Kim Shortland v WCH Services Pty Ltd T/A WCH Services

[2016] FWC 2454

[2016] FWC 2454 [Note: An appeal pursuant to s.604 (C2016/3679) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kim Shortland
v
WCH Services Pty Ltd T/A WCH Services
(U2015/15379)

COMMISSIONER WILSON MELBOURNE, 19 APRIL 2016

Application for relief from unfair dismissal.

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy was made by Mr Kim Shortland on 7 December 2015 against his former employer, WCH Services Pty Ltd T/A WCH Services (WCH).

[2] At the conclusion of the hearing on 6 April 2016 I made an ex tempore decision in favour of Mr Shortland, finding that his termination of employment was harsh, unjust or unreasonable. The following is an excerpt of transcript detailing my decision, which has been edited for grammatical, typographical and stylistic purposes, and to omit several short exchanges with the Applicant in the course of delivering my decision, which do not affect the decision;

[3] This application concerns an unfair dismissal application by Kim Shortland against his former employer, WCH Services Proprietary Limited, of Warragul. Mr Shortland made his application to the Fair Work Commission first on 7 December 2015, and in the course of that application sets out the views that he has as to why he was unfairly dismissed.

[4] His application records that he was notified of his dismissal on 5 December 2015, and material provided to the Commission in the course of the hearing conducted by me verifies that the dismissal was close to that date. While the letter of termination refers to it being 7 December, I am satisfied that the communication of the dismissal was to Mr Shortland on 5 December, being the Saturday prior to that correspondence.

[5] The matter proceeded in the absence of the Respondent. As was discussed at the commencement of the proceedings, contact was endeavoured to be made with the Respondent, and following the commencement of the proceedings was actually made with the Respondent. However, in the course of that conversation the Respondent did not either ask for an adjournment of the proceedings or request that it be given an opportunity to provide material for me to take into account in making my decision under the Act.

[6] As a result of that, the matter proceeded without the Respondent and I made the decision on the basis of the material provided by the Applicant alone, which includes witness statements, not only of the Applicant but also of two other people as well.

[7] The Act requires me to consider four initial matters before turning to the merits of an unfair dismissal application, and they are set out within section 396 of the Act. The first of those matters is for me to determine whether the application was made within the period required in subsection 394(2) of the Act, that is within 21 days after the dismissal took effect. It is the case that that in fact did occur, with the application having been made, it appears, first on 7 December.

[8] I am then required to consider whether Mr Shortland was a person protected from unfair dismissal, the meaning of which is set out within section 382 of the Act. Relevantly, those obligations include that he has completed a period of employment with his employer of at least the minimum employment period, and that certain other things apply, including that he was covered by a modern award. The evidence before me includes that Mr Shortland was covered by the Cleaning Services Award 2010. It also includes, even on the employer's contention, that he was employed by WCH Services Proprietary Limited since September 2014, which means on any basis he had served the minimum employment period. He is therefore a person protected from unfair dismissal.

[9] It is also the case that no evidence before me would indicate that the dismissal was a case of genuine redundancy.

[10] Section 396(c) of the Act also requires me to consider whether the dismissal was consistent with the Small Business Fair Dismissal Code. The material provided by the Respondent includes the filing of the Form F3 employer response, which apparently took place on 25 February 2016. That form asserts at item 1.7 that the firm employed, at the time Mr Shortland was dismissed, ten employees. It also asserts under item 2.2, which sets out any jurisdictional objections an employer might have, that it objects to the matter proceeding for the reason that the business is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

[11] The evidence before the Commission includes that of Mr Shortland, who put to me in the course of the proceedings firstly that it was his belief WCH employed a lot more than ten employees. His evidence to me included that WCH operates a cleaning business as well, and that it operates shopping trolley collection services at Frankston and Patterson Lakes. Notwithstanding that, Mr Shortland's evidence was that he was not able to give me a precise number about the number of employees that were employed by WCH Services Pty Ltd.

[12] Taking into account the evidence that Mr Shortland has put to me about the operation of a cleaning business, as well as shopping trolley collection services elsewhere, I find that there is no evidence before me that would lead to a view that the business was a small business for the purposes of the Act. In particular I take into account the definition of small business employer which is set out within section 23 of the Act, which provides that a national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

[13] For the reason that Mr Shortland's evidence was that he himself was in charge of nine other employees, and for the reason of the evidence he has given about the cleaning business, and other operations of the company, I am satisfied that WCH does not fall within that definition to which I have referred. Accordingly, I do not find that it is necessary for me to consider whether or not the dismissal of Mr Shortland was consistent with the Small Business Fair Dismissal Code.

[14] The reasons for dismissal that were given to Mr Shortland consist of those that were put to him in a discussion with him by Mr Bill Hancock, the proprietor of the business, on the Saturday in question. In the course of his oral evidence he referred to that date being 6 December, but he also identified the date as being a Saturday. Given that his application refers to that conversation taking place on Saturday, 5 December 2015, I find that that discrepancy is merely an error, and that the conversation refers to one that took place on Saturday, 5 December 2015.

[15] In any event, in that conversation Mr Shortland says that Mr Hancock approached him at the shopping centre at Traralgon. He enquired as to why Mr Shortland had not undertaken a street run of checking for shopping trolleys in nearby streets, and indeed in other towns. That conversation led to an argument, at least on the part of Mr Hancock, and in Mr Shortland's words led to Mr Hancock berating him in front of someone else. Mr Shortland's evidence is that that was a somewhat short conversation, perhaps 10 minutes in total, and that it was in the early evening, perhaps at about 5 PM.

[16] The evidence indicates that Mr Shortland knew that he was dismissed at that time, on that day, and that he then left employment after that. Correspondence was given to Mr Shortland through the mail, which arrived a few days after the Saturday, and in the course of that correspondence from William Hancock, under the name of WCH Services Pty Ltd, it was set out that Mr Hancock was indicating that Mr Shortland's employment with the company was terminated effective as of 7 December 2015.

[17] Mr Hancock's letter sets out two reasons within that correspondence. Firstly, that Mr Shortland had been told that employees are not to work after 6 PM, and to have another employee to cover the after 6 PM shifts. The second reason is indicated as being related to the undertaking of street runs, which Mr Hancock puts as being part of the contracted hours of Mr Shortland. The correspondence concludes by saying that;

"Unfortunately your action in this matter left me with no choice but to terminate your employment."

[18] Mr Shortland denies that there had been a discussion in recent times relating to work after 6 PM. He accepts that there was such a conversation in 2014, but that the issue had not been raised since. He accepts that he had scheduled employees to work after 6 PM since that time, but that such had not been objected to by the Respondent until receiving the letter from Mr Hancock on 7 December. In any event, Mr Shortland's evidence is that there were no warnings given about such situation to him, and most certainly not within any recent time.

[19] The matter of the street runs is something that appears to have been somewhat more contentious, but again not the subject of warnings over any period, or certainly within the recent period. Mr Shortland's evidence is that there was an expectation on him to undertake street runs, not only in respect of Traralgon, but also other towns, but that the circumstances were such that from about September at least, of 2015, there was to be no payment made to him about that. He indicated to me in evidence that those street runs would require him to drive between certain towns, taking several hours per week, and that the only recompense that he was to be provided for that was for the fuel associated with those street runs.

[20] The evidence before me indicates that from about September or possibly October 2014 there had been an indication by Mr Shortland to the company, and perhaps thereby to Mr Hancock, but it appears also to other officers of the company, that he, Mr Shortland, was no longer prepared to undertake the street runs if he was not to be paid for them.

[21] There seems to have been correspondence between the parties on that subject, but that correspondence in no way rises to the level of being an instruction or warning to Mr Shortland that the street runs needed to be undertaken without any payment. In any event, Mr Shortland's clear evidence is that the last street run was done by him on or around 28 September 2015, which of course is several months prior to the date on which he was terminated.

[22] The other circumstances which are relevant to my decision in this matter include that Mr Shortland was first employed in relation to a business controlled by Mr Hancock in January 2012. That company has been identified as BH1 Proprietary Limited. The evidence from Mr Shortland indicates that he worked in that company until 23 September 2014, when his employment moved to WCH Services Pty Ltd. I refer to that inasmuch as it's Mr Shortland's evidence that there was a connection between the two companies, and I take that to be a submission that there was a transfer of business between the two entities. There being no evidence to the contrary in relation to that contention, I am prepared to accept it and find that that was the case.

[23] Mr Shortland's employment was pursuant to the Cleaning Services Award 2010, and he says that he was employed as a cleaning services employee Level 3. In looking at the scope of the award, and the scope of the classifications, I am prepared to accept that submission on his part. 

[24] Cleaning services employee (CSE) Level 1 includes indicative tasks of collecting, servicing, and maintaining shopping and/or luggage trolleys. Cleaning services employee Level 3 includes a number of tasks, including coordinating the work of CSE 1s and 2s and being responsible for ensuring the quality of their work, and also having a knowledge of the employer's operation, and assisting in the provision of on the job training. As a result, I accept the submissions that Mr Shortland has put about the coverage of him by that award. Mr Shortland's evidence is that in the course of his employment, at least towards the end, was that he supervised nine other employees.

[25] Mr Shortland's evidence also includes that during September 2015, or thereabouts, he made complaints to, he says, Coles, which I understand to be the ultimate head contractor in relation to the work undertaken by the employees of WCH Services, at least in respect of the parts that Mr Shortland was working for. The evidence from Mr Shortland is that he raised those concerns with Coles about his own payments, and whether or not he was entitled to the Cleaning Services Award Level 3 payment, and he also raised concerns about the payments due to other employees whom he supervised. His evidence is also that WCH finally agreed for those payments to be made.

[26] The further evidence of Mr Shortland includes that the circumstances of WCH changed over the period from September to December 2015. Firstly, Mr Shortland's evidence is that there was a change in the number of shifts that he worked for the company in or around September, and that the number of shifts worked prior to September had been considerably higher than they were after September.

[27] Relevant to this decision is his submission that after September 2015 he was working approximately 25 hours per week on average. He puts that in contrast to what he says is the six year average of about 100 hours per fortnight, prior to September. In relation to the 25 hours per week since September, Mr Shortland's evidence is that consisted of work on each day of the week, working approximately three hours each day.

[28] Mr Shortland's further evidence about changing circumstances on the part of the company includes that he thought they were endeavouring to reduce costs in December, and that that might have been one of the reasons he understood that he had been dismissed.

[29] In any event, he came to be dismissed on 5 December 2015. He was told at the time that the reason for the dismissal was his view about undertaking work associated with the street runs. It appears to be a later issue than the one raised in the Respondent's material regarding his allocation of employees to work after 6 PM.

[30] In all, Mr Shortland believes that his dismissal came about for three reasons. First of all, he made complaints about his and other employees’ employment to Coles, being the ultimate contractor; secondly, that the company was endeavouring to reduce costs during December; and thirdly, that Mr Hancock was angry and emotional. Mr Shortland's evidence also is that he was not paid anything on termination.

[31] The evidence that I have taken into account in this decision includes that of Mr Shortland, which is in the form not only of his oral evidence, but also in the form of a number of documents that he has provided to the Commission. I also take into account the witness statements of Mr Robert Maat and also Mr Adam Lethborg. I have also considered all of the material which has been put on the file both from the Respondent and the Applicant.

[32] In respect of the material that has been put by the Respondent, even though they did not attend the hearing, I endeavoured, in the course of taking Mr Shortland through his evidence, to put any matters that might put a contrary view about the circumstance to him. Notwithstanding having done that, I am prepared to accept the evidence put forward by Mr Shortland. In the totality of the matters before me, the evidence he puts appears plausible, and indeed it is consistent with the documents which have been put to the Commission as well.

[33] In considering whether the Commission might be satisfied the dismissal was harsh, unjust, and unreasonable, the Commission must take into account the criteria which are set out within section 387 of the Act. The first of those criteria includes whether there was a valid reason for the dismissal of Mr Shortland relating to his capacity or conduct.

[34] When assessing whether or not a person has been dismissed for a valid reason, the Commission traditionally examines whether or not the reason advanced for the dismissal was sound, defensible, or well-founded. In this particular matter I am not able to find that that was the case. The reasons which are put forward, at least in the letter of termination, are two-fold; those being that Mr Shortland allowed employees to work after 6 PM, and secondly that he was supposed to undertake street runs, which apparently was not being done.

[35] Whilst in some respects those matters could well be a valid reason, I find that they are not a valid reason in this particular case, for the reason that there is no connection between those complaints and how Mr Shortland came to be dismissed. The matter about asking employees to work after 6 PM had last been raised with Mr Shortland some years previously. There appears never to have been a warning on the subject, and certainly none in recent times. Secondly, in respect of the street runs, it is the case that at least since the end of September 2015 that those street runs had not been undertaken; the company not instructed that they should be undertaken; and equally Mr Shortland understood that even if he did them he wouldn't be paid for them.

[36] In that particular case, I think that the reason which is advanced on the part of the Respondent is not a valid reason. If they are the reasons, then they may well be capricious, fanciful, spiteful, or prejudiced, which are the things which are said by the Industrial Relations Court as never being a valid reason for the purposes of predecessor legislation. On that basis I am not able to find that there was a valid reason for Mr Shortland's dismissal.

[37] The second matter that needs to be considered by me under section 387 is whether Mr Shortland was notified of the reason for his dismissal. He was, however I suspect that the reasons that have been put forward to him are not the reasons that are actually held by the company. Instead it appears more likely that he was terminated as a result of having made the complaints he did to Coles about WCH. Whether they may have been wise complaints is another matter, but it appears on the evidence that there was a cause and effect between having made those complaints in September and being dismissed in December.

[38] The third criteria I need to consider within section 387 is that within subsection (c), whether Mr Shortland was given an opportunity to respond to any reason related to the capacity or conduct of himself. Depending on one's view about the reason for dismissal, if that reason was one put in the correspondence from Mr Hancock then the evidence would indicate that he was not given an opportunity to respond to it. It was simply that he was told about the street runs, and was told that he was then dismissed. In the alternative, if the real reason for dismissal is having made complaints about his employer to a head contractor, then very clearly the evidence does not allow a finding that he was able to respond to that matter.

[39] The fourth matter to be considered under section 387 is whether there was any unreasonable refusal by the employer to allow the person dismissed to have a support person present to assist in any discussions relating to a dismissal. That appears not to be the case. No request for a support person was made, and there was no denial.

[40] The fifth element is, if the dismissal related to the unsatisfactory performance of the person, whether they had been warned about that unsatisfactory performance. As I have said earlier, if the reasons for dismissal were the matters set out in Mr Hancock's letter of 7 December, then those reasons were not put to Mr Shortland in the form of a warning, and he was not given an opportunity to correct any perceived failings on his part.

[41] I need to consider whether or not the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal. There is no evidence before me, in a firm sense, about the size of the employer, but it's likely that it can be said the company is small. Perhaps not in the sense set out within section 23, but certainly small enough to perhaps not have sophisticated procedures in place in order to effect the dismissal. The evidence, I suggest, allows a finding that the size of the employer's enterprise impacted on how it came to dismiss Mr Shortland.

[42] The next criteria I need to consider is the degree to which the absence of a dedicated human resource management specialist, or expertise, in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. Again, I take into account that there is no evidence before me about whether or not the company has any dedicated human resource management specialists, or expertise. However, it appears likely not, and it appears that the absence of such may well have affected how it came about dismissing Mr Shortland.

[43] The last criterion that I need to consider under section 387 is that set out within subsection (h); any other matters that the Fair Work Commission considers relevant. I consider it relevant that Mr Shortland did make complaints about his employment to the head contractor. His evidence is that those complaints were received and acted upon. As I have said earlier, it appears that there may well be a cause and effect between those complaints and Mr Shortland's dismissal. Such situation, if it exists, is clearly a matter which is relevant and should be taken into account.

[44] Having considered all of those matters, I consider that Mr Shortland's dismissal was harsh, unjust, or unreasonable, and I therefore turn to considering what remedy should be awarded. In this particular circumstance I do not consider that reinstatement is either appropriate or possible. Mr Shortland's evidence to the Commission is that the contract of WCH Services with the firm it contracted to had been terminated on Sunday, 3 April 2016. If that is the case then it would not be possible to reinstate Mr Shortland to that position. In any event, I accept that there probably would be insufficient capacity to re-establish the working relationship between the parties for there to be the possibility of reinstatement.

[45] For the purposes of section 390(3), having found that I am satisfied the reinstatement of Mr Shortland is inappropriate, I further consider that an order for payment of compensation is appropriate in all of the circumstances of the case, and I will now deal with that matter.

[46] The principles the Fair Work Commission follows in assessing compensation are, of course, firstly the criteria which are set out within section 392(2). In addition, there are case authorities which must be taken into account when determining the amount of compensation to be awarded. In respect of section 392(2), the first of the issues that need to be considered by me is the effect of the order that might be contemplated by me on the viability of the employer's enterprise. I note that there is no evidence before me on that subject, and so there is nothing that I can take into account.

[47] The second of the criteria within the section is the length of the employee's service with the employer. In this particular case, Mr Shortland argues that he was employed by a predecessor company, which is related to the current business, and that he was first employed with the predecessor in January 2012. I accept those submissions and I accept that Mr Shortland's employment has been since January 2012, at least for the purposes of calculation of compensation.

[48] That period of time, which by now is four years, is in and of itself not exceptional, but at the same time it is long enough to be a matter that should be taken into account, and particularly when it comes to assessing the expected period of employment that Mr Shortland may have had with the company, had he not been dismissed.

[49] The third criterion is the remuneration that the person would have received, or would have been likely to receive, if they had not been dismissed. The fourth criterion is the efforts of the person, if any, to mitigate the loss suffered by them because of their dismissal. In that regard I take into account the evidence given by Mr Shortland, that he has made about ten job applications per week.

[50] I also note that he has attended an employment services firm, Max Employment, between one and three times per week since being dismissed. He has also given evidence that he is now in the course of undertaking training as a forklift driver.

[51] The fifth of the criteria that needs to be considered in section 392(2) is 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. Mr Shortland's evidence is that he has not been employed in replacement employment since being dismissed in December, but his evidence is that he has continued to be employed in a job that he had prior to being dismissed, with another firm, being Spotless Cleaning Services. His evidence in that regard is that prior to dismissal he was working for that firm on a part-time basis of about three and a half hours per night, over the course of four nights. His evidence is that that has continued, even after being dismissed.

[52] The next criterion I need to consider is 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. For the reason that I consider that there is no imminent prospect of his being employed elsewhere, and that Mr Shortland's employment with Spotless was both before and after the period of dismissal by WCH Services, I do not take anything into account in relation to that criterion.

[53] The last of the criteria is any other matter that the Commission considers relevant. I consider it relevant in this case that Mr Shortland raised complaints about his employer with the head contractor, which it appears has led to his dismissal. I also take into account the evidence which Mr Shortland has given relating to what he says are abusive emails and messages sent to him from WCH Services after he was dismissed. In considering the emails that he has referred to, I am satisfied that there has been an attempt by the Respondent to be at least a bit rude to him, if not abusive, and that they are matters that should be taken into account, especially given that that contact appears to have continued well after the time the dismissal finished.

[54] In the matter of Ellawalla v Australian Postal Corporation 1, before the full bench in April 2000, the full bench made it clear that when assessing compensation under predecessor legislation it was necessary to consider the anticipated period of employment. In that regard the full bench said that the first step in this process, the assessment of remuneration lost, is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult but it must be done. As the full bench observed in Sprigg2;

“We acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step, by virtue of the requirement of section 170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law, whilst remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the anticipated period of employment. This amount is then reduced by deducted moneys earned since termination. Only moneys earned during the period from termination until the end of the anticipated period of employment are deducted.”

[55] In the full bench decision of Haigh v Bradken Resources 3, the full bench then reaffirmed the principles set out within Sprigg, and in particular the steps needed to be taken in assessing compensation. The first of those steps is to estimate the amount the employee would have received, or would have been likely to receive if the employment had not been terminated; the second step being to deduct moneys earned since termination; the third being to make deductions for contingencies; fourthly, to calculate any impact of taxation; and fifthly, to apply the legislative cap.

[56] I refer to the evidence which has been put to me about the earnings received by Mr Shortland. His evidence is that he worked approximately 25 hours per week over each day of the week, including Saturdays and Sundays, and that he usually worked about three hours per day on each day that he did work. There are no time and wages records, or payslips, before me, and so I need to make some interpolations about the rates that should be made, for the purposes of this calculation.

[57] Mr Shortland agreed that immediately prior to this dismissal in December 2015, the rate of pay that he received was $23.15 per hour, which is the rate due for ordinary time to a level 3 worker under the Cleaning Services Award. The calculation I am going to use is that his usual working week, at least since September 2015, would have been 25 hours per week, structured as 19 hours at ordinary time, that is at the rate of $23.15, three hours for Saturday work, which would be at the rate of $33.21, and three hours of Sunday work which would be the rate of $43.28.

[58] My calculation is that 19 hours at $23.15 is $439.85. Three hours at the rate of $33.21 is $99.63. Three hours at the rate of $43.28 is $129.48. Meaning that over a period of 25 hours Mr Shortland would be entitled to $668.96 for each week.

[59] In assessing the anticipated period of employment, the evidence, as I have indicated, includes that on or around 3 April 2015 the services of WCH Services Proprietary Limited were terminated by its contractor. The evidence therefore allows me to find that Mr Shortland's employment would have continued for 17 weeks after the time in which he was dismissed.

[60] In respect of the findings within Haigh, which follows Sprigg, the task is to estimate the amount the employee would have received, or would have been likely to receive, if the employment had not been terminated. Clearly the 17 weeks is part of that, but if at the end of that period there had been a termination of the contract, at that point Mr Shortland, as an employee, would have been entitled to a period of four weeks' notice, or payment in lieu thereof, arising under section 117 of the Act, as well as the relevant provisions of the modern award. In addition he would have been entitled to a payment of eight weeks’ redundancy pay, again through the culmination of the provisions of section 119 of the Act, and the relevant provisions of the award.

[61] On that basis my calculation of the amount that Mr Shortland would have received, or would have been likely to receive if his employment had not been terminated, includes 17 weeks of work, four weeks payment of notice, and eight weeks redundancy pay, being a total of 29 weeks, which would be, at the rate I have expressed previously, $19,399.84.

[62] In accordance with the Sprigg formula, I then need to deduct from that amount moneys earned since termination. Because of the circumstances of this matter I make no such deduction. Firstly, there has been no new employment obtained by Mr Shortland since that time, and the employment that he did have with another firm appears to have been the same both before and after dismissal. Accordingly, I think there is no need to make a deduction for moneys earned since termination.

[63] There is a need, though, to make a deduction for contingencies, with the purpose of contingencies being set out in the matter of Slifka v J W Sanders Pty Ltd 4, being a decision of the Industrial Relations Court. I consider in the circumstances that it is appropriate to make a deduction for contingencies, in particular being the possibility that there would have been an earlier termination of employment, for the reasons that Mr Shortland has referred to, and in particular that he mentioned at least in December he thought that the company may have been reducing its hours. Accordingly, I make a deduction of 10 per cent for contingencies.

[64] The deduction of that amount, $1,939.98 from the total, leaves an amount of $17,459.86. That amount, however, is greater than the compensation cap, which relevantly would be the amount of $17,392.96, calculated in accordance with the provisions of section 392(6). I therefore will order an amount equal to the compensation cap.

[65] In relation to the impact of taxation, I will require the amount to be ordered to be taxed according to law. As a result of that, I find that the amount of $17,392.96 should be awarded to Mr Shortland, less taxation. I order that that amount be paid within 14 days of the date on which this decision and the consequential order are published. 

COMMISSIONER

Appearances:

Mr K Shortland on his own behalf.

No appearance for the Respondent.

Hearing details:

2016.

Melbourne:

6 April.

 1   Print S5109.

 2   Sprigg v Paul Licensed Festival Supermarket (1998) 88 IR 21 [33]-[34].

 3   [2014] FWCFB 236 [10].

 4 [1995] 67 IR 316.

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