Marie Wright v Victorian Container Management Pty Ltd

[2015] FWC 8150

[2015] FWC 8150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marie Wright
v
Victorian Container Management Pty Ltd
(U2015/10066)

COMMISSIONER RYAN MELBOURNE, 25 NOVEMBER 2015

Application for relief from unfair dismissal – not genuine redundancy - compensation.

[1] This decision concerns an application filed by Ms Marie Wright (the Applicant) for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was dismissed from her employment with Container Management Pty Ltd (the Respondent) on 3 August 2015.

[2] The reason given by the Respondent for the dismissal was described in a termination letter dated 3 August 2015 as follows:

“..as a result of changes to the workload in your area, your position as Container Control Clerk has been made redundant. Your final day of employment with the company will be today….”

[3] The Applicant contends that the dismissal was not a case of a genuine redundancy and that the dismissal was unfair.

[4] Directions were issued by the Commission requiring both parties to file and serve their respective witness material and submissions. Both parties complied with the Directions.

[5] Both parties consented to the Commission deciding the matter on the papers without the need for a hearing in person.

[6] Section 396 of the Act requires that the Commission determine certain preliminary matters before the Commission can consider the merits of an application for an unfair dismissal remedy.

[7] The Commission is satisfied that the application in this matter was made within the period specified by s.394(2) of the Act.

[8] The Commission is satisfied that the Applicant was protected from unfair dismissal within the meaning of s.382 of the Act.

[9] The Commission is satisfied that the Respondent is not a small business and that the Small Business Fair Dismissal code is not relevant to the present matter.

[10] The Commission must decide whether the dismissal of the Applicant was a case of genuine redundancy before the Commission can consider the merits of the unfair dismissal application.

Genuine Redundancy

[11] A dismissal will be a case of genuine redundancy if the requirements of s.389 have been met.

“389 Meaning of 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.”

[12] For the purposes of the application of s.389(1)(b) the Respondent has identified that the Applicant was covered by the Clerks - Private Sector Award 2010 which contains the following relevant term:

“8. Consultation

8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

Contentions of the Parties

[13] The Respondent has been in the business of running an empty shipping container park where it stores and repairs shipping containers owned by shipping lines and leasing companies. The Respondent contends that since 2010, with the introduction of a new system for controlling flow of traffic of containers, that there has been a steady decline in the number of employees needed and that remaining employees needed to be trained to perform a wider range of roles. The Respondent contended that the Applicant was not willing to perform a wider range of roles.

[14] The Respondent contended that because of the Applicant’s inability and/or unwillingness to learn and to perform a range of duties other than those she was originally employed for and because the Respondent did not need a full time employee doing the job that the Applicant had been doing, then the Respondent had no alternative but to make the Applicant’s position redundant.

[15] The Respondent contended that the decision to make the Applicant redundant was taken after the Applicant broke her ankle on 13 July 2015 and was off work on personal/carer’s leave. During the period of absence of the Applicant other employees were required to do the work that the Applicant had been doing. The Respondent then decided that because the Applicant’s job could be performed by other employees doing the Applicant’s job as well as their own then the Applicant was not required.

[16] The Applicant contended that her job still existed even though it had been spread around other employees. The Applicant also contended that as the Respondent employed new employees at the time that the Applicant was dismissed then her job still existed.

[17] The Applicant also contended that at no time was she asked if she would like to work across all roles.

Relevant Case Law

[18] A useful starting point is the observations made by a Full Bench of the Commission in Ulan Coal Mines v Howarth: 1

“[16] The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:

‘1547 Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548 The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;



• the employer‘s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or



• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person‘s job no longer exists.’

[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…' (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.

[18] In Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:

‘When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.’ (at par [27])”

Consideration

[19] In the present matter the Applicant contended that “at least 80% of my role is currently being completed by a person who was employed in the container control role on 29 June 2015.”

[20] The Respondent conceded that new employees had been employed around the time the Applicant was dismissed – one was employed specifically to do the in/out windows and the other was employed to do OHS work.

[21] It is consistent with the Respondent’s case that employees would learn all of the tasks which made up the Applicant’s job so as to increase the flexibility of employees.

[22] There is nothing in the material before the Commission which suggests that a new employee was engaged to do the Applicant’s job. In fact there is much in the material before the Commission that suggests that the Applicant’s job has gone and that the tasks that made up the Applicants job are being performed by other employees.

[23] The Commission is satisfied that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s business. This finding means that the Respondent has satisfied the requirement in s.389(1)(a) of the Act.

[24] Redundancy and dismissal are very different concepts. A job can be redundant but it is the employee who is dismissed.

[25] Once the Respondent decided that the Applicant’s job was redundant then the Respondent was required to comply with the obligation to consult with the Applicant as set out in clause 8 of the Award.

[26] It is very clear that the Respondent did not comply with the consultation requirements of clause 8 of the Award.

[27] The Respondent relied on a witness statement from Cheryl Valneris who is the effective owner and operator of the Respondent. Bearing in mind that the Applicant broke her ankle on 13 July 2015 and was off work for a period of time, Ms Valneris describes the decision to make the Applicant redundant, whilst the Applicant was not at work:

“7. On 30th July 2015 a meeting was held between Brendan and myself to discuss the needs to restructure Container Control. We assessed who would do what positions. It was discussed that Kirby would have to come down to the front office to be second in charge of container control. Wendy would learn all aspects of the front office to hopefully run that office on her own. Karen, a new staff member coming at a later date to do OH&S management for the company will also learn the front office as a backup for Wendy when she is away. In this meeting we discussed the staff we need in each area. We only required 1 staff member, once trained, to be in the front office and two in the main office. We could not use Marie in the front office, as we had tried this, and she was not suitable for the second in charge position. Whilst Marie was absent from work we were managing with Jessica in the container control office on her own and Marie's duties being distributing between the other staff and sill managing. There was no need for 3 people in the container control and therefore we decided to make Marie's position Redundant. Ref: Doc 6

8. On Friday 31st of July 2015, I spoke with Jessica.
I asked Jessica " How are you managing on your own in the office while Marie has been away?"
Jessica replied "I am managing fine, I have Lisa to help me if and when I need and Kirby has been helping with some things while working up the front"
I asked Jessica "Do you think you can keep working on your own for another couple of weeks?
Jessica replied "Ye~·
I then advised her that as she has been coping well on her own that I have made the decision that Marie's position will be made redundant as we only need herself and a Second in Charge and as of Monday 3'd August 2015 Marie would be advised. I told her Kirby will come Into the main office to be second in charge and learn all aspects of her position but she will have to wait a couple of weeks.
Jessica replied "Ok, no problems"

9. At 3.45pm on Monday 3rd August 2015 I asked Jessica to send up Marie and asked Brendan to join us in the boardroom.
Marie entered the room and so did Brendan and sat down.
The conversation was as follows:
I said "Hi Marie"
Marie said "Hi"
I said "Marie, there have been a lot of changes in our business which has made us reassess and restructure our business. What we noticed recently is, while she has been away, her duties were spread easily to the other staff, without causing any issues in other areas. With that information it was obvious that there is no need for that position to exist anymore and that her position was being made Redundant.
Marie said "Ok"
I showed her the redundancy letter Doc 7, Pay Slips Doc 15, Group Certificates Doc 16 and Employment Separation Certificate Doc 8.
I said, "I am sorry that this has to happen Marie but I thank you for your time at VCM and maybe now you will now have time to manage your other jobs.
Marie said "I don't have those other jobs anymore"
I said, "Sorry to hear that, but hopefully with the money you are receiving you will have plenty of time to find another job"
I then said, "Marie, I am happy to help you out wherever possible and if you need a referral please give me a call and I will provide you with one"
She said "ok"
We all then stood up and I again thanked Marie for her time and Marie left. Brendan followed her downstairs to say goodbye to the other staff.
Minutes of meeting were written up by Brendan after Marie had left. Doc 9”

[28] Further material relied on by the Respondent makes clear that the management of the Respondent had formed the view that the Applicant was and had been complaining about learning and performing duties other than her original job.

[29] The evidence of the Respondent is that whilst the Applicant was off work with her broken ankle that the Respondent decided that the Applicant’s job was redundant.

[30] The only communication with the Applicant after the decision had been made that the Applicant’s job was redundant was on the 3 August 2015 when the Applicant was dismissed.

[31] On Ms Valneris’s own recount, nothing occurred on 3 August 2015 which would meet any of the requirements of clause 8 of the Award.

[32] The Respondent did not comply with the obligation created by clause 8 of the Award to consult the Applicant about the redundancy and to consult the Applicant about measures to avert or mitigate the adverse effects of the redundancy.

[33] The Respondent’s non-compliance with s.389(1)(b) means that the dismissal cannot be, and was not, a case of a genuine redundancy.

Was the dismissal unfair

[34] The relevant provision of the Act is s.387 which is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

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

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

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

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

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

[35] In the present matter paragraphs 387(a), (b), (c) and (e) are not relevant. The Applicant’s capacity or conduct in the performance of her job was not in issue. As the Respondent acknowledged in its Form F3:

“Marie has never received any warning of any kind for performance or sickleave taken. Her redundancy has nothing to do with her work performance or performance in general.”

[36] The Commission must take into account the matters raised by s.387(d), (f), (g) and (h) to the extent that each is relevant.

[37] The evidence of both the Applicant and the Respondent is that the Applicant was called into a meeting on 3 August 2015 and was dismissed. There was no unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal. Paragraph 387(d) simply has no relevance in the present matter as the Respondent never gave the Applicant an opportunity to ask for a support person, nor did the Respondent convene the meeting on 3 August 2015 to engage in any discussion relating to the dismissal. The meeting was convened for the purpose of telling the Applicant that she had been dismissed and to inform the Applicant of her payments on dismissal.

[38] Paragraphs 387(f) and (g) are always relevant. What the Commission is required to consider is the degree to which the matters raised by those two paragraphs impacts on the fairness or unfairness of the dismissal.

[39] The Respondent is a small family business without HR or IR expertise. Having said that, the consultation requirements of the Award are neither difficult to find, nor difficult to read, nor difficult to understand, nor difficult to follow. The Respondent’s non-compliance with clause 8 of the Award was not partial non-compliance it was complete non-compliance.

It is evident from the Respondent’s submissions and from the witness statement of Ms Valneris that once the decision had been made that the Applicant’s job was redundant that the Respondent also considered the Applicant was no longer needed.

[40] The criteria under both paragraph 387(f) and (g) tend to weigh in favour of a finding that the dismissal was unfair.

[41] In the present matter paragraph 387(h) is relevant.

[42] It is relevant that the Respondent’s business is undergoing change and that roles of employees are changing. It is relevant that the Respondent decided that the Applicant’s job was redundant. These are matters which support a finding that the dismissal was fair.

[43] It is relevant that the Respondent had, prior to determining that the Applicant’s job was redundant, already decided that the Applicant was not willing to perform a wider range of duties than she had been employed to do. The Respondent relied upon statements from other employees which identified that the Applicant had complained about performing some duties which were outside the job she was employed to do but which were part of the Respondent’s approach to having employees perform a range of tasks outside their primary job description. This matter was not explicitly put to the Applicant before the decision to dismiss her was made. The witness statements of the Respondents employees identifying the complaints made by the Applicant support a finding that the dismissal was fair. However the fact that such statements were not put to the Applicant before her dismissal and the fact that the Applicant was not given the opportunity of responding to the statements made by other employees support a finding that the dismissal was unfair.

[44] It is also relevant that once the Respondent determined that the Applicant’s job was redundant that the Respondent did not communicate that decision to the Applicant and the Respondent did not discuss with the Applicant the possible consequences flowing from that decision. These are matters which support a finding that the dismissal was unfair.

Conclusion

[45] The Commission is required to weigh up all of the relevant matters required to be considered under s.387. In the present matter the Commission has considered all of the relevant matters and when weighed together the factors which support a finding that the dismissal was harsh unjust or unreasonable clearly outweigh those which support a finding that the dismissal was not harsh, unjust or unreasonable.

[46] More particularly when all relevant matters are taken into account the Commission is satisfied that the dismissal was unjust. The processes adopted by the Respondent denied the Applicant an opportunity to discuss the redundancy of her job and prevented the Applicant from discussing with the Respondent alternatives to dismissal. Furthermore the Applicant was denied the opportunity of challenging the predetermined position of the Respondent that the Applicant was not willing to perform work outside her specific job.

Remedy

[47] The grant of a remedy for an unfair dismissal is discretionary. The only preconditions for the exercise of that discretion are as set out in s.390, namely: that the Applicant has made an application under s.394 and that the Applicant was protected from unfair dismissal and that the Applicant was unfairly dismissed. In the present matter each of these preconditions have been met.

[48] In the present matter I consider that it is appropriate that the Commission grant a remedy to the Applicant.

[49] The primary remedy is re-instatement. However the Applicant does not seek reinstatement and the Respondent’s submissions appear to proceed on the basis that reinstatement is not appropriate as it has not been sought.

[50] In all of the circumstances of this matter the Commission is satisfied that the remedy of reinstatement is inappropriate.

[51] The Commission does consider that the remedy of compensation is appropriate.

[52] The Applicant has not sought a specific amount of compensation but has identified that she intended to retire from the position and that she would have had 7 years of service in November 2015 and that this would have entitled her to a pro rata long service leave payment on termination after November 2015. I note that the Applicant is 59 years of age and will turn 60 early in 2016. This puts into context the Applicant statement that she intended to retire from the position.

[53] The basis for calculating an amount of compensation is not what the Applicant wants but rather applying and complying with the requirements of s.392 which is as follows:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[54] The Respondent does not contend that any order for compensation will have any effect on the viability of the Respondent’s enterprise.

[55] The Respondent contended that but for the dismissal the Applicant would probably not have been employed for more than another week:

“I believe that had the employee brought up any issues when told she was Redundant the decision to make her position Redundant would have remained the same as I believe she was not capable to be redeployed in another position and the employee may have worked for the company for one further week,..”

[56] The criteria in s.392(c) requires a degree of informed speculation on the part of the Commission as to the likely length of employment of the Applicant if the Applicant had not been dismissed when she was. That speculation should take into account that the Respondent would properly comply with its obligations to engage in genuine discussions with the Applicant about measures to mitigate the adverse consequences which would flow from the Respondent’s decision to make the Applicant’s job redundant. Any genuine discussions would involve giving the Applicant a real opportunity to understand the basis upon which the Respondent had formed the view that the Applicant was unwilling to work across a range of positions and to give the Applicant a real opportunity to respond to the Respondent. Any genuine discussions would also involve exploring with the Applicant genuine alternatives to dismissal. As the Applicant has made clear in the material filed in this matter she considered that she was capable of performing a range of duties outside the tasks which made up her job and that with training she would be capable and competent to perform a range of other tasks.

[57] Had the Respondent properly and meaningfully engaged with the Applicant in discussions as required by clause 8 of the Award the Commission is confident that the Applicant would have remained employed by the Respondent for a period much longer than 1 week after the actual dismissal date. It is reasonable to assume that the Applicant would have done whatever was necessary to remain employed until her 60^th birthday. It is reasonable to assume that had the Applicant not been dismissed when she was and had the Respondent complied with its Award obligations to hold discussions with the Applicant that the Applicant would most likely have remained in employment for some months after the actual dismissal date.

[58] There is nothing before the Commission which shows that the Applicant has made any effort to mitigate the loss suffered by her because of the dismissal, other than this application. S.392(2)(d) requires that I take into account “the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal.” This I will do but the Act does not mandate that the Commission must reduce the amount of compensation otherwise ordered where an applicant has not made any effort or made insufficient effort to mitigate losses suffered because of the dismissal. In the present matter the failure of the Applicant to lead any evidence as to her efforts to mitigate loss can be balanced against the Applicant’s clearly identified intention to have retired from her employment if she had not been dismissed.

[59] In the circumstances of the present matter the criteria in s.392(2)(d) is neutral in relation to determining an appropriate amount of compensation.

[60] There is nothing before the Commission which suggests that the Applicant has earnt anything since her dismissal. As with the criteria in s.392(2)(d) it is understandable, in the circumstances of the matter that the Applicant has not been earning any remuneration since her dismissal. The criteria in each of s.392(2)(e) and (f) are neutral in this matter.

[61] The criteria in s.392(2)(b) and (g) are relevant to determining an amount of compensation. The Applicant was employed for 6 years and 8 months. This is not an insignificant period of employment.

[62] Part of the Applicant’s case is that had she remained in employment for another 3 months and 3 weeks then she would have reached 7 years of service and would have been entitled to a pro rata payment of long service leave on termination.

[63] Whilst the period of actual employment is directly relevant to determining an appropriate amount of compensation the contingent benefit that would flow to the Applicant if she had been employed for 7 years is not a matter that should be taken into account in determining an amount of compensation in the present matter. Whilst the Commission is satisfied that, had the Applicant not been dismissed, she would have remained employed by the Applicant for some months it is by no means certain that the Applicant would have reached 7 years of service.

[64] The Commission, having taken into account all of the circumstances of the case including the relevant criteria in s.392(2) determines that the appropriate amount of compensation for the unfair dismissal of the Applicant is an amount of $5,472.00, being equal to 6 weeks’ pay, to be taxed at the appropriate rate.

[65] The amount of compensation found to be appropriate does not include any amount proscribed by s.392(4) and is less than the compensation cap set by s.392(5).

[66] No reduction is required by s.392(3) as that provision is not relevant in the present matter.

[67] An order giving effect to this decision will be issued separately.

COMMISSIONER

 1   [2010] FWAFB 3488 at 16 to 18

Printed by authority of the Commonwealth Government Printer

<Price code G, PR574390>