Joel Kinneally v Surf Life Saving Queensland
[2024] FWC 2722
•30 OCTOBER 2024
| [2024] FWC 2722 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joel Kinneally
v
Surf Life Saving Queensland
(U2024/5061)
| DEPUTY PRESIDENT LAKE | BRISBANE, 30 OCTOBER 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – operational requirements – independent contractor – redeployment – jurisdictional objection upheld
Mr Joel Kinneally (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act), stating that he was unfairly dismissed from his employment with Surf Life Saving Queensland (the Respondent) on 8 April 2024.[1]
A conciliation was held on 28 June 2024 and the matter was not resolved. The matter was listed for a hearing on 8 August 2024. The Applicant was represented by Mr Jason Wang of Counsel, and the Respondent was represented by Mr Troy Spence of Counsel for the Respondent. I granted permission for the Applicant and Respondent to be represented under s.596 of the Act.
Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act and earned less than the high-income threshold. The Respondent raised a jurisdictional objection that the Applicant was made genuinely redundant. The jurisdictional objection will be considered before determining the merits of the matter.
Is there a genuine redundancy under s.389(1) of the Act?
In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45, the Full Court of the Federal Court made it clear that if the factors of genuine redundancy are established, there is no unfair dismissal even if the redundancy has aspects of being harsh, unjust and unreasonable.
There can be little doubt that s 389 of the FW Act—and, more broadly, the significance of “genuine redundancy” to s 385(d)—was intended to narrow the circumstances in which an employee might be said to have been “unfairly dismissed”; and, thereby, to afford employers a defence in circumstances involving dismissals for operational reasons (as opposed to reasons of conduct or capacity). A dismissal that is a “case of genuine redundancy” is immune from relief under Pt 3‑2. That is so even if it might unambiguously qualify as “harsh, unjust or unreasonable”.[2]
Therefore, I consider whether the requirements of genuine redundancy are met regardless of whether it may be qualified as harsh, unjust or unreasonable. The requirements of genuine redundancy prescribed under s.389 of the Act are:
1.The role was no longer required to be performed by anyone because of operational requirements of the employer’s enterprise.[3]
2.Consultation if prescribed under Enterprise Agreement or applicable Award.[4]
3.Offer of redeployment if it was reasonable in all the circumstances.[5]
1. Did the Applicant’s employer no longer require the Applicant’s job to be performed by anyone because of operational requirements of the employer’s enterprise?
The Commission is not required to undertake an inquiry into the reasonableness of the changes in operational requirements. It just needs to be established.
A case of genuine redundancy may arise if a dismissal is the consequence of changes in the operational requirements of an employer’s enterprise. The FW Act does not contemplate any inquiry into the reasonableness of such changes, neither “in all [of] the circumstances” or at all. Subject to s 389(1)(b) and 389(2), any change in operational requirements will suffice.[6]
“Operational requirements” is a broad term which encompasses a broad range of factors which include factors such as the current performance of the business, the state of the market in which the business operates, steps to improve efficiency with new processes/equipment/skills, arranging labour to be used more productively or the application of good management to the business.
In Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 at [17], the Full Bench considered redundancy where the job as a collection of “functions, duties and responsibilities” becomes no longer required.
“It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…’ (at p.308)”
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.
If there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.[7] The consideration is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form.[8]
The Applicant commenced working for the Respondent on 8 October 2019 as a Chief Trainer.[9]
The Applicant’s role at the time of his dismissal was Complaints Manager.[10] The Complaints Manager falls within the Ethical Standards Department.[11]
The Complaints Manager role was absorbed by the company Spoken Consulting Group Pty Ltd (SCG). The Director of that company is Ms Kerrie Barnes. Ms Barnes used to be the supervisor of the Applicant as General Manager of Ethical Standards and Enterprise Risk for the Respondent.
On 18 March 2024, Ms Barnes had a private meeting with Mr David Whimpey, CEO of the Respondent, at a coffee shop. Mr Whimpey indicated that he was considering restructuring the business. Mr Whimpey informed Ms Barnes that the Ethical Standards department was largely going to be disbanded. Ms Barnes was given the opportunity to resign and become an independent contractor for the Respondent. The work that Ms Barnes would do as an independent contractor would largely correspond with the work she had done as an employee, including complaints management. Ms Barnes claims that she was not aware that the Applicant, who was a part of the Ethical Standards department, was going to be made redundant. Ms Barnes claims that Mr Whimpey had only suggested that making the Applicant redundant was a possibility, but he had not confirmed it.
Ms Barnes informed her colleagues that she was resigning and becoming an independent contractor for the company on 22 March 2024.
SCG was registered on 28 March 2024.
Ms Barnes did not inform of the Applicant of the exact scope of her new role, stating that it was a confidential contract between herself and the Respondent. However, the Applicant stated that once he became aware that Ms Barnes would be undertaking a contractor role, he formed the view that Ms Barnes would be undertaking his current role.[12]
On 2 April 2024, Ms Barnes, as Director of SCG, signed a services agreement with the Respondent. On the same day, the Applicant received an email from the Respondent’s Human Resources Manager, Ms Janet Nicholson, attaching a letter entitled “Consultation regarding potential redundancy”. The letter states:
Surf Life Saving Queensland needs to advise that due to a departmental restructure, SLSQ is planning workplace change that may lead to your current position being made redundant.
SLSQ wishes to meet with you to discuss these changes, inform you of the reasons behind
the changes and to gain your input and ideas before making any decisions in relation to your employment.[13]
The letter invited the Applicant to attend a consultation meeting on 3 April 2024. I note that Ms Barnes acted as the Applicant’s support person at the consultation meeting. On 3 April 2024, Ms Barnes also resigned from her role as General Manager of Ethical Standards and Enterprise Risk.
During the consultation meeting on 3 April 2024, the Applicant was advised by Ms Nicholson that his role was likely to be made redundant.[14] The Applicant and Ms Nicholson discussed the possibility of redeployment.
Following the meeting, Ms Nicholson emailed the Applicant a list of current vacancies within the organisation.[15] The Applicant asked Ms Nicholson for information about 30 planned full time roles which he said Mr Whimpey had mentioned.[16] Ms Nicholson sent the Applicant a list of 11 new roles for which the organisation was currently recruiting.[17] The Applicant responded by requesting position descriptions for three roles: RTO Compliance Officer, Operations Manager - Thundercats Inflatables and Head of Membership.[18]
The Applicant was advised by Ms Jessica Baas of Human Resources for the Respondent that the RTO Compliance Officer role was in the process of employing someone else.[19]
On 5 April 2024, the Applicant attended a meeting with Ms Nicholson. Ms Nicholson asked if the Applicant had considered the position descriptions for alternative roles which Ms Baas had sent him.[20] The Applicant and Ms Nicholson agreed that two of the alternative roles identified, Operations Manager and Head of Memberships, would require substantial retraining.[21] The Applicant asked further about the redeployment process and whether he would need to interview for the roles.[22] Ms Nicholson responded that the Applicant would need to meet with the hiring manager and confirm his skills and qualifications.[23]
On 5 April 2024, after the meeting, Ms Nicholson sent the Applicant a letter which stated:
I am writing to confirm that Surf Life Saving Queensland has been unable to identify any other suitable roles within SLSQ for redeployment, based on your level of skills and experience or without prior undertaking a substantial period of retraining.
You stated that you have also been unable to identify any other suitable roles within Surf Life Saving Queensland for redeployment.[24]
Following the meeting on 5 April 2024, the Applicant sent Ms Nicholson an email saying:
You have stated due to operational requirements yet have not provided what these are. I note you stated that the role will not be done by anyone at SLSQ, inferring that it will be outsourced, substantiating that it will still be getting done. As notified, I explained that this would be considered a non-genuine redundancy and you have made no mention of this in your letter.[25]
The Applicant texted Ms Barnes on 5 April 2024, saying, “Official most likely as of next week without any information having been provided”.[26] The Applicant sent Ms Barnes another text message on 5 April 2024 as follows:
[T]hey have no clue, she started with it being made redundant, without notice, oh and not even genuine redeployment as I would have to interview. No transition training offered.[27]
Ms Barnes responded to the Applicant’s text message of 5 April 2024, saying, “Well, that's all odd”.
On 8 April 2024, the Applicant was sent a letter terminating his employment. The letter states:
Following our meeting on Friday 5 April 2024 regarding your current role of Complaints Manager being made redundant, I am writing to confirm that you have been unable to identify any other suitable roles within Surf Life Saving Queensland for redeployment. Therefore your employment will be terminated on Monday 8 April 2024.[28]
The Respondent submits the reason Applicant’s role was no longer required is because his work had been outsourced to an independent contractor, SCG. The circumstances in which SCG acquired the role suggest that Ms Barnes and the Respondent were aware that the Applicant’s role would possibly be made redundant since at least March 2024. The Respondent had determined that the work of the Complaints and Ethical Standards department should be performed by an independent contractor.
The Commission is not able to look behind the Respondent’s choice to outsource complaints management and determine whether that choice was reasonable.
The Applicant has contended that there was not a genuine redundancy because the role was still being performed, albeit by an independent contractor.
I have not been provided with a copy of the contract for services between the Respondent and SCG. However, Ms Barnes has given evidence suggesting that the work which SCG is contracted to perform largely corresponds with the work Ms Barnes performed for the Respondent when she was an employee, including complaints management.
I note that the question is whether the Applicant’s job, as a collection of functions and duties, has survived the redundancy, not whether some aspects of the Applicant’s duties have survived.[29] The work being undertaken by SCG involves part of the work that the Applicant was doing, but not all. Ms Barnes gave evidence under cross examination that while the Applicant’s position was stated to be that of “Complaints Manager”, it involved a “giant educational component”. This included running training, online education and information sessions related to complaints handling. This educational component was not part of Ms Barnes’ role within the organisation, and it is not part of the work which SCG is contracted to do. Therefore, I am satisfied that the Applicant’s role no longer exists within the Respondent’s organisation.
Therefore, the requirement that the employee’s job is no longer required to be performed by anyone because of operational requirements of the employer’s enterprise is made out.
Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy?
The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements to consult about redundancy. There is no legislative requirement to consult about the redundancy before a decision is made to make an employee redundant.
The Applicant submitted that he is covered by either the Miscellaneous Award 2020 or the Clerks Private Sector Award 2020.[30] These awards require an employer to consult about major workplace changes.[31]
It was not explained how the Applicant is covered by these awards. The Applicant’s role at the time of dismissal involved managing complaints from members of the public, members of the organisation and stakeholders.[32] A large aspect of his position involved educating the organisation’s members on complaints handling. The Applicant noted that he dealt with high level volunteers within the organisation. I find that the Applicant was not undertaking clerical work.
On the evidence before me, I am not satisfied that the Applicant was covered by either the Clerks Private Sector Award 2020 or the Miscellaneous Award 2020. In any event, I am satisfied that the Respondent consulted the Applicant about the redundancy.
The Applicant was sent a letter about his potential redundancy on 2 April 2024. On 3 April 2024, the Applicant was invited to attend a consultation meeting with his support person. A current list of vacancies was sent to the Applicant, and the Applicant was told he could request position descriptions of any of the roles listed.
The Applicant was further advised on 5 April 2024 that his position would be made redundant and he was given a further opportunity to consult with Ms Nicholson about the position descriptions for the alternative roles, and whether those positions would be suitable.
Prior to the meeting, the Applicant had prepared a document outlining the significant differences between the Applicant’s current role, and the two roles he had identified, Head of Membership and Operation Manager.[33] That significant differences document notes the educational requirements for the roles, which are a tertiary qualification for the Head of Membership role and a Diploma or higher for the Operations Manager role.[34] The Applicant has two Diplomas in Leadership & Management and Work Health and Safety.[35] He does not have a tertiary degree or a Diploma in Production or Manufacturing, which is what the Operations Manager position required. Ms Nicholson states that the Applicant agreed at the time of the meeting that the two positions he had identified, Operations Manager and Head of Memberships, would require substantial re-training.[36]
I note that consultation is not perfunctory advice notifying the employee of the termination and that there must be a bona fide opportunity for the employee to influence the decision-maker.[37] The Applicant has submitted that the Respondent’s consultation was “unduly hasty and largely tokenistic”.[38] The Applicant points to the fact that the first consultation meeting on 3 April 2024 lasted 13 minutes and the second consultation meeting on 5 April 2024 lasted 19 minutes.[39] I agree that the meetings were short, however that does not of itself mean that the consultation requirement has not been met.
After the meeting on 3 April 2024, the Applicant was given time to go away and think about his options before meeting with Ms Nicholson again on 5 April 2024. Ms Nicholson advised on 3 April 2024 that redundancy was “likely” but had not been confirmed. There is evidence that the Ms Nicholson engaged with the Applicant by explaining the reason why the Respondent was considering making the Applicant redundant, being that the Respondent was undergoing an organisational restructure connected to Ms Barnes’ resignation. I note the Applicant was not satisfied with Ms Nicholson’s explanation of why the role was being made redundant. Ms Nicholson also sent the Applicant a list of vacant roles within the organisation.
I am satisfied that there was no requirement for the Respondent to consult the Applicant regarding redundancy. However, the Respondent did consult with the Applicant regarding potential roles on positions that were currently open.
Was it 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?
In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 at 66, the Full Court of the Federal Court of Australia notes:
“It is for the FWC, as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the FWC thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the FWC’s assessment of what “would have been reasonable in all [of] the circumstances”.
In Helensburgh Coal Pty Ltd v Bartley[2021] FWCFB 2871 at [8], the Full Bench reaffirmed the rules of redeployment set out by Vice President Hatcher in Pettet and Ors v Mt Arthur Coal Pty Ltd[2015] FWC 2851 at [6] in relation to s.389(2) of the FW Act as follows:
“The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett and Technical and Further Education Commission t/a TAFE NSW v Pykett. Those principles were summarised in Huang v Forgacs Engineering Pty Limited as follows:
(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances.
(2) The question is concerned with circumstances which pertained at the time of the dismissal.
(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.
(4) A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job and the remuneration which it offered.”
The Full Bench stated that the work to which an employee might be redeployed must, ultimately, be work over which the employer has control.[40]
The Applicant has contended that the Applicant could have been reasonably deployed to the role of First Aid Trainer, Training Administrator or Member Safety Officer.[41] The Applicant had previous experience as a First Aid Officer, then as a Chief Trainer, a role in which he mentored First Aid Trainers. I note that the positions of First Aid Trainer and TAE Trainer were on the list of positions which were currently being recruited for which Ms Nicholson emailed the Applicant on 3 April 2024.
Ms Nicholson gave evidence that she was not aware that the Applicant had been previously employed as a Chief Trainer with the Respondent. Ms Nicholson had commenced in her role as Head of Human Resources for the Respondent in 2023. While I find it strange that Ms Nicholson did not find out about the Applicant’s prior role as a Chief Trainer when she was preparing for the consultation meeting, I accept her evidence that she did not know at the time.
The Applicant complained that the organisation did not identify for him roles which were a “perfect fit” or ask about his skills. I find that it was implicit in Ms Nicholson’s email of 3 April 2024 in which she provided the Applicant a list of vacancies that she was asking the Applicant to review the list and determine for himself which roles he was interested in or which he felt he would be a good fit for. This is reinforced by the fact that Ms Nicholson invited the Applicant to seek out the position descriptions for any of the roles on the list.
The requirement for the Respondent to identify suitable roles which are reasonable to redeploy the employee to does not mean that the employee should disengage themselves from the process. If the Applicant was concerned that his relevant skill set was not being taken into account, he should have brought this matter to the attention of Ms Nicholson. I can see no evidence that the Applicant did this.
Further I note that the Applicant did not himself identify the First Aid Trainer role or TAE Trainer role as being a suitable alternative role for him to redeployed into, despite both roles being on the list of vacancies.
Alternatively, the Applicant contends that the Applicant could have received retraining and transitioned into one of the vacant positions in the organisation. The Applicant relies on Ulan Coal Mines Ltd v Honeysett [2010] FWAFB at [34] (“Ulan No. 2”):
It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course, the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining.
I note that the Applicant only expressed interest in receiving the position descriptions for three roles: RTO Compliance Officer, Operations Manager - Thundercats Inflatables and Head of Membership. The RTO Compliance role was not available. The Applicant took it upon himself to produce a list of significant differences between his current role and the Operations Manager and Head of Membership role. Both of these roles required more than a “reasonable period of retaining”. They required a diploma or a tertiary qualification. Therefore, I reject the Applicant’s submission that the Respondent should have offered him retraining. The only two roles which he expressed interest in prior to the consultation meeting required significant retraining which, on the Respondent’s evidence, the Applicant himself indicated that he did not want to undertake. I accept the Respondent’s evidence that the Applicant indicated that he did not want to undertake the substantial retraining associated with the Operations Manager or Head of Membership role.
The Applicant also submitted that the alternative roles required him to compete with other applicants.[42] I note Ulan No. 2 in which the Full Bench states:
Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy.[43]
I note that when the Applicant was provided with a list of vacancies by Ms Nicholson on 3 April 2024, those roles were currently being advertised on Seek.[44] This suggests that the roles were being recruited for externally.
Ms Nicholson stated that if the Applicant identified any suitable roles, he would need to meet with the relevant hiring manager to confirm his skills and qualifications. The Respondent contends that this meeting was to confirm the Applicant’s skills, rather than to subject him to a competitive recruitment process. In order for an employer to assess whether a role is reasonable for redeployment, they need to assess the employee’s skills.[45]
As I have found above, the Applicant was not qualified for the roles he had selected without a substantial period of retraining. The Applicant states that Ms Nicholson said in the meeting on 5 April 2024, “It would be a redeployment, if, mean, as you say you don’t, if you want to apply for the Ops Manager role at Thundercat, there are essential criteria for that role that you wouldn’t have.”
Ms Baas, who was seated in the same office as Ms Nicholson at the time of the 5 April 2024 meeting, recalled the conversation between Ms Nicholson and the Applicant as follows:
Mr Kinneally also queried the redeployment process and was advised by Janet that he would need to meet with the hiring manager as per normal recruitment process to assess skills, qualifications and experience. Mr Kinneally did not ask or discuss the First Aid Trainer role at any point in time.[46]
The evidence of Ms Baas suggests that the Applicant was being required to participate in the Respondent’s “normal recruitment process”.
The Applicant recalled Ms Nicholson’s statements during the 5 April 2024 meeting as follows:
Ms Nicholson stated “If there was anything you were interested in that we were currently recruiting for, obviously it would go straight through to an interview, we wouldn’t expect you to reapply. It would just go straight through to an interview process, if there were any roles there that were appealing to you.”[47]
I note Deputy President Beaumont’s comments in Susan Retter v WA Council on Addiction Inc T/A Cyrenian House[2024] FWC 1803:
I accept that there is no established requirement that an employer must conduct an internal process before seeking candidates from the external market, where the result is internal candidates compete against external candidates. Further, there is no requirement, mandated by s389(2), that internal candidates be given preferential treatment. However, in ‘all the circumstances’ of a particular matter, whether there was an internal process in advance of an external one is a relevant consideration in determining whether redeployment was reasonable.[48]
It is unclear as to whether the step of meeting with the hiring manager was to simply confirm the Applicant’s skills and qualifications and then identify him as the preferred applicant for hiring or to subject the Applicant to a competitive recruitment process.
I find that the Respondent was not obliged to specifically offer redeployment into the First Aid Trainer role or TAE Trainer Role, in circumstances where the Respondent had already indicated that these roles were vacant and had invited the Applicant to ask for position descriptions for any vacant roles. The Applicant had been given an opportunity prior to his dismissal to identify roles he wished to be redeployed into, subject to confirming his skills and qualifications, and he did not identify the First Aid Trainer role or the TAE Trainer role.
As that the Applicant had only expressed interest in roles that it would not have been reasonable to redeploy him into, given his skills and qualifications, I find that the Applicant could not be reasonably redeployed by the Respondent.
Conclusion
The restructuring and subsequent redundancy of the Applicant was not textbook, there were opportunities for the Respondent to improve the way they handled the process and be more sensitive to the Applicant undergoing a significant and life changing experience. It is unfortunate that the Applicant was blindsided by Ms Barnes, who having taken on the contracted work and understanding that the Applicant may be made redundant, acted as his support person.
However, despite these matters it was clear that the circumstances are a genuine redundancy, and I note the Applicant was paid accordingly. The outcome would be no different if the consultation had extended for a few more days.
I am satisfied that the dismissal of the Applicant was a genuine redundancy under s.389 of the Act and the Applicant is not eligible to seek a remedy for unfair dismissal. The jurisdictional objection of genuine redundancy is upheld. I order that this Application be dismissed.
DEPUTY PRESIDENT
Appearances:
J. Wang appearing as Counsel for the Applicant instructed by Teddington Legal
T. Spence appearing as Counsel for the Respondent
Hearing details:
8 August 2024
Brisbane
Hearing via Microsoft Teams
[1] Form F2, page 3.
[2] Helensburgh Coal Pty Ltd v Bartley and Anor [2024] FCAFC 45 at 55 (“Helensburgh Coal Pty Ltd”).
[3] Fair Work Act 2009 (Cth) s 389(1)(a).
[4] Ibid s389(1)(b)
[5] Ibid s389(2)(a)-(b).
[6] Helensburgh Coal Pty Ltd at [58].
[7] Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32] (“Ulan Coal Mines Limited”).
[8] Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt[2010] FWA 674.
[9] Applicant Witness Statement [4].
[10] Ibid [6].
[11] Ibid Annexure JK-6.
[12] Ibid [67].
[13] Ibid Annexure JK-8.
[14] Respondent letter to Teddington Legal dated 19 April 2024 [2].
[15] Applicant Witness Statement Annexure JK-9.
[16] Ibid JK-10.
[17] Ibid.
[18] Ibid JK-11.
[19] Ibid.
[20] Ibid [59].
[21] Form F3, page 8, 5(e).
[22] Applicant Witness Statement [82].
[23] Janet Nicholson Witness Statement [14].
[24] Applicant Witness Statement Annexure JK-14.
[25] Ibid Annexure JK-13.
[26] Kerrie Barnes Witness Statement [15].
[27] Ibid [16].
[28] Applicant Witness Statement Annexure JK-16.
[29] Ulan Coal Mines Limited [2010] FWAFB 3488 at para. 17, [(2010) 196 IR 32].
[30] Applicant Submissions [13].
[31] Private Sector Clerks Award 2020, cl 38; Miscellaneous Award 2020 cl 27.
[32] Applicant Witness Statement Annexure JK-6.
[33] Ibid Annexure JK-12.
[34] Ibid Annexure JK-12.
[35] Form F2, page 6.
[36] Form F3, page 8.
[37] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodaphone Network Pty Ltd PR911257 [25]; affirmed by Deputy President Beaumont in Francombe v MClinicia Pty Ltd [2020] FWC 666 at [44].
[38] Applicant Submissions [14].
[39] Applicant Submissions [15].
[40] Helensburgh Coal Pty Ltd v Bartley and Anor [2021] FWCFB 2871 at [54].
[41] Applicant Submissions [21].
[42] Applicant Submissions [28].
[43] Ulan Coal Mines Ltd v Honeysett [2010] FWAFB [34].
[44] Applicant Witness Statement [50].
[45] Ulan Coal Mines Ltd v Honeysett [2010] FWAFB [34].
[46] Jessica Baas Witness Statement Number 2 [2].
[47] Applicant Witness Statement [83].
[48] Susan Retter v WA Council on Addiction Inc T/A Cyrenian House[2024] FWC 1803 [77].
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