Jason Santocono v Inform Building Permits Pty Ltd
[2024] FWC 3107
•12 NOVEMBER 2024
| [2024] FWC 3107 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Santocono
v
Inform Building Permits Pty Ltd
(U2024/7953)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 12 NOVEMBER 2024 |
Application for an unfair dismissal remedy – jurisdictional objections of ‘genuine redundancy’ and ‘small business fair dismissal code’ – objections upheld – application dismissed.
Mr Jason Santocono applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent to Mr Santocon’s unfair dismissal application is Inform Building Permits Pty Ltd (the Respondent). With his application having been filed 12 days outside the required 21 days prescribed in s.394(2)(a) of the Act, Mr Santocono was required to obtain an extension of time for the filing of his unfair dismissal application. In a decision dated 21 August 2024 (extension of time decision),[1] I granted Mr Santocono an extension of time and thereafter made directions for the filing and service of material ahead of an arbitration to deal with the merits of his application. The arbitration was listed for 11 September 2024, at which time Mr Santocono appeared and gave evidence and Mr Steven Esler, Director, appeared and gave evidence for the Respondent. Having consulted Mr Santocono and Mr Esler, I determined that the arbitration should be conducted by way of a determinative conference.
At the outset, I considered and determined that Mr Santocono was a person protected from unfair dismissal (s.396(b)). This was because there was no dispute that when he was notified of his dismissal on 6 June 2024, Mr Santocono had completed nearly 3 years of employment with the Respondent and the sum of his annual rate of earnings was less than the applicable high income threshold of $167,500.
When completing the Form F3 – Employer response to unfair dismissal application (Form F3), Mr Esler indicated that the Respondent objected to Mr Santocono’s application on the basis that the Respondent is a small business and it complied with the Small Business Fair Dismissal Code (Code) and further, because Mr Santocono’s dismissal was a case of genuine redundancy. Section 396 of the Act requires that I decide these matters before considering the merits of Mr Santocono’s application.
As to whether Mr Santocono’s dismissal was consistent with the Code (s.396(c)), Mr Santocono and Mr Esler stated their recollection of who was employed by both the Respondent, in its business at Geelong, and by what I am satisfied is a related entity of the Respondent operating a business in Mount Waverley. The Respondent also submitted an email dated 9 July 2024, which purported to list employees of both entities on or about 7 June 2024. Having regard to this evidence and the email, I am satisfied that the Respondent was a ‘small business employer’ within the meaning of s.23 of the Act when Mr Santocono was notified of his dismissal. It follows from this that the Respondent could seek to rely upon the Code.
In support of its two objections to the unfair dismissal application, the Respondent submitted a Small Business Fair Dismissal Code Checklist dated 25 July 2024 (Checklist). In completing the Checklist, the Respondent indicated that it dismissed Mr Santocono because it did not require his job to be done by anyone because of changes in the operational requirements of its business. The Checklist also asserted that the Respondent had complied with requirements to consult about the redundancy and had considered whether Mr Santocono could have been redeployed in its business or the business of an associated entity.
Dealing firstly with the Respondent’s contention that Mr Santocono’s dismissal was a case of genuine redundancy (s.396(d)) requires engaging with s.389 of the Act, which provides:
“(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Section 389(1)(a)
In the Respondent’s letter dated 6 June 2024 notifying Mr Santocono of his dismissal, it was relevantly outlined:
“Dear Jason
Termination of your employment by reason of redundancy
The purpose of this letter is to confirm the outcome of a recent review of Inform Building Permits (Geelong) Pty Ltd as trustee for Inform Building Permits Trust (ABN: 96 920 615 773) (“the employer”) of its operational requirements, and what this means for you.
As a result of the economic downturn, business performance and the building sector slowdown, the position of assistant building surveyor is no longer needed. Regrettably this means your employment will terminate.
This decision is not a reflection on your performance. The employer has made unsuccessful attempts to find you an alternative position within the business.
Your employment will end on Thursday (6 June 2024). Based on your length of service, your notice period is 2 weeks. You are not required to work the notice period…”
(emphasis in the original)
At the determinative conference, Mr Elser stated that a downturn in the building industry led to a situation where the Respondent could not afford to employ the number of staff that it had and that it “couldn't move forward with” Mr Santocono’s position. Mr Esler’s explanation was that there was not enough work to sustain a position at the level of Mr Santocono’s remuneration level, such that the Respondent had to “unfortunately go down the redundancy path with Jason's position as a building surveyor.” Mr Esler stated that the Respondent had significant tax liabilities which had required entering into arrangements with the Australian Taxation Office in the lead-up to 30 June 2024, at which time a tax debt became due. He said this had meant decisions had to be made regarding staff numbers and restructuring.
Mr Esler gave details of the Geelong and Mount Waverley offices receiving a combined total of only 4 applications per day at the time of the dismissal (down from 40) and the Respondent having lost $900,000 over the preceding 18 months, which he had been required to personally finance. Mr Esler stated that the Geelong office had been established during the COVID-19 pandemic and had been running at a loss for several years.
In response, Mr Santocono claimed he had been busy at the time of his dismissal and had been receiving 1 or 2 applications per day to work on. Mr Santocono also suggested he was performing work for the Mount Waverley office.
In the extension of time decision, I summarised an account given by Mr Santocono, detailing that:
a)Four weeks after his dismissal, on 4 July 2024, he discovered a Seek job advertisement (Job Advertisement) and having previously commenced dialogue with Ms Sophie Whyte from Haste Recruitment regarding new employment, he asked for the identity of the prospective employer.
b)Ms Whyte sent an SMS message in reply at 6.41pm on Friday 5 July 2024, which stated “that one is with inform unfortunately.”
c)At this point, he formed the view that his redundancy may not have been genuine because the Job Advertisement was for an Assistant Building Surveyor with the Respondent.
d)In a telephone conversation with Mr Esler at 9.53pm on Sunday 7 July 2024, Mr Esler undertook to make enquiries with the Respondent’s accountant regarding a redundancy package.
e)He next heard from Mr Esler at 6.18pm on Monday 8 July 2024, at which time Mr Esler informed him that he had not yet spoken to the accountant.
f)At 2.42pm on Tuesday 9 July 2024, Mr Esler telephoned him and told him that he (Mr Esler) had not authorised the Job Advertisement and further, that it was the Respondent’s view that Mr Santocono was not eligible for unfair dismissal.
g)Later that day, at 8.52pm, he discovered the Job Advertisement was deleted from the Seek website and so he proceeded to file his unfair dismissal application.[2]
At the determinative conference on 11 September 2024, Mr Santocono’s evidence of the sequence of events was slightly different. He said that when he raised the Job Advertisement with Mr Esler during their telephone conversation on 7 July 2024, Mr Esler stated in reply that that he had not authorised it. Mr Esler gave evidence that it was during the 7 July 2024 telephone conversation with Mr Santocono that he first learned of the Job Advertisement. He said that he had not authorised the Job Advertisement and stated that Ms Whyte had posted it without his knowledge. Mr Esler’s account was that he had earlier discussed with Ms Whyte the possible recruitment of an administrative assistant or a university student. He said that when following up with Ms Whyte after the 7 July 2024 telephone conversation, he asked her why she had placed the Job Advertisement. Mr Esler stated that in response, Ms Whyte admitted to posting the job advertisement unilaterally and apologised. Mr Esler said he then directed Ms Whyte to take the Job Advertisement down.
When Mr Santocono queried why Ms Whyte would have placed an advertisement without authority. Mr Esler suggested Ms Whyte may have been “hungry to try and get another commission” and gave evidence that it was not his practice to engage Ms Whyte to recruit for positions such as the position outlined in the Job Advertisement. He said he used another recruiter when recruiting for surveyor positions.
Mr Santocono also made some assertions relating to Mr Mathew Hart, another former Assistant Building Surveyor previously employed by the Respondent. Mr Santocono claimed that Mr Hart was re-employed by the Respondent as an Assistant Building Surveyor on or around 15 July 2024, after the Job Advertisement was taken down. Mr Esler stated in response that Mr Hart had been made redundant approximately 6-8 months prior to Mr Santocono. Mr Esler said that shortly after Mr Santocono was retrenched, the Respondent unexpectedly lost the managers of both the Geelong office (Mr Sam Clark) and the Mount Waverley office (Mr Alex Huang). He explained that the impact of this was that it left the Respondent without these two senior employees available to assist in getting a backlog of work processed and so, in response, he engaged Mr Hart as a contractor. Mr Esler said Mr Hart had worked for a couple days per week according to his availability but was due to be finishing with the Respondent a week after the determinative conference. Mr Esler asserted that he had offered similar sort of work clearing the backlog to Mr Santocono during the 7 July 2024 telephone conversation. Mr Santocono said he could not recall this at all.
Section 389(1)(b)
Mr Esler confirmed that the Respondent made the decision to retrench Mr Santcono on 5 June 2024 and then communicated this by notifying Mr Santocono of his dismissal when they met the next day, on 6 June 2024. When asked why he had suggested that the Respondent had complied with requirements to consult about the redundancy when completing the Checklist, Mr Esler said he did so in the belief that there were no consultation requirements because no modern award applied to his business. Mr Esler said that his belief was that in such circumstances, simply providing notice of termination was appropriate. Mr Esler said that he had investigated award coverage, including with “Fair Work”, and had concluded that there was no modern award that actually covers building surveying work.
Section 389(2)
Mr Esler’s evidence was that there was no work in either the Geelong or the Mount Waverley offices sufficient to keep Mr Santocono employed and that there were no discussions about redeployment. Mr Santocono explained that he did not ask about the Mount Waverley office because he considered he was an employee of an operation with two offices. Mr Santocono asserted that he could have been redeployed to the Mount Waverley office where he noted there were other assistant building surveyors employed.
Mr Santocono also suggested that he was not given the option of continuing employment on a reduced salary, but Mr Esler said that a reduced salary of $10,000 - $20,000 would not have made a difference, given the overall financial losses the Respondent was incurring and the imperative for the Respondent was to reduce staff numbers.
Consideration – Code and Genuine Redundancy
A review of the questions outlined in the Checklist illustrates that if the following assertions of a small business employer are accepted, the Commission can be satisfied that the dismissal was both consistent with the Code and a case of genuine redundancy:
The employee was dismissed because the employer did not require their job to be done by anyone because of changes in the operational requirements of the business;
Any requirements to consult about the redundancy in the modern award, enterprise agreement or other industrial instrument that applied to the employment were complied with; and
Whether the employee could have been redeployed in the business or the business of an associated entity was considered.
The first assertion covers s.389(1)(a) of the Act. When considering s.389(1)(a) of the Act in Christina Adams v Blamey Community Group,[3] the Full Bench of the Commission stated:
“… it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low v Menzies Property Services Pty Ltd, “Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.”[4] What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.”[5]
(my emphasis)
Having regard to the material before me, and in particular the evidence of Mr Esler, I am satisfied the Respondent no longer required Mr Santocono’s job to be performed by anyone because of the operational requirements of its enterprise (s.389(1(a)). Mr Esler determined that the Respondent no longer required Mr Santocono’s services based on the diminished volume of work the Respondent had as of 6 June 2024, and its financial circumstances. In reaching this conclusion, I have considered the evidence given in relation to the Job Advertisement. I accept Mr Esler’s evidence as to how it came into existence and in particular, note that it was not an advertisement relating to the Geelong office. I also accept his evidence about the nature of Mr Hart’s engagement, which I consider was more cogent than the speculative assertions of Mr Santocono. I also consider it more likely than not that Mr Esler offered Mr Santocono some work that was ultimately performed by Mr Hart and that Mr Santocono declined. Firstly, I have noted that Mr Santocono’s evidence that the length of the phone call on 7 July 2024 was 1 hour and 3 minutes.[6] I consider it is therefore reasonable to assume that a range of matters were discussed in such a long phone call and that the possibility of this work was raised by Mr Esler. Secondly, while Mr Santocono was adamant that a range of matters supportive of his case had occurred, he became vague when asked whether he had been offered work by Mr Esler during the 7 July 2024 conversation. In addition, Mr Esler gave evidence that Mr Santocono was more intent in pursuing his claim for redundancy pay during their telephone dialogue, which Mr Santocono had disclosed was the purpose of him making the initial telephone call on 7 July 2024.
Having made these findings, I am not required to inquire further. As such, I have not considered and nor have I had regard to the further information regarding the financial status of the Respondent that was provided to my Chambers by the Respondent following the determinative conference.[7] While Mr Santocono has complained that he was not provided with any financial details to “justify” the redundancy, my consideration of whether the Respondent no longer required his job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the Respondent’s decision to make Mr Santocono’s job redundant.
Turning to s.389(1)(b), the evidence before me indicates that there was no consultation between the Respondent and Mr Santocono in relation to his redundancy. It is therefore necessary to determine whether the Respondent complied with any obligation in a modern award or enterprise agreement that applied to Mr Santocono’s employment to consult about his redundancy. I am satisfied no enterprise agreement or other industrial instrument containing consultation obligations applied to Mr Santocono’s employment. As to whether any modern award covered Mr Santocono’s employment with the Respondent, the material before me does not suggest that one did. My high-level research suggests the Surveying Award 2020[8] does not cover the work Mr Santocono was performing for the Respondent. Nor is it obvious that the Building and Construction General On-site Award 2020[9] covered Mr Santocono, or that he fell within the coverage of either the Professional Employees Award 2020[10] or the Miscellaneous Award 2020.[11] If it is the case that there was no modern award that covered Mr Santocono in his employment with the Respondent, there was no modern award obligation requiring the Respondent to consult with Mr Santocono about the redundancy.
I have also considered whether it would have been reasonable in all the circumstances for Mr Santocono to have been redeployed in the business of the Respondent, or the business of an associated entity of the Respondent (s.389(2)). While it is apparent that Mr Esler did not raise redeployment with Mr Santocono, or the prospect of him taking a cut in pay, I am not persuaded that redeployment, or such a measure, would have been reasonable. This is because I consider Mr Esler’s evidence about the state of the Respondent’s business, and that of its associated entity in Mount Waverley, compelling. The businesses were trading in such a way that redeployment was simply not possible and a reduction in wages was not going to make any material or sustainable difference.
Having regard to these findings, my conclusion is that Mr Santocono’s dismissal was a case of genuine redundancy (s.396(d)) and that his dismissal was consistent with the Code (s.296(c)). In these circumstances, it is not necessary for me to consider the merits of Mr Santocono’s unfair dismissal application.
If, however, I am incorrect because a modern award in fact covered Mr Santocono’s employment with the Respondent, these findings would be reversed and s.385 of the Act would come into focus:
“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.”
On the basis of the material and evidence before me, it is clear Mr Santocono was dismissed (s.385(a)) and, as outlined above, if a modern award had covered Mr Santocono’s employment, I would be satisfied his dismissal would not have been a genuine redundancy within the meaning of s.389 of the Act (s.385(d)) and nor would it have been consistent with the Code(s.385(c)). That leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I would be required give consideration to s.387 of the Act.
In this case the reason for the dismissal was redundancy. As such, no relevant finding can be made in relation to whether there was a “valid reason for the dismissal related to the person’s capacity or conduct”, the consideration in s.387(a) of the Act. For its part, the Respondent has not asserted that there was any valid reason for dismissal related to Mr Santocono’s capacity or conduct. The Respondent’s position regarding the reason for Mr Santocono’s dismissal means that neither s.387(b) or s.387(c), both of which refer to reasons related to capacity or conduct of the employee, are relevant considerations in this matter. Rather, the Respondent’s reliance on redundancy as the reason for dismissal is to be considered in connection with s.387(h), “any other matters the Commission considers relevant.” This is dealt with below. So too are the circumstances of Mr Santocono not having been notified of the reason for his dismissal and the absence of an opportunity to respond to the redundancy, other than at the time of his dismissal.
As to s.387(d), the evidence before me does not suggest that there was any unreasonable refusal by the Respondent to allow Mr Santocono a support person at the discussion relating to his termination on 6 June 2024. The Respondent did not rely on issues of unsatisfactory performance, such that consideration of s.387(e) is not required. These two factors do not therefore weigh in favour of a finding of unfairness. The Respondent was a small business employer and did not have dedicated human resource management specialists at the time of Mr Santocono’s dismissal. I consider these factors had a direct impact on the procedures Mr Esler adopted (s.387(f)) because he thought he had undertaken the correct procedures. I have also noted that Mr Esler placed reliance on the human resources ‘expertise’ of his accountant and, because this had its limitations, the procedures he followed were lacking (s.387(g)). I consider these two factors offer some explanation for the process Mr Esler adopted, or the lack thereof.
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. A finding that a dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act does not necessarily lead to a conclusion that the dismissal was unfair. Even if the dismissal was not a “genuine redundancy” for the purposes of s.389, it does not follow that the dismissal was not a real and bona fide redundancy. As I have concluded above, I am satisfied the Respondent made the decision that it no longer required Mr Santocono’s job to be performed by anyone and I am also satisfied that the decision was made because of changes in its operational requirements. This was a legitimate reason to end Mr Santocono’s employment, given the operational and financial circumstances confronting the Respondent. This tells against a finding that the dismissal was unfair. Mr Santocono asserted that he could have continued performing work that covered the Mount Waverley operations of the Respondent’s related entity or been retained on a reduced salary. In considering these matters, it is useful to have regard to the authorities that have dealt with s.389(2) of the Act. It was noted by a Full Bench of the Commission in Ms Deborah Hallam v Sodexo Remote Sites Australia Pty Ltd (Hallam),[12] that s.389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome. Further, as noted in Hallam and other Full Bench authorities,[13] this exception is applied at the time of dismissal. In Hallam the Full Bench considered whether there were any job vacancies either open or in contemplation at the time of the dismissal and in that case, the Full Bench stated:
“As the Full Bench observed in TAFE NSW v Pykett,[14] to show that it would have been reasonable for an employer to redeploy a person, it is not necessary to identify a particular job or position in which the dismissed employee could have been redeployed. However, the Commission must be satisfied on the balance of probabilities, and based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy the person. In the present case, the evidentiary burden did not reach the requisite threshold…”[15]
Having regard to the evidence in this case, I am not persuaded on the balance of probabilities that at the time of his dismissal there was a job or a position or other work to which it would have been reasonable to redeploy Mr Santocono. The reality was that there were no redeployment options either at Geelong or Mount Waverley at the time of his dismissal. In the absence of available work, and having regard to the Respondent’s financial circumstances, I do not consider it was harsh, unjust or unreasonable for the Respondent to terminate Mr Santocono’s employment, as opposed to maintaining the employment on a reduced salary. I accept Mr Esler’s evidence that he had already maintained staffing levels, despite incurring significant losses, for an 18-month period prior to 6 June 2024.
However, the Respondent did not consult or otherwise notify Mr Santocono in relation to the redundancy until it notified him of his dismissal. This represents a serious deficiency in the procedure adopted by the Respondent. It is, however, relevant to consider what might have been the result of consultation.[16] In this case, I do not consider that consultation would have changed the decision to dismiss Mr Santocono on the basis of redundancy. Further, even if the parties had discussed possible measures to avert the redundancy, I am not persuaded that these would have resulted in the operational reasons for the dismissal being overcome and led to a different outcome. If, however, the view was taken that some consultation should have been undertaken in order for Mr Santocono’s dismissal to be considered fair, I consider that at most, consultation would have required no more than an additional day. The size of the Respondent’s operations at Geelong, and those of its related entity in Mount Waverley, were not of a scale as to require any more time than that.
On balance, however, I do not consider the failure to consult rendered Mr Santocono’s dismissal unfair.
Had I found Mr Santocono’s dismissal was unfair because of a failure to consult, I would not have ordered reinstatement. I would not have considered reinstatement was appropriate in circumstances where it was not sought by Mr Santocono. Nor would I have considered an order for compensation is appropriate in all the circumstances of this case. It was clear from the material before the Commission that Mr Santocono made his application in order to pursue a 6-week redundancy payment commensurate with the entitlements outlined in s.119 of the Act. However, Mr Santocono did so in circumstances where he had no entitlement to redundancy due to the Respondent’s status as a small business employer and the operation of s.121(1)(b) of the Act. Regardless, I would not have determined an order for the payment additional payment one day’s salary[17] was appropriate in circumstances where Mr Santocono would have been dismissed in any event, he did not take up Mr Esler’s 7 July 2024 offer of some contract work, and he had received two weeks’ salary in lieu of notice when terminated. I otherwise note that, to his credit, Mr Santocono has secured new employment which commenced on 18 July 2024 and remunerates him at a rate that all but matches the rate of remuneration he received when employed by the Respondent.
Conclusion
For the reasons outlined above, I am satisfied that Mr Santocono’s dismissal was a case of ‘genuine redundancy’ per s.389 of the Act and complied with the Small Business Fair Dismissal Code and that this answers his application for an unfair dismissal remedy. For completeness however, I have also considered whether Mr Santocono’s dismissal was harsh, unjust or unreasonable (s.385(b)) in the event that his employment with the Respondent was covered by a modern award. Having considered each of the matters specified in s.387 of the Act, I am satisfied the dismissal of Santocono was not harsh, unjust or unreasonable. Further, had I concluded Mr Santocono’s dismissal was unfair, I would not have ordered reinstatement and nor would I have considered an order for compensation appropriate in all the circumstances of this case.
Mr Santocono’s application for unfair dismissal remedy is therefore dismissed. An order[18] to this effect will be issued along with this decision.
DEPUTY PRESIDENT
Appearances:
Mr J Santocono on his own behalf
Mr S Esler for Inform Building Permits Pty Ltd
Hearing details:
2024.
Melbourne:
September 11.
[1] [2024] FWC 2186.
[2] Ibid at [8] and [9].
[3] [2016] FWCFB 7202.
[4] [2014] FWC 7829 at [16].
[5] [2016] FWCFB 7202 at [14].
[6] Exhibit A2, DCB at 44.
[7] The parties were advised of this in an email they were sent on 17 September 2024.
[8] MA000066.
[9] MA000020.
[10] MA000065.
[11] MA000104.
[12] [2017] FWCFB 6847 at [20].
[13] Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578 at [28]; Technical and Further Education Commission T/A TAFE NSW v L. Pykett [2014] FWCFB 714 at [35].
[14] [2014] FWCFB 714 at [36].
[15] [2017] FWCFB 6847 at [35].
[16] Maswan v Escada Textilvertrieb T/A ESCADA [2011] FWA 4239 at [37].
[17] In accordance with my finding regarding consultation in [31] above.
[18] PR781127.
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