Mario Monty v Independence Australia Group T/A Independence Australia
[2023] FWC 1998
•11 AUGUST 2023
| [2023] FWC 1998 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mario Monty
v
Independence Australia Group T/A Independence Australia
(U2023/3181)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 11 AUGUST 2023 |
Application for an unfair dismissal remedy – medical incapacity - termination not harsh, unjust or unreasonable – application dismissed.
On 14 April 2023, Mr Mario Monty (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with Independence Australia Group T/A Independence Australia (the Respondent) on 26 April 2023.
Conciliation of the matter before the Commission was unsuccessful and the matter was then listed for determinative conference/hearing before me on 9 August 2023 to determine the merits of the application. Materials were filed by the Applicant and Respondent in advance of the proceedings in accordance with directions issued by the Commission. After hearing from the parties, I determined to conduct a hearing pursuant to s 399 of the Act.
At the hearing held on 9 August 2023, the Applicant appeared on his own behalf and gave evidence while John Monroe of K&L Gates was granted permission to appear on behalf of the Respondent pursuant to s 596 of the Act. Mr Monroe called the Respondent’s National People Experience Manager Frank Spina to give evidence.
Background and evidence
Mr Spina states that the Respondent, which employees approximately 800 employees, is a “…for purpose social enterprise that provides care and support to people living with a disability or other personal need”. It also supplies healthcare products and mobility aids to members of the public. As part of its services to clients, the Respondent employs home care disability support workers (DSWs), such as the Applicant, that are engaged on either a regular part-time or casual basis.
According to Mr Spina, the majority of DSWs are employed on a casual basis due to the limited number of clients with sufficient regular care needs to warrant engaging staff on a part-time employment basis[1]. The Respondent acquired another business, Disability Attendant Support Services Inc (DASSI), in around 2015 and as part of that acquisition, employees of DASSI transferred across to employment with the Respondent[2].
Mr Spina provided the following summary of the Applicant’s employment history;
(a) On July 2005, he commenced employment with DASSI on a casual
basis;
(b) On 1 December 2008, his employment was converted to part-time
employment;
(c) On 1 October 2015, he came across to the Respondent as part of its acquisition of DASSI; and
(d) On 20 August 2019, he worked his last shift as a DSW due to his sole
client no longer requiring the Respondent's services.[3]
The Applicant states that after the loss of his regular client in August 2019, he was told by the Respondent that it would look for another client for him, but for several months was not provided with alternate clients and nor was he paid despite being a permanent part-time employee. He further states that from October 2019, the Respondent started occasionally offering him unsuitable work which he declined as the clients were a long distance from his home and only involved short casual trips[4].
The Applicant further states that as he was not being paid after August 2019, he applied for annual leave from October 2019 in the hope that the Respondent would find him suitable work[5]. He says that from September 2020 until July 2022 he either had Covid or other illnesses for which he applied for sick leave instead of annual leave. The Applicant states he then became unwell in July 2022, and underwent open heart surgery which he states he is still recovering from, resulting in the taking and exhaustion of his accrued his sick leave by November 2022[6].
In respect of the Applicant’s leave records after 20 August 2019, Mr Spina provided the following summary;
(a) on 28 August 2019, the Applicant commenced annual leave;
(b) between 28 August 2019 and 27 September 2020, he took between 3.5
and 14 hours of annual leave in each weekly pay period;
(b) from October 2020, he commenced paid personal leave (sick leave);
(d) between October 2020 and May 2022, he took 16 hours of paid sick leave
each fortnight; and
(e)from May 2022 to December 2022, he took a mixture of unpaid sick leave,
paid sick leave and annual leave in various amounts.[7]
Mr Spina states that between August 2019 and September 2020, which was prior to the Applicant commencing sick leave, the Applicant was offered and declined available shifts on multiple occasions in his region. Following commencement of his sick leave in September 2020, the Applicant did not advise the Respondent of the nature of his medical condition and since October 2020 the Applicant has provided medical certificates which only state “Mr Monty has a medical condition and will be unfit for work…”[8]
In the period between November 2022 and February 2023 issues arose in relation to the processing of leave requests of the Applicant in circumstances where the Respondent declined to approve and process annual leave applications of the Applicant for periods covered by a medical certificate in circumstances where the Applicant had accrued sick leave available. The Applicant states that despite being advised by Payroll on 18 November 2022 that he would be paid annual leave on exhaustion of his sick leave[9], he did not receive payment between December 2022 and February 2023. He says he contacted the Respondent on a weekly basis to try and resolve the issue of non-payment of his annual leave but claims to have been “completely frozen out from work”[10].
Mr Spina says that on or around November/December 2022, a review was conducted of employees with long term absences from work to establish when and if they would be able to return to work. As part of that process Mr Spina states that he reviewed the Applicant’s leave records and identified that the Applicant had been applying for annual leave when he had a medical certificate, and still had a small amount of accrued sick leave available. Mr Spina says he subsequently instructed payroll that employees on sick leave must exhaust all accrued sick leave before using annual leave for absences supported by medical certificates. The Applicant was accordingly asked to update his leave request forms to apply for sick leave but through a combination of administrative and communication difficulties, the updating of the Applicant’s leave forms did not occur. This resulted in the Applicant not being paid in the period between December 2022 and February 2023[11].
Mr Spina disputes the Applicant’s claim that he had been “frozen out” and states that he spoke with and wrote to the Applicant on several occasions in relation to his leave, advising the Applicant that he needed to send the appropriate form for approval. The correspondence included;
(a)an email to the Applicant on 16 February 2023 advising him that the Respondent would not approve annual leave requests in lieu of personal leave where an employee had any personal balance leave available to cover an absence supported by a medical certificate[12];
(b)an email to the Applicant on 20 February 2023 advising him that his application for annual leave was not approved because he had a small amount of personal leave available which he was required to exhaust before applying for annual leave[13]; and
(c)an email to the Applicant on 23 February 2023 advising him that he needed to send his leave application forms to the correct authorised person for approval[14].
The Applicant subsequently raised the leave issue with the Fair Work Ombudsman (FWO) in February 2023. The matter was investigated by the FWO and resolved through the Respondent ultimately agreeing to backpay the Applicant for the period December 2022 – February 2023 on the basis that the Applicant also use all his personal leave. An unrelated administrative error led to the Applicant not being paid annual leave for March and April 2023 although all accrued annual leave was paid out on termination of employment[15].
Mr Spina states that during his conversations and correspondence with the Applicant, he put the Applicant on notice regarding a review of his long-term absence and refers to the following;
(a)In the email to the Applicant on 16 February 2023 Mr Spina stated;
“…..
As discussed during our call because of your ongoing absence from work the organisation may not be able to continue to hold your position open if your absence continues. I will write to you regarding this matter separately after I have had the opportunity to review your situation in more detail……”[16]
(b)In the email to the Applicant on 21 February 2023 Mr Spina relevantly said;
“Mario
I do not recall saying we refused your leave on the basis that you have not been working for months. Your ongoing non temporary absence is a separate issue that we need to consider.
………….”[17]
On 22 March 2023, the Respondent wrote to the Applicant (22 March Letter) and raised the following matters;
(a)the Applicant had been absent from work since 11 August 2019 due to personal illness;
(b)that his absence was no longer considered a temporary absence for the purposes of the Fair Work Act 2009 (Cth) because he had exhausted his paid personal leave;
(c)that the Respondent was not able to keep his position open indefinitely; and
(d)his employment may cease unless he was able to provide evidence by 5 April 2023 that he was fit to return to work or would be in the near future[18].
According to Mr Spina, the Applicant did not respond to the 22 March Letter but did furnish a further leave application form and medical certificate dated 29 March 2023[19] stating that the Applicant was unfit for work from 25 March – 25 April 2023.
On 11 April 2023, the Respondent sent further correspondence to the Applicant (Letter of Termination) in which;
(a)it confirmed that the Applicant had not provided the medical evidence requested;
(b)confirmed the decision to terminate the Applicant’s employment because he was not temporarily absent and had not provided any evidence to indicate when he was likely to return to work; and
(c)advised him that his employment would terminate effective 26 April 2023[20].
On 12 April 2023, the Applicant sent an email to the Respondent which included confidential medical information. The email did not provide a return-to-work date or an estimate of when he would be likely to return to work[21]. The Respondent responded by email on 12 April 2023 and in doing so acknowledged receipt of the Applicant’s email and advised that as the Applicant’s email included confidential medical information that had not been requested, it (the email) had been deleted to preserve the Applicant’s privacy. The Respondent went on to confirm that the information provided by the Applicant indicated that he had no capacity to return to work and provided no indication of any likely return date[22].
On 24 April 2023, the Applicant furnished a further medical certificate stating that he was unfit for work from 26 April – 26 May 2023 and was not ready to return to his pre-illness duties[23]. The Applicant conceded during cross-examination that at the time of his dismissal he was unfit for his normal duties, that he remained unable to perform his pre-illness duties at the date of the hearing and was unable to state with any certainty or provide any medical evidence that would identify if and when he would be able to resume his normal duties. He also confirmed during cross-examination that he had not sought alternate employment since his dismissal as he remained unfit for work.
Mr Spina states that the Respondent concluded from the medical certificates provided that there was no likelihood that the Applicant would be able to come back to work in the foreseeable future[24]. At the time of the Applicant’s dismissal, he had accrued 338.97 hours of annual leave and 441.71 hours of long service leave. These amounts were paid out on termination, with the Applicant receiving a gross termination payment of $22,780.80[25].
Mr Spina confirmed in response to questioning that the Respondent did not in the alternative to dismissing the Applicant, consider allowing him to continue accessing his accrued annual leave and long service leave. That was because of the extended period of the Applicant’s absence from work and that there was nothing to suggest he would be capable of returning to work in the short to medium term. Nor did the Respondent consider the provision of modified duties based on the Applicant’s medical information at the time of dismissal. He further confirmed that the Respondent did not believe it was necessary to obtain an independent medical examination (IME) prior to dismissing the Applicant as the medical evidence supplied by the Applicant was conclusive as to the Applicant’s lengthy absence from work and his inability to perform his normal duties at the time of dismissal.
Mr Spina states that there is an ongoing administrative and financial cost to the Respondent in keeping employees on the payroll when they are absent and unlikely to return to work. Those costs are said by Mr Spina to include;
(a)maintaining systems and subscriptions for the employee ($750);
(b)training, probity and license costs ($190.47);
(c)training times ($456.87);
(d)other miscellaneous costs ($250); and
(e)human resources costs ($1,655.17).[26]
Mr Spina states that the total estimated cost is approximately $3,311.51 per annum and continues to be accrued even when an employee is on leave because qualifications, licenses and training needs to be maintained[27]. He did however concede that the identified human resources cost was an allocation of a generally fixed cost across the organisation’s headcount and that the Applicant’s dismissal would not have reduced that cost.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a)the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b)the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Initial matters
Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a)whether the application was made within the period required in subsection 394(2);
(b)whether the person was protected from unfair dismissal;
(c)whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d)whether the dismissal was a case of genuine redundancy.
Relevant to the determination of the preliminary matters I am satisfied that;
· the Applicant’s was notified of his dismissal on 11 April 2023, and he filed his unfair dismissal application on 14 April 2023, that filing date being within 21 days of the date of his dismissal;
· at the time of the Applicant’s dismissal the Respondent employed approximately 800 employees, was therefore not a small business employer within the meaning of s.23 of the Act, which means the Applicant was required to have served a period of employment of at least six months to have met the minimum employment period;
· the Applicant commenced employment with the Respondent on 20 July 2005 and at the time of his dismissal on 26 April 2023 had been employed for a period of over 17 years, that period being in excess of the minimum employment period of six months;
· the Applicant was covered in his employment by the Disability Attendant Support Services Inc. Union Collective Agreement 2008 (the Agreement) and was in receipt of a base hourly rate of pay of $27.12 plus superannuation at the time of his dismissal; and
· the Applicant was not dismissed due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[28] and should not be “capricious, fanciful, spiteful or prejudiced[29].” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer[30]. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[31]
It is apparent from the evidence set out above that the Applicant was absent from work for an extended period of time from August 2019. From September 2020 until the date of his dismissal, the Applicant’s absences were supported by medical certificates. While the nature of the various medical conditions suffered by the Applicant in that period were not disclosed to the employer until 12 April 2023[32], the certificates provided by the Applicant made clear that he had no capacity to perform his normal duties. From July 2022, the Applicant suffered a serious medical condition that required him to undergo open heart surgery which, on his own evidence, he is still recovering from.
By August 2022, the Applicant had exhausted his accrued personal leave and was then forced to take a mixture of unpaid sick leave, annual leave and a small amount of personal leave that continued to accrue while he was taking other forms of authorised leave. Notwithstanding the issues of non-payment of annual leave to the Applicant in the period from December 2022 to February 2023, which was subsequently rectified following the intervention of the FWO, it is plainly apparent that the Applicant was not temporarily absent from work due to illness and injury within the meaning of s 352 of the Act.
The medical evidence supplied to the Respondent by the Applicant indicated that he was unfit for work and gave no indication of when he would be fit to resume work. Moreover, the Applicant conceded when giving evidence that he remained unfit for his pre-injury duties and could not be certain if or when he would be able to resume work.
I am satisfied on the basis of the medical certificates and reports provided to the Respondent by the Applicant, that at the date of his dismissal on 26 April 2023, the Applicant suffered from a medical condition that rendered him unable to perform the inherent requirements of his role. Furthermore, in light of the conceded uncertainty of the Applicant’s recovery period and in the absence of medical information that provided a prognosis or likely return to work date, I am further satisfied that a return to work in the short to medium term was unlikely.
It is well established that an incapacity to perform the inherent requirements of a role will generally provide a valid reason for dismissal, although not always so[33]. In the present case there are no factors present that would militate against a conclusion that the Applicant could not perform his role, had not been able to do so for various medical reasons since mid-2020 and was not likely to be able to return to work in the short to medium term. In these circumstances I am comfortably satisfied that the Applicant’s medical incapacity founded a valid reason for his dismissal. This weighs in favour of a finding that the dismissal was not unfair.
Notification of the valid reason – s.387(b)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[34] and in explicit[35], plain and clear terms[36].
The Applicant was notified in correspondence dated 22 March 2023 that his employment was at risk based on his medical incapacity to perform his normal duties. He was invited to provide medical evidence going to his fitness for work, absent the provision of which it was foreshadowed that his employment would be terminated. I am consequently satisfied that the Applicant was notified of the valid reason for his dismissal prior to the decision being made to dismiss him. This weighs in favour of a finding that the dismissal was not unfair.
Opportunity to respond to any reason related to capacity or conduct – s.387(c)
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[37]
The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.[38] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[39]
In correspondence to the Applicant dated 22 March 2023, the Respondent set out its concerns regarding the Applicant’s lengthy absence from work, his capacity to return to work and foreshadowed that his employment would cease if he was unable to return to work. The Applicant was also invited in that correspondence to provide by 5 April 2023 medical evidence indicating whether he was able to perform “all aspects” of his position without restriction or if he was likely to be fully fit in the near future.
The Applicant ultimately responded to the above-referred correspondence by providing a further medical certificate dated 29 March 2023 that simply indicated he would be unfit for work from 25 March – 25 April 2023. On 24 April 2023 a letter from the Applicant’s treating medical practitioner was also provided to the Respondent by the Applicant. That letter confirmed that the Applicant remained unfit to perform his pre-illness duties and that the timeframe for his return to work would depend on an unspecified period of recovery.
I am satisfied that the Applicant was provided with an opportunity to respond to the concerns regarding his capacity to resume his normal duties. He in fact did respond to the 22 March 2023 letter by providing further medical certificates. Regrettably, his medical condition was such that he was unable to furnish medical evidence that would persuade the Respondent to hold his position open indefinitely. That does not however indicate that he was denied an opportunity to respond. As I am satisfied that that the Applicant was afforded an opportunity to respond to the reason for his dismissal related to his capacity this factor weighs in favour of a finding that the dismissal was not unfair.
Support person – s.387(d)
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.
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.”[40]
The process of communication with the Applicant regarding his fitness for work was largely conducted via correspondence. While some conversations took place between Mr Spina and the Applicant in relation to the leave application issues in the December 2022 – February 2023 period, at the point where the Applicant was formally put on notice regarding his employment being at risk on 22 March 2023, there were no further direct discussions between the Respondent and the Applicant. As such, the need for a support person in discussions did not arise. This factor is therefore a neutral consideration.
Warnings regarding unsatisfactory performance – s.387(e)
The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.
Impact of the size of the Respondent on procedures followed – s.387(f)
The evidence of Mr Spina indicates that at the time of the Applicant’s dismissal the Respondent employed approximately 800 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
The evidence in this matter indicates that the Respondent had access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
The primary contention of the Applicant in this case is that he should have been allowed to exhaust his accrued annual leave and long service leave prior to dismissal. The records reveal that at the date of his dismissal he had a combined accrual of annual and long service leave of approximately 780 hours which if taken on a part-time basis would have enabled the Applicant to remain on leave for a period in excess of twelve months. He contends that in circumstances where he had been employed by the Respondent for over 17 years, he should have been afforded the opportunity to exhaust his accrued leave, with the objective that this would have supported him during his period of recovery following which he hoped to return to work.
There is no doubt the Applicant had given long service to the Respondent during which service he had accrued a considerable amount of leave. In these circumstances he had an expectation that he would have been treated more favorably during an extended period of ill-health. Against this contention the Respondent refers to the extended period of the Applicant’s absence from the workplace, with his last shift worked being in August 2019, and the lack of any certainty on if or when the Applicant would be able to resume his pre-illness duties.
I accept that at the time of his dismissal the Applicant had a large amount of accrued annual leave and long service with the Respondent. Balanced against that is his extended period of absence from the workplace of over 3.5 years, all of that period from September 2020 being attributable to illness. More tellingly, the Applicant was unable to provide any indication of if or when he would be able to resume his pre-illness duties. Rather, he wanted to remain employed and be allowed to exhaust all his leave with the objective of returning to work subject to his recovery, the timeframe for which he accepted was uncertain.
The Respondent was under no obligation to hold the Applicant’s role open indefinitely in circumstances where it bore costs in doing so and where it had no indication of if or when the Applicant would be able to resume his pre-illness duties. It had already provided an extended period of support to the Applicant which was in my view appropriate in circumstances where the Applicant had accrued personal leave available to cover the extended absence from September 2020 covered by medical certificates. In all the circumstances I do not regard the Applicant’s length of service or his being denied an opportunity to exhaust his accrued leave entitlements prior to dismissal as weighing in favour of harshness.
Another matter raised by the Applicant in the proceedings was that of his claiming to have been forced to take annual leave in the period between August 2019 and September 2020 because the Respondent failed to provide him work. This he contends had an impact on his accrued leave entitlements that ought to have been available to him at termination. The Respondent challenged the Applicant’s claim and pointed to evidence that shifts were offered to and declined by the Applicant following the loss of his client in August 2019. The Applicant countered by stating that any work offered was unsuitable as it was on a casual basis and not in the locality where he lived.
There was insufficient evidence before me to form a view as to whether the Applicant was forced to take leave as he contended. In any case, the Applicant’s absences since September 2020 were due to medical incapacity and I accept that conduct of the Respondent between August 2019 and September 2020 in relation to whether suitable work was or was not offered to the Applicant is not relevant to my findings regarding a valid reason for the Applicant’s dismissal. Nor for the reason set out immediately above regarding the accrued leave available to the Applicant at the date of dismissal does it weigh in favour of a finding of harshness.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?
I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[41]
As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related to his capacity has been established and that the dismissal process followed by the Respondent was procedurally fair. The dismissal was not related to the Applicant’s performance and the size and capacity of the Respondent did not impact on the procedures that it followed and as such these matters weigh neutrally in my consideration of whether the dismissal was unfair. No other matters considered weigh in favour of a finding that the dismissal was unfair.
It follows from the above that having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was unfair.
Conclusion
Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.
The application is dismissed. An Order will be separately issued giving effect to my decision.
DEPUTY PRESIDENT
Appearances:
M Monty, Applicant.
J Monroe for the Respondent.
Hearing details:
2023.
Melbourne:
August 9.
[1] Exhibit R1, Witness Statement of Mr Frank Spina, dated 27 June 2023, at [7]-[10]
[2] Ibid at [12]
[3] Ibid at [13]
[4] Exhibit A1, Applicant’s “Employment Timeframes & Unfair Treatment”
[5] Ibid
[6] Ibid
[7] Ibid at [14], Attachment FS-2, Leave summary
[8] Exhibit R1, at [15]
[9] Exhibit R1, Attachment FS-4, Email from Melissa Bates (Payroll Manager) to Applicant, dated 18 November 2022
[10] Exhibit A1
[11] Exhibit R1at [16]-[22]
[12] Exhibit R1, Attachment FS-5, Email from Frank Spina to Applicant dated 16 February 2023
[13] Exhibit R1, Attachment FS -6, Email from Frank Spina to Applicant dated 20 February 2023
[14] Exhibit R1, Attachment FS-7, Email from Frank Spina to Applicant dated 23 February 2023
[15] Exhibit R1 at [24]-[25]
[16] Exhibit R1, Attachment FS-5
[17] Exhibit R1, Attachment FS-6
[18] Ibid, at [28], Attachment FS-8, Letter to Applicant dated 22 March 2023, titled “Your employment with Independence Australia”
[19] Exhibit R1, Attachment FS-9, Medical Certificate dated 29 March 2023
[20] Exhibit R1, at [32], Attachment FS-10, Letter of Termination, dated 11 April 2023
[21] Exhibit R1, at [34]
[22] Ibid, Attachment FS-11, Email from Kimberly Keller to Applicant, dated 12 April 2023, titled “Your employment”
[23] Exhibit R1, Attachment FS-12, Medical Certificate, dated 24 April 2023
[24] Exhibit R1, at [36]
[25] Ibid, Attachment FS-13, Final Payslip, for pay period 10-23 April 2023
[26] Exhibit R1, at [42]
[27] Ibid at [43]
[28] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[29] Ibid.
[30] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[31] Ibid.
[32] Exhibit R1, Attachment FS-11
[33] J Boag & Son Brewing Pty Ltd v Button, [2010] FWAFB 4022 at [29].
[34] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[35] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[36] Ibid.
[37] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[38] RMIT v Asher (2010) 194 IR 1, 14-15.
[39] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[40] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[41] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
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