Kirsten Garousse v Equifax Pty Limited
[2023] FWC 3138
•28 NOVEMBER 2023
| [2023] FWC 3138 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Kirsten Garousse
v
Equifax Pty Limited
(U2023/2778)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 28 NOVEMBER 2023 |
Application for unfair dismissal remedy – redundancy not genuine – Award consultation provisions not followed – compensation ordered
Introduction and outcome
On 31 March 2023, Ms Kirsten Garousse made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Equifax Pty Limited (Equifax).
Ms Garousse was employed by Equifax from 4 June 2018 until her dismissal on 7 March 2023, by way of redundancy.
In summary, I have found that the redundancy was not genuine because Equifax did not comply with all of the consultation requirements in the Award. I have determined that Ms Garousse’s dismissal was harsh, unjust and unreasonable for reasons which include that Ms Garousse was deprived of a proper opportunity to influence the decision maker and be considered for redeployment and that an order for compensation is appropriate.
The hearing
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of Ms Garousse and Equifax and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter according to s.399 of the FW Act.
Witnesses
Ms Garousse gave evidence on her own behalf.
The following witnesses gave evidence on behalf of Equifax:
· Ryan Shane Knepshield, Senior Director of Physical Security
· Joanne Gray, Human Resources Business Partner
Submissions
Ms Garousse filed submissions in the Commission on 26 July 2023 and 28 August 2023 and Equifax filed submissions in the Commission on 14 August 2023. The matter was listed for hearing on 6 September 2023. I have considered the submissions made by the parties and all of the evidence before me in my determination of this matter and the conclusions I have reached.
Permission to appear
Both parties sought to be represented before the Commission by a lawyer.
Section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
I have determined that:
· pursuant to subsection 596(2)(a) of the FW Act, allowing both parties to be represented would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; and
· pursuant to subsection 596(2)(b) of the FW Act, it would be unfair not to allow Ms Garousse and Equifax to be represented because Ms Garousse and Equifax are unable to represent themselves effectively.
I have therefore decided to exercise my discretion to grant permission for both Ms Garousse and the Equifax to be represented.
Accordingly, at the hearing on 6 September 2023, Ms Garousse was represented by Ms Okereke-Fisher of Counsel and Equifax was represented by Ms Brown, Principal Solicitor at KHQ Lawyers.
Background facts
Equifax and its associated businesses are a global group of businesses which provide data, analytics and technology services, largely to financial institutions but also to other organisations and governments. Equifax provides information that assists in detecting fraud and identifying credit risk and advising financial institutions and businesses about consumer credit. Equifax also provide credit monitoring and fraud prevention services directly to businesses and individual consumers.[1]
Ms Garousse commenced employment with Equifax on 4 June 2018 as a Business Information Fraud Investigator on a full-time basis. In or around July 2019, Ms Garousse’s job title was changed to Senior Investigator.[2] In this role, Ms Garousse was required to conduct investigations into allegations of misconduct by other Equifax employees, including issues of fraud.[3]
In July 2022, physical security duties were added to Ms Garousse’s job responsibilities because there was insufficient investigation work.[4] These duties were added by Mr Wayne Williamson, Chief Information Security Officer for Equifax in Australia and New Zealand, and Mr Jonathan Jaster, Senior Vice President, Physical Security, Investigations and Crisis Management who is based in Atlanta Georgia, United States of America. These tasks had previously been, at least partially, outsourced to an organisation called Perkins Security.[5]
At this time, Ms Garousse’s job title was changed to Regional Manager Physical Security and Investigations[6] and she started reporting to Mr Ryan Knepshield, Senior Director of Physical Security. Mr Knepshield is based in Atlanta and is responsible for managing the physical security teams within Equifax globally.[7]
The physical security aspects of Ms Garousse’s role included activities such as monitoring security systems within Equifax premises, and other measures that Equifax implements to ensure the physical security of data and information. The split of duties between investigation work and physical security work was approximately 70% physical security work and 30% investigations work.[8]
Ms Joanne Gray is employed by Equifax as a Human Resources Business Partner and is based in Auckland, New Zealand. In around early December 2022, Ms Gray was advised that a restructuring decision was being considered across Equifax’s business globally and that this would be a task that the human resources team would be working on in around January 2023, on their return from the Christmas break.[9]
Ms Gray returned to work after a Christmas break on 16 January 2023. On or around 19 January 2023, Ms Gray attended a meeting conducted by Ms Jane Miskell, Equifax’s HR Director for Australia and New Zealand along with the other Equifax Human Resources team members who are based in Australia.[10]
In that meeting, Ms Miskell confirmed that Equifax was going through a cost-saving exercise globally and that, as a result, the Finance team had identified roles that Equifax was looking to take out of the organisational structure. Ms Miskell explained that the role of Human Resources team members was to work with the managers that they supported to discuss the roles that had been identified, confirm that there would not be an unmanageable adverse impact of the elimination of those roles and then, where more than one person sat in a particular type of role, conduct selection processes to ascertain which employee would remain. Approximately 130 positions were impacted across the Australia and New Zealand region, and all business units were impacted.[11] Project Boulder was the name used internally to describe the restructure.[12]
Ms Miskell advised that the reason for the restructuring was driven by a downturn in the economy and that Equifax had not achieved their forecasted revenue targets. Most of Equifax’s revenue and profit is generated through the United States and, because of the economic downturn, including the significant downturn in mortgages in the United States, the revenue that was anticipated was not being generated.[13]
This had a knock-on effect to other regions and so in addition to the United States, the restructure impacted Australia, New Zealand, Latin America, Canada, and the United Kingdom.[14]
During this meeting with Ms Miskell, Ms Gray became aware that the role occupied by Ms Garousse was to be impacted by the proposed restructure. Ms Garousse was the only person in her role type within Australia and New Zealand, and so there was no selection process conducted for her role. Ms Gray’s task at this stage therefore was to speak to Mr Knepshield and confirm that he did not have any concerns regarding the removal of the role.[15]
On 23 January 2023, Ms Gray sent Mr Knepshield an email titled ‘Project Boulder’ requesting to set up a meeting to discuss the role occupied by Ms Garousse and how it was impacted.[16]
Mr Knepshield had been made aware of the commencement of Project Boulder more generally in late 2022 as a part of internal team discussions with his colleague Mr Patrick Watson, Investigations Team Manager.[17]
Mr Knepshield was on leave at the time of Ms Gray’s email, so Mr Knepshield and Ms Gray did not meet until 2 February 2023. Ms Gray and Mr Knepshield had a video call on this day, and Ms Gray advised Mr Knepshield that as a part of Project Boulder the Senior Investigator role occupied by Ms Garousse was one to be eliminated from the organisational structure.[18]
The duties performed by Ms Garousse were to be redistributed to others within the wider Security and Investigations teams, including assistance being provided by Mr Williamson’s local Security team based in Australia. Mr Rob Montanari, Resilience Information Security Officer, was to become the local point of contact for Physical Security in addition to his existing duties. This occurs in Equifax operations in other areas of the world, that is, a local person provides ‘on the ground’ support and Mr Knepshield’s team then provides the specialist and technical expertise. Mr Knepshield also understood investigations work would be handled by US-based investigators and, in cases involving data sovereignty, virtual desktop infrastructure or similar platforms would be used. Mr Knepshield therefore had no concerns about the elimination of Ms Garousse’s role.[19]
During their meeting, Ms Gray provided Mr Knepshield with an overview of the process that Mr Knepshield was required to follow in communicating the impact of Project Boulder on Ms Garousse’s role to her and discussing with her the potential consequences of that impact. Ms Gray also provided Mr Knepshield with links to written materials and explained that Mr Knepshield was required to provide those to Ms Garousse, along with having verbal discussions with Ms Garousse. Ms Gray established a shared drive for Mr Knepshield and Ms Gray to use for uploading communications and other materials that were to go to, or had been provided from, Ms Garousse.[20]
At around this time Ms Gray also spoke to Mr Williamson, as he was based in Australia and had some day-to-day dealings with Ms Garousse in her role. Ms Gray confirmed with Mr Williamson whether he was concerned about the redundancy. Mr Williamson agreed that the role was no longer required.[21]
Following Mr Knepshield’s conversation with Ms Gray, he met with Ms Garousse on a video call on the evening of 9 February 2023 Atlanta time, which was the morning of 10 February 2023 in Sydney.[22]
In that meeting Mr Knepshield advised Ms Garousse that her role had been identified as one that would potentially no longer be required after the implementation of the restructure. In doing so, Mr Knepshield followed talking points for the discussion which had been provided to him by Ms Gray, and which also referenced other documents that had been prepared to explain the change to employees. Mr Knepshield told Ms Garousse that he would send her those documents and that he would then arrange to meet with her again in the next few days.[23]
After this meeting, Mr Knepshield sent Ms Garousse an email attaching a letter dated 10 February 2023, with the heading ‘Notice of Potential Role Redundancy’. The email included attachments and links to other documents which confirmed the information discussed in the meeting including a ‘Frequently Asked Questions’ document and information about Equifax’s Employee Assistance Program. There was also a link to a ‘Consultation Feedback Form’ which had been prepared to allow employees to put forward any written information that they wanted Equifax to consider in relation to the decision regarding their role and the impact on them.[24] The Frequently Asked Questions document stated that it is proposed that the organisation would transition to the new structure from 13 March 2023.[25]
The letter dated 10 February 2023 relevantly provided:
In our meeting today, we informed you that as a result of a review of cost and functional effectiveness across the business, Equifax found it necessary to propose changes to the role Security Investigator of which you currently occupy.
The meeting was to consult with you on those changes, as well as provide you with an opportunity to provide any information you feel should be considered as part of this change. Over the next few days we encourage you to provide feedback on the proposed change and we will give prompt consideration to matters raised by you. We will meet to discuss the proposed changes and any final decisions by Equifax on implementing these changes.
As discussed, whilst we would normally look into opportunities for an alternative position with the Company, all recruitment activities have been frozen. Therefore, unfortunately we do not believe that there will be any opportunities for redeployment.
In the event we move forward with the proposed change, your role will regrettably be made redundant. Should this occur, you will be paid a redundancy package, in accordance with your employment contract. Please be aware, as we have yet to confirm that termination date the estimate you receive may change slightly. If we were to move forward with a redundancy the business will offer you support with career transition through an outplacement program with Randstad.[26]
The letter attached a ‘Redundancy Estimate’ which appeared to have been printed or created on 3 February 2023. It provided that Ms Garousse’s weekly rate of pay was $2,554.82, she worked 38 hours a week and that she had an annual leave balance of 245.8027 hours. It also stated that Ms Garousse’s retrenchment date was 10 March 2023, and that she would be provided with four weeks pay in lieu of notice and 14 weeks severance pay.[27]
The letter also attached an information sheet about Redundancy dated October 2021. This document relevantly provides:
Equifax prefers to avoid making roles redundant and will normally only do so after considering all other options. Where we need to make a role redundant, our aim is to redeploy employees who are impacted. The purpose of this document is to provide guidance about redundancy – why it might happen, what you can expect if it happens, and what your entitlements are.
….
Before we put forward a proposal to make a role redundant, we will consider whether or not we have suitable alternative roles to redeploy people into. This will be discussed with our people as part of any change proposal conversation.
Redeployment can also occur as part of the consultation process, where we identify a suitable alternative role during the consultation about the proposed changes.
Where a role has been made redundant, because we have not been able to identify suitable alternative roles we will continue to work with our people to redeploy them.[28]
…
The document also outlined a three-stage process that occurs when a role is made redundant, comprising written notice of the potential redundancy, a consultation period and communication of the outcome in writing, including a retrenchment estimate and details of any current roles. During the consultation period there would be a discussion of any steps ‘we will take to minimise the impact of the redundancy on you including attempting to find a suitable alternative role to redeploy you into, taking into your skills and experience’. The document also stated that, ‘we will continue to work with you to look for alternative roles throughout your notice period’.
On 11 February 2023, Mr Mark Begor, Equifax’s Global Chief Executive Officer sent an email to all employees which confirmed the restructure and that there would be a reduction in Equifax’s total workforce, including contractors and full-time employees. Mr Begor referenced the decline in the United States mortgage market and uncertainty in the economic outlook in making that decision.[29]
Mr Knepshield had a second meeting with Ms Garousse via video call on 13 February 2023 (Sydney time). In this meeting they discussed confidentiality surrounding the proposed organisational changes. Ms Garousse inquired whether certain team members could be made aware of the proposed changes for the purposes of future planning, and Mr Knepshield indicated he would research this further before returning with an answer.[30]
They also discussed the need to redistribute any physical security tasks to other members of the larger Security team and that those arrangements were ongoing at the time. Mr Knepshield advised Ms Garousse in this meeting that her job was being made redundant as its duties could be fulfilled by other existing employees.[31]
On 14 February 2023 (Sydney time) Ms Garousse sent an email to Mr Knepshield in relation to the following issues:
Clarification of her obligations in relation to keeping the redundancy confidential.
The purpose of the consultation period given that a decision appeared to have already been made. Ms Garousse requested clarification of what, if any, information was required from her.
Clarification as to the impact of the decision on the physical security aspects of Ms Garousse’s role give that only her role of ‘Senior Invesigator’ was mentioned in the ‘Notice of Potential Role Redundancy’ letter.
Consideration of the regulatory, contractual and skill requirements of the investigations role particularly with regard to whether such a role was required to be based in Australia.
Advice about training and travel which had been booked for February and March.
Ms Garousse’s view that data exfiltration cases increase during periods of redundancy and that she had also been advised that Insider Threat are approximately 6 weeks behind in case load. On this basis she would be happy to support an extension of the redundancy date to accommodate any potential cases as they arise, in addition to other pending tasks.[32]
It was necessary for Mr Knepshield to obtain advice from Ms Gray before responding to Ms Garousse’s questions. On 17 February 2023, Ms Garousse attended an ordinary bi-weekly scheduled meeting with Mr Knepshield in which Mr Knepshield responded to her questions. At that meeting, Mr Knepshield informed Ms Garousse that she was able to speak with team members regarding potential changes in her role for the purposes of future planning and continuity and to the extent she felt comfortable to do so. Mr Knepshield also discussed with Ms Garousse the nature of the consultation period as he understood it, being a specified period of time during which Ms Garousse was afforded the opportunity to offer information, clarification or any rebuttals regarding the proposed organisational changes and their impact on her. Mr Knepshield further informed Ms Garousse the future performance of physical security tasks in region was in discussion, as was the investigative portion of her duties. Mr Knepshield requested Ms Garousse cancel any planned travel for physical security tasks, as the future handling of those tasks was still under consideration.[33]
According to Ms Garousse, Mr Knepshield advised Ms Garousse that only the Investigator component of her role was to be made redundant and he said that the Physical Security component of her role was ‘collateral damage that would need to be redistributed’.[34]
As Mr Knepshield did not have any definite answers regarding Ms Garousse’s queries about regulatory or legal requirements, Mr Knepshield advised Ms Garousse that he was aware Mr Williamson had a scheduled meeting with the legal team on or around 23 February 2023 to discuss those matters.[35] On 23 February 2023, at 10.06pm Atlanta time, Mr Knepshield received an email from Mr Williamson confirming that there was no regulatory reason for an investigator position to be based in Australia.[36]
Mr Knepshield arranged to meet with Ms Garousse again on 28 February 2023 (Sydney time). Prior to that meeting, Mr Knepshield sent an email to Ms Garousse in which he referenced their previous discussions and provided written responses to the Ms Garousse’s questions.[37] Mr Knepshield also had a conversation with Ms Gray in which Ms Gray advised Mr Knepshield that she was of the view that Equifax had considered and responded to Ms Garousse’s feedback and that this had not resulted in Equifax reconsidering the proposal. Ms Gray said that given no other feedback had been received, they could proceed with closing the consultation and confirm that the position was being made redundant with Ms Garousse.[38]During the hearing, Ms Gray gave evidence that Mr Knepshield made the final decision in relation to terminating Ms Garousse’s employment.[39]
At the meeting on 28 February 2023, Mr Knepshield advised Ms Garousse that the legal team had confirmed that there was no regulatory reason for Ms Garousse’s role not to be made redundant. Mr Knepshield said that Ms Garousse now had a final opportunity to provide further feedback or information for Equifax to consider in relation to the impact of the change on Ms Garousse. Ms Garousse did not provide any further feedback and so Mr Knepshield said to Ms Garousse words to the effect that the redundancy would be confirmed and that her employment would come to an end for that reason and that formal notification would follow.[40]
At 11:30am on 28 February 2023, following the meeting, Ms Garousse sent an email to Mr Knepshield which relevantly provided:
Subsequent to our discussion today I am of the understanding I will be provided with an official notice of redundancy within the next few days and, on receipt of such, my four (4) week notice period will commence.
……
Additionally, it would be my preference that I am placed on "gardening leave" through my notice period.[41]
At 11:59am on 28 February 2023 (Sydney time), Mr Knepshield sent an email to Ms Garousse which relevantly provided:
Thank you for your time today to continue consultation in relation to the proposed redundancy of your position of Security Investigator.
In our meeting on 10 February, when we first advised you of the proposed changes for your role, we let you know we would consult with you to hear your feedback on our proposal.
You have been provided with a redundancy calculation estimate for your review and you have acknowledged today that you have had the opportunity to provide feedback during our check ins on 14 February and 17 February and to provide feedback via our consultation feedback form directly to HR. You have advised that you have no further feedback you wish to share on our proposal and you wish to end the consultation period and move forward with the proposed redundancy of your position.
Please confirm that I have understood your intention to end the consultation process and I will provide you with notice of redundancy of your position as at 28 February 2023. Your notice period is 4 weeks effective from this date and your final working day will be 1 March 2023 and we will pay you 4 weeks notice in lieu as part of your final redundancy payment.[42]
At 1:24pm on 28 February 2023, in response to a query from Ms Garousse about leave, Ms Gray sent an email advising that Ms Garousse’s role of Security Investigator would be eliminated effective from 31 March 2023.[43]
At 2:17pm on 28 February 2023, Ms Garousse wrote to Ms Gray in relation to the termination payment stating, ‘subject to final confirmation, I think my four week notice period will end on or about 31 March 2023’.[44]
On 1 March 2023, Ms Garousse sent an email to Ms Gray advising her intention to get legal advice and requesting that the consultation period be extended to 10 March 2023.[45]
On 2 March 2023, Ms Gray sent the following email to Ms Garousse:
Hi Kirsten,
Thanks for your email and for your request to extend your consultation period to 10 March 2023 so that you may obtain personal legal advice.
We have been in consultation with you about the proposed changes to your role since Friday, 10th February 2023. I understand that since that date Ryan has had multiple conversations with you regarding the proposed changes, and has carefully considered your feedback and provided responses to you.
In that period, Equifax advised you of the change, the likely impact on your employment and sought your feedback. We considered and responded to your feedback. We therefore consider that appropriate consultation has occurred and brought the consultation period to a close yesterday, 28 February 2023, and issued you with a confirmation of redundancy letter.
We accordingly consider that you have been afforded the genuine opportunity to consult on this change and that we have addressed your feedback and areas of concern and we thank you for your participation in that process. If you would like to obtain legal advice on the change and your entitlements that is a matter for you, however we confirm that the consultation process has now concluded and that the decision regarding your employment as communicated to you has taken effect.
Thanks and regards
Jo Gray (She/Her)[46]
On 3 March 2023 Ms Garousse sent the following email to Ms Gray:
Hi Jo,
Would you kindly provide clarity as to your reference that I was provided with a “confirmation of redundancy letter” on or about the 28th February?
Whilst I did receive an email from Ryan on that date proposing to close the consultation based on verbal discussions, which I responded “no” to (on the basis of this email trail), I do not beleive [sic] I have received any formal letter.
Additionally, I will need to update my banking details. Would you kindly advise where that information is to be directed to?
Kind regards,
Kirsten[47]
On 7 March 2023, Ms Gray sent the following email to Ms Garousse:
Hi Kirsten,
Thanks for your email.
On Tuesday, 28 February, Ryan Knepshiled [sic] sent you an email which contained a summary of the consultation discussions that you had on 10, 14, 17 and 28 February and confirmed that the consultation process had come to an end and that you would be provided with notice of the redundancy of your position as at 28 February 2023. The email also confirmed that your final working day would be 1 March 2023 and that your 4 week notice period would be paid in lieu. This email clearly confirmed that your employment was terminated by way of redundancy effective 1 March 2023. The notice referred to in Ryan’s email (and also referred to in my email to you on 2 March 2023) was mistakenly not attached to his email. We apologise for this oversight and now attach the notice dated 28 February 2023 for your records.
We note that your redundancy payment (including your notice in lieu) was processed last week and you would have received the funds on or around Friday 3rd March 2023.
We confirm that the termination of your employment by way of redundancy took effect on 1 March 2023 and that the consultation period closed as previously communicated to you and will not be reopened.
We again take this opportunity to thank you for your time at Equifax and wish you all the best in your future endeavours.
Thanks and regards,
Jo Gray (She/Her)[48]
Attached to this email was a letter from Equifax dated 28 February 2023 which had not been previously provided to Ms Garousse. The letter states, amongst other things:
This letter confirms that as a result of the review and following consultation with you, your role of Security Investigator will become redundant effective on 10 March 2023. Your notice period is 4 weeks from today and your final day with Equifax will be 1 March 2023. Any remaining period of your notice period not worked by you will be paid to you in lieu as part of your final pay. Your final pay will be processed on 15 March 2023 or earlier.[49]
On 17 March 2023, Ms Garousse sent Ms Gray an email in which she said that she was aware that Equifax had been recruiting for a similar role in the United Kingdom and that Equifax was planning to advertise a United States based Investigator role in the third quarter of 2023.[50] In her email, Ms Garousse referred to a conversation with Mr Watson in relation to the Investigator role so Ms Gray sent Mr Watson an email on 17 March 2023 regarding the vacancies referenced in Ms Garousse’s email. Mr Watson responded to Ms Gray on 18 March 2023 and advised that the United Kingdom role had been frozen due to the directive to pause recruitment and that the role of Senior Investigator had not been advertised.[51]
Since Ms Garousse’s employment has come to an end her duties have been picked up by other employees within Equifax. The physical security work that was performed by Ms Garousse is now being performed by Mr Montanari and Mr Knepshield. Mr Montanari is based in Sydney and has worked for Equifax for approximately two years. He has added these duties to his existing tasks. The investigations work that was previously undertaken by Ms Garousse is now performed by members of the existing Investigations team based in the United States. No new employees have been hired to perform the duties that were previously performed by Ms Garousse.[52]
Although Ms Garousse holds the appropriate skillset, qualifications and level of technical expertise for the roles of Investigator and Regional Physical Security and Investigations Manager, there was no discussion or opportunity to discuss or consider possible redeployment for either position or any other role within the company or any of its related entities.[53]
Since the dismissal Ms Garousse has applied for a job as a truck driver paying $58,000 and she commenced this role on 5 June 2023. As of the week ending 16 July 2023, Ms Garousse has earned $9,240 gross income.[54]
Ms Garousse provided evidence in relation to the following roles that were advertised by Equifax:
a. Business Support Coordinator, 23 April 2023
b. Customer Service Representative, 23 April 2023
c. Fraud and Identity Consultant, 29 June 2023
d. ID & Fraud Solutions Specialist, 6 June 2023
e. Head of Identity Products at Equifax, 19 June 2023[55]
Ms Gray provided the following evidence in relation to each of these roles:
a. The Business Support Coordinator position was approved for recruitment on 30 March 2023 following the resignation of the previous incumbent. A new full-time employee was appointed to this role on 19 June 2023. This role was approved to be recruited outside of the hiring freeze because it is a customer impacting position.[56]
b. The Customer Service Representative position was approved for recruitment on 19 April 2023. It was previously occupied by an employee who was on parental leave but who indicated that they did not intend to return to Equifax on the expiry of their leave. The current occupant of that role commenced employment with Equifax on 31 July 2023 on a fixed-term contract to 16 July 2024. This role is a customer impacting position and so received an exemption from the hiring freeze.[57]
c. The Fraud and Identity Consultant was not open for recruitment until 16 June 2023, which was three and a half months after Ms Garousse’s role had been identified for redundancy and more than three months after her employment had ended. Equifax’s records show that the previous incumbent resigned on 4 November 2022, but the role was paused and not available to backfill while the hiring freeze was in place in the first half of 2023. The role is more of a sales-based role and was originally titled Technology/Analytics Consulting (Sales). The role requires experience in pre- and post-sales consulting on technical and analytical solutions and the capacity to demonstrate an understanding of Equifax’s technical and analytical solutions and how they align to client needs.[58]
d. The ID & Fraud Solutions Specialist role at Equifax was not open for recruitment until 1 May 2023, and it remains open. Given the advertisement is in Spanish and the role is based in Buenos Aires, it is Ms Gray’s understanding that it would be necessary for the incumbent to be fluent in Spanish. The translation also indicates that the role requires the incumbent to be a graduate of Business Administration, Systems or a related area. The CV Ms Garousse provided when applying for her role with Equifax does not record that she has proficiency in any other languages or has any graduate qualifications.[59]
e. In relation to Head of Identity Products, Ms Gray does not consider that Ms Garousse would have sufficient leadership experience for this position. The role was initially intended to be internally filled, however the internal candidate resigned. That internal candidate had extensive experience in product management. Equifax has not to date found anyone in the market who holds the required skills. These include a deep understanding of fraud and identity issues, in-depth experience in product management methodologies and strong leadership skills with the ability to motivate a team of six employees, including the requirement to lead and develop the skills of the team in product management. The role is currently approved to commence external recruitment in September 2023.[60]
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that Ms Garousse was protected from unfair dismissal at the time of being dismissed; and
(b) Ms Garousse has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether Ms Garousse was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Ms Garousse was so protected, whether Ms Garousse has been unfairly dismissed.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Initial matters
A threshold issue to determine is whether Ms Garousse has been dismissed from her employment.
There was no dispute and I find that Ms Garousse’s employment with Equifax was terminated at the initiative of Equifax. I am therefore satisfied that Ms Garousse has been dismissed within the meaning of s.385 of the FW Act.
Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in s.394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
I have decided these matters below.
In relation to s.394(2), I granted an extension of time to file the application on 27 June 2023 as I found that the circumstances in which the application was made are exceptional, according to the factors in s.394(3) of the FW Act.[61]
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
It was not in dispute, and I find, that at the time of dismissal, Ms Garousse had completed at least the minimum period of employment with Equifax, and that the Banking, Finance and Insurance Award 2020 (the Award) applied to Ms Garousse’s employment.
I am therefore satisfied that, at the time of dismissal, Ms Garousse was a person protected from unfair dismissal.
It was not in dispute, and I find that the Small Business Fair Dismissal Code does not apply to Ms Garousse’s employment.
Equifax submits that the dismissal was a case of genuine redundancy so I must determine this matter before considering the merits of the application.
Was the dismissal a case of genuine redundancy?
Under s.389(1) of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the 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.
Section 389(2) provides that 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 the employer’s enterprise or the enterprise of an associated entity of the employer.
Submissions
Ms Garousse
Ms Garousse submits that Equifax has not adduced evidence to demonstrate that Equifax no longer required Ms Garousse’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.
Ms Garousse does not believe that Equifax no longer required Ms Garousse’s job to be done by anyone. Ms Garousse’s role was required to be performed specifically at a critical time when many employees were being dismissed. During periods of employee redundancies and dismissals there is an increase in potential misconduct of employees, known as Insider Threats.
While Insider Threats are generally behind in case load by 48 hours, on or about 14 February 2023, Ms Garousse was advised that Insider Threats were approximately 6 weeks behind in case load. Ms Garousse’s role was necessary to be performed to accommodate any potential cases of Insider Threats and data ex-filtration cases, in addition to other pending tasks.
Ms Garousse submits that the dismissal was not a case of genuine redundancy because Equifax failed to comply with the Award to consult about the redundancy.
On 10 February 2023, the consultation period commenced with Equifax notifying Ms Garousse of the potential redundancy of her role. The notification letter was not compliant with clause 28.2(b) and (c) of the Award. Equifax failed to grapple with the expected effect of the redundancy on Ms Garousse or discuss any measures with Ms Garousse to avoid or reduce the adverse effect of the changes on her. Further, Equifax did not respond to all of the matters raised in Ms Garousse’s email of 14 February 2023.
Ms Garousse was not afforded an opportunity to seek a support person to attend any of the scheduled meetings as she was not aware that the redundancy would be discussed, and there were no meetings arranged by Equifax to formally consult on the potential redundancy.
Equifax had already made the decision that the role was to be made redundant upon serving notice of potential redundancy to Ms Garousse, and the consultation period did not serve its purpose of providing Ms Garousse with an opportunity to discuss the proposed redundancy or follow steps to attempt to redeploy her.
Ms Garousse raised concerns about the genuineness of the redundancy and the purpose of the consultation period and requested an opportunity to obtain legal advice prior to the end of the consultation period. Equifax denied Ms Garousse the opportunity to consult with legal representation despite Ms Garousse’s request to do so prior to the conclusion of the consultation period. Ms Garousse was not provided with any meaningful opportunity to respond to the notification of potential redundancy with a support person or a legal representative present.
Equifax’s refusal to extend the consultation period to 10 March 2023 to enable Ms Garousse to seek legal advice and representation led to a failure to comply with clauses 28.1(b) and 28.2 of the Award.
Equifax took no steps to fulfill its redeployment obligations other than to state that there was a ‘hire freeze’. There is evidence that Ms Garousse was highly regarded by Equifax and was in fact deemed by Equifax to be a Subject Matter Expert within the Investigations team. Her skills set was in demand within Equifax’s business and given her performance and the skills demonstrated in the course of her employment, she would have been suitable in a competitive selection process including the recruitment for international roles. Ms Garousse holds the appropriate skill set qualifications and level of technical expertise for the roles of Regional Physical Security and Investigations Manager and Investigator, yet there was no discussion or opportunity to discuss possible redeployment of Ms Garousse for either position or any other role within the company.
The evidence shows that Equifax was recruiting for the role of Regional Physical Security and Investigations Manager around the time of the dismissal, and that Ms Garousse had the relevant qualifications and skills to execute the role, as well as being open to the possibility of relocation, and as such it would have been reasonable in all of the circumstances to redeploy Ms Garousse to this role. Evidence of the hiring freeze, if accepted, does not preclude the redeployment to the advertised position on the basis that Ms Garousse could commence the new role once the hiring freeze ceased. No such opportunity was afforded to Ms Garousse.
Evidence shows that Equifax failed to take any step to identify other jobs, positions or work which could be performed by Ms Garousse. The fact that Equifax did not turn its mind to whether there were any suitable roles within Equifax’s enterprise or any associated entity at the time of Ms Garousse’s dismissal is of significant consequence in the circumstances of this matter and for the purposes of s.389(2), since there was at least one suitable role available.
Equifax
Equifax no longer required the job of Ms Garousse to be performed by anybody due to changes in the operational requirements associated with the market conditions in which Equifax’s business, and its associated entities, operate globally. A decline in the global revenue of Equifax, and its associated entities, meant that it was necessary to reduce labour costs to mitigate the impact of that decline.
Ms Garousse’s position was one of approximately 130 impacted across Australia and New Zealand. It was identified that Ms Garousse’s job was no longer required to be performed by anybody as her duties could be redistributed and picked up by others both within and outside of Equifax’s business.
Equifax accepts that the restructure implemented through Equifax’s Project Boulder constituted a major change likely to have significant effects on employees as defined by the Award. Equifax submits that it complied with the consultation requirements under the Award by providing written information Ms Garousse on 10 February 2023, meeting with Ms Garousse on 10, 13, 17 and 28 February 2023 and promptly considering and responding to matters raised by Ms Garousse.
Equifax submits that it would not have been reasonable to redeploy Ms Garousse in Equifax’s enterprise or the enterprise of an associated entity of Equifax, given the hiring freeze that was in place and, at the time of Ms Garousse’s dismissal was to remain in place until at least the first half of 2023.
Ms Garousse did not at any time during the consultation process or prior to her dismissal query available roles or indicate that she was interested in relocating or remaining employed by Equifax or its associated entities.
None of the roles identified by Ms Garousse as suitable for redeployment were available at the time of the termination of her employment.
Consideration
Did Equifax no longer require Ms Garousse’s job to be performed by anyone because of changes in the operational requirements of Equifax’s enterprise?
According to the Full Bench in Adams v Blamey Community Group[62], s.389(1)(a) requires findings of fact to be made as to whether, firstly, the employer has made the decision that the employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision – that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been – then it will not be possible to make the second finding of fact. However, once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.[63]
Mr Knepshield gave unchallenged evidence that the job performed by Ms Garousse involved approximately 70% physical security work and 30% investigations work. The physical security aspects of Ms Garousse’s role included activities such as monitoring security systems within Equifax premises. The investigations work involved conducting investigations into allegations of misconduct by other Equifax employees, including fraud. I am therefore required to determine whether Equifax still required a role comprising 70% physical security work and 30% investigations work notwithstanding its decision to make the role occupied by Ms Garousse redundant.
Equifax provided an email from Mr Begor that demonstrated that Equifax’s operational requirements had changed because of its decision to reduce its cost structure. This was to be achieved through reduction of the total workforce of full-time employees and contractors by over 10%, the closure of several North American data centres, and other spending controls. This was consistent with information which Ms Gray said was provided to her by Ms Miskell on or around 19 January 2023. Ms Gray’s evidence was that the position occupied by Ms Garousse was one of the roles affected and that this was not a surprise to her because she was aware that in around June 2022, the physical security aspects of Ms Garousse’s role were added into her duties because she had insufficient investigation work to do.
I note Ms Garousse’s view that it was necessary for her role to be performed to accommodate any potential cases of Insider Threats and data ex-filtration cases, in addition to other pending tasks and that on this basis, she does not believe the role is no longer required. However, the fact that Mr Knepshield and Mr Montanari are performing the physical security and not the investigative aspects of Ms Garousse’s role indicates that the duties associated with her role are being carried out by a number of employees.
The distribution of tasks done by a particular employee between several other employees to improve efficiency is provided as a specific example by the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) of a change in the operational requirements of an enterprise. It is not the case that if any aspect of the employee’s duties is still to be performed by somebody, that employee’s role cannot be redundant. There are circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the ‘job’ of that employee no longer exists.[64]
It is unfortunate that Equifax did not adduce evidence from the person who made the decision that Ms Garousse’s role was no longer required, as I would have been assisted by such evidence. Nevertheless, I am satisfied, based on the evidence provided by Mr Knepshield, that Equifax no longer requires Ms Garousse’s job to be performed by anyone. I am also satisfied based on the evidence of Ms Gray together with the email from Mr Begor that this is because of changes in the operational requirements of Equifax’s enterprise relating to a decision to reduce costs.
Did Equifax comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?
There was no dispute between the parties that the Award applied to Ms Garousse’s employment. Clause 28 of the Award provides:
28.Consultation about major workplace change
28.1If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a)give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b)discuss with affected employees and their representatives (if any):
(i)the introduction of the changes; and
(ii)their likely effect on employees; and
(iii)measures to avoid or reduce the adverse effects of the changes on employees; and
(c)commence discussions as soon as practicable after a definite decision has been made.
28.2For the purposes of the discussion under clause 28.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a)their nature; and
(b)their expected effect on employees; and
(c)any other matters likely to affect employees.
28.3Clause 28.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
28.4The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 28.1(b).
28.5In clause 28 significant effects, on employees, includes any of the following:
(a)termination of employment; or
(b)major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c)loss of, or reduction in, job or promotion opportunities; or
(d)loss of, or reduction in, job tenure; or
(e)alteration of hours of work; or
(f)the need for employees to be retrained or transferred to other work or locations; or
(g)job restructuring.
28.6Where this award makes provision for alteration of any of the matters defined at clause 28.5, such alteration is taken not to have significant effect.
In my view, the ‘definite decision’ which Equifax was required to consult Ms Garousse about under clause 28 of the Award was Equifax’s determination that her role was potentially redundant, because it was this decision which was likely to have a significant effect on Ms Garousse, including termination of employment. Equifax did not provide evidence in relation to when it made this decision.
Equifax claimed that it met its obligation to commence discussions as soon as practicable based on the steps that Ms Gray took upon becoming aware that Ms Garousse’s position was affected on 19 January 2023, and the steps that Mr Knepshield took after meeting Ms Garousse on 10 February 2023. However, based on the evidence, neither Ms Gray nor Mr Knepshield made the decision on behalf of Equifax in relation to Ms Garousse’s position. In the absence of evidence as to when the ‘definite decision’ was made, I am unable to find that Equifax commenced discussions as soon as practicable as required by clause 28.1(c) of the Award.
The information that Equifax provided to Ms Garousse at the initial meeting on 10 February 2023 comprised general information about the operational requirements which resulted in the workplace change and information which was specific to her role. The general information was in the form of the Frequently Asked Questions document, the feedback form, information about Equifax’s Employee Assistance Program and the redundancy policy. The specific information was in the form of the letter addressed to Ms Garousse dated 10 February 2023 and the Redundancy Estimate.
The information provided in the letter was woefully inadequate and did not contain ‘all relevant information about the changes’ as required by clause 28.2 of the Award. For example, the letter did not contain information about how and to who Equifax proposed to distribute Ms Garousse’s duties. Further, the letter did not explain the changes that would be made to the teams more broadly that perform the work of investigations and physical security. The letter also did not explain why it was Ms Garousse’s role that was being considered for redundancy compared to other roles which were being retained in the restructure. If Ms Garousse had access to this information, she could have considered ways in which she may have been retained in the new structure with regard to the work required and who was being proposed to perform it and provided feedback about this during the consultation period. This is particularly the case given that Mr Knepshield discussed with Ms Garousse on 13 and 17 February 2023 that her duties were being redistributed to other members of the larger Security team and that those arrangements were ‘ongoing’ and ‘in discussion’ at the time. It is hardly surprising that the feedback that Ms Garousse gave to Equifax was limited and that she provided no further feedback on 28 February 2023, because there was very little that she could give feedback on.
In relation to the requirement that Equifax discuss with affected employees measures to avoid or reduce the adverse effects of the changes on employees, Equifax claimed that it met this obligation by offering Ms Garousse employment assistance program and outplacement services, an enhanced redundancy package and an estimation of her redundancy entitlements. An additional measure to avoid or reduce the adverse effects of the changes on employees is redeployment, which is referred to on multiple occasions in Equifax’s redundancy policy. Despite Equifax making an explicit commitment to employees in its redundancy policy that it will attempt to find suitable redeployment roles for employees affected by redundancy, Equifax denied this opportunity to Ms Garousse based on its claim that all recruitment activities had been frozen. It transpired that this was not the case, as Ms Gray gave evidence that approval from global leadership could be obtained to recruit for specific roles based on a particular business case and that approval was in fact obtained for the roles of Business Support Coordinator on 30 March 2023 and Customer Service Representative on 19 April 2023.
In response to Ms Garousse’s submission that it did not properly consult about redeployment roles, Equifax argued that Ms Garousse did not seek redeployment during the consultation period. In my view, Ms Garousse’s actions in this regard are understandable and reasonable given that she was unequivocally advised by Equifax that there were no opportunities for redeployment.
As the requirement that Equifax discuss with affected employees measures to avoid or reduce the adverse effects of the changes on employees included redeployment, this necessitated Equifax actively investigating redeployment opportunities regardless of the recruitment freeze, and whether Ms Garousse requested such opportunities or not. Ms Gray’s evidence shows that she did not investigate redeployment opportunities until 17 March 2023 which was after Ms Garousse was dismissed. The fact that Ms Gray did not do so earlier was inconsistent with Equifax’s obligations under clause 28.1(b)(iii).
In conclusion, I find that Equifax did not fully comply with their obligations to discuss with Ms Garousse measures to avoid or reduce the adverse effects of the changes and provide in writing all relevant information about the changes as required by clause 28 of the Award. I have also found that there is insufficient evidence to establish that Equifax complied with the requirement to commence discussions as soon as practicable after a definite decision had been made. Therefore, I find that Equifax did not comply with an obligation in a modern award that applied to the employment to consult about the redundancy and as such the dismissal was not a case of genuine redundancy.
Would it have been reasonable in all the circumstances for Ms Garousse to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer
Ms Garousse submits that it would have been reasonable in all the circumstances for Ms Garousse to be redeployed within Equifax’s enterprise and pointed to seven specific roles that she should have been redeployed to. These roles are:
a. Regional Physical Security and Investigations Manager
b. Investigator
c. Business Support Coordinator
d. Customer Service Representative
e. Fraud and Identity Consultant
f. ID & Fraud Solutions Specialist
g. Head of Identity Products at Equifax
It is well established that for the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. It is expected that the employer would adduce evidence in relation to the steps taken by the employer to identify other work which could be performed by the dismissed employee.[65]
Equifax did not adduce evidence in relation to any steps it took to identify other work which could be performed by Ms Garousse, because it took no such steps.
Ms Gray and Mr Mr Knepshield gave unchallenged evidence that Equifax has not recruited for the roles of Regional Physical Security and Investigations Manager that was advertised in January 2023, and the Investigator role which Ms Garousse discussed with Mr Watson. I therefore find that it would not have been reasonable in all the circumstances for Ms Garousse to be redeployed to either of these roles.
The effect of Ms Gray’s evidence is that the only role that was available around the time that Ms Garousse was dismissed was the Business Support Coordinator for which recruitment was approved on 30 March 2023. I therefore find that that it would not have been reasonable in all the circumstances for Ms Garousse to be redeployed to the roles of Customer Service Representative, Fraud and Identity Consultant, ID & Fraud Solutions Specialist, and Head of Identity Products at Equifax as these roles were not available at the time that Ms Ms Garousse was dismissed.
Ms Gray does not suggest that Ms Garousse was unsuitable for the role of Business Support Coordinator. It was therefore a role which Equifax could have redeployed Ms Garousse to if it was vacant at the time that the termination of Ms Garousse’s employment was being considered.
In considering this issue, it is relevant that Equifax unilaterally ended the consultation period earlier than the termination date specified in the redundancy estimate, which was 10 March 2023, and the date that the restructure was to be implemented, which was 13 March 2023. Equifax did not respond to Ms Garousse’s emails of 28 February 2023 where she indicated her understanding that her four week notice period would end on 31 March 2023 and requested that she be placed on ‘gardening leave’ during this four week notice. If Equifax had agreed to this request, Ms Garousse would have been still employed at the time that recruitment for the role of Business Support Coordinator was approved. Although this is a matter which is relevant to my consideration under s.387(h), I am unable to find, that for the purposes of s.389(2) it would have been reasonable in all the circumstances for Ms Garousse to be redeployed the role of Business Support Coordinator given that it was not available at the time that Ms Garousse’s employment was terminated.
Having considered each of the initial matters, I am required to consider the merits of Ms Garousse’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[66]
In relation to s. 387(a), (c) and (e), both parties submitted that as the dismissal was not related to Ms Garousse’s capacity, conduct or unsatisfactory conduct, these matters are neutral considerations. I accept these submissions.
Section 387(b) deals with whether the employee was notified of the valid reason for the dismissal related to the person’s capacity or conduct. This matter is not relevant given that the the dismissal was not related to Ms Garousse’s capacity or conduct. However, there was no dispute between the parties that Ms Garousse was notified of the reason for dismissal in Equifax’s letter dated 28 February 2023 which was received by Ms Garousse on 7 March 2023.
Section 387(d) deals with any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. Ms Garousse contends that she was not given a meaningful opportunity to respond to the notification of potential redundancy because she did not have the assistance of a legal representative at discussions relating to the dismissal. I accept Equifax’s submissions that this factor is only relevant where an employee requests the presence of a support person in discussions and that is unreasonably refused. There is no evidence that Ms Garousse requested to have a support person at any of the meetings by Equifax so there is no failure by Equifax to comply with s.387(d).
Section 387(g) deals with 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. There is no dispute between the parties that Equifax has dedicated human resources management specialists, so this matter is a neutral consideration.
Section 387(f) deals with the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. Equifax is a global organisation. According to Ms Garousse, Equifax employs more than 14,000 employees worldwide, and approximately 300 employees in the Sydney office. Ms Gray’s evidence is that there is a HR Director for Australia and New Zealand who oversees a human resources team. In the circumstances, it would be expected that Equifax would have the appropriate resources and expertise to ensure that the procedures followed in effecting Ms Garousse’s dismissal were fair. Unfortunately, this was not the case and there were a number of deficiencies in the process followed by Equifax which resulted in Ms Garousse being deprived of a proper opportunity to contribute to the consultation and influence the decision maker and also be considered for redeployment.
I have already found that Ms Garousse was not provided with all the relevant information in relation to the decision to make her role redundant. In addition to establishing that there was not a genuine redundancy, these matters weigh in favour of a finding that the dismissal was unfair. Ms Garousse should have also been provided with the text of clause 28 of the Award so that she could understand precisely what the consultation process involved and that she was entitled to a representative during her meetings with Mr Knepshield. In my view, Equifax should have proactively informed Ms Garousse of her right to be represented in the consultation meetings and I note with concern that no such information was provided in any of the material given to Ms Garousse.
Equifax should have informed Ms Garousse of the length of the proposed consultation period. The Redundancy Estimate provided to Ms Garousse had a proposed termination date of 10 March 2023. On this basis, it would have been reasonable for Ms Garousse to assume that the consultation period would last approximately four weeks. At no time was Ms Garousse provided with any information which suggested otherwise. Mr Knepshield’s evidence shows that Ms Garousse did not receive any prior warning that Mr Knepshield intended to end the consultation period and confirm the redundancy at their meeting on 28 February 2023.
On 1 March 2023 Ms Garousse sent an email to Ms Gray indicating that she had some concerns and intended to seek legal advice and asking that the consultation period remain in effect until at least 10 March 2023 to allow her the opportunity to this. Ms Gray refused this request.
Equifax submitted that Ms Garousse had the period from 10 February 2023 to seek legal advice regarding the redundancy if she had wished to do so. Ms Garousse did not indicate that she wished to seek such advice until she was told by Equifax that her employment was to be terminated and that her requests for additional payments, beyond her entitlements under Equifax policy which, in the case of redundancy pay, were more than the statutory minimum. The refusal of Equifax to extend the period of consultation to enable Ms Garousse to seek legal advice did not render the dismissal unfair accordingly.
I do not accept Equifax’s submission. It would have only been necessary for Ms Garousse to seek legal advice as early as 10 February 2023 if she had concerns about Equifax’s actions which she could not address directly with Equifax. Despite the lack of information provided by Equifax to Ms Garousse during the consultation period, Ms Garousse was proactive in raising concerns directly with Equifax. Presumably, Ms Garousse was hopeful that Equifax would respond to and address her concerns. Equifax responded to Ms Garousse’s requests in a very piecemeal way. The last of the concerns, which dealt with the important issue of whether Equifax could legally withdraw an Australian based investigations role was answered on 28 February 2023, the date that Mr Knepshield terminated the consultation period. In my view, it was reasonable for Ms Garousse to wait until the totality of her concerns were responded to before seeking legal advice. She had no way of knowing that Equifax intended to terminate the consultation period on 28 February 2023. Ms Garousse’s request that the consultation period be extended to 10 March 2023 was a reasonable request as this was consistent with what appeared to be the intended period of consultation according to the Redundancy Estimate. In the circumstances I find that Equifax’s refusal to extend the period of consultation to enable Ms Garousse to seek legal advice weighs in favour of a finding that the dismissal was unfair.
In my decision of 27 June 2023, I noted multiple communication failures on the part of Equifax including in relation to the accurate and clear communication of such a significant event as the date of termination to Ms Garousse. I found this highly unusual and inconsistent with contemporary workplace relations standards. This is a further matter which weighs in favour of a finding of unfairness.[67]
It is not surprising that the termination of Ms Garousse’s employment was handled so poorly by Equifax. As Ms Garousse’s direct manager, Mr Knepshield was charged with notifying Ms Garousse of the potential redundancy, managing the consultation process and making the final decision in relation to terminating Ms Garousse’s employment. Mr Knepshield is based in the United States and there is no indication that he has ever worked in Australia, or that he has any human resources experience or knowledge of Australian workplace laws and employer obligations. Because of the time differences between the United States and Australia, Mr Knepshield was unable to set up meetings specifically in relation to consultation. Instead, all discussions for the purpose of consultation occurred during the usual catch-up meetings scheduled between Ms Garousse and Mr Knepshield. Mr Knepshield said that he never received any requests from Ms Garousse to have a specific meeting about consultation, but it was Equifax’s obligation to ensure that the consultation process was genuine and respectful towards Ms Garousse, not Ms Garousse’s or Mr Knepshield’s alone. It is difficult to see how Ms Garousse would have felt that Equifax was genuinely open to considering her views if she was required to discuss usual work matters alongside discussions regarding the potential termination of her employment.
Mr Knepshield was unable to respond to most of the matters which Ms Garousse raised during their meetings and was required to defer to other employees for advice. This calls into question whether Mr Knepshield was the appropriate person to manage the consultation process and suggests that there should have been a human resources representative at the meeting, such as Ms Gray or one of the Australian based human resources representatives. There is no indication that Mr Knepshield sought to explore options with Ms Garousse during their meetings that could have kept her employed, even for a limited period. There was no evidence of the decision-making process that Mr Knepshield went through in considering Ms Garousse’s feedback and determining on 28 February 2023 that her employment would be terminated. It is likely that Mr Knepshield was doing the best that he could in a difficult situation. Unfortunately, due to persons unknown at Equifax deciding that an exercise as important as consultation could be undertaken with not much more than a script, the consultation process undertaken by Equifax was perfunctory at best and undoubtedly exacerbated what was already likely to be a stressful situation for Ms Garousse.
Section 387(h) deals with any other matters that the FWC considers relevant. Ms Garousse submitted that Equifax’s failure to redeploy her and its failure to consult in accordance with the Award are factors weighing in favour of the dismissal was harsh, unjust and/or unreasonable.
Equifax submitted that its lack of redeployment opportunities for Ms Garousse is not sufficient to render the dismissal unfair. Ms Garousse points to no available position or work at the time of the dismissal into which Ms Garousse could have been reasonably redeployed. It was reasonable that Equifax applied a recruitment freeze in the context of its financial position and given it was deciding to make a number of employees redundant, including around 130 employees across the Australia/New Zealand region.
I have already found that Equifax’s failure to consult in accordance with the Award weighs in favour of a finding that the dismissal was unfair. In relation to the issue of redeployment, I have noted that if Equifax had agreed to, instead of ignored, Ms Garousse’s request that she be placed on ‘gardening leave’ during the four week notice period, Ms Garousse would have been still employed at the time that recruitment for the role of Business Support Coordinator was approved. Further, if Equifax had agreed to extend the consultation period until at least 10 March 2023, this may have also resulted in Ms Garousse being employed when this position became available. This would have increased the prospect Ms Garousse of being redeployed to that role. I have also noted that Ms Gray’s evidence shows that she did not investigate redeployment opportunities until 17 March 2023, which was after Ms Garousse was dismissed. In my view, the failure by Equifax to actively investigate redeployment opportunities and accept Ms Garousse’s reasonable requests to remain employed after she was notified of the redundancy deprived her of a genuine opportunity to be redeployed and avoid dismissal. I find that these matters are factors weighing in favour of the dismissal being harsh, unjust and/or unreasonable.
Is the Commission satisfied that the dismissal of Ms Garousse was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[68]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Ms Garousse was harsh, unjust and unreasonable because Equifax:
· Failed to provide Ms Garousse with sufficient information to enable her to participate meaningful in the consultation process and influence the decision maker.
· Failed to proactively advise Ms Garousse of her rights under the Award, including with respect to representation.
· Gave the impression that the consultation period would be of four weeks duration then unilaterally terminated the consultation period prior to that time with no advance warning to Ms Garousse.
· Communicated poorly with Ms Garousse in relation to the termination with the result that Ms Garousse did not receive the letter of termination until 7 March 2023.
· Unreasonably refused Ms Garousse’s request that the consultation period be extended to 10 March 2023 to enable her to obtain legal advice.
· Ignored Ms Garousse’s request that she be placed on ‘gardening leave’ during the notice period which would have increased the prospect of her redeployment.
· Failed to investigate redeployment opportunities for Ms Garousse until after the termination of Ms Garousse’s employment.
Conclusion
I am therefore satisfied that Ms Garousse was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
Being satisfied that Ms Garousse made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal, and was unfairly dismissed within the meaning of section 385 of the FW Act, I may, subject to the FW Act, order Ms Garousse’s reinstatement, or the payment of compensation to Ms Garousse.
Under section 390(3) of the FW Act, I must not order the payment of compensation to Ms Garousse unless:
(a) I am satisfied that reinstatement of Ms Garousse is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of Ms Garousse inappropriate?
Neither party has provided evidence in relation to a suitable position that Ms Garousse could be reinstated to. Ms Garousse has indicated that she is not seeking reinstatement as she is taking a break from corporate employment but would consider working with Equifax in the future. On this basis, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, ‘[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…’[69]
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[70]
Ms Garousse submitted that payment of compensation is appropriate. Equifax submitted that payment of compensation is not appropriate in circumstances where Ms Garousse’s case is that the period of consultation was not properly conducted or was truncated, rendering the dismissal unfair.
I note Ms Garousse’s evidence that she was unemployed for a period of approximately three months after the dismissal and has obtained employment as a truck driver on a much lower rate of pay. I also note that Ms Garousse was initially provided with a redundancy estimate that indicated that she would be employed until 10 March 2023, but that she was employed until only 1 March 2023 because Equifax unilaterally terminated the consultation period. Given that Garousse has suffered financial loss as a result of the dismissal, I consider that an order for payment of compensation is appropriate.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Ms Garousse in lieu of reinstatement including:
(a)the effect of the order on the viability of Equifax’s enterprise;
(b)the length of Ms Garousse’s service;
(c)the remuneration that Ms Garousse would have received, or would have been likely to receive, if Ms Garousse had not been dismissed;
(d)the efforts of Ms Garousse (if any) to mitigate the loss suffered by Ms Garousse because of the dismissal;
(e)the amount of any remuneration earned by Ms Garousse from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by Ms Garousse during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Effect of the order on the viability of Equifax’s enterprise
There was no evidence adduced by either party as to whether an order for compensation would not have an effect on the viability of the employer’s enterprise so I make no findings in relation to this matter.
Length of Ms Garousse’s service
Ms Garousse’s length of service was approximately 4 years and 9 months. I consider that Ms Garousse’s length of service does not support reducing or increasing the amount of compensation ordered.
Remuneration that Ms Garousse would have received, or would have been likely to receive, if Ms Garousse had not been dismissed
As stated by a majority of the Full Court of the Federal Court:
[i]n determining the remuneration that the applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.[71]
Submissions
Ms Garousse submitted that her employment would have been likely to continue for a further period of twelve months on the basis that she would have been redeployed.
Equifax submitted that there is no evidence to suggest that any continuation of the consultation period beyond 28 February 2023 would have resulted in Ms Garousse remaining in her employment for any period beyond that of the additional period of consultation. Accordingly, it is reasonable for the Commission to find on the evidence before it that Ms Garousse would have remained employed only for an additional two to three weeks while she sought the legal advice she indicated she would seek before 10 March 2023 and any issues raised in that process were responded to by Equifax.
Equifax also submitted Ms Garousse was paid four weeks pay in lieu of notice commencing 1 March 2023. Given notice of termination was given by Mr Knepshield in his email to Ms Garousse on 28 February 2023, there would have been no financial benefit to Ms Garousse for the employment to continue for a period of two to three weeks. Ms Garousse also received fourteen weeks redundancy pay in accordance with Equifax’s policy.
Equifax further submitted that having regard to the formula for calculation of compensation set out in s.392 of the FW Act and in Sprigg v Paul’s Licensed Festival Supermarket,[72] the amount of compensation due to Ms Garousse associated with the extension of the consultation period ought to be nil or, in the alternative, a minimal amount. Compensation in the amount of the statutory maximum, as is sought by Ms Garousse, would not be appropriate in the circumstances.
Findings
I have already found that the only role that was available for Ms Garousse to be redeployed to around the time of her termination was the Business Support Coordinator role, which was approved for recruitment on 30 March 2023. I have also found that the prospects of Ms Garousse being redeployed to the Business Support Coordinator role would have been increased if Equifax had agreed to either or both of Ms Garousse’s requests that she be placed on ‘gardening leave’ during the four week notice period, and that the consultation period be extended to at least 10 March 2023.
However, there is insufficient evidence for me to find that Ms Garousse would have definitely been redeployed to the Business Support Coordinator role if Ms Garousse had remained employed until 30 March 2023, especially as her evidence is that she would have ‘seriously considered’ the role rather than definitely agreeing to be redeployed to it.
In the circumstances, I am unable to accept that Ms Garousse would have remained employed for a period of 12 months after the dismissal.
In my view, it would have been necessary to for Equifax to keep the consultation period open for a further period of four weeks from the date of the dismissal in order to give Ms Garousse a proper opportunity to obtain advice and for meaningful and genuine consultation to occur, given that this did not take place during the period prior to the dismissal. This would also be consistent with Equifax’s original intention to provide a four-week consultation period. If Ms Garousse was not redeployed at the end of this four-week period, it is likely that she would have been given notice of termination at that stage. I therefore find that the remuneration that Ms Garousse would have received, or would have been likely to receive, if Ms Garousse had not been dismissed would have been four weeks’ pay, plus superannuation.
Efforts of Ms Garousse to mitigate the loss suffered by Ms Garousse because of the dismissal
Ms Garousse must provide evidence that she has taken reasonable steps to minimise the impact of the dismissal.[73] What is reasonable depends on the circumstances of the case.[74]
During the hearing Ms Garousse said she had reviewed other job opportunities and was approached for other opportunities, but she had concerns about a restraint of trade clause in her contract which led her to seek employment in an entirely different industry. Since 5 June 2023 Ms Garousse has been working as a truck driver.
Equifax did not make any submissions in relation to this issue. I therefore satisfied that Ms Garousse took reasonable steps to mitigate her loss.
Amount of remuneration earned by Ms Garousse from employment or other work during the period between the dismissal and the making of the order for compensation
Ms Garousse’s evidence is that Ms Garousse has earned $19,883.00 from employment or other work since the dismissal. As this evidence is not challenged by Equifax, I am satisfied that the amount of remuneration earned by Ms Garousse from employment or other work during the period since the dismissal is $19,883.00.
Amount of income reasonably likely to be so earned by Ms Garousse during the period between the making of the order for compensation and the actual compensation
There was no evidence adduced by Ms Garousse as in relation to the amount of income reasonably likely to be earned by Ms Garousse during the period between the making of the order for compensation and the actual compensation, so I make no findings in relation to this matter.
Other relevant matters
The parties have not made submissions in relation to any other relevant matters.
Compensation – how is the amount to be calculated?
As noted by the Full Bench, ‘[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[75] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[76]’.[77]
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
I have estimated the remuneration Ms Garousse would have received, or would have been likely to have received, if Equifax had not terminated the employment to be $10,219.28 on the basis of my finding that Ms Garousse would likely have remained in employment for a further period of 4 weeks. This estimate of how long Ms Garousse would have remained in employment is the ‘anticipated period of employment’.[78]
Step 2
I have found that the amount of remuneration earned by Ms Garousse from the date of dismissal until the end of the anticipated period of employment was $0, as Ms Garousse did not earn any income until 5 June 2023 which is after the end of the anticipated period of employment.
Only monies earned since termination for the anticipated period of employment are to be deducted.[79] I therefore deduct the sum of $0 from $10,219.28.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by Ms Garousse for the remainder of the anticipated period of employment.[80] There is no evidence before me which establishes the occurrence of contingencies which might have brought about some change in earning capacity or earnings by Ms Garousse during the anticipated period of employment. I therefore do not consider it appropriate to deduct any amount for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $10,219.28 plus superannuation and leave taxation for determination.
Having applied the formula in Sprigg, I am nevertheless required to ensure that ‘the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,’[81]. These circumstances include my findings that it would be necessary for Equifax to keep the consultation period open for a further period of four weeks from the date of the dismissal in order to give Ms Garousse a proper opportunity to obtain advice and for meaningful and genuine consultation to occur and that if Ms Garousse was not redeployed at the end of this four week period, it is likely that she would have been given notice of termination at that stage.
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act and that the amount does not include a component compensating for shock, distress or humiliation.
Compensation – is the amount to be reduced on account of misconduct?
I am satisfied that misconduct of Ms Garousse did not contribute to the employer’s decision to dismiss. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.
Compensation – how does the compensation cap apply?
Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
(a)the amount worked out under section 392(6); and
(b)half the amount of the high income threshold immediately before the dismissal.
The amount worked out under section 392(6) is the total of the following amounts:
(a)the total amount of the remuneration:
(i) received by Ms Garousse; or
(ii) to which Ms Garousse was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b)if Ms Garousse 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 Ms Garousse for the period of leave in accordance with the regulations.
Ms Garousse was not on leave without pay or without full pay during the 26 weeks immediately before the dismissal.
Based on the redundancy estimate provided by the parties I find that the total amount of the remuneration received by Ms Garousse and to which she was entitled during the 26 weeks immediately before the dismissal was $66,425.32.
The high income threshold immediately before the dismissal was $162,000. Half of that amount is $81,000.
The amount of compensation ordered by the Commission must therefore not exceed $66,425.32. I have determined the amount of compensation as $10,219.28 gross plus superannuation which is below this amount.
Conclusion
I have found that Ms Garousse’s dismissal was harsh, unjust and unreasonable for reasons which include failures by Equifax to properly consult Ms Garousse in relation to the proposed redundancy, agree to reasonable requests from Ms Garousse which would have increased her prospects of redeployment and to proactively consider Ms Garousse for redeployment opportunities.
I have determined that that an order for compensation is appropriate and that Equifax should pay compensation to Ms Garousse in the sum of $10,219.28 gross plus superannuation less taxation as required by law in lieu of reinstatement within 14 days of the date of this decision.
An order giving effect to this decision is published with this decision.
DEPUTY PRESIDENT
Appearances:
U Okereke-Fisher of Counsel, on behalf of the Applicant.
C Brown of KHQ Lawyers, on behalf of the Respondent.
Hearing details:
2023
September 6
Sydney.
[1] Exhibit 2, 3.
[2] Exhibit 1
[3] Exhibit 2, 8.
[4] Exhibit 2, 9.
[5] Exhibit 3, 19.
[6] Exhibit 1
[7] Exhibit 2, 6.
[8] Exhibit 2, 10.
[9] Exhibit 3, 8.
[10] Exhibit 3, 9.
[11] Ibid, 10.
[12] Exhibit 2, 13.
[13] Exhibit 3, 11.
[14] Ibid, 12.
[15] Ibid, 14-15.
[16] Exhibit 2, 13.
[17] Ibid, 14.
[18] Ibid, 15.
[19] Ibid, 16.
[20] Ibid, 17.
[21] Exhibit 3, 18.
[22] Exhibit 2, 18.
[23] Ibid, 19.
[24] Ibid, 20.
[25] Ibid, RK-3
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Exhibit 3, 13.
[30] Exhibit 2, 21.
[31] Ibid, 22.
[32] Exhibit 1.
[33] Exhibit 2, 26.
[34] Exhibit 1
[35] Exhibit 2, 27.
[36] Ibid, RK-5.
[37] Ibid, 28, RK-6.
[38] Exhibit 3, 33.
[39] Transcript, PN388-PN390.
[40] Exhibit 2, 29-30.
[41] Ibid, RK-7.
[42] Ibid, 33, RK-8.
[43] Exhibit 1, Annexure E.
[44] Exhibit 3, JG-7.
[45] Ibid, JG-12.
[46] Ibid, JG-13.
[47] Exhibit 1, Annexure G.
[48] Exhibit 3, JG-14.
[49] Ibid.
[50] Ibid, JG-15.
[51] Ibid, JC-16.
[52] Exhibit 2, 40.
[53] Exhibit 1
[54] Exhibit 1
[55] Ibid, annexures P-T.
[56] Exhibit 3, 51.
[57] Ibid, 52.
[58] Ibid, 53-54.
[59] Ibid, 55-56.
[60] Ibid, 57-59.
[61] Kirsten Garousse v Equifax Pty Limited[2023] FWC 1550.
[62] [2016] FWCFB 7202.
[63] Ibid, [14].
[64] Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488, [17].
[65] Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714, [36]-[37].
[66] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[67] Kirsten Garousse v Equifax Pty Limited[2023] FWC 1550, [88].
[68] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[69] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[70] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[71] He v Lewin [2004] FCAFC 161, [58].
[72] (1998) 88 IR 21..
[73] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[74] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[75] (1998) 88 IR 21.
[76] [2013] FWCFB 431.
[77] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
[78] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[79] Ibid.
[80] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[81] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
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