Marianela Laguda v The Trustee for the Fitzroy Childcare Trust

[2021] FWC 503

[2021] FWC 503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marianela Laguda
v
The Trustee for The Fitzroy Childcare Trust
(U2020/10825)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 2 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Ms Marianela Laguda for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act).

[2] The respondent is a childcare and early learning centre. Ms Laguda was employed asHead of Community. On 31 July 2020, Ms Laguda’s employment ended by reason of redundancy. Ms Laguda contends that her redundancy was not genuine, and she was therefore unfairly dismissed. The respondent submits that it no longer requires the job performed by Ms Laguda to be done by anyone, it complied with the relevant consultation obligations in effecting Ms Laguda’s redundancy and it was not reasonable in all the circumstances for Ms Laguda to be redeployed. Accordingly, the respondent submits that Ms Laguda was dismissed by reason of genuine redundancy within the meaning of s 389 of the Act.

[3] For the reasons that follow, I find that:

(a) Ms Laguda’s dismissal was not a case of genuine redundancy within the meaning of s 389 of the Act, because the respondent did not discharge its obligations under s 389(1)(b); and

(b) Ms Laguda was unfairly dismissed within the meaning of s 385 of the Act.

Initial matters

[4] For the purposes of s 396(a)-(c) of the Act, there was no dispute that the application was made within the 21-day period required by s 394(2), and Ms Laguda was protected from unfair dismissal within the meaning of s 382. The respondent was not a small business employer within the meaning of s 23 of the Act and accordingly, the question of compliance with the Small Business Fair Dismissal Code did not arise.

[5] Sections 396(d) and 385(d) of the Act require determination of whether the dismissal was a case of genuine redundancy. The parties are in dispute about this matter. Accordingly, I must decide that question before considering the merits of Ms Laguda’s application.

Background

[6] The respondent commenced operating a childcare and early learning centre (Centre) on 19 February 2020. 1 In anticipation of high child attendance, two Head of Community positions were filled, with Ms Laguda holding the position of Head of Community for the downstairs level of the Centre, known as the Forrest Floor.2 The Head of Community is responsible for managing the staff and the Centre’s education program.3 Prior to commencing in this role on 6 January 2020,4 Ms Laguda was employed with an associated entity of the respondent from October 2019 on a casual basis.5 Ms Laguda’s employment with the respondent was covered by the Children’s Services Award 2010 (Award).6

[7] As a consequence of the COVID-19 pandemic, on 2 April 2020 the Commonwealth government announced that childcare would be free-of-charge to parents and families from 6 April 2020. 7 The respondent contends that from 14 April 2020 and onwards, there was a decline in the number of children attending the Centre.8 Ms Laguda’s days of work were reduced from five to three days per week from this date.9

[8] Ms Laguda was absent from work on sick leave on various days in the period 19 June to 10 July 2020. On 9 July 2020, the respondent met with Ms Laguda by telephone to discuss her transition back to work. 10 On 14 July 2020, the respondent sent an email to all staff addressing the discussed changes to the two Head of Community positions:11

“Hi Team

I would like to give you an update in relation to the Head of Community’s (HOC) as a follow up to last week’s email. As communicated, Sherylyn will be leading and supporting both the Canopy and Forest Floor Community, she will be working alongside each room, sharing her leadership skills as she supports and guides all teachers in their daily practice which will be supported through each person’s action plan.

We are happy that Marianela is feeling better and is back as part of the team, Marianela’s focus moving forward will be with specific individual rooms, supporting the Community Leader and support teachers wherever needed, giving on the spot daily guidance and direction.

Over the next two weeks Marianela will be supporting the Baby beets room before she then moves onto another room to support.

Please continue to seek guidance from Sherylyn moving forward as she will be leading and guiding from an overall leadership perspective.

If you have any questions, please let me know…”

[9] As a consequence of this change, Ms Laguda says that she no longer performed any managerial duties and did not participate in management meetings. 12

[10] On 31 July 2020, Ms Laguda attended a meeting with the Operations Manager, Ms Anna Papaleo and the Area Manager, Ms Katie O’Keeffe. 13 At the meeting, Ms Papaleo read aloud the content of a termination letter of the same date which was subsequently handed to Ms Laguda.14 The termination letter provided:15

“The purpose of this letter is to confirm the outcome of ongoing reviews by Fitzroy Early Learning Centre of its operational requirements.

The unprecedented economic impact of Covid-19 crisis on individuals, communities and businesses across Australia, has resulted in ongoing changes in our current business model, planning and operational requirements. As a result, the position of Head of Community of the Forrest Floor is unfortunately no longer required. Regrettably, this means your employment with Fitzroy Early Learning Centre will be terminated effectively immediately on 31 July 2020. This decision is not a reflection on your performance and we sincerely appreciate the work and effort in assisting us to date.

The business has attempted to find you an alternative position within the company, however there are currently no available positions that match your demonstrated skills, knowledge, and ability…”

Was Ms Laguda’s dismissal a case of genuine redundancy?

[11] Section 389 of the Act provides the following meaning of a genuine redundancy:

“(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

Was Ms Laguda’s job no longer required to be performed by anyone because of changes in the operational requirements of the respondent’s enterprise?

[12] The Operations Manager, Ms Papaleo gave evidence that from 14 April 2020, there was a decline in the number of children attending the Centre as a consequence of state government requirements limiting attendance to children of essential workers. 16 Accordingly, the Centre’s staffing needs in order to meet child to staff ratios decreased. This led to a reduction in the working hours of its employees and a decision to cease training and education programs that exceeded the government mandated minimum requirements.17

[13] In light of the fact that the Centre had commenced operation on 19 February 2020, Ms Papaleo said that the financial support provided by the government to the respondent, which was calculated by reference to the number of children attending the Centre in the period 17 February to 1 March 2020, was “dramatically lower than more established child care centres, and was well short of what was needed to continue its operations as normal.” 18 Ms Papaleo said that the limited government support and the inability to charge fees to parents to provide care to children meant that “the Centre was forced to incur significant losses simply to keep its doors open.”19

[14] During this time, Ms Papaleo’s evidence was that Ms Laguda “wasn’t actually doing her role as such,” 20 but assisted the respondent to communicate changes to the team and “helped us quite tremendously in that capacity.”21

[15] On 19 May 2020, Ms Papaleo met with the leadership team, including Ms Laguda. Ms Papaleo said that during this meeting she discussed the Centre’s financial difficulties and the limited government support provided to it. Ms Papaleo said that she informed the attendees that “all aspects of the Centre’s operations were being reviewed.” 22

[16] On 30 June 2020, Ms Papaleo emailed the leadership team seeking input as to how the Centre’s business operations could be recovered in light of the COVID-19 pandemic. 23 Ms Laguda was absent on sick leave, and therefore did not provide a response to Ms Papaleo’s email.

[17] The respondent says that by 31 July 2020 the average number of children attending the Centre each week reduced by 35%. 24 It was determined on 31 July 2020 that it was necessary to implement redundancies, including the role held by Ms Laguda.25 Following the termination of Ms Laguda’s employment on 31 July 2020, Ms Papaleo said that there was a further reduction of children in attendance at the Centre, resulting in a consequential reductions to staff hours.26

[18] Ms Laguda contends that the role of Head of Community of the Forrest Floor is still required to be performed. 27 When asked during the proceedings what informs her contention, Ms Laguda gave evidence that “the educational program still needs to be led, the educators will still be mentored…to provide the children with a quality service and education.”28 However, Ms Laguda said that it is a management decision whether two Heads of Community are required in the Centre having regard to the current staffing composition, and not for Ms Laguda to judge.29 In this respect, Ms Papaleo’s evidence is that the Centre does not require two Heads of Community, as the dual roles were intended to facilitate the Centre to the extent that it was fully operational (meaning high child occupancy levels and therefore fully staffed).30

[19] While Ms Laguda does not consider there to have been operational changes to the Centre, 31 she does not contest the respondent’s evidence that from April 2020 there was a decline in the number of children attending the Centre.

[20] I am satisfied on the evidence that there was a change in the operational requirements of the respondent’s enterprise. The uncontested evidence is that there was a reduction in children attending the Centre from April 2020. This bears directly upon the number of educators required to provide care, and in turn, had a cascading effect upon the support required to be provided by the Heads of Community. Further, I accept that the provision of free childcare for essential workers coupled with the Centre’s inability to access financial support guided the respondent’s decision-making as to the organisation of its workforce. In these circumstances, I accept that the respondent no longer required Ms Laguda’s job to be performed by anyone, and Ms Laguda’s role has not been replaced. 32 It follows that the criterion in s 389(1)(a) of the Act is satisfied.

Was there an obligation upon the respondent to consult?

[21] Clause 8 of the Award sets out consultation obligations as follows:

“8.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

8.2 For the purposes of the discussion under clause 8.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

8.3 Clause 8.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

8.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 8.1(b).

8.5 In clause 8:

significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

8.6 Where this award makes provision for alteration of any of the matters defined at clause 8.5, such alteration is taken not to have significant effect.”

[22] Ms Laguda contends that the respondent did not consult her prior to the redundancy decision. 33 However, the respondent submits that Ms Laguda’s redundancy did not amount to a major change for the purposes of clause 8 of the Award and therefore an obligation to consult in accordance with the provisions of the Award did not arise. In the alternative, the respondent says that if clause 8 of the Award was engaged:

(a) it complied with the consultation obligations; or

(b) if it was determined that it did not comply, this would not ultimately change the outcome as it related to Ms Laguda’s ongoing employment.

[23] In respect of its primary contention, the respondent relies upon the decision in Port Kembla Coal Terminal Ltd v CFMEU (Port Kembla) 34 in which Jessup J observed that “the forced redundancy of three employees out of a workforce of about 98 did not of itself constitute a major change within the meaning of cl 7.1.”35 The respondent says that the mere fact of Ms Laguda’s redundancy is not a major change giving rise to an obligation to consult in accordance with the Award.

[24] However, as White J noted in Port Kembla, a simple comparison between the number of employees to be dismissed and the number of employees in the workforce overall is not conclusive of whether there are major changes. 36 Much depends upon the circumstances of a case. In the present application, the evidence discloses that:

(a) Prior to the onset of COVID-19, the Centre had two employees engaged as Head of Community. However, by around April 2020 the Centre determined that it would no longer offer enhanced training and education programs, and it would instead revert to the government mandated minimum training requirements. 37

(b) As a consequence of government-imposed lockdown measures, the number of children attending the Centre declined, and therefore the Centre’s general staffing needs were affected leading to a reduction in staff working hours and days, and the stand down of staff. 38 The Centre’s financial circumstances also had a bearing upon these matters.39

(c) The support provided to staff by the Heads of Community had altered such that a single Head of Community was sufficient to provide guidance and leadership to both Canopy and Forrest Floor staff.

(d) The Area Manager, Ms O’Keeffe assumed the role of Centre Manager. 40

(e) In addition to Ms Laguda, two employees were also made redundant on 31 July 2020, 41 and another employee was made redundant approximately three weeks prior.42

(f) Vacant positions including a gardener, cleaner and room leaders were left unfilled. 43

[25] Ms Laguda was one of two Heads of Community with responsibility for managing the staff and education program at the Centre. 44 Ms Papaleo’s evidence, which I accept, is that a definite decision was made to terminate Ms Laguda’s employment by way of redundancy on 31 July 2020.45 In the result, a single Head of Community would provide leadership and mentoring to educators.46 At or about this time, Ms O’Keefe absorbed the role of Centre Manager as the respondent did not consider it to be financially viable to fill this position. I accept that these operational decisions were a consequence of a reduction in child attendance at the Centre occasioned by COVID-19. In addition, the composition of the Centre’s educator workforce had altered in response to the Centre’s business needs, resulting in the Centre effecting other staff redundancies. This occurred during a period of increasing government-imposed restrictions in Victoria, which were the subject of ongoing changes. I find that the definite decision made in respect of Ms Laguda amounts to a major change in the Centre’s program, organisation or structure. This had a significant effect on employees, including by reducing the training and education programs delivered by the Centre’s Head of Community and, in the case of Ms Laguda, the termination of her employment.

[26] It follows that the respondent was required to comply with the consultation obligations in clause 8 of the Award. Having reached this conclusion, I turn to consider whether there was compliance with the Award.

Did the respondent comply with the consultation obligations of the Award?

[27] The respondent made a definite decision on 31 July 2020 to terminate Ms Laguda’s employment by reason of redundancy. The respondent relies upon correspondence sent to staff on 30 June 2020, 9 and 14 July 2020 in addition to verbal advice provided during staff meetings convened prior to 31 July 2020 to demonstrate compliance with clause 8 of the Award. 47 However, I do not consider that these steps satisfy the Award consultation obligations. Clause 8.1 requires consultation to occur as soon as practicable after a definite decision is made.48 In the case of Ms Laguda, a definite decision was not made until 31 July 2020, which is also the date that her employment ended. There is no evidence before the Commission of the respondent having engaged in consultation with Ms Laguda after the definite decision was made. There was no opportunity afforded to Ms Laguda to consult with the respondent about the definite decision, and therefore the respondent was not in a position to consider any matters raised by Ms Laguda in compliance with clause 8.4 of the Award. So much is clear from the content of the termination letter itself, which refers to the immediate termination of Ms Laguda’s employment.

[28] Further, and in any case, the written material relied upon by the respondent does not address the matters required by clause 8 of the Award. Rather, it comprises of communication with Centre staff more broadly about interim changes to existing work arrangements, and an invitation to specific members of the leadership team, including Ms Laguda, to review an article and share ideas on building resilient leaders in responding to COVID-19. The verbal communications said to have occurred prior to the definite decision are also insufficient to satisfy the express requirement in clause 8.2 of the Award.

[29] Having regard to these findings, I am not satisfied that the respondent complied with the consultation obligations prescribed by the Award. Accordingly, I am not satisfied that the cessation of Ms Laguda’s employment was a genuine redundancy within the meaning of s 389 of the Act. In light of the conclusion reached, it is unnecessary to consider s 389(2), being whether it would have been reasonable in all the circumstances for Ms Laguda to have been redeployed within the Centre, or an associated entity. However, I note the following.

[30] Whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal. 49 An alternative job, position, or work must be identified.50 Ms Laguda contends that on 29 June and 10 July 2020, the respondent employed several new staff including two qualified educators.51 Further Ms Laguda says that subsequent to her dismissal, the respondent employed a casual educator and, on 16 September and 12 October 2020, advertised the role of educational leader and early childhood educator (respectively) on seek.com.au.52

[31] The respondent submits that at the time the definite decision was made to make Ms Laguda’s role redundant it was not reasonable for Ms Laguda to be redeployed. It contends that at such time there was no available position, and the need for the advertised roles could not have been foreseen. 53 It says that further government-imposed lockdown measures and a decline in child attendance appeared to be imminent.54

[32] The material before the Commission does not support Ms Laguda’s contention that redeployment would have been reasonable in all the circumstances. The commencement of the two educators to which Ms Laguda refers predates the respondent’s definite decision to terminate her employment. 55 I note that one of these educators was also made redundant on the same date as Ms Laguda.56 Further, there is no evidence that the role of educational leader and early childhood educator existed prior to their respective advertisements on 16 September and 12 October 2020. Accordingly, it was not reasonable for Ms Laguda to have been redeployed into these positions at time of her dismissal on 31 July 2020. Further, other than contending that the respondent filled a casual educator role after 31 July 2020,57 Ms Laguda has not led any evidence in support of her contention, and it is denied by the respondent.58

Was the dismissal harsh, unjust, or unreasonable?

[33] The fact that Ms Laguda’s dismissal was not a genuine redundancy within the meaning of s 389 of the Act is not determinative of whether Ms Laguda’s dismissal is harsh, unjust or unreasonable. This question is determined by assessing the criteria in s 387 of the Act, to which I now turn.

[34] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[35] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 59

Valid reason related to capacity or conduct (s 387(a))

[36] I am satisfied that the Centre no longer required Ms Laguda’s job to be performed by anyone because of changes in the operational requirements of the enterprise. The reason for Ms Laguda’s dismissal was not related to her capacity or conduct. 60 As such, this is a neutral factor with respect to whether Ms Laguda’s dismissal was harsh, unjust or unreasonable.

Notification of that valid reason (s 387(b))

[37] As Ms Laguda’s termination of employment did not relate to capacity or conduct, this is a neutral factor.

Opportunity to respond to any reason related to the capacity or conduct of the person (s 387(c))

[38] This criterion deals with procedural fairness in respect of a reason for dismissal related to an employee’s capacity or conduct. As Ms Laguda’s employment ended by way of redundancy this is a neutral factor.

Support person (s 387(d))

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

[40] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 61

[41] In the circumstances, I find that the respondent did not unreasonably refuse to allow Ms Laguda to have a support person present at discussions relating to the dismissal on 31 July 2020. 62 However, I note that Ms Laguda was not on notice of the meeting’s purpose such that she was not afforded the opportunity to request a support person. This matter is appropriately considered under s 387(h).

Unsatisfactory performance (s 387(e))

[42] Ms Laguda’s dismissal did not relate to unsatisfactory performance. This is a neutral factor.

Size of the employer’s enterprise (s 387(f))

[43] There is no evidence before the Commission which addresses how the size of the Centre would be likely to impact on the procedures followed in effecting Ms Laguda’s dismissal. This is a neutral factor.

The absence of human resource management specialists or expertise (s 387(g))

[44] Ms Laguda’s termination was effected at a meeting convened by Ms Papaleo and Ms O’Keeffe. The respondent did not submit that there was an absence of dedicated human resource management specialists or expertise that would be likely to impact on the procedures followed in effecting the dismissal.

[45] I therefore find that the respondent did not lack human resource management specialists or expertise.

Any other relevant matters (s 387(h))

[46] Section 387(h) imports a broad discretion upon the Commission to consider any other relevant matters including the circumstances of Ms Laguda’s employment and its cessation.

[47] I have earlier concluded that the respondent did not require Ms Laguda’s role to be performed by anyone on account of changes to the Centre’s operational requirements occasioned by the impacts of COVID-19. However, the fact that the respondent did not comply with the consultation obligations under the Award was unreasonable. It ultimately deprived Ms Laguda of an opportunity to provide a response to the definite decision to terminate her employment, and the opportunity to advance any proposals to mitigate the adverse effects of the termination upon her. Although the respondent contends that consultation would not have resulted in a different outcome, 63 this does not render the consultation obligations under the Award irrelevant. Further as earlier noted, Ms Laguda was not on notice of the subject matter of the 31 July 2020 meeting, and was therefore not afforded the opportunity to request the attendance of a support person at the dismissal meeting.

[48] Ms Laguda contends that she held an unblemished employment record, and in light her good performance the respondent’s decision to dismiss her was harsh. It is said that the harshness of the dismissal is compounded by Ms Laguda’s personal and economic circumstances, however this submission is not further particularised. 64

Conclusion

[49] I have considered each of the criteria in s 387 of the Act separately, and in totality. In the circumstances of Ms Laguda’s dismissal, the absence of consultation in accordance with the Award’s requirements leads to a conclusion that Ms Laguda’s dismissal was unreasonable.

[50] I am therefore satisfied that Ms Laguda was unfairly dismissed within the meaning of s 385 of the Act.

[51] With the exception of Ms Laguda’s submission seeking compensation in lieu of reinstatement, 65 there is insufficient material before the Commission addressing the question of remedy. The application will be referred to a mention/directions hearing in respect of this matter.

DEPUTY PRESIDENT

Appearances:

Mr A Vasilaras on behalf of the Applicant.
Mr R Pedley on behalf of the Respondent.

Hearing details:

2020.
Melbourne (by video):
November 9.

Printed by authority of the Commonwealth Government Printer

<PR726593>

 1   Exhibit 7 at [3]

 2   Ibid at [5], [10]-[11]

 3   Exhibit 3

 4   Exhibit 10 at [3]; Applicant’s outline of submissions dated 16 October 2020 (Applicant’s submissions) at [5]; Form F3 Employer response form dated 21 August 2020 (Form F3) at 1.2

 5   Applicant’s submissions at [5]

 6   Exhibit 2 at [4]; Applicant’s unfair dismissal application dated 10 August 2020 (unfair dismissal application) at [2]; Exhibit 10 at [4]; Applicant’s submissions at [6]; Form F3 at 1.1

 7   Exhibit 7 at [12]

 8   Ibid at [14]

 9   Form F3 at 3.1 [2.4]

 10   Ibid at 3.1 [2.6]

 11   Annexure A to Exhibit 10

 12   Exhibit 10 at [5] and [6]; Applicant’s submissions at [7]

 13   Exhibit 7 at [36]

 14   Unfair dismissal application at [3]; Exhibit 10 at [7]; Transcript of proceedings dated 9 November 2020 (Transcript) at [232]-[234]

 15   Annexure B to Exhibit 10

 16   Exhibit 7 at [14]

 17   Exhibit 7 at [15]-[16]; Exhibit 9 at [6]

 18   Exhibit 7 at [13], [24]-[26]

 19   Ibid at [28]

 20   Transcript [101]

 21   Ibid

 22   Exhibit 7 at [20]-[23]

 23   Form F3 at 3.1 [2.5]; Exhibit 7 at [30]-[31]

 24   Exhibit 7 at [32]

 25   Ibid at [33]

 26   Ibid at [38]

 27   Unfair dismissal application at [5]; Exhibit 10 at [9(a)]

 28   Transcript [324]

 29   Transcript [325] and [326]

 30   Exhibit 7 at [9]-[11]

 31   Applicant’s submissions at [13]

 32   Exhibit 7 at [37]

 33   Unfair dismissal application at [5]; Exhibit 10 at [9(b)]

 34 [2016] FCAFC 99

 35 [2016] FCAFC 99 at [186]. See also Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd [2017] FCA 1246at [22]-[31]

 36 [2016] FCAFC 99 at [499]

 37   Exhibit 9 at [4]

 38   Exhibit 7 at [19]; Exhibit 9 at [8]-[9]

 39   Exhibit 9 at [3] and [10]

 40   Ibid at [11]

 41   Exhibit 8 at [7] and [8]; Transcript at [190], [202]-[204]

 42   Transcript at [206]

 43   Exhibit 7 at [18]

 44   Exhibit 3

 45   Exhibit 7 at [33]; Transcript at [213]

 46   Exhibit 7 at [34]

 47   Respondent’s outline of submissions dated 29 October 2020 (respondent’s submissions) at [12(c)]

 48   See clause 8.1(c) of the Award

 49   Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 at [28]

 50   Technical and Further Education Commission T/A TAFE NSW v Pykett (2014) 240 IR 130 at [36]

 51   Exhibit 10 at [9(c)] and Annexure C

 52   Ibid at [9(d)-(e)] and Annexure D

 53   Exhibit 8 at [14]

 54   Respondent’s submissions at [12(e)] and [16]-[18]. See also Exhibit 7 at [35] and Exhibit 8 at [15]

 55   Exhibit 8 at [7], [9]-[10]

 56   Ibid at [8]

 57   Transcript at [351]-[354]

 58   Ibid at [12]

 59   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69]

 60   UES (Int’L) Pty Ltd v Harvey[2012] FWAFB 5241 at [42]

 61   Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542]

 62   See unfair dismissal application at [10]; Applicant’s submissions at [32]

 63   Respondent’s submissions at [19]-[20]

 64   Unfair dismissal application at [13]; Applicant’s submissions at [35]-[36]

 65   Unfair dismissal application at [15]; Exhibit 10 at [10]; Applicant’s submissions at [37]