Leslie Hobson v J.G Cleaning Contractors Pty Ltd

[2015] FWC 8811

[2015] FWC 8811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leslie Hobson
v
J.G Cleaning Contractors Pty Ltd
(U2015/7188)

DEPUTY PRESIDENT BOOTH SYDNEY, 21 DECEMBER 2015

Application for relief from unfair dismissal - small business.

[1] Mr Leslie Hobson commenced full time employment with JG Cleaning Contractors Pty Ltd (JG) as a cleaner in October 2013. 1 From the outset of his employment, Mr Hobson was deployed at Auto Auctions (AA).

[2] JG has a commercial contract to provide cleaning services to AA. JG is a small business conducted by Mr and Mrs Gau who are also employees of the business. Mr Hobson was JG’s only other full-time employee and the contract with AA is their only commercial contract fulfilled other than by Mr and Mrs Gau.

[3] Mr Hobson remained at AA until he was dismissed on 9 April 2015 for poor performance and unsatisfactory conduct. His dismissal from JG followed AA’s refusal to have Mr Hobson deployed at AA any longer.

[4] On 24 April 2015, Mr Hobson lodged an application in the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 seeking a remedy for unfair dismissal.

[5] Mr Hobson says that his dismissal was unfair because his poor performance was explained by an injury he sustained at AA and there was no unsatisfactory conduct. Mr Gau says Mr Hobson’s poor performance could not be excused by the injury and given the unsatisfactory conduct alleged by AA he had no choice but to dismiss Mr Hobson if he wanted to retain his contract with them.

[6] The matter was listed for hearing on 10 September, and was only part heard due to the illness of Mr Gau. The matter was relisted for 29 September when, with the consent of both parties, a conciliation conference was held. At the conclusion of the conference the parties required some time to think about their respective positions. At the request of the parties some weeks later, the matter was relisted for hearing on 3 December 2015 to hear the remainder of the case.

[7] At the hearings before me on 10 September and 3 December, Mr Hobson represented himself, and Mr John Laws of the Australian Cleaning Contractors Alliance, represented JG.
[8] For reasons outlined below I have decided that Mr Hobson was unfairly dismissed and I have ordered JG to pay him compensation of one week’s pay.

The events leading to dismissal

[9] Mr Jorge Gau, Director, JG Cleaning contractors, gave evidence that Mr Shane Otten, Managing Director of AA and Ms Penny Guy of AA, organised a meeting between the three of them on 31 March 2015 to raise their concerns about Mr Hobson’s performance. AA were unhappy with the standard of cleaning and asked Mr Gau to address the issues with Mr Hobson. During the meeting, Mr Otten explained to Mr Gau the severity of the situation and that the contract between JG and AA was in jeopardy. 2

[10] After that meeting Mr Gau met with Mr Hobson at AA to discuss the concerns of AA with Mr Hobson. Mr Gau then walked with Mr Hobson though the site, pointing out the specific issues that needed rectifying. 3

[11] Two days later, on 2 April 2015, at least two incidents occurred involving Mr Hobson which culminated in Mr Otten directing Mr Hobson to leave the site of AA.

Initial matters to be considered

[12] There are initial matters contained in s.396 of the Act which I must consider before the merits of the case may be heard. They are:

a) whether the application was made within the period required in subsection 394(2);
b) whether the person was protected from unfair dismissal;
c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
d) whether the dismissal was a case of genuine redundancy. 4

s. 396 (a) - Was the application made within the period required?

[13] Mr Hobson was notified of his dismissal on 9 April 2015 and the dismissal took effect on the same day. Mr Hobson lodged his application on 24 April 2015 and therefore lodged his application within 21 days of dismissal, in accordance with s. 394(2)(a) of the Act.

Accordingly, I find that he made his application within the period required.

s. 396(b) - Was Hobson a person protected from unfair dismissal?

[14] Section 382 defines a person who is protected from unfair dismissal. A person is protected from unfair dismissal if, at that time of dismissal the person had been employed for at least the minimum employment period; and 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.”

[15] JG Cleaning Contractors submitted that it employed less than 15 employees and was therefore considered a small business employer. 5 This was not contested by Mr Hobson.6 It was also agreed between the parties that Mr Hobson began his employment with JG Cleaning Contractors in October 2013 and had therefore worked the minimum employment period for a small business, pursuant to s. 383(b) of the Act. Mr Hobson was covered by the Cleaning Services Award, therefore satisfying s. 382(b) of the Act. Accordingly, I find that Mr Hobson is a person protected from unfair dismissal.

s. 396(c) - Was the dismissal consistent with the Small Business Fair Dismissal Code?

[16] Section 388 of the Act states that a person’s dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC) if:

“(2)(b) The employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[17] The SBFDC appears below:

“Small Business Fair Dismissal Code

Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

Summary dismissal

[18] It is not submitted by JG that Mr Hobson’s conduct was sufficiently serious to justify an immediate dismissal. Given the dismissal was not a result of serious misconduct, this provision of the SBFDC is not relevant and I must determine whether the dismissal was otherwise in compliance with the SBFDC.

Other dismissal

[19] A consideration of this provision of the SBFDC requires me to address a number of questions.

Did JG give Hobson a reason why he was at risk of being dismissed, verbally or in writing?

[20] The answer to this question is yes.

[21] JG contend that on Tuesday 31 March, Mr Gau met with Mr Hobson and verbally warned him that if his attitude and standard of work were not improved, then he would not have a job. 7 Mr Gau says he repeated this warning twice and that the warning was prompted by a meeting he had just attended with Mr Otten and Ms Guy of AA, referred to above.

[22] The parties agree that Mr Gau raised performance issues with Mr Hobson and that Mr Gau would follow up by giving Mr Hobson a list of tasks that needed improvement but that he was never given that list. The parties further agree that both Mr Hobson and Mr Gau walked through the worksite together after the meeting and Mr Gau pointed out the areas that required attention.

[23] Mr Gau said he also raised issues regarding Mr Hobson’s attitude. This was not contested by Mr Hobson.

[24] Mr Hobson says that the meeting between he and Mr Gau was not formal, but rather a conversation in an informal setting, and that at no point was he warned that he was in danger of being dismissed. 8

[25] The contract between AA and JG was JG’s only full time contract and Mr Gau had just been told that due to Mr Hobson’s conduct and capacity, his company’s only full time contract was in jeopardy. I find that on the balance of probabilities, the meeting between Mr Gau and Mr Hobson did constitute a warning.

[26] While it is more desirable that an employee be warned in writing for the sake of clarity and completeness, I find that in the context of a small business the verbal warning constitutes a warning and a reason as to why Mr Hobson was at risk of dismissal for the purposes of the SBFDC.

Was that reason based on conduct or capacity?

[27] The answer to this question is yes to both conduct and capacity.

[28] It is clear on the evidence, that the reason given for dismissal was based on his poor performance and bad attitude. 9 Relevantly, in Crozier v Palazzo Corporation Pty Ltd the Full Bench said “…an employee’s performance is an incident of his or her capacity”. Accordingly, I find that the first of the reasons given for dismissal was based on Mr Hobson’s capacity to perform his role.

[29] The second reason for dismissal was that Mr Hobson had a bad attitude. Mr Hobson’s bad attitude was explained as aggression toward other employees at the site and his refusal to take direction from the Directors at AA. I consider a bad attitude, aggression and refusal to take direction, as matters of personal conduct and accordingly, I find that the second of the reasons for dismissal was based on Mr Hobson’s conduct.

Was the reason a valid reason?

[30] The answer to this question is yes.

[31] A valid reason is one that is sound, defensible or well founded in the context of the employee’s capacity or conduct based upon the operational requirements of the employer’s business. 10

Capacity

[32] On 31 March 2015, Mr Gau held a meeting with Mr Hobson about his performance. After the meeting, Mr Gau walked around the worksite with Mr Hobson, pointing out the areas that required more attention.

[33] Mr Hobson submits that the injury he sustained in the workplace caused his standard of work to fall because of the restrictions on his physical ability as evidenced by his WorkCover certificate.

[34] Mr Hobson said that his WorkCover certificate specified his capacity to work one hour on and one hour off, throughout the working day. The period the certificate covered was from 12 December 2014 to 6 March 2015. Mr Gau said that no such certificate was produced to him and he only saw it when it was provided to the Commission following the first hearing. 11 Mr Hobson said he assumed ‘Employers Mutual’ had sent the certificate to JG.

[35] It was agreed between the parties that this certificate was found to be invalid as a WorkCover certificate may only be issued to apply for a maximum of one month and it was not accepted by Employers Mutual. 12

[36] Mr Gau gave evidence that a rehabilitation person sent by Employers Mutual visited AA to provide guidance to Mr Hobson about how he could perform his role. At this point a one hour on, 15 minutes off regime was agreed and this regime was in place at the time of the dismissal. 13

[37] When asked if this would allow Mr Hobson sufficient time to complete his cleaning tasks to the standard required by AA, Mr Gau replied:

“So predominantly in my opinion with the time at hand he still would have had time to be able to maintain a reasonable standard”. 14

[38] Mr Gau gave evidence that he and his wife undertook Mr Hobson’s role for a period after Mr Hobson’s dismissal and until a replacement could be found. Mr Gau submitted that he and his wife had to spend a considerable amount of time ‘fixing the problem’ and to bring AA back up to standard. 15 Some of the work that had to be done included removing spider webs, removing rubbish from behind doors that had been wedged open for long periods,16 and dusting.17

[39] If Mr Hobson still required extra breaks by the time he was warned in March, or he was perhaps slower in performing his duties due to his injury, I think that the type of obvious uncleanliness that Mr and Mrs Gau had to rectify upon Mr Hobson’s dismissal and referred to above, should have been evident to him.

[40] Finally, there was photographic evidence produced of poor cleaning standards that were taken prior to Mr Hobson’s injury. 18 Mr Hobson said he had seen those photographs and he did not dispute their contents.

[41] Accordingly, I find that Mr Hobson’s poor performance was a valid reason for his dismissal.

Conduct

[42] In the case of Edwards v Giudice it was held that:

“When the reason is the conduct of the employee, the Commission must determine whether the alleged conduct occurred and what it involved before considering whether it constituted a valid reason for the dismissal.” 19

The first incident of 2 April 2015.

[43] Mr Hobson says that he was on his 7am break, and talking to his girlfriend on the phone and approached the chef and said “You’re complaining about me not cleaning behind the two tables and the barbecues. And, like I said, I’m not a furniture removalist and due to my injuries I can’t do it. So if you would like to leave them out this afternoon, I will get around to cleaning them.” 20 Mr Hobson’s girlfriend Ms Miller, gave evidence that corroborated his evidence.

[44] Mr Otten was not present for this incident but it was reported to him by the chef. Mr Otten said that he was told that Mr Hobson’s demeanour was rude and threatening.

[45] The chef did not make a statement and was not called as a witness and therefore, the only evidence I have to rely upon is the evidence of Mr Hobson and Ms Miller.

[46] Mr Hobson’s own evidence was that he said “You’re complaining about me” and “I’m not a furniture removalist”. I find these words on their own to be rude and somewhat unhelpful and having been warned two days prior about his attitude, I am disappointed in this response. On Mr Hobson’s evidence alone, I am satisfied this incident did occur and it is reflective of the conduct, or ‘bad attitude’, to which Mr Gau refers in the dismissal letter.

The second incident of 2 April

[47] Mr Hobson says this incident occurred in the canteen and that Mr Otten had approached Mr Hobson in an intimidating manner. 21 Mr Hobson says he phoned Mr Gau to report the incident and he was told to avoid Mr Otten. Mr Otten says that this incident did not occur.22

The third incident of 2 April

[48] Mr Hobson says he was served his lunch from the chef and was about to call Mr Gau when Mr Otten approached him and said his ‘attitude sucks’. 23 Mr Otten says this incident did not occur.24

The fourth and final incident of 2 April

[49] The parties agree that Mr Otten approached Mr Hobson. Mr Otten says he asked him to pick up rubbish in the vicinity and to remove the chewing gum, 25 to which Mr Hobson became aggressive and threw the broom and the bucket that he was holding, in the air.26 Mr Hobson says he was already cleaning the auction floor when he was approached by Mr Otten who said “your attitude really fucking sucks… I want you gone. Leave the site now”.27

[50] I am satisfied on the balance of probabilities that the first incident occurred as it was described by Mr Hobson and the fourth incident occurred as it was described by Mr Otten. They are both instances of Mr Hobson displaying a bad attitude and poor conduct at work.

[51] Accordingly, I find that Mr Hobson’s conduct was a valid reason for his dismissal.

Was Hobson given an opportunity to respond?

[52] The answer to this question is yes.

[53] Mr Hobson was able to and did respond to Mr Gau in the meeting and during the walk through of the site on 31 March. Mr Hobson says that he told Mr Gau that he could not do all the cleaning tasks Mr Gau asked of him due to his injury.

Was Hobson given a reasonable chance to rectify the problem, having regard to his response?

[54] The answer to this question is no.

[55] The warning meeting between Mr Gau and Mr Hobson took place on 31 March 2015, and Mr Hobson was sent home two days later, on 2 April. Mr Gau gave Mr Otten paid leave for a week while he waited for Mr Otten to reconsider his position. Mr Otten did not reverse his decision and Mr Hobson did not return to the workplace before his dismissal on 9 April 2015.

[56] Two days is unlikely to be an adequate time to rectify poor performance and demonstrate improved performance in any circumstance, let alone when the reason given for poor performance is an injury.

[57] Mr Hobson accepted that he “could not get everything done there” 28and his response was that his performance could not improve.

[58] The fact of Mr Hobson’s injury and the confusion about whether it required the reasonable accommodation of a break after every hour of work meant that Mr Hobson was not given a reasonable chance to rectify the problem.

Provide additional training and ensure he knew the requirements of the job?

[59] The answer to this question is yes.

[60] The parties agree that Mr Gau went out to the site to walk through the requirements of the job with Mr Hobson to ensure he understood his duties and where to focus to improve Mr Hobson’s performance. He explained which areas of AA were particularly important and why they were important. For example, Mr Gau explained to Mr Hobson that the entrance was particularly important because it is the façade of the property. This was genuine, immediate and helpful training given by Mr Gau that would have ensured that Mr Hobson understood the requirements of the job.

Did JG comply with the SBFDC ?

[61] Due to the failure to provide Mr Hobson adequate time to rectify the performance issues raised in the warning I find that for the purposes of s.396(c) the dismissal was not consistent with the Small Business Fair Dismissal Code. As much was conceded by Mr Laws when in answer to my question “Mr Laws, would you say that the Small Business Fair Dismissal Code was complied with?” he replied “Not 100 per cent” 29 Therefore I must turn to s.387 of the Act and consider the merits of the application.

s.396 (d) Was the dismissal a case of genuine redundancy?

[62] There is no suggestion that the employment ended because of redundancy.

Application of the Fair Work Act

[63] In determining whether Mr Hobson was unfairly dismissed under the Act, I must consider whether the dismissal was harsh, unjust or unreasonable. 30 Under s.387 of the Act I must consider a number of questions. These questions are very similar to those that were addressed above in considering whether Mr Gau complied with the SBFDC. Nevertheless I will address each question to ensure that I apply s.387 of the Act in the proper manner.

Did JG Cleaning Contractors have a valid reason or reasons for dismissing Hobson relating to his capacity or conduct?

[64] In addressing this question I am guided by the following principles:

a) A valid reason is one that is sound, defensible or well founded in the context of the employee’s capacity or conduct based upon the operational requirements of the employer’s business. 31

b) The Act requires an examination of whether there was a valid reason for dismissal, not whether the reason/s given to the employee for the dismissal were valid. 32

[65] As I have said earlier, Mr Gau dismissed Mr Hobson for two reasons:

a) Mr Hobson’s poor performance
b) Mr Hobson’s conduct toward Mr Otten and other colleagues.

[66] For the reasons outlined above during my consideration of the SBFDC I find that the reason for Mr Hobson’s dismissal was a valid reason.

Was Hobson notified of that reason?

[67] Mr Hobson was notified of the reason for his dismissal the letter dated 9 April 2015 from Mr Gau. The letter was titled “Termination of Employment”. I am satisfied that Mr Hobson was notified of the reason for his dismissal.

Was Hobson given an opportunity to respond to that reason?

[68] Mr Hobson submits that the meeting that took place between him and Mr Gau on March 31, was not formal and he was not made aware that he was at risk of dismissal. Mr Gau says that Mr Hobson appeared to acknowledge what he was saying, but that he offered excuses and did not change his approach.

[69] The parties agree that Mr Gau said he would provide a list to Mr Hobson of the particular tasks that required attention, but that he did not produce that list. Nevertheless he did take a walk around the site and show Mr Hobson what he wanted. Mr Hobson gave the response that he could not do certain tasks because of his injury.

[70] For the reasons outlined during my consideration of the SBFDC I am satisfied that Mr Hobson was given the opportunity to respond.

Was Hobson unreasonably refused a support person at any discussions relating to his dismissal?

[71] There is no submission that Mr Hobson was unreasonably refused a support person at the meeting on 31 March 2015 in relation to his dismissal.

To the extent that the dismissal related to unsatisfactory performance, had Hobson been warned about this before the dismissal?

[72] I refer to my comments under the SBFDC discussion above in relation to the warning given in the meeting held on March 31.

[73] I find that Mr Hobson had been warned in that meeting. Additionally, it is clear that Mr Gau had discussed performance issues with Mr Hobson throughout the course of his employment.

Did the size of JG impact the procedures followed in dismissing Hobson?

[74] JG cleaning gave evidence that they are a small business employer, employing only two other casuals in addition to Mr Hobson and Mr Gau himself. 33 This evidence was not contested. The procedures adopted in the dismissal were reflective of a small business with little or no expertise in the procedures of dismissal. I find the size of JG had a significant impact on the procedures used in the dismissal process.

Did JG have a dedicated human resource management specialist or specialists and if not did this impact the procedures followed in dismissing Hobson?

[75] JG does not employ a human resource person within their business, and again, I find that the absence of such a resource had a significant impacted on the procedures used in the dismissal process.

Are there any other relevant considerations in determining whether Hobson’s dismissal was unfair?

[76] Around the time of Mr Hobson’s injury, Mr and Mrs Gau were going through the worst experience any parents can endure, the death of a child. It was understandable that their attention to Mr Hobson was less than complete.

[77] In relation to his injury JG cooperated with Employers Mutual, their workers compensation insurer, to provide Mr Hobson with rehabilitation training. They were cognisant of his need for breaks but they did not communicate very well with AA. Mr Gau said that be believed that Mr Hobson could still “maintain a reasonable standard” notwithstanding six 15 minute breaks in a day and consequently only 6 hours 30 minutes of working time available in an eight hour shift. On the face of it this is implausible. That Mr Hobson was deployed in the workplace of JG’s client and out of the day to day management of Mr Gau appears to have contributed to Mr Hobson’s injury management falling between the cracks.

[78] The management of Mr Gau’s injury was imperfect and notwithstanding the confusion over the provision of the Workcover certificates, as his employer, JG should have paid closer attention to Mr Hobson’s injury and recovery. JG should have given explicit consideration to providing reasonable accommodation in the workplace and what that meant for specific tasks not just breaks. JG should have been in better communication with their client, AA, to ensure that it was practical for this to occur. For this reason and the part this must have played in the deterioration of Mr Hobson’s performance I find that his dismissal was harsh.

[79] However Mr Hobson is not blameless in the situation. His attitude cannot be excused and based on the evidence I consider that it is probable that his performance was poor even before his injury. It is notable that his demeanour in the conduct of his case, particularly when cross examining Mr Gau about a conversation held around the time of the death of Mr and Mrs Gar’s baby, was consistent with the complaints made about his workplace conduct.

Conclusion

[80] I have found that JG had a valid reason for dismissing Mr Hobson. I find that the dismissal was neither unjust nor unreasonable. However I find that the dismissal was unfair because it was harsh.

Remedy

[81] I have decided that it would not be appropriate to reinstate Mr Hobson. JG only have one commercial contract and it is with AA where Mr Hobson is not welcome. I have decided that it would be appropriate in all the circumstances to order payment of compensation to Mr Hobson. 34

Compensation

[82] In determining the amount of compensation that is appropriate I must apply the provisions of s.392 of the Act. In so doing I am guided by a recent decision of the Commission, Brett Haigh v Bradken resources Pty Ltd T/A Bradken, 35 where the Full Bench reviewed the authorities on the calculation of compensation. The Full Bench in this case confirmed the approach to be taken as set out in Sprigg v Paul Licensed Festival Supermarket36 noting that the legislation has been amended since this decision to permit a reduction in the amount of compensation otherwise payable if an employee’s misconduct contributed to the decision to dismiss. The Full Bench also noted that the Full Bench in Smith v Moore Paragon37 commented that the guidelines laid down in Sprigg v Paul Licensed Festival Supermarket are not a substitute for the words of the Act.

[83] I estimate that Mr Hobson would have remained in employment for no more than four weeks from the date of his dismissal and would have received or would have been likely to receive payment for this period. 38

[84] I estimate four weeks because his relationship with Mr Otten was strained, AA had conveyed to JG their unhappiness with the circumstances and that they would seek alternative arrangements if the standard did not improve. Mr Hobson had been warned about his conduct and performance only two days prior. He was defiant in the face of this criticism and remained defiant during the conduct of his case.

[85] Mr Hobson’s conduct was such that it would have been unlikely, on all probability, that the employment relationship would have been sustained beyond a further 4 weeks, at best.

[86] JG advised that the Applicant’s gross weekly earnings whilst employed by JG were $762.80. 39

[87] It does not appear that Mr Hobson earned anything within the four week period between the date of his dismissal and the estimated period that he would have remained employed.

[88] Mr Hobson was paid 2 weeks pay in lieu of notice which needs to be deducted.

[89] I consider that Mr Hobson’s conduct was such as to warrant a 50% reduction in compensation. I so order in accordance with s.392 (3) of the Act.

[90] I order JG to pay compensation for unfair dismissal equal to one weeks’ pay to Mr Hobson.

[91] This amount is unlikely to affect the viability of the employer’s enterprise, 40 and is appropriate considering the length of Mr Hobson’s service.41 It is less than the compensation cap pursuant to s.392 (5) of the Act.

[92] An order will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

L Hobson, the Applicant.

J Laws, Australian Cleaning Contractors Alliance, for J.G Cleaning Contractors Pty Ltd.

Hearing details:

2015.

Sydney:

10 September;

3 December.

 1 F2 Unfair Dismissal Application.

 2   PN156 Transcript 3 December.

 3   PN157 Transcript 3 December 2015.

 4   Section 396 Fair Work Act 2009.

 5 F3 Employer Response to Unfair Dismissal Application.

 6   PN108 Transcript for 10 September 2015.

 7 PN173 Transcript 3 December 2015; Statement of Jorge Gau at [6].

 8   PN28 Transcript 10 September 2015.

 9   Letter of Termination 9 April 2015.

 10   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.

 11   PN270 Transcript 3 December 2015.

 12   PN278 Transcript 3 December 2015.

 13   PN194 to PN195 3 December 2015.

 14   PN198 Transcript 3 December 2015.

 15   PN229 Transcript 3 December 2015.

 16   PN166 Transcript 3 December 2015.

 17   PN228 Transcript 3 December 2015.

 18   Exhibit L3.

 19   Edwards v Giudice and Others (1999) 169 ALR 89.

 20   PN82 Transcript 10 September 2015.

 21   PN34 Transcript 10 September 2015.

 22   PN110 Transcript 3 December 2015.

 23   PN114 Transcript 3 December 2015.

 24   PN115 Transcript 3 December 2015.

 25   PN35 Transcript 3 December 2015.

 26   PN119 Transcript 3 December 2015.

 27   PN36 to PN 37 Transcript 10 September 2015.

 28   PN40 Transcript 10 September 2015.

 29   PN319 to PN320 Transcript 3 December 2015.

 30 Section 385(b) Fair Work Act 2009.

 31   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.

 32   S8106.

 33 F3 Employer Response to Unfair Dismissal Application.

 34 Section 390(3)(a) and (b) Fair Work Act 2009

 35   [2014] FWCFB 236.

 36   R0235

 37   PR942856 at [32].

 38 Section 392(2)(c) Fair Work Act 2009.

 39 F3 Employer Response to Unfair Dismissal Application.

 40 Section 392(2)(a) Fair Work Act 2009.

 41 Section 392(2)(b) Fair Work Act 2009.

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