Jaroslav Sikora v Sleepeezee Bedding Australia Pty Ltd

[2015] FWC 6115

[2015] FWC 6115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaroslav Sikora
v
Sleepeezee Bedding Australia Pty Ltd
(U2015/4746)

DEPUTY PRESIDENT GOSTENCNIK ADELAIDE, 8 SEPTEMBER 2015

Application for relief from unfair dismissal; redundancy; failure to consult; dismissal harsh and therefore unfair; reinstatement inappropriate; compensation appropriate; compensation ordered.

Introduction

[1] Jaroslav Sikora (the Applicant) was dismissed from his employment of nearly 22 years with Sleepeezee Bedding (Aust) Pty Ltd (the Respondent) on redundancy grounds. The dismissal took effect on 24 March 2015. On the termination of the employment the Applicant received a payment in lieu of notice, together with a payment representing his redundancy entitlement under the National Employment Standards (NES), and payments representing his accrued entitlements and outstanding wages. The Respondent told the Applicant in a termination letter incorrectly dated 24 April 2015 1 that, as a result of an economic downturn and the Respondent’s operational requirements, the Applicant’s position was no longer required, and as a consequence his employment was terminated.2

[2] On 10 April 2015, the Applicant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Turning first to deal with the initial matters which must be decided before the merits of an application are considered. 3 It is not in dispute, and I find that:

• The application was made within the time prescribed in s.394(2);



• The Applicant was, at the date of his dismissal, protected from unfair dismissal within the meaning of s.382 in that the Applicant was an employee of the Respondent who had completed a period of employment with the Respondent which was greater than the minimum period of employment as set out in s.383(a); and



• the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) covered the Applicant in his employment with the Respondent;



• The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and



• The dismissal was effected for reasons of redundancy, but as will become clear below, the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.

[3] I have decided that the Applicant’s dismissal was harsh and therefore unfair. These are my reasons for that conclusion.

Factual background, context and findings

[4] The Respondent conducts a business that involves the importation, distribution and manufacture of mattresses. It is a wholesaler of these products. 4The Respondent is a family-owned company. Vasilios (Bill) Mantzis gave evidence in the proceeding before me. He and his brother Konstantinos Mantzis are the only directors of the company.5 Melissa Darling also gave evidence in the proceeding before me. She is employed by the Respondent in the position of Business Manager.6

[5] The Applicant was a long serving production employee of the Respondent. He commenced his employment with the Respondent on or about 7 September 1993 and continued in that employment until his dismissal by reason of redundancy on 24 March 2015. The Applicant worked at Campbellfield in Victoria. He was paid an annual salary of $70,464.16 which was higher than other production employees and appears be the result of a salaried maintenance arrangement earlier made. 7 The Respondent employs about 65 employees, all of whom are full-time employees, at Campbellfield.8

[6] The Applicant received an annual salary of $70,464.16. 9 In addition, superannuation contributions at a rate of 9.5% were made on his behalf.10

[7] The Applicant in his employment with the Respondent was covered by the Award. Clauses 4.9 and 4.10 of the Award prescribe that it applies to employees employed in industries engaged in the manufacture of, among other products, ‘mattresses and bedding’: Clause 9 of the Award sets out consultation obligations regarding major workplace change, relevantly, the introduction of change is likely to result in a diminution or termination of employment.

[8] The Respondent accepted that it had not complied with the consultation obligations in the Award 11 and so did not seek to assert that the Applicant’s dismissal was a case of genuine redundancy within the meaning of s.389 of the Act.

[9] The Respondent maintained however that in all other respects the dismissal of the Applicant was on redundancy grounds and that it no longer required the job that was performed by the Applicant to be performed by anyone. The Respondent’s evidence was that a number of factors combined to contribute to the redundancy of the Applicant’s position and consequently the termination of his employment. That evidence is summarised in the Respondent’s final submissions, 12 which with some modifications and notations in the footnotes is reproduced as follows below:

‘First, manufacturing conditions are tight. Mr Mantzis and Ms Darling, as the relevant managers, gave evidence that the business needs to reduce labour costs from current levels of 15 – 25% of revenue to 10 to 15% of revenue. 13 Ms Darling kept an ongoing spreadsheet which recorded that the Respondent was meeting its production targets whilst also paying substantial leave.14 Although significant overtime was paid in January 2015 (a busy time by reason of summer sales) there was a trend of diminishing overtime in the early months of 2015. To Ms Darling, that signalled an excess of labour. As employees in the Mattress Build line have left the business, they have generally not been replaced.15 Available overtime has been reduced.16 Employees have been directed to reduce annual leave balances.17 The Applicant concurred that business conditions were difficult and his evidence was that “it’s surprising that [the business] is still going’.18
Secondly, over time, the Respondent’s business had changed from predominantly a manufacturing business to predominantly an import business. 19 Previously, there was sufficient work for more than 5 employees on the flanging line, now there is insufficient work for 1 full-time employee.20 Mr Mantzis’ evidence was that before March 2015 he had spoken to Mr Sikora about the fact that the available work on the Mattress Build line was decreasing.21 Further, Mr Mantzis’ expectation was that a single full-time employee could manufacture in excess of approximately 40 mattresses per day.22 The Applicant’s evidence was that depending on the type of mattress that was being produced, the number of mattresses manufactured by employees varied from between 20 to 60 per day. 23 On the Production Sheets, for a month before Mr Sikora’s dismissal on 24 March 2015 fewer than 40 mattresses a day were assembled on the flanging line.24 Fewer than 40 mattresses have been assembled every day after Mr Sikora’s dismissal through until 12 June 2015.25 Mr Mantzis expects that the flanging line will close altogether in 6 -12 months.26 The Applicant’s evidence was that there was ongoing and continuous work for him and others to work full time on the flanging line.27

Thirdly,and relatedly, from early 2015 Mr Mantzis engaged in ongoing discussions with Ms Darling and with Mr Haci Obzek, Factory Manager, about ways in which the business could reduce its labour costs. 28
Fourthly, the Applicant’s position was selected for redundancy because he was the only employee who worked full-time on the flanging line. 29 To that extent, he held a unique position in the Respondent’s business. The Applicant maintained that his work was not limited to the flanging line and that his duties also involved training other staff, unloading foam from trucks, using a forklift and delivering mattresses to customers, as well as assisting in advising less experienced employees.30 It was the work on the flanging line which was decreasing. The Respondent makes no allegation that that was through the fault of Mr Sikora but it was he who worked in the area where there was labour in excess of operational needs. Other employees (Van, Jhonny, Murat, Muhammed and Adel) worked on the flanging line from time to time but also worked in other parts of production.31 This is evident from the Production Sheets.32
Fifthly, through no fault of the Applicant, because he had historically been a supervisor or manager with the Respondent, after he ceased his supervisory duties he nonetheless retained a managerial wage. That is, Mr Sikora’s rate of salary was no longer commensurate with the work he was performing. Relative to other employees who also performed work on the flanging line, he was paid at a much higher rate. 33

[10] In the Applicant’s reply submissions, the Applicant did not seriously quarrel with the above summary of evidence. The differences 34 raised by the Applicant about this summary have been noted and incorporated in the summary itself and in the footnotes.

[11] A job is a collection of functions, duties and responsibilities assigned, as part of the scheme of the employer’s organisation, to a particular employee. 35 Functions, duties and responsibilities may cease to be part of an employee’s job through a reorganisation or redistribution of duties, so the question then is whether the employee has any duties left to perform or discharge.36 When there is no longer any function or duty to be performed by an employee, his or her position or job becomes redundant37 or, to put it another way, the employer no longer requires that employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

[12] An employee’s dismissal may be on redundancy grounds even though there are aspects of the employee’s duties still being performed by other employees. 38 In the case of an organisational restructure or downsizing, the question will be whether the previous job has survived the restructure or downsizing, not whether the duties have survived in some form.39

[13] It is a question whether the employee’s ‘job’ is no longer required to be performed by anyone, rather than the employee’s ‘duties’. 40

[14] It seems clear from the evidence summarised earlier above, that a combination of adverse trading conditions; changes in the nature of the Respondent’s business from predominantly the manufacture of mattresses to one of importation of mattresses; the operational decision that the Respondent no longer required a full-time position on the flanging line and to redistribute those duties amongst other employees; and the desire by the Respondent to reduce its labour costs contributed to the Respondent’s decision that it no longer required the Applicant’s job (as opposed to some of his duties) to be performed by anyone. The consequence of that decision was that the position occupied by the Applicant was redundant. I am therefore satisfied on the evidence that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

[15] That the Applicant may not have had his duties solely confined to flanging and that he performed other work such as opening and closing the factory unloading trucks, foams and pellets, attending to storing material, attending to cleaning of premises, bagging and packing of mattresses, repairing damaged imported mattresses and performed additional duties readily and is directed by management, 41 is beside the point. It is the Applicant’s job that is at issue in determining whether the Respondent no longer requires that job to be performed by anyone. Self-evidently, absent the complete closure of the business, some or all of the duties performed by the Applicant will continue to be performed by someone. The Respondent made a decision for the combination of reasons noted earlier, that this is how the Respondent’s operational requirements would change. Changes in operational requirements, such as those disclosed by the evidence, which result in a decision that a particular job or jobs is or are no longer required, falls classically within the accepted definition of redundancy.

[16] It is also clear on the evidence that redeployment opportunities within the Respondent’s business or elsewhere were not discussed with the Applicant at any time before his dismissal. 42 Mr Mantzis gave evidence that the Respondent did consider whether it was possible to redeploy the Applicant to another position but that he formed the view that there were no realistic redeployment options for the Applicant.43 That may be so, but as the following exchange makes clear, redeployment options as might have been considered by the Respondent did not extend to a reorganisation of duties in the flanging area, a re-negotiation of the Applicant’s salary or a reduction in the hours of work of the Applicant.

THE DEPUTY PRESIDENT: Mr Mantzis, is it fair that at least a factor in deciding to terminate Mr Sikora’s employment was his high wage?  -It was a factor, but definitely not an overriding factor. It was insufficient work was the reason why.

I understand that, but if it was just insufficient work and assuming his salary were at a lower end then to meet your target more than one person would have needed to be retrenched, would they?  -Not necessarily. It was a one person operation, and whether that person’s on $1300 or $900 or $700 this decision would have been the same decision.

So your evidence is that you were looking to reduce effectively the numbers on the flanging area?  -Correct, sir.

One way of achieving that might have been not to give Mohammad any work on the flanging area; do you agree with that?  -Well, if you look at Mohammad’s skills that he was actually tape edging most of the time.

On your fitting list since the dismissal, which was in March, the amount produced in flanging has variously been between nine and 34 on a daily basis, so there has been some - my point is there has been some production ongoing, yes?  -Correct, it’s a diminishing line but it’s still ongoing.

Yes. No, I accept that, but one option that might have been available to you would be not to have Mohammad or the other employees do any work in that area and allow Mr Sikora to finish working in that area?  -Okay. So if Mohammad wasn’t there how would I be able to tape edge the mattress because that’s a different skill-set. See Mohammad’s got more than one skill.

He can do that. Do you say tape edging occurs in flanging, does it?  -Yes, it’s in that same line, it’s a finishing process of attaching the panel to the border. If you have a look on that 30th for instance when Jerry was gone Mohammad flanged a little bit every day, but under tape edging he did another process, and that’s how we’ve - we’ve reorganised the way we run production.

I am not quite sure I understand this, but tape edging is one part of the production and Mohammad couldn’t have been occupied to do that full-time, is that - - -?  -No, there wasn’t enough work to occupy him to do that full-time.

Yes, all right. Mr Malbasa, anything arising out of that?

MR MALBASA: If you’ve said that there’s no need for flanging to be done, then - well, you’ve said that the - - -?  -I said it’s diminishing.

- - - flanging line would be closed down?  -Within six to 12 months it will be. Right now it’s diminishing. We are still flanging. It’ s just getting less and less. That’s what I’ve said.

Okay, but the position is still there and it’s ongoing?  -It’s not a full-time position anymore.

But it’s - the duties are still there and the duties need to be done by somebody?  -But not on a full-time basis.

Okay, but - - -

THE DEPUTY PRESIDENT: That raises the question, does it not, could Mr Sikora have continued on a part-time basis?

MR MALBASA: That’s right?  -We don’t have any employees in our entire organisation that work on factory floor that are actually part-time employees. We only have full-time workers.

THE DEPUTY PRESIDENT: I understand that, but would it have been possible for him to work part-time?  -We don’t structure our business that way, sir. We’ve thought about it, but there wasn’t - like we looked at a lot of avenues where we could put Mr Sikora and things like that, but end of the day we just came to the conclusion that either way we look at it, it was going to be difficult.

Is it possible for Mr Sikora on the flanging line on a part-time basis, given the level of production?  -It is a part-time job if you talk about the amount of hours they’ve done, because it’s diminishing, if that’s what you’re asking. Part-time of the day is used in that role. 44

Whilst I accept the submission of the Respondent that there is no identified position or job into which the Applicant could reasonably have been redeployed and that there were no vacancies within the Respondent’s business, 45 I do not accept that the evidence establishes that other work did not exist in relation to which the Applicant could usefully have been engaged. In this regard the Applicant’s evidence was as follows:

Do you understand the company’s position, in this case, is that you should have been consulted in accordance with the award and you were not? Do you understand that’s the company’s position?  -There was no mention, no discussion about anything. I was prepared to do something else, to working the less hours, anything but – yes, less money, anything but there was no mention of anything.

So I understand, if you had have been consulted, you would have said you would have worked for less money. Is that so?

INTERPRETER: If?

MR CHAMPION: If you had have been asked, you would have said you would have worked for less money?  -I don’t understand the question.

You would have been prepared to keep working for less money, sir, is that the position?  -Well, there are laws and rules. If the rules are such and if that’s the way, I never – I never disobeyed and never argued anything. If there was the way to go, that would have been the way to go.

THE DEPUTY PRESIDENT: Mr Sikora, I had understand your earlier evidence that you weren’t asked whether you’d take another job for less money. Is that’s right?  -No.

No, he wouldn’t have, or?  -No, it wasn’t offered.

No. Ys, so you agree with me that there was no discussion about another position for less money?  -No. No, discussion.

Okay. Mr Champion is now asking that, is it your evidence that, had there been such a discussion, you would have accepted such a position?  -Yes. 46

[17] The Respondent’s evidence highlights the importance of consultation, because it is during that consultation that redeployment and related matters and steps that might be taken to mitigate the effect of a redundancy on a person are discussed and explored. That discussion and exploration of alternatives to redundancy or steps that might be taken in mitigation, were denied to the Applicant because of the Respondent’s failure to consult.

[18] There was some dispute as to whether Ms Darling ‘discussed’ redeployment opportunities with the Applicant during the meeting on 24 March 2015. The Respondent submitted that the evidence establishes that Ms Darling addressed with the Applicant during the meeting whether there were any opportunities for redeployment and concluded that there were not. In my view, a fair reading of the evidence given by Ms Darling is that during the meeting on 24 March 2015, Ms Darling told the Applicant that the Respondent had considered whether there were any opportunities for redeployment and concluded that there were not. 47

[19] A ‘discussion’ connotes a two-way communication or exchange of views. On no account could it be said that that is what occurred between Ms Darling and the Applicant during the meeting on 24 March 2015. That there was no discussion about redeployment options during the meeting of 24 March 2015 is confirmed by the evidence of Mr Mantzis, who was not at the meeting. Mr Mantzis’ evidence was that he had at some point earlier considered the possibility of redeploying the Applicant to another position but ultimately formed the view that there were no realistic redeployment options for the Applicant. 48 This conclusion is also consistent with the Respondent’s admitted failure to consult prior to the decision to dismiss the Applicant during which, it might be expected, redeployment discussions would occur as a way to mitigate the effects of a decision to make a position redundant. On this point I therefore accept the evidence given by the Applicant that redeployment or other opportunities were not discussed with him at the meeting on 24 March 2015.49

[20] As to the question of redeployment to an associated entity of the Respondent, the Applicant maintained that it would have been reasonable to redeploy the Applicant to a position with Dixie Cummings Enterprises Pty Ltd or with Ridge Furniture Pty Ltd. 50 The Respondent maintained that Dixie Cummings Enterprises Pty Ltd was not at the relevant time a related entity of the Respondent.

[21] The Applicant produced no evidence to establish that Dixie Cummings Enterprises Pty Ltd was a related entity of the Respondent 51 and ultimately accepted that Dixie Cummings Enterprises Pty Ltd may not be an associated entity of the Respondent.52 However, the Applicant seemed to maintain that as Ms Darling and other employees53 who once worked for Dixie Cummings Enterprises Pty Ltd now work for the Respondent and there had previously been links with the Mantzis family, that redeployment of the Applicant to Dixie Cummings Enterprises Pty Ltd was possible and should have been explored. This submission is rejected. Firstly, no particular position at Dixie Cummings Enterprises Pty Ltd into which the Applicant could have been redeployed has been identified. Secondly, as Dixie Cummings Enterprises Pty Ltd is not a related entity of the Respondent there is no capacity on the part of the Respondent to control, direct or influence employment practices of Dixie Cummings Enterprises Pty Ltd. Thirdly, to suggest that such an obligation arises in the circumstances, extends beyond anything that might be regarded as a reasonable step to be taken by the Respondent.

[22] As to the status of Ridge Furniture Pty Ltd as a related entity of the Respondent, this was not a matter raised in the evidentiary case led by the Applicant and the production of a company search attached to the Applicant’s final submission is an attempt to lead further evidence after the Applicant’s case has been closed. I propose not to allow that additional evidence as with proper diligence, this evidence could have been produced during the conduct of the hearing. Furthermore, neither the Applicant nor his representative from the CFMEU, have shown even the most basic good courtesy and have failed to seek permission to lead this evidence, or the consent of the Respondent to do so. In any event, the evidence does not appear to be of any particular probative value as I note that the Respondent in its submission maintains that Ridge Furniture Pty Ltd is a dormant entity and does not operate a business or employ any staff and is to be wound up in the near future. 54 The Applicant did not demure in his submissions in reply.

[23] The Respondent does not maintain that the Applicant performed his job other than satisfactorily or that the decision to dismiss the Applicant related to any performance issue. 55 Indeed, the evidence of Mr Mantzis was that the decision to dismiss the Applicant was a difficult one and not lightly taken, but it was ‘a purely business decision’.56

[24] The evidence also establishes that volunteers for redundancy as an alternative to a compulsory retrenchment of the Applicant were not sought by the Respondent. 57

[25] There is no evidence to support the Applicant’s assertion that he understands that his ‘position has since been given to another employee’. 58 I accept the evidence given by the Respondent that the Respondent’s overall employee headcount was reduced, that the Applicant’s position was not replaced and that such of the Applicant’s former duties as are required to be carried out have been redistributed amongst other employees.59

Consideration and application of the statutory framework

Protection from Unfair Dismissal

[26] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of his dismissal, protected from unfair dismissal under the Act.

[27] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

‘382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.’

[28] There is no dispute, and I am satisfied, that the Applicant was, on 24 March 2015, protected from unfair dismissal within the meaning of s.382.

Was the dismissal unfair?

[29] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides:

‘385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

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

[30] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act. As I indicated earlier in these reasons, the Small Business Fair Dismissal Code did not apply to the Respondent and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.

Harsh, unjust or unreasonable

[31] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:

‘387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant.’

[32] I am obliged to consider each of these matters in reaching my conclusion and I do so below, having regard to the factual findings earlier made. 60 

[33] The ambit of the words ‘harsh, unjust or unreasonable’ in the context of a dismissal was explained in Byrne v Australian Airlines Ltd  61by McHugh and Gummow JJ as follows:

‘. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’ 62

[34] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

[35] The substance of the Applicant’s argument that his dismissal was harsh, unjust or unreasonable are set out in his closing submissions as follows:

1. The Applicant’s case is that his employment was not terminated due to genuine redundancy in that contrary to Section 389 sub-section 1 (b) the employer did not comply with the consultation in the modern award.

2. The Respondent has admitted and conceded that it failed the consultation obligation under Clause 9 of the Manufacturing Award.

3. It would have been reasonable in the circumstances to redeploy Mr Sikora within the Respondent’s Enterprise (Section 389 (2) of the FW Act).

4. It would have been reasonable in all of the circumstances to redeploy Mr Sikora within the enterprise of an associated entity of the Respondent, either Dixie Cummings Enterprises Pty Ltd or Ridge Furniture Pty Ltd.

5. There is of course the right of an employer to re-organise its affairs when a major change impacts upon an employment situation. But what the Respondent did not do here was to consult Mr Sikora and consult him in a manner he could have proffered to the Employer possible suggestions that would have averted the termination of his employment.

6. As Your Honour heard from Mr Mantzis’ evidence the following matters could have and should have been discussed but were not- whether any of the production line workers on any of the manufacturing lines would volunteer for a redundancy. The effects the significant change is likely to have on Mr Sikora (and other employees). Whether there were any measures to avert or mitigate the adverse effects of such changes on the employee. The process that would be followed for selection of employees for redundancy.

7. It is not for the employer to come up with a selection process and not consult with the employee. These are not the days of industrial serfdom. There must be consultation within a workplace and with employees’ industrial associations.

8. The question of consultation has received much judicial consideration and Justice Logan in his well-known decision in the CEPU v QR Limited [2010] FCA 591 at Paragraph 43 stated the following: “consultation is not a perfunctory advice on what is about to happen this is a common misconception, consultation is providing the individual or other persons with the bona fide opportunity to influence the decision maker.”

9. The only conclusion we can come to is that the Respondent did not comply with its consultation obligations under the Modern Award of the FW Act. We also say that it would have been reasonable to redeploy Mr Sikora within another suitable position within the Sleepeezee Bedding enterprise or within an associated entity.

10. Accordingly the Commission should conclude that the employment was not terminated due to genuine redundancy and find in favour of the Applicant.

11. Given the Applicant’s extremely lengthy tenure, his age, limited employment opportunities and medical reports now in evidence demonstrating his inability to mitigate his losses and look for alternative work, we submit he ought to be awarded the maximum compensation allowable under Section 392 {6) (ii) and that is 26 weeks’ pay based on his earnings prior to his dismissal. 63

[36] The Respondent submitted that its dismissal of the Applicant was not harsh, unjust or unreasonable and its argument, extracted from its final submissions is summarised below:

2. In summary, the Respondent’s case is that Mr Sikora was a production employee engaged full-time on the flanging line (sometimes called the mattress build line). He was the only employee engaged full-time on the flanging line. Available work on the flanging line has diminished over time. By March 2015, there was insufficient work to maintain the employment of a full-time employee on the flanging line. The Respondent decided to restructure its organisation so that it no longer employed a full-time employee on the flanging line. Mr Sikora’s duties have been redistributed to a number of other employees who work both on the flanging line and in other areas of production. Mr Sikora has not been replaced. Mr Sikora was dismissed for reasons of genuine redundancy.

3. The Respondent concedes that it did not comply with its consultation obligations under clause 9 of the Manufacturing and Associated Industries and Occupations Award 2010 MA000010 (the “Award”). Failure to consult is not a trivial matter. It says, however, that in the circumstances consultation in compliance with the Award would not have changed the outcome. There were no vacancies in the Respondent’s operations and no reasonable redeployment opportunities for Mr Sikora.  64

[37] I have considered the competing submissions in the context of my earlier findings and in my consideration of each of the criteria in s.387 of the Act below.

Valid reason - s.387(a)

[38] There must have been a valid reason for the dismissal of the Applicant related to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 65 The reason should be ‘sound, defensible and well founded’66 and should not be ‘capricious, fanciful, spiteful or prejudiced’.67 Where, conduct of the Applicant is relied upon to justify its decision to terminate his employment, I would need to be satisfied that the conduct as alleged occurred.68 A mere suspicion of conduct does not amount to a valid reason.69

[39] In the present case, the reason for the Applicant’s dismissal was not related to his capacity or conduct. As the majority in UES (Int’l) Pty Ltd v Harvey 70 determined, where a decision to dismiss is made on redundancy grounds and does not relate to the dismissed employee’s capacity or conduct there cannot have been a valid reason for that dismissal related to the employee’s capacity or conduct.71 Neither party suggested that the majority decision in UES was wrong and should not be followed.

[40] The factual findings that I have earlier made at [9] - [15] support a conclusion that the Applicant’s dismissal was on redundancy grounds and did not relate to his capacity and conduct. Like the majority in UES, it seems to me appropriate in the circumstances of this case, the question of whether there was a valid reason related to the Applicant’s capacity or conduct in considering whether the Applicant’s dismissal was harsh unjust or unreasonable, is a neutral factor.

Notification of the valid reason - s.387(b)

[41] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made 72, in explicit terms73, and in plain and clear terms.74 In Crozier v Palazzo Corporation Pty Ltd75, a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.’ 76

[42] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason in s.387(c), involves consideration of whether procedural fairness was afforded to the Applicant before his dismissal was effected. Satisfaction of the notification requirement will usually require a straightforward factual inquiry to be made, namely: what was the Applicant told about the reason for the dismissal, before the dismissal took place?

[43] The Applicant was notified of the reason the Respondent relied on for the dismissal. 77 However as is evident from the terms of s.387(b), the consideration as to notification of the reason is concerned with a reason connected with capacity or conduct. For reasons already given, that is not the case here. In the ordinary course, this factor would seem to be neutral in a case like this78, although I note that, as a matter of fact the Applicant was notified of the reason for the dismissal, being the redundancy of his position.

Opportunity to respond - s.387(c)

[44] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. The consideration of whether and to what extent that opportunity was given is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality. 79 In Pitts v AGC Industries Pty Ltd,80 a Full Bench of the Commission said:

‘In considering whether the Commissioner was satisfied that the dismissal of the Appellant was harsh, unjust or unreasonable the Commissioner was required to take into account, inter alia, whether the Appellant was given an opportunity to respond to any reason related to his capacity or conduct. This opportunity must have been afforded to the Appellant before a decision to dismiss is made. The process involved in providing the Appellant with such an opportunity does not require formality and is to be applied in a common sense way, to ensure that the Appellant has been treated fairly. In this regard we reject so much of the Appellant’s submissions which asserts that this requires an employer to conduct a meeting with the employee to inform the employee of the reasons for the proposed dismissal or otherwise provide the employee with an opportunity to address the concerns in writing.’ 81    (Citations omitted)

[45] Once again this consideration is concerned with affording an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. The Applicant’s dismissal did not relate to his capacity or conduct and so, in the circumstances of this case, this consideration is also neutral, although I note that on the evidence of Ms Darling about the meeting of 24 March 2015, there does not appear to be any point at which she suggests that the Applicant was given an opportunity to comment on the decision. 82 The absence of such an opportunity seems consistent with the evidence given by the Applicant about the meeting.83

Unreasonable refusal by the employer to allow a support person - s.387(d)

[46] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the plain language of s.387(d) that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, the section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 84 It may well be appropriate in some cases to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.

[47] There is no evidence of any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist in the discussions on 24 March 2015 relating to his dismissal. The Applicant says that he was not provided an opportunity to have a representative attend the meeting. 85 This is not contested by the Respondent, however Ms Darling gave initial evidence that the Applicant did not request to have anyone else attend the meeting with him and that he declined the offer of an interpreter.86 During the hearing before me the following evidence was given by the Applicant:

Okay. Thank you, Mr Sikora. Now, Mr Sikora, what can you tell us about the day, 24 March 2015, in relation to the matter before the Commission? What happened on that day, if you could tell us, that led to the termination of your employment?  -The day before that I asked for a day off because of a death in the family, and I couldn’t get it.

Prior to that nobody had told me anything. I was always told I was a part of the family, and the main boss whenever he would come over, he would shake my hand no matter what time of the day it was. Then on that day, 24 March, five past 3, I was told to come down to the showroom office to Mr Haci. Until then nobody had told me anything about anything to do with this. I came down there and Mr Haci and Ms Mel were sitting there and they gave me the letter and told me that my employment was terminated from that point, and I couldn’t believe it. That was one thing that I was never expecting to happen. I was told to leave immediately, the position was over. I first asked them if I could call the union, if I could have their number to consult with them to ask if something like this could happen, if I could just be let go on the spot. Then I asked if I could at least – they didn’t give me anything, they didn’t give me that information. Then I asked if I could at least get my things and say goodbye to the people there that I had worked with for years, rather than just being chased out. They did allow me a few minutes. I told a few people what was going on but I didn’t go upstairs to where my wife works. Sorry. My wife – women – is the same word. Yes.

Then when I was coming back, I saw immediately that there were some people, several workers, in the place where I was working, so the position was not finished. It’s going to keep to be needed. And nobody believed me when I told them that I was dismissed and I had a car and bonuses and good payment previously, so nobody believed that I was just fired like that. 87

[48] Later, during cross examination, the Applicant gave the following evidence:

And when you came to the meeting, sir, Ms Darling asked you whether you wanted an interpreter?  -No.

Well, she’ll say she did offer you an interpreter. You say she’s wrong about that if she says that?  -I only asked if I could call the union, I have a number to call the union, because it came to me like out of nowhere. She gave me the letter, I didn’t even have my glasses with me and I asked her to read to me what was written on the letter.

Ms Darling will say you made no reference to the union at all in this meeting. Do you agree or disagree with that?  -I’m telling just the truth and nothing else. And I haven’t recorded anything about anything that happened.

Yes?  -All I’m saying is that that is not true, what you said.

So sir, when you put your statement together, the statement that you have in front of you, were you careful about that?  -What?

Were you careful that the statement was true and correct in every detail?  -Yes.

Did someone read it to you and interpret it for you at the time?  -Yes.

And you knew you were preparing it for the purpose of this court case?  -Yes.

And it was important that it was accurate?  -Yes.

And it says nothing about you asking for the union to be present in this meeting on 24 March?  -I asked – I just asked for the number because there was a card, the union card and she said, “No, we have nothing to do with the union, we know nothing about the union”. 88

[49] During cross examination of Ms Darling she gave the following evidence:

‘What mention, if any, was made of the union in the meeting on 24 March 2015?  -The only mention that was made of the union was at the conclusion of the meeting where Mr Sikora was quite upset.

What did he say?  -He asked for his union papers which I have no idea what that means but he said that in the past he got paperwork from the company for his union payments. I said “We just simply pass the money; I don’t have any papers,” and he said, “This is not the last you will hear of this.’ 89

[50] On balance I conclude that the evidence establishes that the Applicant asked for union representation at some point during the meeting on 24 March 2015. Given the Applicant’s obvious difficulty with English, a point not lost on the Respondent given its offer of an interpreter, greater care should have been taken to ensure that the Applicant was not effectively denied the opportunity of a support person. Although as I have said earlier, I am satisfied that the Respondent did not unreasonably refuse a support person to the Applicant, it seems to me clear that the Applicant needed some assistance during the meeting in order to properly comprehend and absorb the information that was being communicated to him by the Respondent, and the Respondent did nothing to facilitate this.

Warnings regarding unsatisfactory performance - s.387(e)

[51] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 90 For the reasons given earlier in this decision, I am satisfied that the Respondent dismissed the Applicant on redundancy grounds and that the dismissal did not relate to any unsatisfactory performance on the part of the Applicant.

Impact of the size of the Respondent on procedures followed - s.387(f)

[52] It seems to methat the Respondent is best described as a medium-size employer. There is no evidence that the Respondent’s size, in and of itself, affected the procedure adopted by the Respondent in effecting the dismissal. In my view, the procedure adopted by the Respondent in the lead up to the dismissal and in effecting the dismissal fell short of appropriate. The Respondent has already accepted that it failed to consult. As a consequence of that failure some of the considerations that might have had the effect of mitigating or ameliorating effects of redundancy on the Applicant were not considered. The size of the Respondent’s enterprise does not excuse nor explain this omission.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[53] Conversely,the absence of dedicated human resource management or expertise in an employer’s enterprise, clearly had an impact on the procedures followed by Respondent in effecting the dismissal. The evidence shows that Ms Darling is the Business Manager of the Respondent and though she handles human resources matters, she is not a dedicated human resource management specialist. Ms Darling’s evidence was that only 5% of her role is human resources. 91 Ms Darling’s evidence was that she did not understand the Award obligation to consult.92 Mr Mantzis also gave evidence that the failure to consult was unintentional and resulted from ignorance of the obligation to consult.93 He said that the Respondent has since adopted a policy in order to ensure that adequate consultation occurs in the future.94

[54] Ignorance of an obligation under the Award to consult will not excuse the breach of the obligation, however the absence of a dedicated human resource management specialist or expertise in this case explains the failure, and as a consequence, that absence had an impact on the procedures followed in effecting the dismissal.

Other relevant matters - s.387(h)

[55] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant.

[56] Chief amongst these relevant considerations is a failure by the Respondent to consult the Applicant about the redundancy. This deprived the Applicant and the Respondent the opportunity to consider the matters which might mitigate the effect of redundancy on the Applicant. Amongst these mitigating factors could have been:

• An exploration of the viability of seeking voluntary redundancy from amongst the workforce more generally;



• An exploration of the possibility of reducing the Applicant’s hours to more accurately reflect the reduction in the amount of the duties that are to be performed by the Applicant on the flanging line;



• Given the Applicant was effectively on a salaried maintenance arrangement in regard to his previous role as a supervisor, an exploration of the possibility of reducing the Applicant’s salary to better align it with other production staff.

[57] I also regard the Applicant’s length of service and his age as relevant matters. The Applicant was 49 years of age at the time of his dismissal and since migrating to Australia in 1993, the Applicant has only worked for the Respondent. During that time he was promoted to the position of production supervisor and when that position did not work out, his salary was maintained. This indicates a high level of satisfaction by the Respondent of the Applicant’s capacity as a production employee. At the time of his dismissal the Applicant had completed more than 21½ years of service. This is a significant period of employment by any measure and the Applicant deserved better treatment and a more dignified exit from his employment with the Respondent than that which he received.

[58] Also relevant is the fact that the Applicant’s command of English is poor and given the specific skills that he has acquired during his employment with the Respondent, the prospect of the Applicant obtaining similarly remunerated employment in the foreseeable future is remote. I note, of course that the Applicant was paid a severance payment consistent with the Respondent’s obligation under the NES.

[59] I have also taken into account that redeployment into another position with the Respondent or with a related entity of the Respondent is not possible. It is clear that the prospect of redeployment was not discussed with the Applicant. In the circumstances, but for the failure to consult the Applicant, dismissal would otherwise have been a case of genuine redundancy and so would not have been regarded as unfair.

[60] Nevertheless, taking all of the factors that I have discussed above into account, I am satisfied the Applicant’s dismissal in the circumstances, albeit on redundancy grounds, was harsh. Consequently the dismissal was unfair within the meaning of s.385 of the Act.

Remedy

[61] I turn next to consider the question of remedy.

The statutory provision

[62] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“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).

(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.”

[63] Given my earlier conclusions, the matters set out in ss.390(1) and (2) are satisfied. Therefore the jurisdictional preconditions to the order of an appropriate remedy are satisfied.

[64] The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. Neither party suggested that I exercise my discretion not to order a remedy at all if the dismissal was found to be unfair. I consider that a remedy is appropriate in all the circumstance of this case.

Reinstatement as the primary remedy for an unfair dismissal

[65] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal. The discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is inappropriate. The Applicant does not seek reinstatement 95 and in circumstances where I have concluded that the employer no longer requires the job performed by the Applicant to be performed by anyone and where redeployment into another position would not have been reasonable in the circumstances faced by the Respondent, I consider that an order for reinstatement is inappropriate.

Compensation as a remedy

[66] Section 390(3)(b) provides that I must not make an order for compensation unless I am satisfied that reinstatement is inappropriate and I consider that an order for the payment of compensation is appropriate in all the circumstances.

[67] Taking into account the findings I have earlier made and, in particular the Respondent’s failure to consult and therefore to deprive the Applicant of the opportunity to consider and discuss with the Respondent steps that might have been taken to mitigate the effects of redundancy on the Applicant, I am satisfied that an order for compensation is appropriate.

[68] Section 392 of the Act sets out the circumstances that must be taken into account when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:

“392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

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

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

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

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

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

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

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

Misconduct reduces amount

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

Shock, distress etc. disregarded

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

Compensation cap

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

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

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

Note: subsection 392(5) indexed to $61,650 from 1 July 2012

(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.’

[69] The method for calculating compensation under s.392 of the Act was dealt with by a Full Bench of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge. 96 In that decision, the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket97 and Ellawala v Australian Postal Corporation.98 I have adopted the methodology in Bowden in determining the amount of a payment of compensation.

Remuneration that would have been received (s.392(2)(c))

[70] Although one cannot, with precision, determine over how long a period consultation would have occurred, it seems to me having regard to the number of matters that could have been explored during the consultation period earlier identified and having regard to the fact that the Applicant would likely have involved his union in the consultation, a period of four weeks to effect such consultation seems to me to be reasonable.

[71] Accordingly, I am of the view that the remuneration the Applicant would have received, or would have been likely to receive, if he had not been dismissed would have been another four weeks’ remuneration. My assessment of four weeks’ in the circumstances of this case is the period it would have taken the Respondent to comply with its obligations in the Award to consult with the Applicant about the redundancy that led to his dismissal. Four weeks’ remuneration for the Applicant is an amount of $5,420.32 gross plus 9.5% superannuation.

Remuneration earned (s.392(2)(e))

[72] The Applicant has not earned any income from other employment since his dismissal and at the time of the hearing of this application the medical evidence suggests that he was unable to return to work in any capacity at that stage. 99

Income reasonably likely to be earned (s.392(2)(f))

[73] There is no indication that the Applicant’s medical condition is likely to improve so as to enable the Applicant to resume a capacity for work and therefore to earn any income during the period between the making of compensation order and the actual compensation. No deduction is therefore proposed.

Other matters (s.392(2)(g))

[74] There are no other matters that I consider relevant to take into account in the determination of an amount of compensation in lieu of reinstatement for the Applicant, save from those in ss.392(2)(a), (b) and (d), s.392(3) and s.395(5) of the Act and addressed below.

Viability (s.392(2)(a))

[75] There is no evidence that an order for compensation in any particular amount less than an amount of $5,420.32 gross plus 9.5% superannuation payable to the Applicant by the Respondent would affect the viability of its enterprise. Nor was any submission to that effect made by the Respondent.

Length of service (s.392(2)(b))

[76] The Applicant had a lengthy period of service with the Respondent spanning over 21 years and this lengthy period of service does not provide any basis for reducing the amount of $5,420.32 gross plus 9.5% superannuation in compensation.

Mitigation efforts (s.392(2)(d))

[77] I accept that the Applicant was unable to mitigate his losses by looking for and obtaining alternative employment because of his medical condition and I do not propose to reduce the amount so far calculated to take into account any failure to take mitigation efforts.

Misconduct (s.392(3))

[78] As is clear from the evidence, misconduct played no part in the Respondent’s decision to dismiss the Applicant and so no reduction in compensation on that account is necessary.

Compensation cap (s.392(5))

[79] The amount $5,420.32 gross plus 9.5% superannuation is less than the compensation cap in s.392(5) of the Act in relation to the Applicant.

Total Compensation

[80] In the circumstances it is therefore appropriate that an order be made that the Respondent pay to the Applicant, compensation in the amount of $5,420.32 gross plus 9.5% superannuation. From this amount may be deducted any taxation required by law.

Conclusion

[81] For the reasons earlier given, I am satisfied that dismissal of the Applicant by the Respondent was harsh and therefore unfair. I am also satisfied in the circumstances that a remedy is appropriate, but that reinstatement is inappropriate. I am satisfied compensation is appropriate and I would order compensation in the amount of $5,420.32 gross plus 9.5% superannuation with any taxation required by law to be paid by the Respondent to the Applicant within 21 days after the date of this decision.

[82] An order giving effect to this decision is separately issued in PR571663.

[83] I note for completeness that in the Applicant’s outline of submissions, the Applicant sought orders inter alia for the imposition of a civil penalty against the Respondent in the sum of $51,000 because of the Respondent’s failure to consult, the imposition of a civil penalty against ‘individual manager’ in the sum of $10,200 for a failure to consult and compensation not limited by the compensation cap. Claims for orders of this kind clearly misunderstand the Commission’s jurisdiction.

DEPUTY PRESIDENT

Appearances:

D Malbasa appearing for the Applicant.

M Champion counsel for the Respondent.

Hearing details:

2015.

Melbourne:

July 20.

 1   It is not in dispute that the letter was given to the Applicant by the Respondent on 24 March 2015 and should bear that date

 2   Exhibit 1; Annexure JS - 1

 3   See s.396

 4   Exhibit 4 at [1]

 5   Ibid at [2]

 6   Exhibit 5 at [3]

 7   Exhibit 1 at [9] and Exhibit 4 at [17] - [19]

 8   Exhibit 4 at [3]

 9   See Exhibit 2

 10   Ibid

 11   Exhibit 5 at [26] and Exhibit 4 at [46] - [47]

 12   Respondent’s final submissions at [11] - [15]

 13   Exhibit 4 at [33]; Exhibit 5 at [8]

 14   Exhibit 5; Annexure MS – 1

 15   Exhibit 4 at [34]

 16   Ibid at [36]

 17   Ibid

 18   Transcript PN 283; although it is noted that the Applicant's response is given in the context that in his view the business that was not going well because of "how it’s being led from my point of view".

 19   Exhibit 4 at [21]

 20   Exhibit 4 at [27]; transcript PN 255 – PN 262

 21   Exhibit 4 at [25]

 22   Exhibit 4 at [29]

 23   Transcript PN 266

 24   Exhibit 4; Annexure BM – 1

 25   Ibid

 26   Transcript PN 636 – PN 637

 27   Transcript PN 280 – PN 282

 28   Exhibit 4 at [35]

 29   Exhibit 4 at [31]

 30   Exhibit 1 at [9] and transcript PN 228 – PN 245

 31   Exhibit 4 at [31]

 32   Exhibit 4; Annexure BM – 1

 33   Exhibit 4 at [39]

 34   See Applicant's reply to Respondent's final submissions at [2] – [3]

 35   See Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308; cited in Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32 at [17]

 36   Ibid

 37   Ibid

 38   See for example Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404‒405

 39   See Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 at [27]

 40   See Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32 at [17]

 41   See transcript PN 105, PN 112, PN 140 - PN 141, PN 167 - PN 168 and PN 195 – 197; see also Applicant's closing submissions at [13] – [16]

 42   Transcript PN 107 – PN 109; PN 318 – 320; PN775 – PN 776

 43   Exhibit 4 at [42] – [43]

 44   Transcript PN 627 – PN 644

 45   Respondent's final submissions at [56]

 46   transcript PN 322 – PN 330

 47   Exhibit 5 at [22]

 48   Exhibit 4 at [42] – [43]

 49   Exhibit 1 at [14]

 50   Applicant's closing submissions at [4] and [31] - [36]

 51   Transcript PN 820 – PN 822

 52   Applicant's closing submissions at [35]

 53   See transcript PN 360, transcript PN 597 and transcript PN 787

 54   Respondent's final submissions at [73]

 55   Ibid at [47]

 56   Exhibit 4 at [41]

 57   Transcript PN 560 – PN 562 and PN 774

 58   Exhibit 1 at [15]

 59   Exhibit 5 at [30] – [31] and [44] - [45]

 60   Sayer v Melsteel[2011] FWAFB 7498

 61 (1995) 185 CLR 410

 62   Ibid at 465

 63   Applicant's closing submissions at [1] - [11]

 64   Respondent's final submissions at [2] - [3]

 65   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378

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

 67   Ibid

 68   King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213)

 69   Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1

 70   [2012] FWAFB 5241: (2012) 215 IR 263

 71   Ibid at [42]; at 277

 72   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 73   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 74   Previsic v Australian Quarantine Inspection Services Print Q3730

 75 (2000) 98 IR 137

 76   Ibid at 151

 77   Exhibit 1 at [10] – [11]

 78   See UES (Int’l) Pty Ltd v Harvey [2012] FWAFB 5241 at [43]: (2012) 215 IR 263 at 278

 79   RMIT v Asher (2010) 194 IR 1 at 14-15

 80   [2013] FWCFB 9196

 81   Ibid at [4]

 82   Exhibit 5 at [20] – [25]

 83   Exhibit 1 at [11]

 84   See also Explanatory Memorandum to the Fair Work Bill 2008 at [1542]

 85   Exhibit 1 at [14]

 86   Exhibit 5 at [21]

 87   Transcript PN 106

 88   Transcript PN 291 – PN 300

 89   Transcript PN 750 – PN 751

 90   Annetta v Ansett Australia (2000) 98 IR 233 at 237

 91   Transcript PN 781

 92   Exhibit 5 at [26]

 93   Exhibit 4 at [47]

 94   Ibid

 95   see Applicant's outline of submissions at p.5

 96   [2013] FWCFB 431

 97 (1998) 88 IR 21

 98   Print S5109

 99   Exhibit 3

Printed by authority of the Commonwealth Government Printer

<Price code C, PR571547>