Kole Andonov v Carbridge Pty Ltd T/A Carbridge Pty Ltd

[2019] FWC 6607

[2019] FWC 6607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kole Andonov
v
Carbridge Pty Ltd T/A Carbridge Pty Ltd
(U2019/2370)

DEPUTY PRESIDENT CROSS SYDNEY, 1 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] An application was filed on 4 March, 2019, by Mr Kole Andonov (the “Applicant”) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”). Mr Andonov seeks an unfair dismissal remedy, primarily of reinstatement, following his dismissal by Carbridge Pty Ltd (the “Respondent”) on 27 February, 2019.

[2] The Applicant commenced employment with the Respondent on 21 August, 2015. The Respondent is engaged in services at Sydney airport, involving:

(a) Airside operations, such as conducting the transport of passengers and crew from terminal to aircraft, the transport of passengers requiring special assistance, refuelling for company owned equipment, and client equipment and airside charters; and

(b) Landside operations, involving the transport of passengers and crew from off-site car park facilities to domestic terminals, transport of passengers and crew between domestic and international terminals, and trolley and passenger facilitation operations.

[3] In his initiating Form F2, the Applicant asserted that he was dismissed on 27 February, 2019, due to alleged sexual harassment and writing 40 emails. The Applicant claimed that for the last eight months of his employment the Respondent had bullied, harassed and intimidated him. He noted he had been removed from shifts without notice, and had been denied transitioning from casual to permanent employment. In this decision, a number of the Applicant’s emails are reproduced, and those reproductions are in the original form with any typographical and spelling errors retained.

[4] The Application was listed for conciliation but did not settle at that conciliation. The matter was initially allocated to Commissioner Riordan, and then allocated to me for hearing and determination. Directions were issued from the Chambers of Commissioner Riordan on 17 April, 2019, to the parties prescribing a timetable for the filing of Outlines of Submissions, together with any witness statements and other documentary material upon which each party intended to rely.

[5] In accordance with these Directions, the following materials were filed:

(a) The Applicant filed a Submission together with a bundle of documents on 13 May, 2019.

(b) On 3 June, 2019, the Respondent filed an Outline of Submissions, together with three (3) witness statements from Mr Craig Shaw (General Manager of the Respondent), Mr Gavin Strangwick (Sydney Manager of the Respondent) and Ms Renee Smith (Airside Operations Manager of the Respondent), all dated 3 June, 2019.

[6] It is noted that the Applicant did not file a reply Submission. However, due to a sudden change in the Applicant’s personal circumstances, the Applicant on 10 June, 2019, requested for an electronic copy of all materials filed with the Commission to date.

The Facts

[7] The first three years of the Applicant’s employment were unremarkable from a disciplinary sense. From July, 2018, however, a number of incidents and disciplinary steps occurred that escalated and compounded resulting in the Applicant’s dismissal. Those incidents and disciplinary steps are outlined below under the following sub-headings:

(a) The three bus incidents and final warning;

(b) The request to convert from casual to permanent full time;

(c) The shift change on 28 October 2018;

(d) The offer of permanent part time employment;

(e) The 20 December 2018 incident;

(f) The 29 January 2019 text message; and

(g) The disciplinary process and the emails sent during that process.

[8] Around the time that the above incidents and disciplinary steps commenced and continued, various quite significant events occurred in the Applicant’s personal life, and living arrangements, that have had serious effects on the Applicant’s health and wellbeing. The Applicant was keen to ensure that the Commission understood those events and their significance. I have absolutely no doubt that each of those personal events have occurred, and have had significant effects upon the Applicant. I took each of those personal events into account when deciding this matter, but have not outlined in this decision those events for reasons of the Applicant’s privacy.

[9] I am unable to accept the Applicant’s contention, however, that the significant events that have occurred in the Applicant’s personal life have been somehow caused by the Respondent. While the Applicant quite clearly believes there to be a causative nexus between his personal issues and the conduct of the Respondent, I do not accept that any such nexus exists.

[10] It was not disputed in the proceedings that all the Respondent’s employees, including the Applicant, had access to an intranet site known as “Aeronet.” Aeronet provides access to the Respondent’s manuals, reporting and communication processes. All employees have access to all of the Respondent’s manuals on Aeronet. Aeronet is also where employees access announcements, rosters, apply for leave and where supervisors and managers complete employee logs about staff conduct and performance. The proceedings involved a number of allegations made about the Applicant that he was in breach of a number of policies, including the Bullying, Discrimination and Harassment policy, the Customer Service and Internal Conduct policy, and the Offensive Language and Behaviour policy. The Respondent also has a Code of Conduct, and during the Applicant’s employment he was expected to abide by the Code of Conduct.

(a) The Three Bus Incidents and Final Warning

[11] The Applicant was involved in three bus incidents on 5, 7 and 13 July, 2018, (the “Three Bus Incidents”). He attended disciplinary meetings about those incidents on 27 July, 2018, and 1 August, 2018, with Mr Nathan Grieves, Landside Operations Manager and Mr Strangwick. The evidence in the matter shows that the Applicant was the driver of the buses involved in each of the Three Bus Incidents and that the Applicant’s driving was the cause of these Incidents.

[12] The Applicant was stood down without pay while the Three Bus Incidents were investigated and so the Applicant received no earnings between 14 July, 2018, and 29 July, 2018. The Applicant submitted that this non-payment was a “cruel direct malicious action [which] has caused” an incident in his personal life. I do not accept that alleged causative link.

[13] However what is clear is that the issuing of the Final Warning was not a relevant factor in the Applicant’s dismissal. The Respondent submits, and I accept, that the Three Bus Incidents and the subsequent Final Warning were unrelated to the turn of events that led to the Applicant being dismissed.

(b) Request to Convert from Casual to Permanent Full Time

[14] The Applicant sought to be converted from casual to permanent full time. The Applicant made a request on 6 October, 2018, for a permanent full time role. On 8 October 2018, Mr Strangwick emailed the Applicant and advised that ‘at this time we did not have a permanent position available’. Thereafter, the issue of this request and response became the subject of numerous emails to the Respondent’s management team in pursuit of a permanent full time position.

(c) Shift Change on 28 October 2018

[15] On 19 October, 2018, the Applicant sent an email to Mr Grieve which stated:

“Hello as per previous request. Please no more roster for T1 from 29/10/18. Please remove me from Monday shift Friday am shift and Sunday am shift. Happy to work a fifth day Virgin or Qantas link but no more T1 International shifts PLEASE!!!!!!. NO MORE SIX DAYS 4 OR 5 MAXIMUM.”

[16] That request was accepted by Ms Smith. Thereafter, the Applicant sent an email to Ms Smith and Mr Grieve at 8:57am on 27 October, 2018, that stated:

“Good morning

Last night in a long time I went out to dinner with my family. As a diligent employee I always check on up coming shifts. Much to my surprise my Sunday shift on roster was changed without notification. I have been changed from a five hour shift to a much later finish and a reduced four hour shift. As a casual employee Carbridge has legal obligations. There has been much difference of opinion in my three plus years. There have been much management and employees come and gone. I see a future with Carbridge. I am however dissatisfied on the negativity which has been placed on me over the entire time I have been employed. Many incidences have transpired and outsiders would see it as I have been victimised perhaps even discriminated. As in a previous email I have written I put in a simple request for permanent employment. There have been employees with less time who were given permanent placement and have recently have moved on. My concern and I hope we can move forward from here as the only other option for me is to have an independent government body assess if what I am saying legal or illegal. There have been many incidences so I hope I am not being singled out as I choose to have a voice. I would hate to discover I have been directly discriminated and have been punished. For me as an employee I always give my all regardless of what is happening in my personal life. Lastly I have needs and I came to realise there must be a balance of work and social life. Sadly however I have not been given the opportunity for unknown reasons to discuss and move forward. Whether I work as a casual or permanent will be the result of the outcome of this email. Looking forward to hearing further and discussing to move forward.”

[17] By further email at 10:59pm on 27 October, 2018, the Applicant advised:

“Hello duty manager I will not be attending work Sunday 28th October as I know it as 06.30 start but without my approval was changed to a 08.30 start. This does not work for me. On the 28 the October 1988 my first son was born. So no money will ever suffice me to celebrate his 30th birthday. Imagine my disappointment being changed to a later start a later finish with being notified. So take this as I am too upset to come to work as nobody bothered to make a simple phone call with a simple request. Its illegal to change a shift without being notified this is fact irrespective of casual or permanent.”

[18] The Applicant conceded that the alleged shift change that he complained about in his emails of 27 October, 2018, had the net effect of being only one hour’s difference in his rostered shift. The Applicant also agreed that he had not produced any documents to show that the shift change that he alleged had occurred did in fact occur.

[19] Mr Strangwick and Ms Smith tried to meet with the Applicant about his concerns on 31 October 2018. The Applicant refused to attend that meeting. Thereafter, this was another issue which became the subject of numerous emails to the Respondent’s management team.

(d) Offer of permanent part time employment

[20] At 12:01pm, on 5 November 2018, Mr Strangwick rang the Applicant and words to the following effect were spoken:

Mr Strangwick said: “Would you meet with me to discuss your concerns, with a view for a prompt resolution Kole.”

The Applicant said: “Under no circumstances am I meeting with you or anybody else. I will only communicate in writing. Why did you support her [referring to Ms Smith]. She changed my roster and didn’t bother to communicate and you supported her. Nathan tries to cover himself and doesn’t have a clue on what roster I’m on. He called me and told me to get to work. I’m no doing his Virgin shifts. I’m not talking to anybody only email me.”

Mr Strangwick said: “I respect that Kole my intention was simply to meet with you so I clearly understand your concerns and we can agree a way forward. We need you back at work mate, we are extremely busy.”

The Applicant said: “I’m never coming back as a casual, only permanent full time. Things are only going to get worse. I have so much information on Carbridge before you got there Gavin. Let’s see what the commission says.”

Mr Strangwick said: “Sorry Kole, I am not sure what you are referring to.”

The Applicant said: “I’m not talking to you anymore. I have spoken to a lawyer who wants me to pay him $1800 up front. No way am I doing that so just make sure you put everything in writing.”

Mr Strangwick said: “I understand Kole. I was really hoping you and I could get together and agree a way forward. I really want to understand your concerns and help where I can. From my perspective we have a few different things happening that are upsetting you.”

The Applicant said: “You all think I am crazy. I don’t care what you think. I’m not coming back unless I am full time.”

Mr Strangwick said: “Kole, I don’t think that at all. I have a duty of care.”

The Applicant said: “Stop hiding behind that word.”

Mr Strangwick said: “Kole I respect your views and your request for all comms to be in writing, but why don’t we simply catch up and chat openly about what we need to do and agree on to get you back to work. You can bring somebody with you. I will make myself available anytime that suits you.”

The Applicant said: “I’m writing an email to you now. Read it when I send it and then I may meet with you. You probably won’t want to meet with me after you read it.”

Mr Strangwick said: “I’m committed to trying to understand your concerns and agree a way to get you back to work.”

The Applicant said: “Well let’s see what you have to say when you read my email. The things Carbridge have done before you got here. I can bring so many things up. The commission will love all the shit I have. You didn’t do them Gavin. I think you are trying to hide behind a duty of care and you should have supported her. I will only stay quiet if you put me on full time. I could bring Carbridge down. The law says you have to make me full time. You have given others full time work. So now you have to give to me. You broke the law when you re-hired somebody full tim who recently left and you took them back. I don’t care if nobody like me you have to give me full time work.”

Mr Strangwick said: “Okay Kole I can see you feel strongly about a lot of things. My intention is to get things resolved and get you back working.”

The Applicant said: “Yeah, well read my email. I haven’t had a shave and I’m in my shorts and t-shirt. I would rather go to the beach, but I will think about seeing you at 3pm.”

Mr Strangwick said: “Thanks Kole. I look forward to seeing you.”

The Applicant said: “MMM okay.”

[21] As anticipated in the above conversation, Mr Strangwick subsequently received another email. That email stated:

“Thus far of what I have experienced there has been zero demonstration of the magic word “Duty of care”. I can even recall from the start where Carbridge its mentality and its no tolerance of “ Duty of care “. If you wish to no longer respond and I get no movement forward as its seems the normal thing for Management of Carbridge then I guess the only way forward will be to explain and justify your non actions. I mean non because thus far it has been demeaning to me. I can tolerate insult but thinking by staying silent all this will disappear then you have me wrong. Much to all of you I am a very good genuine person employee and perfectly sane. I have written and seemed we have not started any negotiations. Pre Ken Kooling I worked the Qantas link shifts along with Kylie Collins for over a year. Shannon without warning removed me and offered Ken Kooling a permanent placement. Firstly this was Illegal and I was being DISCRIMINATED so now he has come and gone it looks bad to the Authorities why am I not in a full time role. Last Friday much to my delight the laws have changed. Unless you have specific reasons to contest this then let be your advised I have issues which Fair work and Industrial Relations would love to hear on this magic word “ Duty of care “. Thanks to carbridge I was forced to have a second surgery as Carbridge like always desperate for drivers brought me into work 13 days after my initial prostate surgery. Management assured me I will be OK but Qantas link is a demanding place. After 5 days work I was brought in for emergency surgery and had to correct it as I was in so much pain. I ask you is this what you call duty of care. Management back then knew NO duty of care. I am happy to show my 120/140 hour fortnights. Sometimes a month straight of no breaks. I will be seeking as per the new law even though a casual all my entitlements sick leave annual leave be back dated to the very first day of employment . I will also be seeking compensation for many obstructions and mishandling over the duration thus far of my employment with Carbridge. When I speak this afternoon you would have ample time to peruse and then lightly discuss. Any decisions will be made in writing and not on a hand shake.”

[22] At 3.00pm, on 5 November, 2018, Mr Strangwick met with the Applicant to discuss his desire to move to a full time position. Mr Strangwick advised he was unable to guarantee that he could deliver that outcome and suggested the Applicant consider moving to a permanent part time role.

[23] On 21 November 2018, Mr Strangwick met again with the Applicant, and by letter dated 30 November, 2018, he offered the Applicant permanent part time employment. In the letter, the Applicant was also instructed to stop sending emails as Mr Strangwick had found the volume and content to be unreasonable and offensive. That letter was as follows:

“Dear Kole,

I acknowledge receipt of your request for conversion to permanent Full time employment.

I make reference to our meeting which took place on Wednesday 21 November 2018. During this meeting, we discussed your request to convert to Permanent Full-Time and also explored your overall availability, including your historic work hours and the days that you advised you are not prepared to work which impact on your availability. In summary, you advised that:

•  As you do not have a Drivers Authority, you are not permitted to work in the Company’s Landside operations;

•  You are unavailable to work Friday & Saturday evenings

During our meeting, I confirmed that to be considered for Permanent Full-Time employment, there would need to be both full-time work opportunities available and you would need to be available to work at these times. Having reviewed your work history, it is noted that your work patterns are not regular and vary from week to week. While there are some weeks where your hours have approximated full-time work, this has neither been consistent or likely to be ongoing.

Further, under the Award there is no obligation for us to increase your hours so as to give you full-time work. In giving consideration to the hours of work available and the restrictions you have in your availability, it would not be possible to grant your request of Permanent Full-Time employment.

With that said, you are a valued member of our team, and aside from our discussion surrounding you sending emails which are erratic and serve no business improvement purpose (I address this further below), we feel that you can continue to contribute to the Carbridge team. To that extent, we can offer you the opportunity to convert from Casual to Permanent Part-Time employment, which would be consistent with the average hours you have worked previously.

In accepting this offer you will also be acknowledging that rostering/shifts and work place location will vary based on business need and therefore a specific shift location cannot be guaranteed.

Could you please confirm your acceptance of the offer to Permanent Part-Time employment in writing? Upon receiving your acceptance, we will confirm the relevant commencement date, your classification and also rostering arrangements.

On the issue of your sending emails, I have found the volume and content of your emails to be unreasonable and offensive. I take this opportunity to remind you that in accordance with the Company’s ‘Customer service and internal conduct’ policy, you are required to act in a courteous and cooperative manner with customers, other employees and management. Aggressive or antisocial behaviour in the workplace is unacceptable and I ask that you stop sending the emails which to date have been unreasonable and offensive in nature.

I note that you have also resisted attending scheduled disciplinary meetings in relation to an incident that occurred, where CCTV footage showed you in October driving while on a mobile phone. On the information available, we consider this incident did occur and is unacceptable. I take this opportunity to remind you that there is no lawful basis or reason to be on a mobile phone while driving. Moreover, any future incidents related to mobile phone usage while driving may lead to disciplinary action up to and including termination.

In conclusion, I hope we can make a fresh start and I look forward to hearing back from you about your Permanent Part-Time employment.” (Emphasis added).

[24] The Applicant did not respond to the above offer of permanent part time employment, and continued sending emails to the management team.

(e) 20 December, 2018 incident

[25] At 5:38pm on 14 December, 2018, the Applicant sent an email titled “I am still a casual according to Cambridge” to various managers of the Respondent. The email stated:

“Today I saw on a roster over a month ahead and it surprised me to see after 2 years and 4 months absense I have been rostered for a ql Sunday 4 shift Sunday 20th January. I tried to correct it on Aeronet as suggested By Nathan Grieves and Renee Smith but after 6 attempts I got nowhere as apoarantly I am rostered and cannot make the change. I am A CASUAL EMPLOYEE and as such have no obligations beyond 1 hour and here I am a good loyal employee trying to abide by unworkable aeronet. For your information in Macedonian traditions I will spend thousands for the day as we are not stingy and adhere to our culture and traditions. I tried to abide and co operate but the system WONT allow me even though I AM A CASUAL EMPLOYEE according to Cambridge and Management. This could have changed many times over but I see how I am Vindicated and yes UNDUE,DURESS.. I understand Glen has left the company and haha he took his sick leave and sadly Management just keep pushing ......up hill as they are discriminating against good loyal employees. All I will say is today I wrote an email but as they say. NOTHING CHANGES IF NOTHING CHANGES. SADLY 40 MONTHS THE TRADITION CONTINUES THE CARBRIDGE WAY. FOR ME NEW YEAR NEW CELEBRATIONS.”

[26] At 6:43pm on 19 December, 2018, the Applicant sent an email titled “Not a very smart management”to various managers of the Respondent. The email stated:

“Today I discovered among many other wrong stupid decisions that the person whom abused a grieving lady is coming back to Cambridge. Here I am almost 4 years as I have asked and never acknowledged a full time time job. It seems obvious now no matter how hard I try I am oblivious to Cambridge. Just a reminder its employee like me which holds the vertabate of Cambridge. Does carbridge give a shit NO they would rather destroy good employees.

This was and will be the last straw that broke the Camels back ( Kole Andonov )

Too many times trying to be nice but idiot corporate people don’t see the real picture. Idiots like me who are loyal ME.”

[27] At 8:03pm on 19 December, 2018, the Applicant sent an email titled “Wistful Thinking” to various managers of the Respondent. In the email it stated:

“If only EVERYBODY did the right thing then things will be different. Unfortunately we live in a world where CORPORATE GREED BECOMRS THE NORM. I AM A GOOD CHRISTIAN MAN BUT DO A GOOD CHRISTIAN MAN LIKE ME SOMETIMES IS TOO SOFT AND OFTEN BRUSHED TO A PART WHERE NO VOICE IS HEARD. THIS HAPPENS TOO OFTEN BUT SADLY “ NOTHING CHANGES IF NOTHING EVER CHANGES “. WOW I HAVE SAVED COMPANIES MILLIONS BUT IT SEEMS THIS COMPANY BEFORE ME WISHES TO LOSE MILLIONS????? GOOD LUCK.”

[28] On 20 December, 2018, Ms Smith approached the Applicant to discuss the emails outlined in the above three paragraphs. In that conversation the Applicant called Ms Smith a “closet manager”, and described the Respondent as being on a “witch hunt.” In that conversation, the Applicant stated, “I won’t stop with the emails as I’m not happy that I haven’t been offered a full time position.”

[29] On 21 December, 2018, Mr Strangwick spoke to the Applicant about the incident with Ms Smith on 20 December, 2018, and advised the Applicant he had an obligation to act in accordance with the organisation’s customer service and internal conduct policy, which included the Applicant acting with respect for others, being courteous and also being cooperative.

[30] Notwithstanding the above direction by Mr Strangwick, at 4:39pm on 22 December, 2018 (the following day), the Applicant sent Ms Smith another email. It was titled “I am very sorry BUT TODAY IS MY SPECIAL DAY,” and in that email, it was stated:

“If you bothered you would realise like a good Manager. I instead today you did not approve a shift a good employee on his BIRTHDAY WAS WILLING TO HELP OUT. But the usual Carbridge way and probably on your dinner. BUT WHERE IS MY RESPECT OR IT NO LONGER EXIST WITH CARBRIDGE. TODAY GAVIN ASKED I BACK OFF AND GIVE YOU RESPECT’S. WHAT ABOUT ME DONT I DESERVE RESPECTS. TODAY I REALISED THE ONE WHO SCREAMS loudest is heard And heard WOLDWIDE. SADLYCI JUST WANTED A FULL TIME BUT NOW GOING FORWARD I WANT A THOUSAND TIMES MORE AS STUPID CARBRIDGE/AEROCARE/SWISDPORT/HAINANAIR. NOW IT’S A THOUSANDS tIMES bloody stupid auto correct. put mr me before a grand stand THERE WILL BE NO AUTO CORRECT. Renee this is not personal and don’t take it as such.”

(f) 29 January, 2019, text message

[31] On 29 January, 2019, the Applicant sent a text message to a mobile phone an Operations Co-ordinator of the Respondent. In that text message, the Applicant called Ms Smith an “oompa loopma,” commented on “her breasts” and “the attire she chose to wear to work” and then called her a “loose women” (though the Applicant stated that particular statement was a “typo”) and made comment that “he loves his wife’s breasts.”

(g) The Disciplinary Process and the Emails Sent During that Process.

[32] On 1 February, 2019, the Respondent sent a letter setting out three allegations and relevant alleged breaches of policy (the “1 February, 2019, Letter”). The three allegations related to the text message of 29 January, 2019, the 20 December, 2018, discussion with Ms Smith, and the sheer volume of emails and text messages over the previous three months with aggressive and hostile content. The Applicant was required to attend a meeting on 6 February, 2019.

[33] The Applicant sought, and was granted, an extension on 6 February, 2019, until 8 February, 2019, for the meeting. The Applicant was given an opportunity to have a support person attend the meeting, however he had declined that offer. Following the meeting, the Respondent stood the Applicant down with pay.

[34] Notwithstanding that he had been stood down on pay while the investigation into, among other things, his sending emails and text messages with aggressive and hostile content continued, the Applicant continued to send such emails. In particular:

(a) On 11 February, 2019, at 9.53am, the Applicant sent Mr Strangwick an email titled “Giving Thieving and today???”, the content of which was as follows:

“I wrote earlier today and not being surprised similar shifts were placed back on the roster. But wait they are wrong. We met last Friday your payroll should have provided correct information. On the 6th October 2018 I formally wrote and requested a transition to a full time position. At the time of writing I had already ascertained my average hours were exceeding 38 hours per week or 76 hours per fortnight. A company of your size only SIX months is required. Today has been comical as I was confident the hours will be re instated. However since I have always been entitled to permanent 38 hours a week or 76 hours per fortnight then know all the short hours dating back to 21st August 2015 will be back payed. There are many payments missing but a easy fix is to see the end of year financial statement which is prepared for the Australian Taxation office is Group certificate. In it should have total gross earnings less tax deducted. For each year the total gross earnings should show approx between $50,000 and $56,000. Should there be a deficit in the past three group certificates then Carbridge is liable to pay the difference. With all the income stolen from me will be paid by voluntarily or by way of legal request. It won’t bother me as legal presentation will allow me to bring facts for other matters. To date all I have seen is a direct malicious act to bring down an employee by mentally putting him under mental and adverse strain and then taking away all human beings rely on MONEY. I have now said many times the approach taken by Carbridge and especially management makes it illegal to single out and push an innocent hard working employee to almost the brink of mental health as they have malice intent and today demonstrates how quickly it can turn around. I expect my next email to be either termination or something which needed to happen and put in writing a financial offer. This can include just the short comings or a complete payout. I know what I would be doing but thus far Carbridge nor Management have taken any logical approach. I can however thank them on the facts and how they have been more then demeaning to me personally.”

(b) On 13 February, 2019, at 2.52am, the Applicant sent Mr Strangwick, Mr Greive and Ms Smith an email titled “My life was ruined because of idiots”, the content of which was as follows:

“Thanks to Car bridge and many management before including the current Idiots who are not fit to be Managers. If only they knew the damage they have all done. Each week I pay for her to see her Psychiatrist. Does anybody care ? certainly not fucking Cambridge. They caused my problems they make me loose my 31 years of marriage. I love my wife and always will but sadly I have fucking idiot managers who are so hell bent on destroying me I seriously thought about walking in front of a truck. Guess what Carbridge and Management Fuck you my life as shit as it is it is fucking mine. Dickhead management will deal with me after Thursday as right now she is why I choose to live. If Oompa loompa wants to walk around flashing her perky whites who am I to stop an idiot. All I know is tonight has made me realise no fucking idiot is going to get me to suicide. Be prepared ad now it has become beyond personal and all you idiots will be behind bars for all your stupid actions.”

[35] The Respondent sent the Applicant a very detailed “Show Cause” letter, dated 15 February, 2019, setting out the allegations, the Applicant’s responses in the 8 February meeting, and the Respondent’s views as to those responses. That letter also set out further allegations about the subsequent emails, which the Respondent considered constituted serious misconduct, and the Applicant was given seven days to respond. Just prior to that letter being issued, the Applicant sent a further email at 4.27am on 15 February, 2019, titled “Its my last wake up call”, which stated:

“Whether its you driving this or idiots above it all ends, at 12 midday when I awake. After all I am being payed But incorrect. Everyone knows the law so I shouuld have been played 76 hours. But the bullying the harassment must stop no matter if thru are Closet Managers or not. I can’t sit and wait for people to sit on the fence. Management know their errors which are many. When I awake at Noon no response from Carbridgre then I guess will deal with what will unfold. Me I am one but Coatbridge Management have nowhere to hide as they have destroyed an innocent employee. These are the facts. Deal with this or stay hidden as a Closet Manager YOUR CHOICE.”

[36] The Applicant responded to the “Show Cause” letter, by email, on 18 February, 2019, at 7.23pm, as follows:

“Firstly I will strongly say there is no reasons for me to show any just cause as the allegations are insignificant and not relevant to anything which has been discussed many times. I will say I did not force nor advise Miss Renee Smith to walk around in skimpy loose revealing clothing and I have over 30 employees who can verify this should you still think this is significant Secondly sir most people would get the message in five or so emails. So I ask are you truly qualified as right now if you have not understood in forty emails then today will make you re think and justify why you have chosen to ignore all of my forty emails. Today I have lodged an official complaint with the Fair Work Ombudsman. I now have a official file and as the days draw they will see a complete file A to Z. Unlike Carbridge and Management I do not deal with things without Facts. I have thus far shown to you everything Management has personally tried to destroy in me has been recorded and will be presented as evidence. I truly hope they do not involve the NSW Police but there is way too much strong evidence to show beyond doubt the criminal intent of wilfully attempting to destroy an employee. I have tried way too many times too avoid this and I have said this in way too many emails. Rudely you bring to me something insignificant considering all the illegal acts by Carbridge and their Management. Perhaps it stems higher then yourselves and now the truth will finally be revealed and as I have said so many times the law is behind me and will stand behind me from corrupt employers such as Carbridge and Management. You wish to terminate my employment then its a closed deal for me. I would strongly suggest you look at exactly how much damage has been done and how much it will cost you as it will be very significant and this does not include the Medical Negligence from Carbridge and again the Criminal Breach of “ Duty Of Care”. Perhaps someone needs to rethink all of this as I have never had intentions of going to any authorities and I have demonstrated over a dozen times. 40 emails and still no positive outcome perhaps what I did today was my only option considering my employer wants to terminate my employment with no real justifiable reasons. Deal with this what you see as necessary.”

[37] By letter dated 27 February, 2019, the Respondent terminated the Applicant’s employment. As to the reason for termination, that letter stated:

“It is our view that you have failed to meet your obligations as an employee, and have demonstrated both wilful and deliberate behaviour that is inconsistent with the continuation of your contract of employment. Further we have lost trust and confidence in your ability and willingness to fulfil the obligations of your role as a Carbridge Bus Driver. We consider that your conduct constitutes serious misconduct and the decision has been made to terminate your employment effective immediately, that is 27 February 2019.”

The Applicant’s Submissions

[38] The Applicant noted that the Respondent had failed to call Mr Grieves as a witness in the proceedings. He submitted, “The failure is on Carbridge as it represented a part disclosure and therefore any relevance should be diminished as NON participation of the said responsible person.”

[39] The Applicant questioned the actions of Mr Strangwick. He submitted:

“Mr Gavin Strangwick took no responsibility as he was not able to fully explain the reasonings and actions of Mr Nathan Grieves. When Mr Strangwick was cross examined over certain events he often referred to as the Landside Manager. There was no valid reasons for such harsh behaviour or actions taken either by Mr Strangwick or Mr Grieves. The term used is “ Hanging out a employee to dry “. I thank Deputy President Cross for reminding me the exact words used to describe such behaviour illegal in nature when a deliberate act or actions taken against an employee. I think it might even be a case of breaching “ Duty of Care “ . It is clear as shown no monetary gain for Mr Andonov as he was depleted of all his scheduled roster/s. This can be a starting point to where Carbridge and its Management have taken deliberate steps in nature to discriminate against one individual employee ( Mr Kole Andonov ).”

[40] As to the emails sent, the Applicant alleged that the Respondent did not adhere to its own policies. He submitted:

“All evidence has been presented and all arguments to now have been put forward. It is fair to say with all the evidence one thing is clear. Carbridge from the very beginning had failed to adhere to its own policies and procedures. One would have to question why did it take over 40 emails and yet still no real affirmative action or actions were ever taken. Even when judgement was made in error Carbridge and Management have not acknowledged error and yet confirms with instructing payroll to authorise payments to Mr Kole Andonov.”

And

“Mr Andonov has endured more then any other employee pain hardship and discrimination and although many emails were written and many times advised such harsh actions were effecting not only his state of Mental health but was not on a down hill slide of losing his marriage as Carbridge/Management failed in simple terms. Instead of doing the moral right thing irrespective of company or corporations Management ignored all the signs and still continue throughout the whole time pursuing to alienate Mr Andonov and ultimately resulted in Mr Andonov and Mrs Andonov heading for the divorce courts as Carbridge/Management have failed on so many levels. Too many opportunities made available but sadly none was considered to be enough to warrant change on the part of Carbridge/Management. No employer No corporation No Management has the right or rights to individually diminish and directly discriminate. There are laws in place to protect employees from such Employers/Management whom fail on so many levels “ Duty of Care”. It should be Negligence as it is clear from the onset to the end result NO change nor any actions were instigated although ample opportunities through communication was made available.”

[41] The Applicant alleged the actions of the Respondent in refusing his transition to a permanent position were deliberate acts/actions taken against him to diminish him as a person.

The Respondent’s Submissions

[42] The Respondent noted that it was not in dispute that the Respondent has a number of policies which applied to its workplace at Sydney Airport and that they applied to the Applicant. The policies included a Bullying, Discrimination and Harassment policy, a Customer Service and Internal Conduct policy, an Offensive Language and Behaviour policy and a Sexual Harassment policy as well as a Code of Conduct. The Applicant agreed in cross examination that he had completed the Transport Services Difference Pack and the Transport Services Difference Pack, and that he had read and understood the policies contained within the two documents. The Applicant also agreed he was required to complete regular knowledge quizzes as part of an ongoing training assessment and was shown a copy of his knowledge centre results related to his responses about offensive language and offensive behaviour and what they meant.

[43] The Respondent submitted that there was no justification for the Applicant’s behaviour and conduct, or that he considered he was entitled to a full time position. The Applicant was actually offered a permanent part time role, however he chose to ignore the offer. Nor was there any justification for the Applicant’s assertion of “being hung out to dry” in July, 2018. It was the Respondent’s uncontested evidence that these turns of events had no weight in relation to the reasons for the Applicant’s dismissal.

[44] The Respondent submitted that the Applicant has not acknowledged any wrongdoing, had demonstrated no contrition, and taken no responsibility for his actions or given an indication as to his understanding about the seriousness or consequences of them. The Applicant had shown no insight or remorse about his conduct, and yet had continued to display a lack of respect, and substantial and repeated insubordination towards Ms Smith and Mr Strangwick.

[45] The Respondent contended that the Applicant has also demonstrated a flagrant disregard about the effect of his own conduct on others and has compromised the health and safety of Ms Smith and Mr Strangwick by his actions.

[46] The Applicant was notified of the reasons for his dismissal. The Applicant agreed in cross examination that he was notified of the allegations about the conduct that led to his dismissal in the letter of 1 February, 2019, at the meeting on 8 February, 2019, and in the Show Cause Letter dated 15 February, 2019. The Respondent further communicated its reasons for dismissal to the Applicant in a letter dated 27 February, 2019.

[47] As to an opportunity to respond, the Respondent noted that it was not disputed that the Applicant was given an opportunity to respond to the allegations that led to his dismissal on two occasions.

[48] Regarding the availability of a support person, the Respondent submitted that the Applicant was notified in the letter of 1 February, 2019, that he could have a support person attend the subsequent meeting. The Applicant was again asked at the start of the 8 February, 2019, meeting if he wanted to have a support person attend. The Respondent submitted that the Applicant was afforded every opportunity to have a support person attend the disciplinary meeting on 8 February, 2019.

[49] The Respondent in its Outline of Submissions dated 3 June, 2019, provided that it has 500 employees within its business and, including its associated entities, there were approximately 3,500 employees in Australia and New Zealand. As such the size of the business did not have any impact on the procedures that were followed giving effect to the Applicant’s dismissal, and the Respondent’s managers also had access to a specialist human resource management specialist function.

[50] Regarding the Applicant’s submissions of improper treatment by the Respondent and its managers, the Respondent submitted:

“The Applicant has sought to level blame on the Respondent for all his personal issues and the circumstances that he finds himself in now. This includes to continue to descend into accusations and offensive commentary about the Respondent’s managers in his 5 July [2019] Material.

The Applicant has continued in his 5 July Material to make assertions about his perception of his treatment by the Respondent, including making assertions about being harassed and discriminated without foundation or evidence. The Respondent submits these assertions should not be accepted as the Applicant has failed to provide any evidence to substantiate such claims.”

Consideration

[51] The Applicant was a person protected from unfair dismissal pursuant to s.382 of the Act. He had completed at least the minimum employment period and had a rate of earnings less than the high income threshold.

Was the dismissal harsh, unjust or unreasonable?

[52] Section 387 of the 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 Commission considers relevant.

[53] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 1 I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[54] In order to establish if there was a valid reason for the dismissal, the reason for the dismissal should be “sound, defensible or well founded” 2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.4

[55] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.⁵ “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 6

[56] The conduct of the Applicant, upon which the termination of employment was subsequently based, was clearly outlined in the letters of 1 and 15 February, 2019. The three allegations were:

(a) Allegation 1 - That on 29 January, 2019, the Applicant sent a text message to the Landside Operation Coordinator’s phone, referring to Ms Smith in inappropriate terms. It was put that the text message was sent to incite Ms Smith, and was in breach of Respondent’s Systems Manual, at section 7.70 regarding Sexual Harassment;

(b) Allegation 2 - That over the course of three months, the Applicant harassed fellow employees with excessive emails and text messages that contained aggressive and hostile content. These messages were primarily directed towards the Respondent’s Management in Sydney. It was alleged that over 40 emails (in additional to 23 text messages and 3 phone calls) were sent by the Applicant with most being outside business hours. The nature of the communication was aggressive and, in their totality, suggested an insubordinate engagement with his management team. Those communications were seen to be in breach of the Respondent’s People Systems Manual at section 7.10 regarding Bullying, Discrimination and Harassment, and section 7.56 regarding Offensive Language and Behaviour.

(c) Allegation 3 - That on 20 December, 2018, the Applicant acted aggressively towards Ms Smith. It was alleged that the Applicant:

•  Said Ms Smith was incompetent as a manager, loudly and in front of other staff.

•  Told Ms Smith that she was on a “witch hunt” and was personally trying to take the Applicant down.

•  Told Ms Smith that the business and she personally, deserve everything that is coming.

•  Accused Ms Smith of purposely denying the Applicant shifts.

•  Said that he would not stop with the emails.

•  Demanded the Respondent and Ms Smith offer him a full-time position.

•  Yelled loudly at Ms Smith, forcing her to say, “we are clearly not making progress here, please don’t yell at me.”

•  Did not adhere to Ms Smith’s request to stop yelling and, as Ms Smith was walking away he yelled, “you’ll get everything you deserve.”

[57] The Respondent asserted that the Applicant’s conduct was in breach of the Respondent’s People Systems Manual section 7.20 ‘Customer Service and Internal Conduct’ which provides that“employees are required to act in a courteous and cooperative manner with customers, other employees and management”.

[58] In the letter of 15 February, 2019, an additional allegation was put to the Applicant regarding his email of 13 February, 2019, titled, “My life was ruined because of Idiots”.

[59] As a Full Bench of the Commission observed in Ronald Anderson v Thiess Pty Ltd  7:

“In the employment context, the express terms of the employment contract, employer policies incorporated into or authorised by the employment contract, and the employer’s lawful and reasonable directions may also operate to impose significant constraints upon an employee’s freedom of expression. It is not necessary in this case to explore the outer limits of the extent to which an employer can place limits on the freedom of expression of the employee. It is sufficient to state two propositions: first, that it is well established that it is lawful and reasonable for an employer to require an employee to comply with policies and directions which control the nature of communications over the employer’s electronic communications system, and second, that objectively inappropriate and offensive communications by an employee in the workplace may, depending on the circumstances, constitute a valid reason for dismissal.” (Emphasis added, footnotes omitted).

[60] The Respondent had clearly required the Applicant to comply with a number of policies, including the Bullying, Discrimination and Harassment policy, the Customer Service and Internal Conduct policy and the Offensive Language and Behaviour policy. The Respondent also had a Code of Conduct, and during the Applicant’s employment he was expected to abide by the Code of Conduct. Such policies were lawful and reasonable, and designed to protect employees.

[61] In relation to Allegation 1, the Applicant did not deny that he had sent the text message. In one of a number of unacceptable responses made to enquiries as to why he sent the email, the Applicant said, “I sent it to incite her and you. It got you here didn’t.”

[62] The Applicant also did not deny Allegation 2, and it may be observed, “how could he?”. The emails are clear. While the Applicant did deny Allegation 3 as it was specified, he did state that in the interaction Ms Smith almost cried after he said she and her managers were “closet managers.”

[63] I find that each of the allegations put by the Respondent to the Applicant to be substantiated. I also find that there was a valid reason for the dismissal of the Applicant related to his conduct. Notwithstanding the unfortunate events which had arisen in the Applicant’s life at the time, the Applicant had embarked on a course of abusive conduct towards the management of the Respondent that had no rational basis.

[64] The Respondent attempted to defuse the Applicant’s apparent anger on numerous occasions, both verbally and in writing, addressing the Applicant in conciliatory tones, only to be met with further and elevated vitriol. If the Applicant ever harboured any doubt about how he may express himself in emails, and he did not ever articulate any such doubts, the letter of 30 November, 2018, was abundantly clear. It advised the Applicant in the following terms:

“On the issue of your sending emails, I have found the volume and content of your emails to be unreasonable and offensive. I take this opportunity to remind you that in accordance with the Company’s ‘Customer service and internal conduct’ policy, you are required to act in a courteous and cooperative manner with customers, other employees and management. Aggressive or antisocial behaviour in the workplace is unacceptable and I ask that you stop sending the emails which to date have been unreasonable and offensive in nature.”

[65] Notwithstanding the above clear direction, the Applicant continued with unreasonable and offensive emails, including:

(a) On 19 December, 2018, an email that included “Does Carbridge give a shit NO they would rather destroy good employees”; and

(b) On 20 December, 2018, an email that included, “It was Gold for me as I said and told her Gavin Nathan and Renee are all closet Managers. This has been the “ norm “ for all previous Carbridge MANAGEMENT. NO EXCEPTIONS THEY CHOOSE THE HARD OBSTACLE WAY. To me this, is watching a Circus on parade.”

[66] In a further effort to address the Applicant’s behavior, Mr Strangwick, went to see the Applicant in person on 21 December, 2018, when the Applicant was at work. He said to the Applicant:

“You have an obligation to act in accordance with the organisations customer service and internal conduct policy which includes you acting with respect for others being courteous and being cooperative.”

[67] Thereafter, the first email Mr Strangwick received from the Applicant referred to “closet managers,” followed two weeks later by the unacceptable incident that was Allegation 1. I have no doubt that had his employment not have been terminated the Applicant would have continued to send unreasonable, aggressive and offensive emails. Even when he was being disciplined the Applicant sent the email of 13 February, 2019, titled “My life was ruined because of Idiots”.

Was the Applicant notified of the valid reason?

[68] The Applicant was clearly notified of the valid reason. The Show Cause letter of 15 February, 2019, was quite clear and specific in detailing the reasons for the eventual termination.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[69] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 8

[70] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 9 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.10

[71] The Applicant was given numerous opportunities to respond. He met with Mr Strangwick and another manager on 8 February, 2019, and had a further opportunity to respond when replying to the Show Cause letter of 15 February, 2019.

[72] In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason his dismissal prior to the decision to dismiss being made.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[73] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[74] There is no positive obligation on an employer to offer an employee the opportunity to have a support person. As observed by the Fair Work Bill 2008 (Cth):

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”11

[75] In the meeting of 8 February, 2019, Mr Strangwick asked the Applicant if he wanted a support person present. The Applicant declined that offer.

[76] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[77] The Applicant was dismissed for his conduct, rather than unsatisfactory performance of his duties, and so this consideration has limited application to his circumstances. Nonetheless, I note that the Applicant was warned, repeatedly, regarding his conduct.

[78] In the letter from Mr Strangwick of 30 November, 2018, the Applicant was told the volume and content of his emails were unreasonable and offensive. In the meeting on 21 December, 2018, Mr Strangwick reiterated to the Applicant the obligation to act in accordance with the organisations customer service and internal conduct policy which included acting with respect for others and being courteous and being cooperative.

[79] Even after he received the letter of allegations dated 1 February, 2019, and attended the disciplinary meeting a week later, the Applicant sent emails titled “Giving Thieving and today” and “My life was ruined because of idiots” with unreasonable and offensive content.

[80] For the reasons above, I find that the Respondent did warn the Applicant regarding his unsatisfactory conduct before dismissal.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[81] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[82] The Respondent conceded that the Respondent’s managers had access to a specialist human resource management specialist function. Consequently, I find that there is no relevance in this consideration for the matter.

What other matters are relevant?

[83] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. Neither party submitted that any other relevant matters should be considered.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[84] 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. 12

[85] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had clearly required the Applicant to comply with a number of policies, including the Bullying, Discrimination and Harassment policy, the Customer Service and Internal Conduct policy and an Offensive Language and Behaviour policy. The Respondent also had a Code of Conduct and during the Applicant’s employment he was expected to abide by the Code of Conduct. Such policies were lawful and reasonable, and designed to protect employees.

[86] Notwithstanding the Applicant’s knowledge of the requirements of those policies and the Code of Conduct, and the Respondent’s continual reinforcement of the requirements of those policies and the Code with the Applicant, the Applicant chose to disregard his obligations and conduct himself in a manner that was quite simply unreasonable, aggressive and offensive.

[87] For these reasons, I find that there was a valid reason for the Applicant’s termination. The Applicant was notified of that valid reason and provided with an opportunity to respond. Unfortunately, the Applicant chose to escalate, rather than correct, his behaviour.

Conclusion

[88] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. The Applicant’s application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr K Andonov, for himself.

Ms L Vanderstoep, for the Respondent.

Hearing details:

2019.

17 and 24 June.

Sydney.

Final written submissions:

For the Applicant: 29 July 2019.

For the Respondent: 23 July 2019.

Printed by authority of the Commonwealth Government Printer

<PR712687>

 1   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].

 2   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 3   Ibid.

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

5 Edwards v Justice Giudice [1999] FCA 1836, [7].

 6   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 7   [2015] FWCFB 478, at [27].

 8   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

 9   RMIT v Asher (2010) 194 IR 1, 14-15.

 10   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

11 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 12   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].