Joshua Blake v OEM Viridi Pty Ltd
[2020] FWC 3463
•2 JULY 2020
| [2020] FWC 3463 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joshua Blake
v
OEM Viridi Pty Ltd
(U2019/14110)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 2 JULY 2020 |
Application for relief from unfair dismissal - genuine redundancy - operational reasons, consultation, redeployment.
[1] On 16 December 2019, Mr Joshua Blake (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent, OEM Viridi Pty Ltd, objected to the application on the basis of the dismissal being a case of genuine redundancy.
[2] A jurisdiction (genuine redundancy) and arbitration conference was held by teleconference on 5 June 2020, by way of determinative conference consistent with s.399 of the Act. Written submissions and witness statements were filed by each party with the following witnesses giving sworn evidence:
• Mr Joshua Blake;
• Mr Mike McCormick;
• Mr Jeffrey Smith; and
• Mr Jason Tuohy.
[3] I have had regard to all submissions and evidence.
The Act
[4] The Act provides:
‘385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
...
389 Meaning of genuine redundancy
(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.’
Submissions
Applicant’s submissions
[5] The complexities of the law in relation to an application like this are substantial, and in many respects both the applicant and respondent had difficulties in addressing those complexities, including for example the question of whether or not an award applied to the employment of the applicant.
[6] In final written submissions, Mr Blake submitted that he did not agree that the business was a small business. Mr Blake provided a list of 22 employees stating that 6 casual employees were engaged on an ongoing, full-time basis, with other casual employees being engaged at varying times throughout 2019 and 2020. Mr Blake stated that there were other casuals not listed who have been, and still are employed by the company at times during 2019 and 2020. 1
[7] Mr Blake submitted that the position of factory manager is required to be performed for the factory to operate and the Respondent had acknowledged this fact in their Form F3 response form. Mr Blake states that he has been in regular contact with current and former employees of the business with them advising that there has been no substantial changes in operational requirements of the factory. 2 Further, Mr Blake submits that the role of factory manager is essential to the operation of the factory and this is now being performed by Mr Tom McKenny.3
[8] Mr Blake submits that it would have been reasonable for the Respondent to have moved him to a different position as he was skilled and experienced in all roles within the factory and office. 4
[9] With respect to why the dismissal was unfair, Mr Blake submitted: 5
• There was no indication or consultation prior to the dismissal and he was provided without an opportunity to respond. Mr Blake submits he would have been open to discussions of a pay decrease or discussing other ways in which he could maintain his job;
• On the day of dismissal there was a high production demand in all areas of the factory and the factory could not operate moving forward without his role being performed. It would have been impossible for the Director and the Operations Manager to manage the factory as they are both based in Western Australia;
• That he kept in contact with many employees who could verify that Mr McKenny would complain about performing the managerial role but without the title. Further, Mr McKenny was completing tasks he had previously performed. These tasks included: opening and closing the factory, collecting and processing employee weekly timecards, scheduling factory production requirements and delegating to factory employees, preparation of factory work orders, finished goods and despatch paperwork, all employees reported to him and were advised of individual work requirements by him on a daily basis, and purchasing factory and office supplies
• He was of the belief that the Mr McCormick and Mr McKenny were involved in the planning of his dismissal and that it was part of a strategic plan to have him dismissed with Mr McKenny starting immediately;
• He was owed long service leave entitlements and he believed this was a factor in his dismissal;
• That the business is not a small business. There were 19 employees present on his day of dismissal with there being other employees at the Western Australian based business.
Respondent’s Submissions
[10] The Respondent submitted that it is a small business and provided a list depicting 12 employees of which 7 casual staff were omitted due to them not having a regular or ongoing systematic pattern of work. 6
[11] Obligations to comply with the Small Business Fair Dismissal Code were met through Mr Blake’s contract of employment with him being provided with 11 weeks pay. The only other alternative position available was that of a Factory Hand which was viewed as being too much of a demotion in comparison to the position held by Mr Blake. There were also concerns regarding safety on the site as Mr Blake showed signs of negativity which was deemed as placing the business and employees at risk. 7
[12] With respect to requiring someone to perform Mr Blake’s job, the Respondent submits that they did not require a dedicated Factory Manager to manage the small team of employees. The role is now taken over by the Director and Operations Manager to organise work requirements with regular site visits. 8
[13] With respect to why the dismissal of Mr Blake was carried out, the Respondent submits:
• The Factory Manager position was no longer needed. The redundancy was a cost cutting measure given the serious financial hardship that the Company is undergoing, and also given the size of the business a full time Factory Manager was no longer needed. The Director and Operations Manager will manage the factory moving forward. 9
• Mr Bake was told why his employment was coming to an end via written letter with a redundancy benefits summary. The letter indicated that following a review of the business structure to increase efficiencies and productivity, it resulted in the business no longer requiring the Factory Manager position. 10
• Mr Blake was provided with an opportunity to respond which was deemed to be aggressive. Mr Blake was offered counselling support which he declined but requested a work reference. 11
• The business is considered a small business, only employing 12 employees. 4 of which were casuals who were engaged on a regular and systematic basis. 12
• The business had been experiencing financial difficulties since 2014. 13
Was the redundancy required because of operational requirements – s.389(1)(a)
[14] In Ulan Coal Mines Limited v Henry Jon Howarth 14 a Full Bench of the Commission said:
“[19] … The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.”
[15] Mr McCormick justified the redundancy firstly by giving evidence that the business was losing money every year, making a loss, and was in severe financial difficulties, and that the saving of the $110,000 plus salary of the applicant was needed. He said:
“The Factory Manager position is no longer needed as the Director and Operations Manager will continue to plan and organise work requirements at the Factory, and this will provide a significant cost cutting measure. And as a consequence we would not need a dedicated Factory Manager position and in doing so save $110,000/year plus mobile phone and vehicle costs. The business continues to be in dire financial crisis and we are desperately trying to reduce costs and increase efficiencies.” 15
[16] He further said:
“The Factory Manager position was no longer needed. The redundancy was a cost cutting measure given the serious financial hardship that the Company is undergoing, and also given the size of the business a full time Factory Manager was no longer needed. The Director and Operations Manager will manage the factory moving forward. Please note the Director worked 250 days last year in Ballarat, overseeing all aspects of the Business. The Profit/Loss summary for each year of operation is attached. Given Joshua’s sizeable remuneration package, not having this position moving forward is a significant saving.” 16
[17] He provided details of the profit and loss, which showed large losses, and the business losing over $100,000 each year since 2014: 17
“We believe the redundancy package we gave Joshua was more than fair and reasonable given the size of our Business and our financial position.
[18] Mr Blake’s main challenge to this was not to challenge the losses but to claim that someone else, Mr McKenny, was now doing his job. Nevertheless he said: 18
“I was unaware of any financial difficulties as there were more employees and work at the time than we had ever had previously.”
[19] The main challenge on redundancy issues was the evidence of Mr Smith, who believed that Mr McKenny was now the factory manager. There were difficulties with the evidence of Mr Tuohy and Mr Smith, in that both told me in giving evidence that their witness statements were prepared by Mr Blake, not by them. 19 It is not clear to me that in all cases the witness statements were in fact fully their evidence.
[20] Even if this difficulty is overcome, there are further difficulties with drawing conclusions from their evidence. In giving oral evidence Mr Smith agreed that he was not told that Mr McKenny was manager. 20 Mr McKenny was rather up the chain of command. Mr Smith also said that he did not hear Mr McKenny claim that he should have been given the title of manager, rather he heard this reported from someone else.21 This is hearsay evidence, and I can give this report little if any weight. Mr Smith claimed that Mr McKenny did certain functions from time to time such as opening and closing the factory, and assisting him with instructions. He appeared to give evidence that:
• The factory manager position needed to be performed by someone for the factory to operate;
• Tom McKenny started working at the factory the week after his dismissal and performed factory manager duties immediately;
• The duties included opening and closing the factory, collecting and processing employee weekly timecards, scheduling factory production requirements and delegating to factory employees, preparation of factory work orders, finished goods and despatch paperwork; and
• All employees reported to Mr McKenny and were advised of individual work requirements by him, on a daily basis, purchasing factory and office supplies. 22
[21] Mr Smith also claimed that:
“Jeffrey Smith and other employees have advised Tom McKenny had the work schedule with him on a daily basis. They were advised by him what needed to be done and when, this happened also when the director was on site.” 23
[22] Mr Smith also claimed that:
“Employees have witnessed Tom McKenny buying items such as toilet paper, coffee, milk and other factory and office supplies. It should be noted, there wasn’t a cleaner employed by the company. With 17+ people working in the factory, most items for toilets, tea-room, office and factory were required to be purchased locally on a weekly basis.” 24
[23] Even if this is true or partly true, with the possible exception of for example all employees allegedly reporting to him and being advised as to their individual work requirements on a daily basis, this does not determine that he was the manager.
[24] Mr McCormick rejected the claim that Mr McKenny became the manager. He said that he became the manager after Mr Blake was terminated. Mr McCormick stated that:
“Management was represented on-site by both Mike McCormick and John Mascarenhas.” 25
[25] He further gave evidence that:
“Tom McKenny started on Monday the 2nd on a casual basis and certainly not the Factory Manager as stated. I was on-site during the period as Factory Manager together with the Operations Manager. During this period up until the 19th December Tom McKenny assisted factory workers learning new skills on the shop floor. I spoke to the entire team on the 26th November to inform them that I would be taking over Josh’s responsibilities.” 26
[26] He further gave evidence that:
“It is claimed that it is impossible for the Ops Manager and Director to manage the factory moving forward as they are both based in an office in WA. In defense of this I would like to outline the time we have spent at the factory since Joshua’s departure:
• Mike McCormick: 16 Days at factory during November 2019 17 Days at factory during December 2019 (15 working days due to holiday period) 16 Days at factory during January 2020 (Also a short month with official return to work on the 13th Jan) 19 Days during Feb
• John Mascarenhas: 14 Days at factory during November 2019 12 Days at factory during December 2019 (15 working days due to holiday period) 8 Days at factory during January 2020 (Also a short month with official return to work on the 13th Jan)
• During 2019 Mike McCormick was based in Ballarat for 250 days in the year” 27
[27] Mr McCormick stated further that:
“Mr McCormick specifically rejected the alleged evidence of Mr Smith in relation to Mr McKenny’s duties. In fact Mr McCormick says that the factory runs perfectly without a Manager on-site. Tom McKenny was not employed as a factory Manager nor was he introduced as a Factory Manager.” 28
[28] Mr McKenny also gave evidence that he was not the manager. Mr McKenny also does not describe himself as the manager, but as ‘being employed in a marketing and communications role’. He states that his role involves liasing with existing Viridi clients, collaboration with management to generate new business and provide advice on marketing opportunities for business development purposes. At times he would assist production staff by working alongside them as a team member on the factory floor to achieve work targets as advised by either the General Manager or Production Manager. Reporting to the General Manager or Production Manager Mr McKenny would also print and distribute work orders for team members in various workplace sectors. 29
[29] Mr McCormick said that he himself performed the function of manager following Mr Blake’s dismissal on 26 November 2019. 30 He has established through plane booking receipts that he was present in the factory for large periods of time following Mr Blake’s dismissal, or was able to be present as he said he was:31
• 12 November 2019 from Perth to Melbourne;
• 20 November 2019 from Melbourne to Perth;
• 20 November 2019 from Perth to London;
• 21 November 2019 from London to Amsterdam;
• 23 November 2019 from Dusseldorf to London;
• 23 November 2019 from London to Melbourne;
• 5 December 2019 from Melbourne to Perth;
• 11 December 2019 from Perth to Melbourne;
• 22 December 2019 from Melbourne to Perth;
• 12 January 2020 from Perth to Melbourne;
• 17 January 2020 from Melbourne to Perth;
• 21 January 2020 from Perth to Sydney;
• 22 January 2020 from Sydney to Melbourne;
• 12 February 2020 from Melbourne to Perth;
• 19 February 2020 from Perth to Melbourne;
• 26 February 2020 from Melbourne to Perth;
• 28 February 2020 from Perth to London;
• 1 March 2020 from London to Barcelona;
• 6 March 2020 from Barcelona to London;
• 6 March 2020 from London to Melbourne; and
• 12 March 2020 from Melbourne to Perth.
[30] The plane receipts are consistent in large measure with Mr McCormick’s evidence, although not all the claimed times are substantiated by the plane evidence.
[31] As previously mentioned, there were difficulties with the evidence of Mr Tuohy and Mr Smith, in that the witness statements were prepared by Mr Blake, not by them, according to their evidence. It is not clear to me that in all cases the witness statements were in fact their evidence. Even if I reject such concerns, their evidence falls a long way short of establishing that Mr McKenny was the factory manager after Mr Blake’s dismissal. Mr Smith for example did not hear Mr McKenny described as the manager by anyone, apparently did not see a position description to that effect and relies on inference from what Mr McKenny did. However as previously stated, the functions performed by Mr McKenny are consistent with him not being manager to some extent at least. Mr Touhy may have had a conversation that Mr McKenny was the man to talk to, but this is limited evidence. It may be as Mr McCormick claimed that employees performed a range of duties, for example all employees would purchase equipment and factory consumables. It was not a duty that was solely reserved to the Factory Manager and it is not relevant because all employees at some point contributed to running errands for the factory. 32
[32] Mr McCormick gave evidence that the dismissal was by reason of redundancy:
“The Factory Manager position was no longer needed. The redundancy was a cost cutting measure given the serious financial hardship that the Company is undergoing, and also given the size of the business a full time Factory Manager was no longer needed. The Director and Operations Manager will manage the factory moving forward. Please note the Director worked 250 days last year in Ballarat, overseeing all aspects of the Business. The Profit/Loss summary for each year of operation is attached. Given Joshua’s sizeable remuneration package, not having this position moving forward is a significant saving. We are a small business by Fair Work Australia’s definition, and any definition for that matter. We met our redundancy obligations to Joshua as per his contract, which he had active input to. He received nearly 11 week’s pay, comprising one week’s pay for each year of service plus 4 weeks in lieu of notice. We did not want Joshua to work the notice period as we were concerned of the safety and security risk involved to the Business. Our concerns were confirmed when he received his redundancy letter, he had an aggressive outburst where he made threats to another employee. We did not offer Joshua an alternate position as the only option was to work as a factory Hand. This was seen to be too much of a demotion in regards to remuneration and responsibilities. Also, we don’t believe Joshua would have wanted such a position as this was the group of employees that he managed. We also felt it was not an option on the grounds of security and safety, as Joshua’s negativity regarding such a demotion could have placed the business and employees at risk.” 33
[33] Mr Blake said that:
“I believe it wasn't a genuine redundancy for following reasons. My role as the factory manager was to plan, schedule, monitor and report daily production requirements for 17 employees in a number of different areas of the factory. I was responsible for managing all employees work requirements and hours on a daily basis. I was also responsible for all factory consumables ordering and equipment operation and maintenance. As there were no other managers or supervisors employed at the factory I was the manager and supervisor of all employees. My role still needs to be performed, particularly now with increased production requirements. After speaking to a number of people still working at the factory they have advised that a new employee had started immediately after my dismissal and is was doing my job. I have been told the person is a good friend of the director and was put straight into my position and doing my tasks on a daily basis. My 7 year long service leave entitlements were due to start on 10-12-19, I believe this contributed to the reason for dismissal, as the 4 weeks notice was paid to avoid paying any long service leave entitlements. There was no consultation prior to the dismissal and no offer of redeployment.” 34
[34] This is not a refutation of the financial difficulties referred to by Mr McCormick. It is an assertion that a new employee, Mr McKenny had started, and was doing the same job or similar that Mr Blake did. However, as previously noted, this evidence has problems. Mr Blake has no personal evidence of this. His view rests on the evidence of Mr Smith and Mr Tuohy.
[35] Overall I prefer and the evidence given by Mr McCormick and Mr McKenny to that of Mr Smith, Mr Tuohy, and Mr Blake. Their evidence was based on direct knowledge, and was consistent and appeared to be convincing. It was correlated to some extent by the provision of flight details to the effect that Mr McCormick flew to town and so could be present on a consistent basis in the factory. The evidence of Mr Smith and Mr Tuohy taken at its highest was at best somewhat indirect and inferential. As already stated that evidence is somewhat limited and at best is not definite on the full role that Mr McKenny played, and has difficulties in that the written evidence was apparently drafted for them.
[36] On the material before me I am satisfied that the employer no longer required the applicant’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise within s.389(1)(a).
Does an award apply and require consultation – s.389(1)(b)
[37] The applicant and respondent confined their submissions on this to the simple assertion that an award did apply or did not. 35 On 28 May 2020, I invited the parties to provide further submissions on the applicability of the Timber Industry Award 2010 (Award). I directed the parties to Schedules B and C of the Award which provides the classification definitions. I noted that it appeared that no classification appeared to apply to Mr Blake, which would include Schedule A.36 Neither side provided submissions as directed. Mr Blake did not contradict my preliminary conclusion that no award applied.
[38] Even without that concession, during the determinative conference, I questioned Mr Blake as to whether he was trade qualified with Mr Blake confirming that he was not. 37 Mr Blake described his position as ‘Factory Manager’38 and associated with all the other descriptions of his duties he is not covered by an award. A manager with the responsibilities of the applicant and salary is performing skilled work well above the top rates of 115-120% relativities of the top classifications, and the top income levels in those schedules, even if duties of the classifications are met, which they are not. On the basis of the written materials received and oral submissions of Mr Blake during the determinative conference, I am satisfied that the Timber Industry Award 2010 and other awards are not applicable to Mr Blake’s employment.39 The consultation provisions contained within that Award and other awards therefore do not apply.
Could Mr Blake have reasonably been redeployed – s.389(2)
[39] The applicant said that: 40
“There was no consultation prior to the dismissal and no offer of redeployment.”
[40] The employer response was: 41
“There is rarely a consultation process prior to redundancy, and given Joshua’s salary and benefits and the Company’s financial position redeployment was not an option.”
[41] Mr McCormick gave evidence that: 42
“We did not offer Joshua an alternative position as the only other option was to work as a factory hand. This was seen as to much of a demotion in regards to remuneration and responsibilities. Also, we don’t believe Joshua would have wanted such a position as this was the group of employees that he managed. We also felt it was not an option on the grounds of security and safety, as Joshua’s negativity regarding such a demotion could have placed the business and employees at risk.”
[42] The applicant described his former position as ‘Factory Manager’ 43 and submitted orally that he did not accept that being redeployed to a Factory Hand was unreasonable as he would have been open to undertaking different duties, rather than lose his job. Mr Blake also disputed that a Factory Hand position was not the only position that was available at the time as there were office administration duties that would have been required to have been completed on a daily basis for factory orders.44 Mr Blake submitted that the administration work could not be completed by a junior as it was a task that had to be continually monitored. Mr Blake also submitted that he could have performed any job at the Factory and the position of Factory Hand would have been suitable for him to perform as he had utilised equipment on the site for approximately 7 years. With respect to it not being appropriate for the position to be filled by Mr Blake due to him previously supervising those employees, Mr Blake submitted that he would have accepted the demotion and a reduction in wages.45
[43] Mr McCormick submitted that office administration was not suitable for redeployment as those duties could be performed by a junior level employee and those duties would have taken no more than 20 minutes to complete through a day. 46
[44] Mr McCormick submitted that it was not reasonable for Mr Blake to be redeployed to a Factory Hand position because the highest paid position below the position held by Mr Blake was approximately $55,000.00 per annum gross and at the time of the redundancy meeting Mr Blake became aggressive and there was no opportunity to investigate other redeployment opportunities. 47
[45] Mr Blake acknowledged that he was upset at the meeting but denied that he threatened anyone or engaged in an outburst. 48
[46] Ms McCormick submitted that the number of Factory Hand positions were reduced soon after reduced after Mr Blake's redundancy, and there were not any vacancies at the time and the business was engaged in a severe cost-cutting mode at the time. 49 Ms McCormick submitted further that she had been told by another staff member that at the time of Mr Blake being told that his position was to be made redundant, he threatened another employee saying words to the effect "You better be careful because they'll do to you what they've done to me". Mr McCormick confirmed that he was there at the time and that statement was made by Mr Blake.50
[47] Mr Blake submitted that while those words were said they were not made as a direct threat to the employee, it was made as a general statement to the employee to be careful as the Respondent may do to him what they had just done to Mr Blake. 51 This is a statement by Mr Blake that the redundancy was in his view unfair and unwarranted, and is somewhat accusatory and pejorative about the conduct of Mr McCormick, and there is little evidence that he has changed his view.
[48] The applicant had been in a substantial position of managing as the Factory Manager, and to work as a hand amongst people he supervised might conceivably cause difficulties. The lack of consultation does not change this. It may in some cases be reasonable for an employee to be redeployed to another position with such a large drop in pay and responsibility, but this would require some cooperation and goodwill, or a reasonable judgement that this would be workable. In this case there is little evidence of this. The applicant admitted to stating that another employee "You better be careful because they'll do to you what they've done to me", and this and other evidence showed a strained relationship with or a negative assessment of Mr McCormick and his conduct. The applicant apparently further believed that his redundancy was a sham or in effect a lie, and that he was replaced in fact by a friend of the employer, even in the face of the evidence of the employer consistently making large losses, and what is with respect not strong evidence that this was the case. This again suggests a continuing negative assessment of Mr McCormick and his conduct, although I accept that some degree of upset is quite natural and understandable.
[49] Mr McCormick’s evidence that redeployment would not be workable correlated to some degree with other evidence such as statements made by the applicant, and the plane travel records, and presence in the factory, and the consistent loss making by the company, which was not challenged by other direct evidence. His approach seemed to be a reasonable one in the unfortunate position that the company was in. It seems reasonable to conclude as he did that a large demotion and drop in pay would not have been a reasonable redeployment. Mr McCormick’s evidence was direct evidence which appeared to correlate with other evidence, as opposed to Mr Smith’s evidence which with respect was somewhat indirect and had difficulties referred to earlier. I prefer Mr McCormick’s evidence to other evidence, in all the circumstances, including on the range of jobs available and the reduction of the number of Factory Hand positions soon after Mr Blake's redundancy the redundancies made. Given the evidence I find that there was not was any reasonable alternative position that the applicant could be placed in. On the material before me I am satisfied that the requirements of s.389(2) are met, and that it would not have been reasonable in all the circumstances for the applicant to be redeployed.
Conclusion
[50] I am satisfied that the requirements of s.389 are met. The application is a genuine redundancy within ss.385 and 389. I must therefore dismiss the application. An order dismissing the application is contained in PR720666.
DEPUTY PRESIDENT
Appearances:
Mr Joshua Blake, Applicant.
Mr Michael McCormick, Respondent.
Hearing details:
2020.
Melbourne via Teleconference.
5 June.
Printed by authority of the Commonwealth Government Printer
<PR720665>
1 Digital Court Book, 124-5.
2 Ibid, 127-8.
3 Ibid.
4 Ibid, 129.
5 Ibid, 145.
6 Ibid, 27-8.
7 Ibid, 29.
8 Ibid, 30.
9 Ibid, 169.
10 Ibid, 170.
11 Ibid, 171.
12 Ibid, 172.
13 Ibid, 178.
14 [2010] FWAFB 3488.
15 Digital Court Book, 14.
16 Ibid, 169.
17 Ibid, 178.
18 Ibid, 145.
19 Audio Recording of Determinative Conference, 5 June 2020 at 9:38.
20 Ibid, 18:25.
21 Digital Court Book, 153.
22 Ibid, 135.
23 Ibid, 226.
24 Ibid.
25 Ibid, 185.
26 Ibid.
27 Ibid, 186.
28 Ibid, 187-8.
29 Ibid, 212.
30 Ibid, 13.
31 Ibid, 193-206
32 Audio Recording of Determinative Conference, 5 June 2020 at 29:03.
33 Digital Court Book, 169.
34 Ibid, 5.
35 Ibid, 129.
36 Email to Parties dated 28 May 2020.
37 Audio Recording of Determinative Conference, 5 June 2020 at 1:57.
38 Digital Court Book, 129.
39 See also Full Bench Decision [2009] AIRCFB 826, [255] – [262].
40 Digital Court Book, 5.
41 Ibid, 14.
42 Ibid, 29.
43 Ibid, 129.
44 Audio Recording of Mention, 27 May 2020 at 43:29.
45 Ibid, 45:37.
46 Ibid, 45:09.
47 Ibid, 48:17.
48 Ibid, 50:02.
49 Ibid, 50:41.
50 Ibid, 56:47.
51 Ibid, 58:27.
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