Kat Bronakowski v Balanced Habitats
[2016] FWC 5162
•29 JULY 2016
| [2016] FWC 5162 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kat Bronakowski
v
Balanced Habitats
(U2016/4460)
COMMISSIONER PLATT | ADELAIDE, 29 JULY 2016 |
Application for relief from unfair dismissal – casual employee - regular and systematic work – whether Small Business Fair Dismissal Code requirements met – was dismissal harsh, unjust or unreasonable – whether conduct was work related - application granted – compensation awarded.
1. Summary
[1] Ms Bronakowski has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer, Balanced Habitats.
[2] Mr Robert Curley is the proprietor of Balanced Habitats which provides horticultural services including weed management and re-vegetation. It is not in dispute that Balanced Habitats is a small business employer within the meaning of s 23 of the Act.
[3] Prior to her dismissal, Ms Bronakowski had received three warnings for her conduct towards her supervisor, not working in a diligent manner and leaving the workplace after having been allocated to a particular work team. The basis of the last warning was disputed by Ms Bronakowski.
[4] On 5 February 2016, Mr Curley terminated Ms Bronakowski’s employment after Ms Bronakowski used her personal vehicle to drive Mr North (a fellow employee who had lost his driver’s licence) to work in contravention of an agreement with Mr Curley.
[5] I have found that:
● Ms Bronakowski is a person who is protected from unfair dismissal pursuant to s.382 of the Act;
● Balanced Habitats did not comply with the Small Business Fair Dismissal Code;
● the conduct upon which the previous warnings were based and the provision of transport to work for Mr North by Ms Bronakowski, do not provide a valid reason for Ms Bronakowski’s dismissal and that the dismissal was unfair.
[6] Applying the principles in Sprigg v Paul’s Licensed Festival Supermarket 1 and taking into account Ms Bronakowski’s work performance and the retrenchment of a number of other employees a short time after the termination, I have determined to award compensation in the amount of $2760.
[7] My detailed reasons for this decision follow.
[8] Ms Bronakowski contended that her dismissal was unfair because:
● the third warning she received was not valid as she had been given permission to leave the workplace; and
● Mr Curley was not entitled to rely on his direction that employees not give Mr North a lift in their private vehicles as a valid reason to terminate the employment.
[9] Balanced Habitats contended that the application should be dismissed on the basis that:
● Ms Bronakowski was employed as a casual employee; and/or
● Balanced Habitat had complied with the requirements of the Small Business Dismissal Code.
[10] Whilst it was not formally put to me, I have considered that in the event that the application was not dismissed on the jurisdictional grounds detailed above, Balanced Habitat would contend that it had a valid reason to dismiss Ms Bronakowski based on her poor work performance and that the dismissal was not harsh, unjust or unreasonable.
2. Factual matrix
[11] As neither party was represented, the proceedings were conducted by way of a determinative conference. Mr Curley, Ms Maddocks (2IC) and Ms Bronakowski provided written statements.
[12] As can be expected in statements prepared by self-represented parties, some of the material contained in the statements was hearsay or opinion evidence or more suited to submissions, I have attached minimal weight to such evidence. In addition, comments were made regarding matters discussed in confidential conciliation conferences; I have not considered this information.
[13] Ms Maddock gave some evidence which was more akin to a submission in support of the position adopted by Mr Curley. When reviewing Ms Maddock’s testimony I have focused on the evidence as it relates to the factual circumstances which led to the disciplinary outcomes.
[14] Ms Bronakowski provided a number of statements for witnesses other than herself. As these witnesses were not available for cross examination and the evidence was not agreed I have not considered these statements.
[15] Ms Bronakowski gave evidence that she commenced employment on a casual basis on 20 March 2014. This was not disputed. Whilst there was no written contract of employment it was agreed that she would be guaranteed a minimum of 25 hours work per week and that over the course of the employment she would work an average of 30 hours per week. Ms Bronakowski was paid $23.00 per hour at the time of her dismissal. On that basis her wage was $690.00 per week.
[16] On 13 April 2015, there was an incident at the Moana Sands Conservation Park where Ms Bronakowski was working with a team. Mr Bronakowski appeared withdrawn and distant. Her supervisor, Mr North (with whom Ms Bronakowski entered into a relationship with at some point during her employment) approached Ms Bronakowski concerned for her wellbeing, Ms Bronakowski said to him “oh just fuck off Tom.” Ms Maddocks considered this conduct as one of the most serious workplace incidents she had ever seen and believed that it warranted “instant termination.” The incident was subsequently discussed with Mr Curley who issued a verbal warning. I refer to this as the first warning.
[17] On 1 October 2015, was working with a team at a Waitpinga worksite. Ms Maddocks was advised that Ms Bronakowski was being disrespectful to Mr North again. Ms Maddocks observed Ms Bronakowski ignoring Mr North’s instructions to come and assist him. Ms Maddocks asked Ms Bronakowski to assist Mr North which she did begrudgingly. Ms Maddocks was concerned that Mr North was being bullied and told Ms Bronakowski she would receive a warning for her behavior. This decision was endorsed by Mr Curley and a verbal warning was issued and accepted by Ms Bronakowski. I refer to this as the second warning.
[18] On 3 February 2016, Ms Bronakowski had a conversation with Mr Curley who advised she would not be working with Mr North that day. Shortly after this discussion, Ms Bronakowski advised Ms Maddocks she was not feeling well and was given permission to leave the workplace. When Mr Curley discovered this he considered that Ms Bronakowski left because she did not like who she was working with. This was denied by Ms Bronakowski who gave evidence that she was facing a range of personal issues and stressed. I accept Ms Bronakowski’s account of the reason why she left the workplace. I refer to this as the third warning.
[19] By February 2016, Mr North had lost his driver’s license. Mr Curley required his employees to hold a drivers licence and believed that he was being lenient by allowing Mr North to retain his employment whilst disqualified from driving. Mr Curley adopted a practice he had used previously and required Mr North to catch public transport to get to and from work for the week ending Friday 5 February 2016. Mr Curley requested other employees (including Ms Bronakowski) not to drive Mr North to work in that period. In Mr Curley’s mind, this restriction was for Mr North’s benefit and would result in other staff not feeling obligated to drive Mr North to work. Mr Curley asserts he reached agreement with his employees, Ms Bronakowski considered she had no alternative but to agree. By this stage, Mr North and Ms Bronakowski were in a relationship.
[20] On 5 February 2016, Ms Bronakowski drove Mr North to work in her private vehicle. In Mr Curley’s words this was the “straw that broke the camel’s back.” Mr Curley considered that Ms Bronakowski’s conduct was yet another example of her not listening, taking direction or, looking after fellow work colleagues. At about 3.30 pm, Mr Curley contacted Ms Bronakowski and asked if she had driven Mr North to work. Ms Bronakowski stated she had driven Mr North to work as he had asked her to. Mr Curley said that based on her work performance he had lost confidence in her and was going to “let her go.”
[21] Ms Bronakowski’s dismissal as a result of her unsatisfactory work performance was confirmed by letter dated 8 February 2016.
[22] Ms Bronakowski was not given or paid any notice.
[23] The conduct which resulted in the first and second warnings being issued is largely uncontested.
[24] The basis of the issue of the third warning is contested.
[25] The events of 5 February 2016, which led to the dismissal are uncontested.
[26] Ms Bronakowski was a credible witness, making appropriate concessions (in some cases to the detriment of her own position) and she had a good recollection of the events.
[27] Mr Curley found it difficult to recollect matters without reference to notes, and was unable to recall dates of key events or the order in which they occurred. For much of the time, Mr Curley appeared to be reviewing his notes and conferring with Ms Maddocks in order to answer each question. It appeared to me that Mr Curley and Ms Maddocks were collectively reconstructing the events (as they recalled them) in order to answer each question.
[28] Where the evidence of Mr Curley differs to that provided by Ms Bronakowski, I have preferred Ms Bronakowski’s account.
[29] I find that the first and second warnings were appropriate and reasonable in light of the conduct of Ms Bronakowski.
[30] In respect of the third warning, I accept the explanation provided by Ms Bronakowski. There is little evidence to support the reason for her departure as hypothesised by Mr Curley. I find that Mr Curley’s view was not sound, defensible or well founded.
3. Is Bronakowski protected from unfair dismissal?
[31] It was not disputed that Ms Bronakowski was required to attend for work at 8.00 am each day, either at the premises of Balanced Habitat or at a client’s premises. Unless Ms Bronakowski was sick or had time off agreed she was expected to attend for work Monday to Friday.
[32] Accordingly, I find that Ms Bronakowski had been employed as a casual employee on a regular and systematic basis since 20 March 2014 and had a reasonable expectation of continuing employment by the employer.
[33] Ms Bronakowski length of service exceeds the minimum employment period required provided by s.383 and s.384. Accordingly the jurisdictional objection raised by Balanced Habitat concerning her casual employment and length of service fails.
[34] I find that Ms Bronakowski is a person protected from unfair dismissal pursuant to Section 382 of the Act.
4. Did Balanced Habitat comply with the Small Business Fair Dismissal Code?
[35] Section 385 of the Act defines unfair dismissal, stating that:
“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.”
[36] I am satisfied that Ms Bronakowski was dismissed and that it was not a case of genuine redundancy. I now consider the Small Business Fair Dismissal Code (Code).
[37] Section 388 of the Act states:
“388 The Small Business Fair Dismissal Code
The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(1) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
[38] The Code as declared is set out as follows:
“The Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[39] The evidence before me was that Ms Bronakowski was dismissed as a result of her unsatisfactory work performance. Mr Curley relied on the three prior warnings and the conduct in driving Mr North to work. I have found that the third warning was not substantiated. Accordingly I must consider only the conduct which resulted in the first and second warning and the conduct in driving of Mr North to work on 5 February 2016.
[40] A two-step test to determine whether an employer has complied with the summary dismissal aspect of the Code was set out by the Full Bench in, Pinawin v Edwin Domingo. 3 It states:
“[29] …There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.
[30]Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.
…
[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. ….
Did Balanced Habitat hold a belief on reasonable grounds that Bronakowski’s conduct was sufficiently serious to warrant immediate dismissal?
[41] Mr Curley is not entitled to regulate conduct which does not concern the employment relationship. The vehicle Ms Bronakowski used to transport Mr North to work was not owned or controlled by Balanced Habitats. The travel was not conducted during work hours. The contract of employment cannot regulate the private of personal activities of the employee which do not affect their work.2
[42] Based on the facts before me, I find there was no connection between the private activities of Ms Bronakowski in travelling to work with Mr North and the employment relationship. Mr Curley had no legal right to regulate Mr Bronakowski or Mr North’s private travel or take action against Ms Bronakowski in respect of this conduct.
[43] I have found that the basis of the issuance of the third warning was flawed. In respect of the first and second warnings I find that the conduct considered separately and collectively does not amount to serious misconduct, and that Mr Curley could not have reasonably believed that this was the case.
Did Balanced Habitat have a valid reason to dismiss Bronakowski?
[44] As a result of my findings above any valid reason to dismiss Ms Bronakowski must be based on the conduct with led to the first and second warnings. I disagree with the Ms Maddock’s assessment of the severity of the conduct which led to the first warning. I do not believe that this conduct was sufficient to form the basis for a valid reason. I make the same finding in respect to the conduct which led to the second warning. The conduct individually and collectively supported the issuance of a warning but was not sufficiently serious to justify dismissal.
[45] I find that the dismissal was inconsistent with the Code.
5. Was the dismissal harsh, unjust or unreasonable?
[46] I now consider if Ms Bronakowski’s dismissal was harsh, unjust or unreasonable.
[47] Pursuant to s.387 of the Act, 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.”
[48] Access to a support person was not a relevant factor in this case. I have considered each of the remaining factors below.
Valid reason - s.387(a)
[49] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd3which requires the reason for termination to be “sound, defensible or well founded.”
[50] As discussed earlier I have found that the conduct that resulted in the issue of the first and second warnings and the driving of Mr North to work, did not individually or collectively provide a valid reason for the dismissal of Ms Bronakowski.
Notification of valid reason - s.387(b)
[51] An employee protected from unfair dismissal must be advised of a valid reason for termination prior to the decision being made 4
[52] Ms Bronakowski was advised of the conduct that Mr Curley relied upon to dismiss her.
Opportunity to respond - s.387(c)
[53] An employee protected from unfair dismissal must be given an opportunity to respond to the reasons for termination prior to a decision to terminate is made. 5 Ms Bronakowski was provided with an opportunity to respond to the reasons for the termination.
Warnings relative to unsatisfactory performance - s.387(e)
[54] Ms Bronakowski was given three warnings concerning her performance.
[55] The first and second warnings were largely undisputed, and I have rejected the basis of the issuance of the third warning.
Size of the employer’s enterprise s.387(f)
[56] I have made allowances for the fact that Balanced Habitat was a small business and not experienced in the performance management of its employees. Whilst the process could have been improved I do not believe that procedural issues are determinative in this matter.
Absence of dedicated Human resources support - s.387(g)
[57] Whilst Balanced Habitat did not have access to dedicated human resources support, Mr Curley advised that had such support been available it would not have changed the outcome, accordingly I have regarded this as a neutral factor.
Other matters considered relevant - s.387(h)
[58] There were no other matters that were relevant.
6. Was the dismissal unfair?
[59] The Explanatory Memorandum to the Fair Work Act 6 explains the approach of the Commission in considering the elements of section 387:
“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”
[60] In Byrne and Frew v Australian Airlines Pty Ltd, 7 the following observations made by McHugh and Gummow JJ are relevant to my conclusion:
“It may be that the termination is harsh but not 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.”
[61] Having considered each of the factors detailed in s.387 of the Act, I have concluded that Ms Bronakowski’s dismissal was harsh, unjust or unreasonable.
7. Remedy
[62] The relevant provisions of Division 4 of Part 3-2 of the Act state:
“Division 4—Remedies for unfair dismissal
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.
…
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.
(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.
[63] The prerequisites contained in ss.390(1) and (2) have been met in this case.
[64] Ms Bronakowski did not seek reinstatement and I am satisfied that it is not appropriate in this case.
[65] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances.
[66] I now turn to whether compensation in lieu of reinstatement is appropriate.
[67] A recent Full Bench in McCulloch v Calvary Health Care Adelaide8 confirmed, in general terms, that the approach to the assessment of compensation, as undertaken in cases such as Sprigg v Paul’s Licensed Festival Supermarket,9 remains appropriate.
[68] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the Act,10 it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.
The effect of the order on the viability of the employer - s.392(a)
[69] Ms Curley advised that his business was under financial stress as a result of a Taxation debt, whilst no evidence was presented to support this contention; I am able to address this issue by extending the time to pay compensation.
The length of Bronakowski’s service with the employer - s.392(b)
[70] Ms Bronakowski was employed by Balanced Habitats for just over two years. The period of service is relevant to my assessment of the remuneration that Ms Bronakowski would likely have received if not for the dismissal.
The remuneration Bronakowski would have received, or would have been likely to receive if she had not been dismissed - s.392(c)
[71] This involves, in part, a consideration of the likely duration of Ms Bronakowski’s employment in the absence of what I have found to be an unfair dismissal.
[72] In addition to Ms Bronakowski’s work performance and other issues that would have impacted upon the continuation of the employment relationship. This includes the decision post dismissal to reduce the number of employees on the grounds of shortage of work. Ms Bronakowski’s performance history did not compare well to her work colleagues and Mr Curley advised that it would have resulted in her being selected for redundancy first.
[73] In the circumstances it is reasonable to assess compensation in this matter on the basis that Ms Bronakowski would have remained in employment for a further period of 4 weeks
The efforts of Bronakowski to mitigate the loss suffered by her because of the dismissal - s.392(d)
[74] Ms Bronakowski had not been successful in finding employment at the time the hearing was conducted.
Remuneration earned by Bronakowski during the period between the dismissal and the making of the order for compensation and the amount of any income likely to be earned by Bronakowski during the period between the making of the order for compensation and the actual compensation - ss.392(e) and (f)
Ms Bronakowski has not secured paid alternative employment, but has received Centrelink payments. Centrelink payments are not considered as remuneration as they will normally be recouped where compensation is awarded. 11
Any other matter that the FWC considers relevant and the remaining statutory parameters - s.392(g)
[75] There are no other relevant matters .
[76] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.
[77] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or $68,350. 12 The amount of compensation awarded is less than that limit.
[78] Taxation is to be paid on the amount determined.
[79] The compensation confirmed below is also appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.13
[80] I award compensation in the amount of $2760.
[81] An Order 14 reflecting this decision will be issued.
COMMISSIONER
Appearances:
K Bronakowski, the Applicant on her own behalf.
B Curley, on behalf of Balanced Habitat.
Hearing details:
2016.
Adelaide:
June 23.
1 (1998) 88 IR 21.
2 Michael King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta [2014 FWCFB 2194
3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
4 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137.
5 RMIT v Asher (2010) 194 IR 1 [26]-[30]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
6 Explanatory Memorandum to the Fair Work Bill 2008.
7Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24.
8 [2015] FWCFB 873.
9 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431.
10 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.
11 Steggels Ltd v West (unreported, AIRCFB, Watson SDP, Williams SDP, Smith C, 11 May 2000) Print S5876 [21]; citing Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21; citing Shorten v Australian Meat Holdings (1996) 70 IR 360, 376
12 Section 392(5) of the Act.
13 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].
14 PR578914.
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