Mahesh Theeng v The Trustee for Faigen Family Trust T/A Gramercy Social
[2020] FWC 5533
•16 OCTOBER 2020
| [2020] FWC 5533 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mahesh Theeng
v
The Trustee For Faigen Family Trust T/A Gramercy Social
(U2020/7505)
COMMISSIONER MCKINNON | MELBOURNE, 16 OCTOBER 2020 |
Application for an unfair dismissal remedy – date of dismissal – whether in accordance with Small Business Fair Dismissal Code – whether genuine redundancy – whether harsh, unjust, or unreasonable – whether compensation appropriate.
[1] Gramercy Social was a restaurant operating within the Cullen Hotel in Prahran, Victoria. Like so many hospitality businesses in Melbourne, it was severely affected by the COVID-19 pandemic. After it was forced to close its doors on 23 March 2020, it stood down some employees and let others go. In late April 2020, the business qualified for the jobkeeper scheme and on or about 11 May 2020, reopened for take away only. Following a brief period of trading, the restaurant closed again due to Victoria’s Stage 4 lockdown.
[2] Mahesh Theeng (known by his colleagues as ‘Lama’) was employed by Gramercy Social for almost five years from 29 June 2015 until May 2020, including since December 2016 as Sous Chef. He had a good relationship with the owner of the business, Adam Faigen and his family. After being stood down in March 2020, he returned to work on 11 May 2020 but quickly became unhappy about the working environment. His employment came to an abrupt end in late May 2020 in circumstances that are in dispute, including as to the precise date of dismissal.
[3] On 1 June 2020, Mr Theeng applied for an unfair dismissal remedy.The application was made in time.Mr Theeng isprotected from unfair dismissal because he had completed at least the minimum employment period, his employment was covered by the Restaurant Industry Award 2010, and his gross annual salary of $66,976 was less than the high income threshold.
[4] Mr Theeng says he was dismissed by Gramercy Social on 22 May 2020 when he was fired on the spot in a heated debate. He says the dismissal was not a genuine redundancy and not consistent with the Small Business Fair Dismissal Code. Gramercy Social says Mr Theeng was dismissed in a case of genuine redundancy with effect from 18 June 2020.
[5] For the reasons that follow, I find:
1. Mr Theeng was dismissed on 22 May 2020 in circumstances that were:
(a) not a genuine redundancy;
(b) not consistent with the Small Business Fair Dismissal Code; and
unfair.
2. Neither a remedy of reinstatement nor compensation is appropriate in all the circumstances of this case.
When was Mr Theeng dismissed, and why?
[6] It is useful to set out the chronology of events leading to the cessation of Mr Theeng’s employment. The chronology reflects my findings of fact in relation to the events leading to dismissal.
[7] On 21 March 2020, Mr Theeng was advised that his salary would be reduced by 25% due to the pandemic.
[8] On 27 March 2020, Gramercy Social wrote to employees including Mr Theeng to advise that its mandatory business closure meant the business was unable to support their positions. Employees were ‘stood down’ rather than terminated from their employment and offered payment of annual leave.
[9] On 10 April 2020, the business again wrote to employees (including Mr Theeng) to provide information about whether they agreed to be nominated as eligible employees for the purposes of the jobkeeper scheme. Mr Theeng became an eligible employee and began receiving jobkeeper payments from 29 April 2020 (backdated to 30 March 2020).
[10] On 2 May 2020, Gramercy Social wrote to employees about its plans for the business in connection with the pandemic. It flagged the potential for reopening in a takeaway capacity, the closure of the Cullen Hotel until at least the end of June, and the prospect of directions to employees to change duties or reduce their hours and days of work. It set out the various entitlements of employees during the stand down and jobkeeper periods. It indicated the prospect of resuming work ahead of reopening for take away only from 11 May 2020, for coffee and breakfast or light options and over dinner time.
[11] On 7 and 8 May 2020, employees including Mr Theeng participated in a working bee to help the business prepare for reopening.
[12] On 8 May 2020, a roster for the resumption of work was distributed. Mr Theeng was rostered for work evenings in the kitchen from 4:30 pm – 9:30 pm on Wednesday 13th, Thursday 14th and Saturday 16th May 2020 as well as a morning shift on Friday 15th May from 9:00 am – 2:00 pm. He worked alone without a kitchen hand.
[13] Another Chef, Rotem Papo, was also rostered to work in the kitchen on the days that Mr Theeng was rostered. He worked morning and afternoons, from 9:00 am – 12:00 pm and from 4:00 pm – 7:00 pm. Of significance is that he worked in the kitchen both in the mornings and in the afternoons, starting half an hour earlier than the commencement of Mr Theeng’s rostered shift at 4.30 pm.
[14] Mr Papo was not working in the business of Gramercy Social. Instead, he was working for Golda, a ‘pop up’ restaurant offering unique Modern Israeli cuisine that he was establishing with Mr Faigen in early May 2020 as a means to survive the pandemic.
[15] Mr Theeng was unhappy about Mr Papo’s presence in the kitchen. When they were introduced, Mr Papo says Mr Theeng replied “I don’t talk to new people.” There was no kitchen hand which meant that Mr Theeng was required to wash dishes before he could use them. He saw this both as an imposition on his duties as Sous Chef and an unreasonable consequence of Golda sharing the kitchen space. He raised concerns with Gramercy Social about the lack of help in the kitchen. Arrangements were made the following week for a member of front of house staff to assist.
[16] On 21 May 2020, Mr Theeng arrived at work to commence his 4:30 pm – 9:30 pm shift. The kitchen was full of dishes again. He began preparing food for service and Mr Faigen asked him to clean the dishes as Jared Willmott, who was rostered to help out in the kitchen, had called in sick. Mr Theeng said he was too busy. Mr Faigen became angry and started shouting and swearing at him.
[17] At approximately 5:00 pm on 21 May 2020, Mr Theeng took a cigarette break. When he returned to the kitchen, James Bolton (Gramercy Social’s Operations Manager) was washing the dishes. Mr Theeng tried to show him where the kitchen spoons went but Mr Bolton reacted angrily. Mr Faigen came into the kitchen and also became aggressive toward Mr Theeng for not wanting to wash the dishes.
[18] At approximately 7:00 pm, Mr Theeng rang Michael Weal, Gramercy Social’s Head Chef. He was irate. They discussed how Mr Theeng had been treated and how Mr Bolton expected him to clear the mess made by Golda.
[19] Mr Theeng was not the only one annoyed. At 9:36 pm, Mr Bolton sent a text message to Mr Faigen as follows:
“Just letting you know Lama left at 8:45. Did not pack down the wash up area, put away the washed containers, turn off the dishwasher or mop the floor. He did change the bin though. So that was all added on to my closing tasks. Ggrrrr!!”
[20] At 1:55 pm on 22 May 2020, Mr Faigen sent a text message to Mr Weal and Mr Theeng requesting a meeting at 4:00 pm that day. No reason was given for the meeting. Mr Faigen says he wanted to discuss the direction of Gramercy Social and his intention to open for breakfast and lunch only. Mr Bolton says it was about “engaging them in the plan; having them on board”. Mr Weal assumed it was about what had happened the night before with Mr Theeng as well as the business restructure. As Head Chef, he came prepared to defend his junior and to take Mr Faigen to task about the way the “entire coronavirus situation” had been handled. I find that the meeting was about the events of the night before as well as the direction of the business so far as the two chefs were concerned.
[21] The meeting began with Mr Theeng asking why he had been so badly treated the night before – that he had trouble sleeping and was mentally in a ‘bad state’. He said he felt unsupported and that he had never been supported, citing previous complaints about his treatment and his recent pay reduction. Mr Faigen spoke about the proposal to split functions between Gramercy and Golda, with Gramercy providing breakfast and lunch and Golda providing dinner. Mr Weal and Mr Theeng were unhappy about the direction of the business and unwilling to work with Mr Papo. They raised the prospect of redundancy. The tone became aggressive and everyone raised their voices. At some point in the conversation Mr Faigen said words to the effect of “When you are in my house you will do as I say”.
[22] Mr Weal complained about kitchen staff being treated less favourably than front of house staff, upset that one employee had been able to remain at home on jobkeeper while everyone else was working. He argued with Mr Faigen about the purpose of the jobkeeper scheme. Mr Weal accused the business of treating kitchen staff differently because it was trying to avoid larger redundancy payouts. Mr Faigen responded to the effect at that the business had less than 15 employees and redundancy was not an issue but that he might not need Mr Weal once the pandemic was over, and that he was “the cancer of the business”. Mr Faigen said he was not prepared to give money to people who were not grateful for a job. Mr Weal said the relationship was untenable and the work environment was toxic. Mr Faigen asked Mr Weal and Mr Theeng “Are you with me or not with me?”. Mr Weal said he was not. Mr Faigen asked Mr Theeng if he wanted to talk privately but Mr Theeng declined, saying he needed a few days to think about it. Mr Faigen then stood and said “That’s it, this is my business. The kitchen’s closed, get the fuck out.”
[23] Mr Weal said “Come on Lama, we’re getting the fuck out of here.” He walked into the kitchen, got his knives and left. Mr Theeng left with him. Mr Faigen then came into the kitchen and said in words to the effect “They won’t be coming back”. The kitchen did not open as planned that night.
[24] On 23 May 2020, Mr Theeng was rostered for work but did not attend or notify the business that he would be absent. Gramercy Social made no attempt to call Mr Theeng.
[25] On 24 May 2020, Mr Theeng called Luke Muir, another Chef employed by Gramercy Social, wondering what everyone had spoken about after he left on 22 May 2020. Mr Muir told him Mr Faigen had said “you’re both not coming back, that’s the end”, referring to Mr Weal and Mr Theeng. Mr Theeng asked if he should talk to Mr Faigen about getting his job back. Mr Muir told him it wouldn’t hurt to “talk to him and not leave on a bad note”.
[26] On 26 May 2020, Mr Theeng had a text message exchange with a former chef employed by Gramercy Social, Antoine Faucheux. He separately wrote “No more Gramercy for me now”; “I am done”; and “Enjoying quarentine time”.
[27] In the morning of 28 May 2020, Mr Theeng called Mr Bolton about his notice and final pay. They agreed he should meet with Mr Faigen. After the phone call, Mr Theeng sent a text message to Mr Faigen explaining that he was not mentally fit and that is why he had not been in touch. He asked to meet the following week. Mr Faigen said he was happy to meet the next day and that he wanted to “end things on good terms”. Mr Theeng replied “ok cool let me know the time”. They arranged to meet at 11.00am.
[28] After the conversation, Mr Bolton emailed Mr Theeng a breakdown of his final pay. The breakdown indicated payment over a 7 week period. Mr Theeng responded by sending an email to Mr Faigen later that day, requesting a termination letter with reasons for dismissal as well as fair notice of termination and information about his employment history.
[29] On 29 May 2020, Mr Theeng and Mr Faigen met. Mr Bolton joined shortly after the start of the meeting. The conversation began amicably but quickly went off track. The issue of redundancy was raised and Mr Bolton spoke about the process for payment of entitlements. Mr Theeng was concerned about not being able to qualify for jobseeker if he remained on jobkeeper for the 7 week period. He asked for payment to be made in one lump sum. Mr Faigen said he could not afford a lump sum and that it was not part of the process. He expressed disappointment at the way Mr Theeng had addressed the issues of the week before, stating that in five years he had “never taken accountability”, was “never in the wrong”, that it “was always someone else’s fault”. The meeting ended with Mr Faigen confirming a letter of termination would be sent.
[30] After the meeting on 29 May 2020 Mr Bolton prepared a letter of termination for Mr Theeng. It was received by Mr Theeng on 30 May 2020. The letter confirmed the redundancy of his Sous Chef position. It stated that after a notice period of 3 weeks, the dismissal would take effect on 18 June 2020 but that he would not be required to work the notice period. Payment of entitlements was proposed over a 6 week period, ending 30 June 2020.
[31] Despite this subsequent advice, I find that Mr Theeng was dismissed on 22 May 2020 when Mr Faigen told Mr Theeng that the kitchen was closed and to “get the fuck out”. This was a clear communication that his services were no longer required. Simply put, he could not work if the kitchen was closed. He had been asked to leave in terms that were unequivocal.
[32] The actions of the parties immediately after 22 May 2020 demonstrate that each understood their working relationship as having come to an end. Neither called the other to clarify the position once the “heat of the moment” had passed. Mr Theeng did not attend for work as rostered the following day. Gramercy Social did not wonder where he was. It did not take any steps to open the restaurant on days he was otherwise rostered to work in late May 2020.
[33] A dismissal date of 22 May 2020 is consistent with Mr Theeng’s actions in asking Mr Muir two days later if he should try and get his job back and his text messages to Mr Faucheux that he was “done”. It is consistent with Mr Faigen’s text message to Mr Theeng on 28 May 2020 about ending things on “good terms”, Mr Theeng’s unperturbed reply to that message as well as his ‘peaceful, happy mood’ when he came to meet with Mr Faigen on 29 May 2020 in a bid to maintain good relations for the future.
[34] It was only after Mr Theeng had been dismissed and had formally requested a reason for dismissal in writing that the notion of redundancy took hold. Until then, it had been a matter raised by Mr Weal and Mr Theeng but dismissed by Mr Faigen. In response to Mr Theeng’s request for written reasons, Gramercy Social decided to retrofit the events of 22 May 2020 with the fiction of redundancy.
[35] That is not to say that Gramercy Social might not equally have chosen to tread the redundancy path with its employees in response to the situation it was facing at the time. Its financial position was dire and its immediate future uncertain. Its survival strategy at the time of dismissal was not one of redundancy but rather making the best use of its resources in a way that supported both the business and its permanent employees, by regularly seeking to reinvent its service offering and simultaneously introducing the Golda concept.
[36] However, Gramercy Social did not decide to make Mr Theeng’s position redundant at any time prior to the dismissal taking effect on 22 May 2020. It wanted Mr Theeng to remain in employment and it needed his skills in order to open for either the breakfast or lunch shift, or both.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[37] At the time of dismissal, Gramercy Social was a small business employer, employing nine employees.
[38] The Small Business Fair Dismissal Code applies to small business employers. 1 Under the Code, an employee of a small business employer will not be unfairly dismissed if their dismissal is consistent with the Code.2
[39] In this case, the Code applies as it relates to summary dismissal because Mr Theeng was dismissed ‘on the spot’ without notice or warning 3 on 22 May 2020, notwithstanding his purportedly being made ‘redundant’ and paid in lieu of notice of termination over a period of 7 weeks.
[40] Under the Code, 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.
[41] Serious misconduct in this sense takes its meaning from regulation 1.07 of the Fair Work Regulations 2009. It is conduct which strikes at the heart of the employment relationship, 4 such that the employee has repudiated the contract of employment or one of its essential conditions.5 It includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment and conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business. It also includes significant refusal to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
[42] The question is, did Gramercy Social believe that Mr Theeng was guilty of serious misconduct, and if so, was its belief, objectively speaking, based on reasonable grounds? 6
[43] The chronology above leads me to conclude that the reason for dismissal was Mr Theeng’s perceived lack of support for the new direction of Gramercy Social, including its relationship with the newly established Golda restaurant, in the context of efforts to remain viable despite the pandemic.
[44] It was open to Gramercy Social to infer from Mr Theeng’s conduct between 11 and 22 May 2020 that he was not supportive of at least some of its new business initiatives. He was resistant to the arrival of Mr Papo. He liked his kitchen clean and was unhappy with having to wash dishes left by Golda. He was reluctant to adapt his way of working and felt he was carrying an unfair burden, even though the volume of trade coming through the kitchen had diminished significantly. On 21 May 2020, he refused to wash dishes when asked and left work 45 minutes early without explanation.
[45] I find that Gramercy Social (through Mr Faigen) formed the belief that Mr Theeng did not want to work cooperatively with it during the meeting on 22 May 2020. This may have been a valid reason for dismissal but not on the grounds of serious misconduct. I am not satisfied that Mr Faigen’s belief was yet held on reasonable grounds. This is because Mr Theeng had also raised concerns about how he was being treated which were not yet resolved, and when Mr Faigen finally asked Mr Theeng “are you with me or not with me?”, Mr Theeng did not answer. Instead he asked for a few days to think about it, after earlier declaring that he was mentally “in a bad state”.
[46] If I am wrong about the Code applying as it relates to summary dismissal, the outcome would be the same because Mr Theeng was not given a reason for his dismissal; was not warned that he risked being dismissed if there was no improvement in his conduct or capacity to do the job; and was not given a reasonable chance to rectify the perceived problem.
[47] The dismissal was not consistent with the Code.
Was the dismissal a case of genuine redundancy?
[48] Section 385 provides an exception to unfair dismissal in the case of genuine redundancy. I am not satisfied that Mr Theeng’s dismissal was a case of genuine redundancy, because the job he was doing was still required at the time of his dismissal and no decision had yet been made to the contrary. Mr Faigen gave direct evidence to the effect that on 22 May 2020, he wanted to meet both with Mr Weal and Mr Theeng to discuss Gramercy providing a breakfast and lunch offering only and that he “would require both of them for this purpose”.
[49] When Gramercy Social closed its kitchen in the week after 22 May 2020, this was due to the sudden loss of its two chefs, Mr Weal and Mr Theeng. Had they remained available for work, the kitchen would not have closed. Their departure required a further reorganisation of the business and it resumed trading from 1 June 2020 for coffee, breakfast and lunch with Mr Muir working the breakfast shift that would otherwise have been worked by Mr Theeng.
[50] It does not matter that Mr Muir’s award classification was at a lower level than that of Mr Theeng. That was a consequence of circumstance rather than any decision to downgrade the Sous Chef role from level 5 to level 3. It is also relevant that two new chefs were subsequently employed to work in the businesses of Gramercy Social and Golda.
Was the dismissal harsh, unjust or unreasonable?
[51] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account a number of matters listed in section 387 of the Act. Those are considered in turn.
Valid reason for dismissal related to capacity or conduct?
[52] The reason for dismissal was Mr Theeng’s perceived lack of support for the new direction of Gramercy Social, including its relationship with Golda, implemented in response to the pandemic.
[53] The evidence establishes that Mr Theeng found it difficult to embrace the significant changes wrought by the pandemic on Gramercy Social’s working environment. He did not want to work with Mr Papo and did not like sharing the kitchen with him. He did not want to wash the dishes, especially those left by Golda. The last time he was asked to wash the dishes, he refused. He became angry about the way he was treated and left early for the night, leaving undone a number of tasks required to ready the kitchen for the next day.
[54] Given the difficult conditions facing all concerned, it was vital that each brought to the table a willingness to adapt and work cooperatively in their shared interests. Of course, this was no easy task. Emotions were running high. Both Mr Faigen and Mr Theeng were experiencing heightened levels of stress. Mr Faigen expressed his anger directly toward Mr Theeng on more than one occasion, upsetting Mr Theeng. Mr Theeng responded in his own way.
[55] On balance, I find there was a valid reason for dismissal relating to Mr Theeng’s conduct in the period from 11 to 22 May 2020. Mr Theeng was a valued, but unhappy, employee. He was no longer acting in a way that was consistent with his duty to cooperate with Gramercy Social.
[56] This weighs against a finding of unfair dismissal.
Was that reason notified to the employee and was he given an opportunity to respond?
[57] Except for the exchange between them in the meeting on 22 May 2020, Mr Theeng was not given any notice or fair warning about concerns held by Gramercy Social, either about his lack of cooperation or the potential risk to his employment if it continued. He had no reasonable opportunity to respond to those concerns because of the way things transpired.
[58] These matters weigh in favour of a finding of unfair dismissal.
Any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal
[59] There was no unreasonable refusal to allow Mr Theeng to have a support person assist in discussions about the dismissal. Mr Weal accompanied Mr Theeng to the meeting on 22 May 2020 to ‘defend’ him in light of the events of the night before and no separate request for a support person was made. This is a neutral consideration.
Was the Applicant warned about relevant unsatisfactory performance?
[60] Mr Theeng’s dismissal was not related to unsatisfactory performance, but rather to his lack of support for new business activities. This is a neutral consideration.
Degree to which the size of the employer’s business would be likely to impact on procedures followed in effecting the dismissal
[61] The size of the business is likely to have affected the process adopted by Gramercy Social that ultimately led to Mr Theeng’s dismissal. The picture painted by the evidence is that by the time of dismissal, the business had only limited resources to draw upon. Acting in haste in the meeting on 22 May 2020 was likely symptomatic of the extraordinary pressure Mr Faigen was under due to the effect of the pandemic on his business and his livelihood. Regrettably, it denied both he and Mr Theeng the opportunity to explore alternatives to a parting of the ways. The size of the business weighs against a finding of unfair dismissal.
Degree to which absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal
[62] Mr Bolton assists the business in dealing with human resources matters but in a way that is ancillary to his primary restaurant and hotel management function. He is not a human resources management specialist or expert, and there is no evidence of any other equivalent resource available to Gramercy Social.
[63] In the same way as business size, the absence of dedicated human resources expertise is likely to have affected the steps taken to give effect to dismissal although less so, because I am not persuaded that dismissal was in contemplation before things got out of hand in the meeting on 22 May 2020. Any opportunity to take advice on the question was circumvented by the haste with which the dismissal was given effect.
[64] This weighs marginally against a finding of unfair dismissal.
Other relevant matters
[65] At the end of his four year visa sponsorship arrangement with Gramercy Social, Mr Theeng began contemplating resigning from the business. He did not act on these thoughts, explaining that his migration agent encouraged him to remain with the business for one more year. On my calculations, this period would have expired in late June 2020. It is not a matter that weighs either for or against unfair dismissal. It simply provides context for Mr Theeng’s reluctance to embrace the ‘new direction’ of Gramercy Social in the weeks prior to dismissal.
[66] Following dismissal, Gramercy Social advised Mr Theeng that it would pay out his notice and accrued entitlements over a 7 week period. Mr Theeng took exception to the approach and wanted payment of the amounts as a lump sum. His request that payments not be delayed was reasonable and consistent with clause 27.4 of the Award, which required payment of entitlements on termination by no later than seven days after the day on which employment terminated. Section 117 of the Act also prohibits termination of employment unless an employer has either given notice of termination or made payment in lieu of notice of termination. It has since made the relevant payments to Mr Theeng.
[67] I do not accept that Gramercy Social was following due process in seeking to pay the amounts by instalments. The ‘7 day’ rule was known to Gramercy Social – it was referred to expressly in a letter to Mr Theeng on 29 May 2020, which simultaneously proposed a final date for payment of 30 June 2020. The matter weighs in favour of a finding of unfair dismissal.
[68] Finally, there are allegations in this matter both of underpayment for overtime worked and inappropriate conduct in relation to visa sponsorship obligations. Each may be separately actionable, but these matters sit outside the jurisdiction of the Commission. They are not relevant considerations for present purposes.
Was the dismissal harsh, unjust or unreasonable?
[69] On balance, the procedural deficiencies in giving effect to dismissal outweigh the competing factors and persuade me that the dismissal of Mr Theeng was unreasonable. It was an unfair dismissal.
Remedy
[70] Reinstatement is the primary remedy available under the Act. In my view, reinstatement would not be an appropriate remedy in light of evidence that Gramercy Social is now only serving coffee and because there is no certainty about when trading conditions for the business might improve.
[71] I do not consider it appropriate to order compensation in all the circumstances of this case. Ordinarily, the outcome might well be have been different but these are extraordinary times. Between February and May 2020, Gramercy Social’s net sales revenue dropped by almost 98%. Its capacity to trade has been severely limited by public health orders and its continuing operation relies almost entirely on participation in the jobkeeper scheme. If I were to order compensation in favour of Mr Theeng, it is unlikely that Gramercy Social would have the capacity to pay.
[72] It is also relevant that following dismissal, Mr Faigen asked one of his friends in the hospitality business if he could refer Mr Theeng to him for a breakfast chef role. Mr Theeng did not follow up on the lead. He has since applied for numerous jobs and has found some casual work. I infer from the evidence that in the meantime he has transitioned from jobkeeper to jobseeker payments.
[73] The application is determined accordingly.
COMMISSIONER
Appearances:
C. Jensen of Counsel for the applicant
J. Bolton for the respondent
Hearing details:
2020.
Melbourne (video hearing):
September 7.
Final written submissions:
Applicant, 5 October 2020
Respondent, 5 October 2020
Printed by authority of the Commonwealth Government Printer
<PR723623>
1 Fair Work Act 2009 (Cth), s.23.
2 Fair Work Act 2009 (Cth), s.385; s.388.
3 Ryman v Thrash Pty Ltd t/as Wisharts Automotive Services[2015] FWCFB 5264.
4 McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 per Buchanan J.
5 North v Television Corporation Ltd (1976) 11 ALR 599 at [616] citing Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at [288].
6 [2015] FWCFB 5264; Grandbridge Limited v Wiburd[2017] FWCFB 6732; Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine[2013] FWCFB 1943; and Pinawin v Domingo [2012] FWAFB 1359.
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