Kyle Chadwick v JG1 Construction Pty Ltd
[2022] FWC 1383
•3 JUNE 2022
| [2022] FWC 1383 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kyle Chadwick
v
JG1 Construction Pty Ltd
(U2022/2142)
| COMMISSIONER LEE | MELBOURNE, 3 JUNE 2022 |
Application for an unfair dismissal remedy – respondent failed to respond – respondent failed to attend – no valid reason for dismissal – applicant unfairly dismissed – reinstatement not appropriate – determination to be made regarding remedy.
Background
This matter involves an application made pursuant to s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Kyle Chadwick (the Applicant) claims that he was unfairly dismissed from his employment with JG1 Construction Pty Ltd (the Respondent).
On 25 May 2022, I delivered a decision ex tempore and recorded in transcript as follows:
“I've considered the submissions of the respondent and the evidence of the applicant. I have determined a number of matters: firstly, I am satisfied that the applicant is within jurisdiction of the Commission to have his unfair dismissal remedy determined: that is, there is no jurisdictional bar to the application proceeding. Having considered the evidence and the submissions I am satisfied that the dismissal is unfair. It was both unjust and unreasonable. I have also considered the evidence and submissions and I find that reinstatement is not an appropriate remedy in this case and further, that I also consider that consideration of an amount of compensation is appropriate. I will provide full written reasons for my decision in due course on that point and the points I have just mentioned.
In terms of the amount of compensation to be ordered, as foreshadowed, I will allow a further period of one week from today for the applicant to file written submissions. Counsel for the applicant has indicated that they are to do that. There will obviously be an opportunity for the respondent to provide any comment they want to make on those submissions and I will make a subsequent decision on compensation, whether any compensation is to be awarded and if so, what amount, having received those submissions and any response from the respondent.”[1]
These are the written reasons for that decision.
The application was lodged on 18 February 2022. The matter was allocated to my Chambers on 24 March 2022. The Respondent has been completely unresponsive to the application and has not responded to any of the Commission’s communication.
On 21 February 2022 the Respondent was sent a letter notifying them of the application made by the Applicant. A further letter was sent to the Respondent on 28 February 2022, attaching a copy of the application, and requesting the Form F3 – Employer response. Despite numerous further requests, the Respondent has not sent the Commission a copy of the completed Form F3. The matter was listed for conciliation on 24 March 2022, which the Respondent failed to attend. Numerous attempts were made to contact the Respondent by telephone before and on the day of the conciliation to no avail.
As stated above, the matter was allocated to me on 24 March 2022. On 25 March 2022, parties were sent the notice of listing and directions which set out the programming of the matter. My Chambers also reminded the Respondent to lodge the Form F3. The matter was listed for conference/mention on 13 April 2022 so that I could discuss with the parties the prospects for conciliation to resolve the matter prior to the matter proceeding to hearing. The matter was also listed to discuss and further explain, if necessary, the directions set and deal with any other procedural matters including any applications for permission to appear by legal representatives and/or paid agents.
After the Respondent failed to provide a response or confirm their appearance before the conference/mention scheduled on 13 April 2022 my Chambers sent the following email on 12 April 2022:
“Dear Mr Gaulke,
I write in relation to the above matter and refer to the emails below.
We asked you to fill out the Form F3 Employer response to unfair dismissal application and lodge it with us.
We also asked for the names and direct contact numbers of those individuals attending the Conference/Mention at 10:00 am tomorrow.
We have not received a response to either of these requests.
You are expected to attend the Conference/Mention tomorrow morning, and can do so by clicking this link: Click here to join the meeting
Please be advised that if you don’t respond to the application or attend the Conference/Mention, the matter will proceed in your absence with only the information we have received.”
The Respondent did not respond to this email, nor did they join the meeting on the morning of 13 April 2022. My Chambers proceeded to contact the Respondent by telephone to connect them to the proceedings, however the Respondent did not answer any of the calls. Numerous voicemails were left my Chambers. After 15 minutes of trying to contact the Respondent, I proceeded with the mention hearing. After the mention hearing, the following email was sent to the Respondent:
“Dear Mr Gaulke,
RE: U2022/2142 - Mr Kyle Chadwick v JG1 Construction Pty Ltd
I write in relation to the above matter.
After numerous attempts to contact you, the Conference/Mention at 10:00 am today proceeded in your absence.
Respondent named
We advise that Commissioner Lee has granted the Applicant’s application to amend the Respondent named on the Form F2.
Pursuant to section 586(a) of the Fair Work Act 2009 (Cth), the Respondent in the application is amended from "Mr Jesse Gaulke" to "JG1 Construction Pty Ltd (ACN: 614 285 906)".
Further request for the Form F3
You are still required to:
· download and complete the Form F3 Employer response to unfair dismissal application; and
· lodge your completed Form F3 and any supporting documents with us.
Please complete these steps by not later than Tuesday, 19 April 2022.
Directions
Please find attached Notice of Listing and Directions which were previously sent to parties. We have amended the Respondent named in the document.
The Notice of Listing and Directions contain important information regarding the programming of this matter.
You are required to comply with the Directions on the second page. Namely, you are required to file with the Fair Work Commission, and serve on the Applicant:
·the Respondent’s Outline of Argument;
·the Respondent’s Statement(s) of Evidence;
·the Respondent’s Document List; and
·any annexures, witness statements or other documentary material
by no later than close of business Wednesday, 1(sic) May 2022.
The Hearing is at 10:00 am on Wednesday, 25 May 2022. Parties will be sent a Notice of Listing with further information about the Hearing in due course.
Please contact the undersigned if you have any questions or concerns.”
I note that on the Form F2 application, the Applicant stated that the legal name of the employer is “Jesse Gaulke”. Mr Jesse Gaulke is the Director of the Respondent.[2] On 11 April 2022, the Applicant sent an email requesting that the Respondent in the application be amended from "Mr Jesse Gaulke" to "JG1 Construction Pty Ltd (ACN: 614 285 906)". As per the above email, I granted the Applicant’s application to amend the Respondent named on the Form F2. Pursuant to section 586(a) of the Act, the Respondent in the application was amended from "Mr Jesse Gaulke" to "JG1 Construction Pty Ltd".
After the Respondent failed to comply with the directions, the following email was sent on 12 May 2022:
“Dear Mr Gaulke,
RE: U2022/2142 - Mr Kyle Chadwick v JG1 Construction Pty Ltd
I write in relation to the above matter and refer to the attached Directions which were sent to parties on 24 March 2022.
The Respondent was directed to file its material by no later than close of business on Wednesday, 11 May 2022.
You have not complied with the attached Directions.
The Direction and Hearing dates in the attached document are definite. An extension or adjournment will only be granted at the discretion of Commissioner Lee and only on substantial grounds. An extension or adjournment request will only be considered if it:
· is in writing;
· has been provided to Commissioner Lee and to the other party;
· outlines a substantial ground as to why the date should be changed; and
· has been made in a timely manner.
Please provide a response by no later than 12:00 pm tomorrow, Friday, 13 May 2022.
In the absence of a response, the application will be determined based on the material before the Commission.”
The Respondent did not respond to the above email. On 23 May 2022, the digital court book was sent to parties by email. That email also included the following note:
“We note that the Respondent has failed to comply with the Directions issued by Commissioner Lee and has not filed any material or responded to any contact made by the Commission.
As previously advised, in the absence of a response, the application will be determined based on the material before the Commission.”
The Respondent failed to attend the Hearing on 25 May 2022.
Against the background set out above of the failure of the Respondent to respond to any communication or request any extensions or adjournments, I determined to conduct the hearing in the absence of the Respondent. I note that on the day of the hearing, my Chambers made numerous attempts to contact the Respondent by telephone, however the Respondent did not answer the calls. After 10 minutes of trying to contact the Respondent, the hearing proceeded. There has been no material filed by the Respondent in this matter.
Law to be applied
Section 394 of the Act provides that a person who has been dismissed may apply to the Commission for an order under the Act granting a remedy. The Act provides that an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. It is apparent from the evidence that the Applicant was notified of his dismissal by SMS on 29 January 2022. The application was made on 18 February 2022. This is within the statutory period. I am satisfied on the evidence that the Applicant commenced employment with the Respondent on 19 July 2021.[3]
A person is protected from unfair dismissal if:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(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.”
Note: The high income threshold is currently $158,500.
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
With regards to s.382(a) of the Act, as set out earlier, the dismissal took effect on 29 January 2022. [4] I am satisfied on the evidence of the Applicant that he commenced employment on 19 July 2021. This is a continuous period of employment of 6 months and 11 days. As set out below, I am satisfied that the Respondent was not a small business employer at the time of the dismissal. It is apparent that the Applicant has completed a period of employment of at least the minimum employment period.
I am satisfied that the sum of the Applicant’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. The Applicant’s annual salary at the time of dismissal was $41,400.80, well below the current high income threshold.
Section 385 of the Act sets out what constitutes an unfair dismissal:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Section 386 of the Act sets out the meaning of dismissed:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
…”
With regard to s.385(a), s.386 of the Act sets out the meaning of dismissed. It is apparent on the evidence that the Applicant was terminated on the employer’s initiative.[5]
With regard to s.385(c) of the Act, the evidence is that at the time of dismissal, the Respondent employed approximately 26 employees, and certainly more than 15 employees.[6] Therefore, the Small Business Fair Dismissal Code is not relevant.
With regard to s.385(d) of the Act, there is no suggestion that the Applicant’s dismissal was a case of genuine redundancy.
The evidence
The Applicant gave uncontested evidence in the proceedings. In summary, his evidence was as follows:
· On 19 July 2021, he commenced employment with the Respondent, and although he did not sign an employment contract until 2 August 2021, his first pay slip shows that in the week commencing 19 July 2021 he worked 43 hours. He also has text messages between himself and Mr Gaulke on 18 July 2021, making arrangements for the commencement of his employment. The Applicant provided a copy of his first payslip and the text message correspondence.[7]
· Over the course of his employment with the Respondent, he was regularly praised for his performance. This was a source of great pride for the Applicant because of the effort that he brought to his job.[8]
· The Applicant did not receive any formal or informal warnings regarding his performance or conduct throughout his employment and did not receive any negative feedback. On one occasion he checked the time on his phone and was told to put his phone away by Mr Curtis Gaulke. He explained he was checking the time. Mr Curtis Gaulke accepted this, and nothing further happened.[9]
In respect to the Applicant’s termination and the manner in which it occurred, it is apparent that it was done entirely over SMS. The full exchange is in evidence.[10] The Applicant provides a useful and accurate summary of the exchange in his witness statement as follows:
“(a) Mr Gaulke stated that I had been warned for my poor performance twice by Curtis Gaulke and Triston Dyce, which I vehemently denied, stating that I had not received any written or verbal warnings and reiterating "I just don't know why this is happening".
(b) Mr Gaulke alleged that I had completed work with a tool named the speed brace at an unacceptably slow pace. I told Mr Gaulke that "I haven't even touched the speed brace", which was true.
(c) Mr Gaulke offered me to attend the office of JG1 Construction to "have a meeting" with him, Curtis Gaulke and Triston Dyce regarding the allegations. I was encouraged by this offer, assuming the "meeting" would be a chance for me to show that the alleged complaints made about me were untrue, and that my employment would not be terminated as a result.
(d) Accordingly, I asked Mr Gaulke "what day and time" I could attend the office for the meeting. After Mr Gaulke said we would "work out when suits", I again asked Mr Gaulke to "let me know when [he was] free", and particularly if he would be at the office the next Monday.
(e) I was the (sic) extremely disappointed when Mr Gaulke responded that "I'm not having you back at work", alleging I had "breeched [sic] your contract with us" and stating the meeting would be "purely for you to explain to us how why you think it's ok". After receiving this message, it was apparent to me that Mr Gaulke had obviously already decided to terminate my employment, giving me no opportunity to respond.
(f) I attempted to address Mr Gaulke's allegations by stating I had not been "slacking off" and that any time I had been seen on my phone was because I was "checking the time". I also reiterated that I had not been doing nothing around the worksite and "at no stage has anyone complain[ed] about my performance".
(g) I informed Mr Gaulke that was extremely disappointed in the treatment I had received, and flagged that I would be taking further action. Mr Gaulke responded by again alleging that I had breached my contract. Accordingly, I again told Mr Gaulke that "I haven't gotten and [sic] warning or even writing [sic] warning".
(h) Mr Gaulke told me "I don’t need to issue a warning in writing" because I had signed a contract of employment.
(i) I sent Mr Gaulke a lengthy response, again disputing the allegations of poor performance and questioning the reasons that he had given me for my dismissal from JG1 Construction, including by stating that I had always received a "good job mate or a thank you for working a bit longer" from Mr Dyce.
(j) Mr Gaulke then alleged that "everyone who was on site" had "caught [me] slacking off", an allegation which he did not elaborate on further.
(k) After I told Mr Gaulke that I was disappointed in JG1 Construction, he evidenced the positive feedback discussed in paragraph 10 above, stating: "Likewise mate I couldn’t have spoken more highly of you last year and I said that to you, but it hasn’t been the case since you returned from the break".
(l) In response to Mr Gaulke's validating comment, I asked "why would I not keep up my work", for him to "please understand that I haven't been slacking off" and again disputing the allegation I was using my phone excessively by stating that "I would check the time on my phone [because] I don’t own a watch".
(m) Finally, after Mr Gaulke claimed that I was not being "ganged up on", I sent the response, which was the last message between us:
"So why would I slack off man it feels like that, because I'm trying my best all the time at work."”[11]
As to the reasons for termination, it is apparent from the SMS exchange that the Respondent terminated the Applicant’s employment for:
· "slacking off";
· using his phone excessively at work; and
· performing poorly in speed brace work.
The Applicant refutes these allegations as follows:
“As detailed in paragraphs 9 to 11 above and in my Application, I take great pride in my work ethic and constantly received positive feedback for the quality of my work while at JG1 Construction. As seen in our text message correspondence, this feedback included encouragement from Mr Gaulke, who by his own admission "couldn’t have spoken more highly" of me. I reject the allegation that I was "slacking off" at work.
I also specifically refute the allegation that I was using my phone excessively at work. Knowing that I have never used my phone unnecessarily during work hours, on 24 March 2022 I undertook a search of my iPhone "Screen Time". My "Screen Time" statistics were available for my last week of work and clearly demonstrate that the only periods of high activity on my phone during the period of 24 January 2022 to 28 January 2022 (excluding the Australia Day public holiday) were when I was at home or during my lunch break. A copy of my "Screen Time" record is annexed to this statement and marked "KC-6".
Consistent with my text message correspondence with Mr Gaulke, I also deny having performed any speed bracing in the period preceding my dismissal as alleged by Mr Gaulke. I do recall performing a limited amount of speed bracing in my first month of employment with JG1 Construction, but certainly did not do so in the period implied by Mr Gaulke.
For the reasons above, I believe the alleged reasons for the summary termination of my employment were all unfounded. As detailed in my Application, I also harbour concerns that my termination was affected for the ulterior reason of preventing me from making further inquiries about Mr Gaulke's failure to pay sufficient overtime to employees, after my conversation with my superior, Mr Dyce, on 19 January 2022. However, my abrupt exit from the business limited my capacity to raise these matters in the context of my dismissal.”[12]
The Applicant has obtained new employment and did so within a very short time period, commencing with his new employer on Monday, 14 February 2022.
As to the financial impact of the dismissal, the Applicant’s evidence is as follows:
“•I was unemployed for a total of two weeks, which resulted in me losing wages of $1,580.80;
· I was deprived of the opportunity to earn additional income from working overtime during this period. I worked an average of four and a half hours overtime, based on a 38-hour working week, at JG1 Construction which was paid at $29.64 for the first two hours and $39.52 after that, so I would have earned at least approximately $266.76 in overtime during these two weeks;
· I was deprived of my payment in lieu of notice, which would have resulted in me receiving four weeks' pay, being $3,161.60; and
· I was also deprived of a chance to rectify my underpayments in relation to unpaid overtime from JG1 Construction, however I am aware that this is outside the Commission's jurisdiction.”[13]
The Applicant’s evidence was uncontested. He was a credible witness and I have no reason to doubt his testimony.
I must consider whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Was the dismissal unfair?
There is now the matter of considering if the dismissal is unfair having regard to s.387 of the Act. It is those matters that I now turn to having regard to the evidence.
Section 387(a) – whether there was a valid reason for the dismissal related to the person’s capacity or conduct
I am satisfied on the evidence that the various claims of misconduct and poor performance directed at the Applicant are baseless. The sworn evidence of the Applicant that there was no misconduct or poor performance on his part are credible and not contradicted by any sworn evidence to the contrary given that the Respondent failed to appear at the hearing.
The Applicant’s evidence is consistent with the evidence of SMS messages sent prior to his dismissal praising his good performance.
I am not satisfied that the Applicant had engaged in any form of misconduct, nor am I satisfied that there was any poor performance on the part of the Applicant.
In conclusion, I am not satisfied that there is a valid reason for the dismissal of the Applicant. There is not a sound, defensible or well-founded reason for dismissal.[14] This weighs towards a finding that the dismissal was unfair.
Section 387(b) – whether the person was notified of that reason
Notification of the “reason” relates to the “valid reason” for dismissal.[15] I am not satisfied that there is a valid reason for the dismissal in this case. However even if I am wrong about that finding, it is apparent that there was no notification to the Applicant of the reason for the dismissal before the decision to terminate his employment was made.[16] Indeed, the first the Applicant knew he was dismissed was via a SMS message sent on a Saturday, informing him that the previous day was his last day of employment.
Section 387(c) – whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal.[17] It is apparent that there is no valid reason for the dismissal and so this is not a matter which is relevant. Although again, in the event that I was wrong on the question of valid reason, it is apparent that there was no opportunity given to the Applicant to respond before the decision to terminate his employment was made. This factor weighs in favour of the Applicant.
Section 387(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
There was no request for a support person by the Applicant. This is a neutral consideration.
Section 387(e) – if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
As stated above, I am not satisfied that the Applicant’s performance was unsatisfactory. In any case, it is clear on the evidence that the Applicant was not warned about any alleged performance issues. I accept the Applicant’s evidence that he was never warned about his performance, including slowness of work, slacking off, or use of his mobile phone at work. This weighs in favour of the Applicant.
Section 387(f) and (g) – 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 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
The Respondent is not a small business, however it does not appear to have had the benefit of any in-house human resources specialist advice. While there is an acknowledgement that small businesses are genuinely different in nature both organisationally and operationally, the procedures followed in dismissing a person cannot be ‘devoid of any fairness.’[18] In this matter, the process of dismissal was lacking in fairness. The manner in which the Applicant was terminated was appalling. No warning, no meeting to discuss any issues, and cursory explanations. This is a neutral consideration.
Section 387(h) – any other matters that the FWC considers relevant
The Applicant submits that:
“The Applicant was summarily dismissed in circumstances where a dismissal was clearly not warranted, let alone a summary dismissal. Accordingly, the Applicant was deprived of a payment in lieu of notice as outlined in his employment contract.”[19]
I agree that this is a relevant consideration and this weighs towards a finding of unfairness.
Conclusion
Taking into account all of the factors above, the factors all either weigh towards a finding of unfairness or are neutral considerations. There are no considerations weighing towards a finding that the dismissal was fair. Taking into account all of the matters set out above, I am satisfied that the dismissal was unjust as the employee was not guilty of the alleged conduct and poor performance. It was also unreasonable as the manner in which the dismissal was affected was devoid of fairness and summary dismissal was a disproportionate response.
Remedy
The relevant provisions of the Act pertaining to remedy are contained in s.390 of the Act:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
It also necessary to consider the Objects of Part 3-2 of the Act, especially s.381(c) of the Act which provides that an object of that Part of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
The presumption in the legislation is that should a dismissal be found to be unfair, that reinstatement is the primary remedy, and that compensation is a secondary consideration if reinstatement is not appropriate.
In this matter, the Applicant does not seek reinstatement. The Applicant submits that his relationship with the organisation has completely broken down and that reinstatement would not be appropriate. Further, the Applicant has found new employment. Having taken that into account, I agree that reinstatement in the circumstances of this case is not an appropriate remedy.
Having determined that reinstatement is not appropriate I must consider what compensation, if any, is payable, in lieu of reinstatement. I have provided an opportunity for the parties to provide further written submissions on this point and I will determine the amount of compensation, if any, in a subsequent decision.
COMMISSIONER
Appearances:
B Mescher, on behalf of the Applicant.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
April 25.
[1] Transcript at PN122-PN123.
[2] Witness Statement of Mr Chadwick at [3].
[3] Witness Statement of Mr Chadwick at [4].
[4] Attachment KC-4.
[5] Attachment KC-4.
[6] Witness Statement of Mr Chadwick at [19]-[22].
[7] Witness Statement of Mr Chadwick at [5]; Attachment KC-1.
[8] Witness Statement of Mr Chadwick at [9].
[9] Ibid at [12].
[10] Attachment KC-4.
[11] Witness Statement of Mr Chadwick at [16]; Attachment KC-4.
[12] Witness Statement of Mr Chadwick at [24]-[27].
[13] Ibid at [33].
[14] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].
[15] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41].
[16] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [70]–[73], [(2000) 98 IR 137].
[17] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41].
[18] Williams v The Chuang Family Trust t/a Top Hair Design [2012] FWA 9517 (Cloghan C, 12 November 2012) at [40].
[19] Applicant’s Outline of Submissions at [34].
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