises from my findings is less
than that limit.

[162]    Taxation is to be paid on the amount determined.

[163] Mr Girardi requested that the Commission make recommendations about the non-

payment of his LSL and in relation to a quarterly bonus for the first quarter of 2014/15

financial year and some accumulated leave. On the basis of my findings, there is an issue

about whether Mr Girardi is entitled as a matter of right to his accumulated LSL under the

46

terms of the relevant State legislation (which has been preserved by s.27 and s.113 of the

FW Act). This, and any other alleged entitlement may be sought by Mr Girardi through a

court of competent jurisdiction, and I do not propose to enter that field as sought by the

applicant.

[164] The compensation confirmed below is also appropriate having regard to all of the

47

circumstances of this matter and the considerations specified by the Act.

Conclusions on remedy

[165]    After taking into account each of the relevant considerations, I find that compensation

is appropriate in this matter. Further, I find that the compensation should be assessed having

regard to the factors outlined above.

[166]    The compensation in this matter is as follows:

	Projected lost remuneration	$52,070.00
	Deduction for misconduct (25%)	($13,018.00)
	Deduction for pay in lieu of notice and earnings	($10,144.00)

($6,970.00)

 Total $21,938.00

[167] Accordingly, I find that compensation in lieu of reinstatement should comprise a

payment to Mr Girardi by Allergan of $21,938.00.
[2016] FWC 107

6.          Conclusions and orders

[168]    I have found that the Mr Girardi’s dismissal was harsh and unreasonable and therefore

unfair within the meaning of the Act.

[169]    I have found that reinstatement is inappropriate but that compensation of the amount

determined above is appropriate in all of the circumstances.

[170]    The payment of required compensation is to be made to Mr Girardi by Allergan within

14 days of this decision.

48

[171] An Order to the above effect has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

G Harbord of Johnston Withers, with permission, for Mr Girardi.

G Boyce of counsel, with permission, for Allergan Australia Pty Ltd.

Hearing details:

2015

Adelaide

November 10, 11, 12, 13.

Final written submissions:

Respondent: 4, 23 December 2015.

Applicant: 16 December 2015.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR575884>

[2016] FWC 107

34

[2014] FWCFB 1949.

35

Supra at [49] to [51].

36

Supra at [60].

37

[2014] FWCFB 7198. See also JBS Australia Pty Ltd v Challinger [2015] FWCFB 520.

38

See JBS Australia Pty Ltd v Challinger [2015] FWCFB 520 at [22].

39

[2015] FWCFB 873.

40

Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District

Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.

41

Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.

42

Witness Statement of Mr Girardi.

43

The continuing income was mentioned in the written submissions of the applicant filed in December 2015.

44

See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement

Villages Inc T/A Ottrey Lodge [2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109,

per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779,

per Williams SDP, Acton SDP and Gay C, 31 October 2001.

45

Section 392(5) of the Act.

46

S.5(4) may not apply.

47

Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].

48

PR576169.

1

Exhibit A5 – document 41.

2

ANZ Expense Reimbursement Policy – LP4 attached to the Statement of Ms Pinter.

3

LP3 attached to the Statement of Ms Pinter.

4

LP4A attached to the Statement of Ms Pinter.

5

Attached to the Statement of Mr Diago.

6

Mr Girardi’s witness statement at par 163.

7

Mr Girardi’s witness statement at par 132.

8

Ibid.

9

Exhibit A5 – document 44.

10

Exhibit A5 – document 21.

11

Attached to the Statement of Mr Diago – exhibit R8 at document 12.

12

Exhibit A5 – document 28.

13

Mr Girardi’s witness statement at par 132.

14

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR

458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB

8868, at par [36].

15

See Qantas Airways v Cornwall (1998) 83 IR 102.

16

There may be a difference between a GP “Division” being a form of business arrangement that has operated through

Commonwealth Government support and a GP clinic, meaning a group of GPs operation a common practice.

17

See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213

per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo

Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb

C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.

18

Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v

McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP,

Hamilton DP, Eames C, at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v

Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

19

PR963023 (26 September 2005) (footnotes excluded).

20

PR928970 (19 March 2003), at [14].

21

Woolworths v Brown at [34].

22

[2009] AIRC 893 (16 October 2009).

23

Lion Nathan at [54].

24

I refused a production order sought by Allergan against Macs Hotel about the account and the circumstances leading to that

point. I did so, noting the opposition posed by the applicant, due to the late notice of the application, the extent of efforts that

a third party would be required to undertaken to deal with what appeared to be a peripheral issue and the instructions

confirmed by Mr Harbord that the applicant would provide a simple explanation of the events.

25

See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

26

RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

27

See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

28

Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

29

[2011] FWAFB 1166.

30

See s.5(4) of the Long Service Leave Act 1984 (SA). The accrued entitlement to LSL for service between 7 and 10 years

may not payable when the worker's contract of service is terminated on the ground of serious and wilful misconduct on the

part of the worker.

31

See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP,

Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.

32

Note: the subsection 392(5) amount was indexed to $133,000 from 1 July 2014 - as was relevant given the timing of this

application.

33

(1998) 84 IR 1, per Ross VP, Polites SDP and Hoffman C.