Joel Small v Sydney Tools

[2017] FWC 1272

[2017] FWC 1272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joel Small
v
Sydney Tools
(U2016/12423)

VICE PRESIDENT CATANZARITI SYDNEY, 10 MARCH 2017

Application for relief from unfair dismissal.

Introduction

[1] On 11^th October 2016, Joel Small (“the Applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy. On the 18 October 2016, the matter was allocated to a conciliator at the Fair Work Commission (“the Commission”).

[2] The matter was the subject of multiple unsuccessful conciliations by other members of the Commission. The matter was listed for determinative conference on 7 February 2017. At determinative conference, the Applicant represented himself, and the Sydney Tools (“the Respondent”) was represented by Ms A. Chee, solicitor and In-House Counsel, and Mr E. Bey, Director of Sydney Tools. I note that as Ms Chee is an employee of Sydney Tools, she is not a legal representative for the purposes of section 596 of the Act.

[3] The Applicant filed written submissions with the Commission on 18 December 2016. The Respondent filed written submission with the Commission on 23 January 2017, and the Applicant filed written submissions in response to the Respondent’s submissions on 30 January 2017.

[4] The Applicant gave evidence on his own behalf and the following witnesses gave evidence on his behalf:

● Grahame Downes – Employee at Sydney Tools, Store Manager Castle Hill; and

● Greg Kramer - Employee at Sydney Tools, Salesperson Castle Hill.

[5] The following witnesses gave evidence on behalf of the Respondent:

● Grahame Downes – Employee at Sydney Tools, Store Manager Castle Hill; and

● Elvis Bey – Director, Sydney Tools.

[6] The Respondent as part of their submissions included seven witness statements, only the two of which, identified above, were called upon to give evidence during the determinative conference. Mr Downes, was called upon to give evidence by both the Applicant and the Respondent.

[7] The statement of Mr Bey was heavily amended before becoming admissible, As discussed during proceedings the irrelevant paragraphs were struck out, the admissible sections of that witness statement are paragraphs; 1 – 3, 9 – 11(i), 13, 14, 17. 1

[8] The Respondent during the determinative conference initially elected not to rely upon the termination letter included in their submissions. However, after an adjournment and a further conciliation attempt, the Respondent changed their position and sought to rely on the termination letter. The letter has been considered in this decision as part of the evidence put to the Commission.

Background

[9] The Applicant was employed by the Respondent on a Full Time basis as a Senior Sales Representative. The Applicant has been employed by the Respondent since 9 February 2015.

[10] The Respondent alleged that on 30 September 2016, the Applicant attempted to steal and defraud the business. I note that this is an extremely serious allegation. The Respondent and the Applicant met to discuss the events that occurred on 30 September 2016. A termination letter was sent to the Applicant by the Respondent on 6 October 2016 and from this date the termination took effect. The termination letter provided as follows:

“I am writing to you about the termination of your employment with Sydney Tools Pty Ltd.

I refer to our meeting on 4 October 2016 which was attended by you, Elvis Bey and myself. During the meeting we discussed the events that occurred at the Sydney Tools Castle Hill Branch on 30 September 2016.

We note that, on Friday 30 September 2016, you did assist Mr Michael Power to invoice himself, Sydney Tools equipment for $200.00, which held a retail value of $4,500.00. Castle Hill Management notified head office, that you and Mr Power attempted to; Steal and/or defraud the business.

You were provided the opportunity to respond to the allegations, and that you did attend the Sydney Tools Head Office for that purpose.

As discussed during the meeting, your conduct during the events of 30 September 2016:
● was wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment;
● was conduct in the course of your employment engaging in theft, and in the circumstances your continued employment during a notice period would be unreasonable; and
● was conduct in the course of your employment engaging in fraud, and in the circumstances your continued employment during a notice period would be unreasonable.

We consider that your actions constitute serious misconduct warranting summary dismissal. As such, on behalf of Sydney Tools Pty Ltd, I hereby inform you that your employment has been terminated.

In these circumstances you are not entitled to accrued entitlements and that if you have been paid annual leave in advance, any amount still owing will be deducted from your final pay.

We advise that, the investigation is ongoing and that the matter may be referred to the NSW Police.”

[11] The Applicant rejected the allegations made in the termination letter and any allegations that he engaged in stealing and/or defrauding the business. Thus, the Applicant submitted that he was unfairly dismissed and seeks an order that he be compensated.

Protection from Unfair Dismissal

[12] An order for compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[13] There is no dispute, and I am satisfied the Applicant was protected from unfair dismissal within the meaning of s.382 of the Act.

Was the dismissal unfair?

[14] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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.”

Section 385(a) – Was the Applicant dismissed?

[15] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act.

[16] On the basis of the termination letter sent to the Applicant by the Respondent, I am satisfied that the Applicant was dismissed within the meaning of s.386 of the Act.

Section 385(c) – Was the dismissal consistent with the Small Business Fair Dismissal Code?

[17] This was not in dispute, and I am satisfied that the Small Business Fair Dismissal Code is not applicable as the Respondent is not a small business employer for the purposes of s.388 of the Act.

Section 385(d) – Was the dismissal a genuine redundancy?

[18] This was not in dispute, and I am satisfied, that the dismissal was not a genuine redundancy within the meaning of s.389 of the Act.

Section 385(b) – Harsh, unjust or unreasonable

[19] Having been satisfied of each of s.385(a),(c)-(d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at 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.”

[20] The ambit of the conduct which may fall within the phrase “harsh, unjust or unreasonable” was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by 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.”

[21] I am under a duty to consider each of these criteria in reaching my conclusion. 2

[22] The Applicant submitted that the dismissal was harsh, unjust or unreasonable as he maintained that he did not engage in the alleged conduct. The Applicant submitted that he was not afforded procedural fairness, by not being given the opportunity to respond to allegations and the subsequent dismissal. The Applicant submitted that the Respondent unreasonably refused him a support person to be present during the discussions relating to dismissal.

[23] The Respondent contended that the dismissal was not harsh, unjust or unreasonable. The Respondent submitted that it took the necessary steps to investigate the complaint, including giving the Applicant the opportunity to respond. The Respondent claimed that the Applicant did not utilise this opportunity. The Respondent submitted that it gave the Applicant the opportunity to bring a support person to be present during discussions relating to the dismissal, however, that the Applicant did not seek to do so.

[24] I will now consider each of the criteria at s.387 of the Act separately.

Section 387(a) – Was there a valid reason for dismissal relating to the Applicants capacity or conduct?

[25] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 3 The reasons should be “sound, defensible and well founded”4 and should not be “capricious, fanciful, spiteful or prejudiced.”5

[26] There is a distinction between capacity and conduct 6; in this matter it was the conduct of the employee that formed the basis of his termination. In King v Freshmore (Vic) Pty Ltd (2000), a Full Bench held:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination [See Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1].” 7

[27] It is not the role of the Commission to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.” 8 However, the Commission must consider the entire factual matrix in determining whether an employee’s termination is for a valid reason.9

[28] It is not disputed that on 30 September 2016, $4,500.00 worth of stock was invoiced out for $200.00 by a former employee of the Respondent, Mr Power, who took the positive step of using a computer system and inputting the operator name of “Grahame Downes”, before invoicing out the products to himself.

[29] The Respondent’s reasons for dismissal as identified in the termination letter, all pertain to the events that occurred at the Sydney Tools Castle Hill Branch on 30 September 2016. The Respondents allege that the Applicant attempted to steal and/or defraud the business, by assisting Mr Power to invoice out $4,500 worth of tools for the value of $200. The Respondent’s submit that this was a valid reason for dismissal.

[30] The Applicant submitted that he did not engage in such conduct and that there was no valid reason for his dismissal.

[31] The Commission must determine on the evidence before it, whether the Applicant did in fact assist Mr Power in making the aforementioned transactions on 30 September 2016. Only if this can be shown on the evidence, can the termination be considered valid.

Respondent’s Evidence

[32] The admissible evidence offered by the Respondent in relation to the question of whether there was a valid reason for termination was as follows.

[33] In the heavily amended witness statement of Mr Bey, Mr Bey highlighted that there was a meeting between the Applicant and himself on 4 October 2016, in which the Applicant was shown multiple invoices, and that the applicant did not offer comment on the invoices. Of these invoices, the Respondent’s tendered only Invoice 1775234 (“Exhibit B”). 10. Separate from those invoices shown to the Applicant during this meeting, the Respondents also tendered Invoice 1775230 (“Exhibit A”).11

[34] Exhibit A and B detail transactions on 30 September 2016 with tools invoiced out to Mr Power, for a much lower value than they were worth, under the operator name of “Grahame Downes”. It is not disputed that Mr Power used Mr Downes’ computer and ADEN log-in to invoice these tools to himself. However, the Respondent relies on these invoices as evidence that the Applicant was complicit and assisted Mr Power with invoicing out tools at a much lower value than they were worth.

[35] The Respondent also tendered Invoice 1757157 (“Exhibit D”), 12 which is not relevant to the events occurring on 30 September 2016.

[36] In the meeting on 4 October 2016 with Mr Bey, the Applicant was also asked to reveal any instances of theft or fraud that had occurred or were occurring to his knowledge at Sydney Tools; the Applicant did not raise any instances. Concluding this discussion, the Applicant was suspended by Mr Bey pending further investigation. The Applicant received the termination letter on 6 October 2016.

[37] The Respondent alleged that the Applicant assisted Mr Power to engage in the activities that occurred on 30 September 2016. In support of this allegation, the Respondent utilised only the witness statement of Mr Bey, who during Evidence in Chief, stated that Mr Power told Mr Bey that the Applicant assisted him to defraud and steal from the business on 30 September 2016. 13 This is detailed in the following exchange at the determinative conference:

“VICE PRESIDENT: The question is that he [Mr Power] told you that he did so because Mr Small assisted to do it. That’s the allegation. That’s what you put in the letter of termination?

MY BEY: Yes, that’s what I’m saying. Yes.
VICE PRESIDENT: All right. That’s all you need to say. Then you’ll be cross-examined on that. You’re saying that Mr Power said to you that Mr Small assisted him to invoice himself in relation to these transactions on 30 September?

MR BEY: Yes …”  14

[38] The Respondent chose not to call Mr Power as a witness.

[39] The Respondent claimed that the Applicant on 30 September 2016 was a Manager at the relevant Sydney Tools store, and should have ensured that the appropriate approval processes for all staff purchases took place. This process includes ensuring that Directors, Elvis or Jason Bey, were aware of and approved the transaction.

[40] In the witness statement of Mr Downes tendered by the Respondent, it is clear that Mr Downes called Jason Bey and made him aware of his concerns as regards to the transactions made by Mr Power on 30 September 2016. Mr Downes’ statement also shows that Mr Kramer was the manager in duty at the time, and that Jason Bey requested to speak to Mr Kramer as the manager on duty. 15

[41] However, in Cross-Examination of Mr Downes by Mr Bey, Mr Bey disputed paragraph 20 of Mr Downes’ witness statement, claiming that Mr Downes had lied on the witness statement tendered by the Respondent and that in fact Mr Kramer was not the only manager on the day. The Respondent maintained that the Applicant was a manager of the Sydney Tools Castle Hill store on the 30 September 2016, and ought to have acted in accordance with procedures by ensuring that either Jason or Elvis Bey approved all staff transactions, including that of Mr Power on the day.

Applicant’s Evidence

[42] The Applicant called Mr Kramer as a witness, during Evidence in Chief and Cross-Examination, Mr Kramer confirms that the Applicant was not a manager, and did not assist Mr Power on 30 September 2016. 16 The Applicant called Mr Grahame Downes who also confirms that the Applicant was not a manager and did not assist Mr Power on 30 September 2016. The Applicant also gave evidence on his own behalf and confirms that he was not manager and that he did not assist Mr Power on 30 September 2016.

Conclusion

[43] The Respondent alleged that based on Exhibit A and B, that the Applicant was aware of and assisted Mr Power to steal from and defraud the business. I do not accept this, the evidence does not support the allegation. The Respondent also relied on the Evidence in Chief of Elvis Bey to show that in discussion with Elvis Bey about the events that occurred on 30 September 2016, Mr Power stated that the Applicant assisted to steal from and defraud the business. There is no evidence in support of this allegation and the Respondent did not call Mr Power as a witness.

[44] The Respondent alleged that the Applicant was a Manager of the store on 30 September 2016 and was under an obligation to ensure all staff purchases were approved by the Directors Jason and Elvis Bey. I do not accept this, the evidence from both the Applicant and the Respondent, shows clearly and consistently that the Applicant was not a manager on 30 September 2016.

[45] I am satisfied that the Respondent lacks any evidence to support the very serious allegations made in the termination letter. The evidence before the Commission shows that the Applicant did not engage in any wrong doing 30 September 2016.

[46] Consequently, I find that there was no valid reason for the dismissal.

Section 387(b) – Was the Applicant notified of the reason for dismissal?

[47] This was not in dispute, I am satisfied that the Applicant was notified of the reason for dismissal via the termination letter, albeit the Applicant was dismissed without valid reason.

Section 387(c) – Was the Applicant given an opportunity to respond?

[48] Considering the evidence before the Commission, I am satisfied that this a neutral factor when considering whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Section 387(d) – Was there an unreasonable refusal to allow a support person?

[49] Considering the evidence before the Commission, I am satisfied that this a neutral factor when considering whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Section 387(e) – Warnings regarding unsatisfactory performance

[50] As the Applicant was not terminated on the basis of unsatisfactory performance, this is not a relevant consideration.

Section 387(f) and (g) – Size of employer’s enterprise and human resource expertise

[51] The Respondent is a large organisation with over 100 employees. I find that the Respondent’s size was not a relevant factor in this matter. While the Respondent does not seem to have any dedicated human resource management specialists or expertise, I am not of the view that this impacted the procedures that were followed in effecting the dismissal.

Section 387(h) – Any other matters the FWC considers relevant

[52] Having considered all of evidence before me, I am not satisfied that there are any other matters that I consider relevant in reaching my decision.

Conclusion

[53] Having considered each of the matters specified in s.387, I am satisfied the dismissal of the Applicant was harsh and unjust. Accordingly, I find the Applicant’s dismissal was unfair.

Remedy

[54] 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.”

[55] I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant was dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all the circumstances.

Compensation

[56] Section 390(3)(b) provides I may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.

[57] The Applicant submitted that an order for compensation is appropriate in all the circumstances of this case because:

● He was unfairly dismissed; and
● Serious allegations of fraud and theft were made against him by the Respondent, rendering the option of reinstatement inappropriate.

[58] The Respondent submitted that an order for compensation is not appropriate in all the circumstances of this case because:

● There was a valid reason for dismissal; and
● They had offered the Applicant reinstatement.

[59] Section 392 of the Act sets out the circumstances that must be taken into consideration 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.

Conclusion

[60] An order for the payment of compensation is appropriate in the circumstances, as the Applicant was unfairly dismissed. The Applicant does not seek reinstatement, although the Respondent had previously offered the Applicant his job back, this offer occurred after the Respondent made serious allegations of theft and fraud against the Applicant. In such a circumstance, the Commission is satisfied that reinstatement is inappropriate.

[61] I am satisfied that an order for compensation is appropriate in all the circumstances of this case.

Remedy

“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.”

[62] The method for calculating compensation under s.392 of the Act was recently dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge 17 (Bowden). 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 Supermarket18 and Ellawala v Australian Postal Corporation19. I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

[63] I have considered each of the criteria in s.392 of the Act.

[64] I should now determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had they not been dismissed.

[65] The Applicant obtained new employment on 12 December 2016 after being dismissed on 6 October 2016, the period between these dates is 9 weeks and 4 days. I am satisfied that the Applicant would have remained in employment for this period of time but for the unfair dismissal.

[66] The Applicant’s gross income at termination of employment is $72,000.42 plus superannuation. I have determined that there should not be reductions from compensation paid to the Applicant.

[67] The Applicant’s compensation must not exceed half the amount of the remuneration that was received by the Applicant, or that the Applicant was entitled to receive, for any period of employment with the employer during the 26 weeks immediately before the dismissal. I am satisfied that this amount is $36,000.21. However, given the circumstances, I am satisfied that the compensation payable is less than this amount.

[68] The Respondent is to pay $12,461.58 gross to the Applicant, plus 9.5% superannuation, less taxation as required by law within 14 days.

[69] An order to this effect is issued in accordance with this Decision.

VICE PRESIDENT

Appearances:

J. Small for himself.

A. Chee and E. Bey for the Respondent.

Hearing details:

2017

Sydney:

7 February.

<Price code C, PR590730>

 1   Transcript, PN604 – PN627.

 2   Sayer v Melsteel[2011] FWAFB 7498.

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

 4   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 5   Id.

 6   Annetta v Ansett Australia (2000) 98 IR 233

 7 Ibid [23].

 8   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 9   Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

 10   Transcript, PN124, Exhibit B.

 11   Ibid Exhibit A.

 12   Transcript, PN547, Exhibit D.

 13   Transcript, PN673 - PN674.

 14   Transcript, PN673 - PN674.

 15   Grahame Downes - Witness Statement, 18 – 20.

 16   Transcript, PN441 – PN444.

 17   [2013] FWCFB 431.

 18 (1998) 88 IR 21.

 19   Print S5109.

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