Mark Baldwin v Scientific Management Associates (Operations) Pty Ltd
[2014] FWC 5174
•1 AUGUST 2014
[2014] FWC 5174
The attached document replaces the document previously issued with the above code on 1 August 2014.
The words “own authorised” is replaced by “unauthorised” in paragraph [73].
Abby Lang
Associate to Deputy President Gostencnik
Dated 4 August 2014
| [2014] FWC 5174 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Baldwin
v
Scientific Management Associates (Operations) Pty Ltd
(U2014/390)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 1 AUGUST 2014 |
Application for relief from unfair dismissal; swearing and threatening behaviour directed at manager; whether valid reason; whether summary dismissal justified; dismissal was not harsh, unjust or unreasonable; application dismissed.
Introduction
[1] Mark Baldwin (Applicant) commenced employment with Scientific Management Associates (Operations) Pty Ltd (Respondent) as a mechanical instructor on a casual basis on 13 February 2012 1. Since 22 October 2012 the Applicant’s employment with the Respondent has been full-time2. That employment came to an end on 22 January 2014 by reason of the Respondent’s decision to summarily dismiss the Applicant from its employ on the ground of serious misconduct3.
[2] The conduct, which is said by the Respondent to justify summary dismissal, occurred in a meeting between the Applicant and Mr David Roberts, the Program Manager of the Vehicle Technology Wing of the Respondent 4, during which the Applicant is alleged to have used “crude and extremely profane language”5 which was directed to Mr Roberts. Specifically it is alleged that during the meeting the Applicant, amongst other things, said to Mr Roberts “you are a big fat cunt. You are not helping with my stress levels”6.
[3] On 12 February 2014 the Applicant made an application pursuant to s. 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.
[4] There is no dispute about the initial matters, which are set out in s. 396 of the Act, and which I must decide before considering the merits of this application 7. I am satisfied that the application was made within the period required in s. 394 (2), that the Applicant is protected from unfair dismissal within the meaning of s. 382, that the Small Business Fair Dismissal Code does not apply and that the Applicant’s dismissal was not a case of genuine redundancy.
[5] That leaves for determination the merits of the application.
[6] I have concluded that the dismissal of the Applicant by the Respondent was not harsh, unjust or unreasonable and therefore the application is dismissed. These are my reasons for so concluding.
Relevant factual context and findings
The Respondent
[7] The Respondent is a defence contractor. A primary aspect of its business is the provision of training programs to members of the Australian Defence Force 8. The Respondent’s business is divided into four primary teaching wings namely, vehicle technology, armament and construction, electrical and electronic systems, and career and advanced training9.
The employment
[8] The Applicant was, since 22 October 2012, a full-time instructor employed by the Respondent to provide instruction in the vehicle technology wing of the Respondent’s business 10. Mr Roberts was the program manager of the vehicle technology wing in which the Applicant was employed11. Under the Respondent’s organisational hierarchy the Applicant reported to Mr Roberts12. At the commencement of his employment with the Respondent, the Applicant undertook training related to his employment covering the subjects, inter alia, of equity and diversity, behaviour and health and safety13. This same training is also undertaken by Army personnel14. In January 2013 the Applicant also undertook training in respect of particular policies and procedures with which the Applicant was required to comply15. This included training in the appropriate standards of conduct contained in a document entitled “Defence Instructions (General)”16. The policies and procedures in relation to which the Applicant received training applied to his employment with the Respondent17.
[9] The Defence Instructions (General) sets out six categories of unacceptable behaviour in the workplace 18 and cites “abusive, insulting or offensive language”19 as behaviour that may constitute workplace bullying which is unacceptable. The Defence Instructions (General) forms part of the Respondent’s personnel management strategy and personnel policy documentation, with which the Applicant was required to comply pursuant to the employment agreement entered into by the Applicant and Respondent on or about 22 October 201220.
6 December 2013 incident
[10] Since April 2013 the Applicant has been suffering anxiety and related medical conditions arising from an earlier work related incident 21. Throughout the remainder of 2013 the Applicant continued to receive medical treatment for his condition and a return to work arrangement was implemented by the Respondent which included regular reviews conducted by Karen Bignell, the Respondent’s Human Resources and Compliance Manager22.
[11] On the afternoon of 6 December 2013 the Applicant was scheduled to attend a medical appointment. Mr Roberts was informed by Ms Bignell at about midday on 6 December 2013 that the Applicant would be absent from the workplace later that day because he was required to attend a medical appointment 23. Mr Roberts gave evidence that this was the first time that he had been advised of the Applicant’s medical appointment and that he had programmed the Applicant to undertake teaching that afternoon24. Mr Roberts said that he approached the Applicant and had a conversation with him about the need for Mr Roberts to be provided with more than two hours notice of an absence because Mr Roberts had assumed the Applicant would be working and had programmed classes for the Applicant to teach25.
[12] Mr Roberts said that the Applicant became dismissive of his concerns and displayed rude behaviour towards Mr Roberts but that on the day following, the Applicant apologised to Mr Roberts for the Applicant’s behaviour 26. It is clear from the evidence given by Mr Roberts during cross examination that his concern on 6 December 2013 was with the Applicant’s failure to give Mr Roberts adequate notice of a medical appointment and the impact of inadequate notice on scheduling of classes rather than the exhibited rude behaviour for which the Applicant apologised27. The substance of Mr Roberts’ version of events of 6 December 2013 is not seriously in conflict with the version given by the Applicant during his evidence28.
[13] It seems to me clear that the Respondent does not rely upon the behaviour of the Applicant on 6 December 2013, but rather relies on the fact that during a conversation between Mr Roberts and the Applicant on that day, Mr Roberts made it clear to the Applicant that he was to give proper notice to Mr Roberts of any absence from the workplace 29. The Applicant was therefore on notice about that which was expected of him before absenting himself from work.
11 December 2013 conversation – full-time Army service
[14] Mr Roberts gave evidence that on 11 December 2013 he and the Applicant had a conversation, initiated by the Applicant, during which the Applicant told Mr Roberts that he may not be reliable next year as he applied for full-time Army service and that he was looking to start service in January 2014 30. Mr Roberts gave evidence that during that conversation he told the Applicant that he would speak with Ms Bignell about waiving the requirement to give six weeks’ notice of termination under the employment agreement if the Applicant was successful in his application for full-time Army service31.
[15] The evidence given by the Applicant was substantially to the same effect 32.
[16] It seems clear from the evidence that the Applicant notified Mr Roberts that he applied for full-time Army service, that if successful in his application that service would begin in January 2014, that he would notify Mr Roberts should his application be successful and that Mr Roberts would then seek to arrange a waiver of the notice of termination requirements under the employment agreement. It is also clear that no arrangement about any absence by the Applicant from work in January 2014 was entered into during the discussion on 11 December 2013 or at any other time.
[17] Following the conversation on 11 December 2013, the Applicant continued to work and carry out his duties until the commencement of the shutdown of the Respondent’s business during the Christmas and New Year period 33. The Applicant was to return to work following the shutdown period on 13 January 201434.
Absence from work during the period 13 January 2014 to 17 January 2014
[18] The Applicant gave evidence that he returned to work on 13 January 2014 following the Christmas and New Year shutdown. The Applicant was asked what he did in the morning of his return to work. The Applicant’s response is recorded in the transcript is as follows:
What happened on that morning?---Well, there was – I was in a bit of confusion because I – as I recall, I think I'd actually put in – I put in a certificate to return to work on the 13th. Now, I returned to work on the 13th to talk to Mr Roberts about which way I would go with this because I still had some annual leave owing and I was under the impression that this position with the army was going to be turned on very, very soon. So I wanted to actually talk to Mr Roberts about that and he wasn't actually there. 35
[19] The Applicant arrived for work at 7.30 am on 13 January 2014 and left before 9.00 am 36 and he did not return to the workplace until 20 January 201437. The Applicant’s evidence was he was on leave during the week of 13 to 17 January 201438 but he did not complete a leave request form39. He did not suggest leave was approved for that period. The Applicant’s explanation for his failure to complete a leave request form was as follows:
MR MEAGHER: You did not complete a leave application form whilst you were at work on 13 January?---That's right, because I was confused. I've already put in – I already put in a form for attending work. It was actually for a fortnight. I really wanted to have clarification from the manager of what to actually do.
Why didn't you seek the advice of Ms Bignell as the HR manager?---No idea. I really completely overlooked at Ms Bignell. Ms Bignell – her position there was of a recent position. Her office is right down the back in some indiscriminate hallway and unfortunately out of sight, out of mind and I completely overlooked her for – and I must've presumed that if Mr Roberts wasn't there, the other staff members weren't going to be there as well. That's the only thing I can - - -
So how far in advance do you put in your timesheets to say that you will attend?
---Yes, a lot in advance but - these forms are put in, yes, quite some months in advance so I didn't think it appropriate for me just to put in another leave app just on the drop of a hat.
But you're aware that there is a leave application form that could be filed?---There certainly is, yes, and it's got to be submitted through the army staff as well and the army staff weren't there so that's – like, once again I wanted to actually make sure I was going through the right procedure to do the paperwork and not just willy-nilly make a form out and submit it. I wanted to make sure whatever I put in was going to be right and not going to be confusing.
But you accept that filling in the form, even if it contradicted an earlier form, would be of more benefit to the employer than simply not attending for work?
---Then who am I going to submit the form to? Mr Roberts wasn't there.
You are aware though that there is an HR manager?---Like I said, out of sight, out of mind. Really I presumed that there was no-one going to be there. It really skipped my mind altogether. 40
[20] I find the explanation unconvincing. The Applicant took no steps to apply for leave additional to the Christmas and New Year shutdown period before that period commenced. He attended for work on 13 January 2014 with the intention of discussing additional leave with Mr Roberts. On learning that Mr Roberts would be away until 20 January 2014, the Applicant took it upon himself to absent himself from the workplace without permission and without completing an application for leave. Confused though he may have been about whether he should complete a leave form, there could not have been any confusion in the mind of the Applicant about the fact that that nobody had approved his leave for the period 13 to 17 January 2014. It seems clear from the evidence that the Applicant attended the workplace on 13 January 2014 with the intention of asking Mr Roberts to approve annual leave for the period 13 to 17 January 2014 because the Applicant “had some annual leave owing and I was under the impression that this position with the army was going to be turned on very, very soon” 41. When the Applicant learned that Mr Roberts was himself on leave and would not return to work until 20 January 2014, the Applicant decided to absent himself from work and he left the premises at some time before 9.00 am on 13 January 2014. The Applicant’s absence from work thereafter was not authorised and it was not open for him to unilaterally decide that he would not attend for work during that period.
Failure to attend for work on 20 January 2014
[21] The Applicant gave evidence that on 20 January 2014 he attended for work but not at his usual time of 7:30 am 42. The Applicant said that he decided to attend for work later in the morning of 20 January 2014 because he knew that Mr Roberts would be busy upon his return from leave and that he wanted to avoid the initial rush43. It was put to the Applicant that he did not attend the workplace on 20 January 2014 until being requested to do so following a telephone call from Mr Roberts44. The Applicant’s evidence was that his mobile telephone was not turned on and that he had attended for work of his own accord on 20 January 201445.
[22] Mr Roberts gave evidence that he attended work at approximately 7:25 am on 20 January 2014. He said that he was advised by a section head Mr Will Ellis that the Applicant had not been at work other than a brief attendance on 13 January 2014. Mr Roberts said that he then asked Ms Bignell and Mr Wayne Clough whether they had seen the Applicant and each had told him that they had not 46.
[23] Mr Roberts gave evidence that at approximately 9:00 am on 20 January 2014 he telephoned the Applicant’s mobile phone, the call was diverted to voicemail and that he left a message requesting the Applicant return his call 47. Mr Roberts said that the Applicant telephoned him at approximately 10.00 am. During the telephone discussion, Mr Roberts asked the Applicant whether the Applicant’s application for full-time army service had been approved. When the Applicant advised Mr Roberts that it had not been approved Mr Roberts told the Applicant that he would need to attend for work and that he would need to complete an annual leave application for the period of his recent absence48.
[24] During his evidence the Applicant was asked whether he disputed the evidence of Mr Roberts which is summarised in the previous paragraph. The Applicant said that Mr Roberts' recollection of those events was different to his recollection, and that Mr Roberts recollection was not correct 49. The Applicant was asked whether he had retained his mobile telephone records for the month on January 2014 and he said that he may have50. He did not provide an explanation as to why he did not produce those telephone records if he challenged Mr Roberts’ version of events, notice of which had been given to the Applicant in the statement of Mr Roberts filed and served on him before the commencement of proceedings51. The Applicant was asked whether he would be prepared to make enquiries with his mobile telephone service provider Telstra to request a copy of the telephone records for the month January 2014. He said he was not prepared to do so52. The Applicant was warned of the possible consequences of an unexplained failure to produce telephone records which could verify whether or not telephone calls were exchanged between Mr Roberts and the Applicant in 20 January 201453. The Applicant did not produce any telephone records for the month of January 2014 or otherwise. The Applicant did not cross examine Mr Roberts about the accuracy of his recollection about how it is that the Applicant came to return to work in 20 January 2014, despite prompting to do so54.
[25] I accept Mr Roberts’ evidence about this issue and conclude that the Applicant did not attend for work on 20 January 2014 until he was prompted to do so during a telephone call to Mr Roberts. Mr Roberts’ evidence on this point, while disputed by the Applicant in his evidence, was not subject to cross examination. I also draw the inference that the production of telephone records for the month of January 2014 relating to the Applicant’s mobile telephone would not have assisted to verify the Applicant’s version of events. I found the Applicant’s evidence in relation to this issue wholly unconvincing. In the end, the Applicant conceded that despite his earlier evidence, he no longer maintained that he was not contacted by Mr Roberts on 20 January 2014 and asked to attend the workplace 55.
Meeting between the Applicant and Mr Roberts on 20 January 2014
[26] Mr Roberts gave evidence that the Applicant attended the workplace at approximately 10:45 am on 20 January 2014. Mr Roberts invited the Applicant to have a seat at his workstation which is located in an open plan office area 56. Mr Roberts’ evidence about the substance of the conversation that ensued was as follows:
At this time I had a conversation with the Applicant using words to the following effect:
DR: If you are not going to be present at work, you need to fill in an annual leave application form.
MB: You are talking to me as if I am in the military. You need to talk to me in a proper civilian manner.
DR: I am talking to you in a proper manner for an employer and an employee.
MB: You are a big fat cunt. You are not helping with my stress levels.
DR: You need to leave the workplace. 57
[27] Mr Roberts' evidence was that during the conversation the Applicant became progressively more aggressive in his body language and that Mr Roberts was concerned that the Applicant might hit him 58. Mr Roberts said that as the Applicant left “he scrunched up his timesheet and slammed it down on my desk in a violent manner” and that as the Applicant was leaving he continued to verbally abuse Mr Roberts with words such as:
How much do you get paid? It is obviously too much because you have 0% professionalism. I will fill in an annual leave form, and make a Work Cover claim for this week. How do you like that you cunt? 59
[28] Mr Roberts said that following the incident he completed two complaint forms. The first concerned the Applicant’s unauthorised absence in the previous week and the second concerning the incident that had just occurred 60. Mr Roberts said that he also drafted a record of the incident at that time61.
[29] The Applicant’s evidence was that when he sat down with Mr Roberts on 20 January 2014, the Applicant began to explain the delay in his application for full-time army service. In the middle of the explanation Mr Roberts interrupted him with words to the effect “yes, you did make a mistake, and that was not to complete a leave form for last week” 62. The Applicant said that he had attended work the previous week to discuss this issue and that Mr Roberts was still on leave. Mr Roberts replied “I told you to email me”63. The Applicant’s evidence was that he was offended by Mr Roberts’ tone and the manner in which Mr Roberts had cut the Applicant off64. The Applicant says that he sternly replied to Mr Roberts that he was no longer wearing a green uniform and that he was a civilian and that Mr Roberts was to address him with the same respect in which the Applicant addressed Mr Roberts65. The Applicant says that Mr Roberts then pointed to the door and said “out”66. The Applicant says that Mr Roberts’ attitude infuriated him and that he could no longer hold his composure and that he informed Mr Roberts exactly what he thought of Mr Roberts and his lack of respect for his staff67. The Applicant says that Mr Roberts followed him to the door and came very close to a chest bump with the Applicant68.
[30] During cross examination the Applicant was asked about the language that he had used during his exchange with Mr Roberts on 20 January 2014 and about his conduct during that exchange. His evidence was as follows:
Thank you. If we go back to paragraph 23 of Mr Roberts' statement, I take it based on what we've just discussed – I'll ask the question again. Do you agree that words to the effect of the first comment were stated but your evidence is maybe not necessarily straightaway at the commencement of the conversation? ---The only thing I really sort of agree to is really the first – the first two statements, the first statement he made and the first statement I made. Actually, yes, those first two - the first statement by Mr Roberts and the first statement by me - they're the only ones that I think are compatible with mine. They're the only ones I agree with. The rest of it are a contrast of my – the events I recall as what happened on the day.
So after the first two conversation points, that is, after your comment, "You're talking to me as if I am in the military. You need to talk to me in a proper civilian manner," what do you say was said?---That was fairly similar to the words I used and Mr Roberts' reply was to push his chair back, fold his arms, pause for two or three seconds, then point to the door and say, "Out," as I stated in my - - -
I put it to you that when you were told to get out, you stood up from your chair. Is that correct?---No, I didn't. I actually sat down and told him I thought he was unprofessional, yes. Listen, there was some grievances I had and I told – I actually told him a few things which I wasn't happy about the way he was running – running the place and the way he was treating some of the members. Some of it might have been colourful language. Then I got up and walked out of the door. That time when I was actually addressing Mr Roberts, telling him that I wasn't very happy, he sat there motionless, didn't say anything until I got up and walked to the door and then he followed me to the door.
Did you have a weekly time sheet in your hand during this conversation?---I do not recall that at all. I may have because it's more than likely that's what I went down to the office to do but - I don't recall it but it's more than likely I did.
I put it to you that you scrunched up your weekly time sheet and slammed it on Mr Roberts' desk. Is that correct?---Yes, I – listen, I don't even recall having the time sheet. I might've done that because – listen, I actually went down to that office to actually sort that – all the leave and the time sheets out and if – when Mr Roberts just pointed to the door and said, "Out," I thought, "Well, I've got no help with this at all," so it was more than likely I did actually leave the time sheet behind. Whether I screwed it up or not – I don't even remember having it but I guess I did because that's what I was there for.
Do you have limited memory of the conversation after the point Mr Roberts told you to get out?---I do actually have limited memory. It all happened very, very quickly. It was only just – yes, just a very, very quick breeze over. I know I was at a heightened level of anxiety and, yes – listen, it is not in my nature to be threatening. I don't use – I don't use violence. I mean, I may have done some things in my life but I'm not stupid. I'm a very small man. I've learnt very early in my childhood that being threatening in my size is not a good thing to do and it is not in my nature to be threatening or abusive.
Do you accept that you swore at Mr Roberts?---I swear on a regular basis in the right environment. I am saying in a heightened anxiety I more than likely did swear only using the words that I normally use that I have never been warned on and it's current language that's used in that workplace.
I apologise for the language here, Mr Baldwin, but I put to you that you said to Mr Roberts, "You are a big, fat cunt. You are not helping with my stress levels"? ---I don't normally use that terminology; don't normally. Occasionally I have used the words. I have never actually admitted to using that word. I'm not denying it and I'm not saying – I'm not saying yes or no; like, I admit - -
Your evidence is that you just cannot remember?---I admit that I don't know what I said after Mr Roberts pushed his chair back and said, "Out." I was at a heightened level of anxiety. I use words that – I would've used words that I'm familiar with using that I've never been cautioned on or warned in the past.
If you could turn, please, to the statement of Karen Bignell which is tab number 4 in your folder, there is a transcript at tab E of that statement which is a transcript of a meeting which took place the following day on 21 January. You rely on this document yourself, do you not?---I am relying on this document.
And you've accepted that this document is a true and correct record?---Yes.
THE DEPUTY PRESIDENT: Mr Meagher, you described it as a transcript. It's not really a transcript. They're notes.
MR MEAGHER: I accept that, thank you.
THE DEPUTY PRESIDENT: Yes.
MR MEAGHER: At page 3 of 5 of that meeting record or page 19 of the statement in the whole there is a final – at the very last paragraph, do you agree with the statement which says in your words, "I definitely swore at Dave Roberts. I cannot remember exactly what I said. Dave had pushed my buttons and I cannot remember"?---Yes. I mean, I don't normally swear at David, being the project manager, but I might've used some words that I don't normally use to him but, like I said, nothing – nothing that I don't – I haven't used in the workplace before and certainly haven't had any warnings or cautions on it in the past.
At page 21 you also say, "The attitude of Dave Roberts during our meeting on the 20th pushed me over the edge"?---Yes, like, I don't normally swear at David and I don't normally unleash the way I did; you know, I told him what I thought of the way he was actually providing the training; you know, it was inappropriate. I believe that - you know, I definitely believe I was, you know, not being – yes, I wasn't actually being myself.
Why do you say you unleashed, to use your words?---Well, I was in his office for help on how to clarify my documentation with the leave forms and so when I sat in his office, I had a very good – very positive attitude coming back to work and for it to be cut off short and abrupt by saying, "Yes, the only mistake you made was not putting a leave app in," and I took offence to the way he was talking to me and he does – he does that on a regular basis and that's why I said, "I am actually being courteous and polite to you. Show me the same respect," and that's where he just pushed his chair back and said, "Out." Now, when he did that, I thought, "Well, I'm here for his help. I've come for his help on how to do this. Now he's kicking me out of his office," only just – only because I asked for him to show me the same courtesy that I was giving him. That's why I - you know, yes, I just – that's why I actually, yes, said what I said and behaved the way I did. 69
[31] Mr Roberts was not cross-examined about the accuracy of his evidence as to the content of the conversation between him and the Applicant on 20 January 2014 70. Cross- examination seemed to focus on whether the comments that Mr Roberts attributed to the Applicant were out of character and whether the conduct of Mr Roberts during the conversation contributed to the Applicant’s outburst71. The allegation that Mr Roberts followed the Applicant to the door when the Applicant was leaving was not put to Mr Roberts by the Applicant during cross-examination.
[32] I accept Mr Roberts’ version of events relating to the content of the meeting between he and the Applicant on 20 January 2014 and the conduct of the Applicant during that meeting. My reasons for doing so are as follows. Mr Roberts prepared a contemporaneous note of the conversation 72 which supports the evidence that he gave. Mr Roberts was not cross-examined about the accuracy of his recollection or of the contemporaneous note that he had prepared following the incident. The Applicant does not deny that he swore at Mr Roberts during their meeting on 20 January 2014, but rather says that he cannot recall the precise words that he used, that swearing in the workplace was a regular occurrence and is accepted, and that he was provoked by Mr Roberts to use the language he is said to have used73. I do not accept the Applicant’s evidence that he cannot recall the words that he used. That evidence does not ring true and lacks credibility when regard is had to the fact that the Applicant is able to recall other aspects of that meeting without difficulty. The Applicant accepted that he had “unleashed” and said that this was because Mr Roberts had “pushed his buttons”74. The Applicant does not deny he scrunched up his timesheet and slammed it down on Mr Roberts’ desk. On the whole, I found the Applicant’s evidence about the meeting on 20 January 2014 with Mr Roberts unconvincing. Furthermore I do not accept the Applicant was provoked by Mr Roberts’ conduct in to using the language that he did or engaging in the conduct that he did during the meeting on 20 January 2014. Mr Roberts was entitled to meet with the Applicant and to ask the Applicant questions about his unexplained absence the previous week. Mr Roberts was also entitled to be annoyed at the Applicant’s failure to notify of, or apply for an absence given the earlier discussion about short notice absences that occurred in 6 December 2013.
Meeting between the Applicant and Ms Bignell on 21 January 2014
[33] As indicated earlier in these reasons, Mr Roberts completed two complaint forms concerning the conduct of the Applicant. The complaints were given to Ms Bignell.
[34] Ms Bignell organised a meeting with the Applicant to discuss the complaints that Mr Roberts had made. The meeting was held on 21 January 2014. Notes of the meeting were prepared by Mr Glen Conibear 75. Mr Conibear was also the Applicant’s support person during the meeting76. The Applicant accepted that the notes of the meeting of 21 January 2014, prepared by Mr Conibear were an accurate record of that meeting77. The notes record that the substance of the matters that were the subject of the complaints made by Mr Roberts were put to the Applicant during the meeting and that a response was sought and was given. The notes record that the Applicant was asked whether he had called “David Roberts the C word”78 and the Applicant’s response as “I definitely swore at David Roberts but I cannot remember exactly what I said. David pushed my buttons and I cannot remember”79. The notes also record the Applicant saying “the attitude of David Roberts during our meeting on the 20th pushed me over the edge. I don’t feel like I could continue to work for SMA as the organisation is so unprofessional and morally corrupt”80. Ms Bignell’s evidence was that the Applicant actually said that “I will not return”81. In my view Ms Bignell’s recollection of the Applicant’s words and those recorded in the notes prepared by Mr Conibear are to the same effect and nothing material turns on the difference.
[35] There is a dispute in the evidence given by Ms Bignell and the Applicant about the convening of the meeting on 21 January 2014 and in particular, at whose initiative the meeting was convened 82. I accept Ms Bignell’s version of events about the convening of the meeting in preference to that given by the Applicant, and I do so for the following reasons. Ms Bignell’s evidence tended to be corroborated by the evidence given by Mr Carter (discussed further below) that he had instructed Ms Bignell to convene the meeting83. The notes prepared by Mr Conibear, the accuracy of which is not disputed by the Applicant, records the agenda of the meeting as relating to a discussion about the complaints made by Mr Roberts84. The notes record the Applicant seeking to discuss a list of grievances after Ms Bignell had opened the meeting and a discussion had been completed about the attendance of Ms Fiona Greenwood. If the meeting had been convened at the Applicant’s request to discuss his complaint about Mr Roberts, then in my view the notes of the meeting that were prepared by Mr Conibear, who was there to act as a support person for the Applicant, would likely have recorded that subject matter as part of the agenda but that is not the case. That Ms Bignell suggested to the Applicant that he could bring a support person to the meeting of 21 January 201485 is consistent with Ms Bignell having convened the meeting. Furthermore the Applicant’s evidence was that the first time that he had provided Ms Bignell or any other person from the Respondent with a copy of his complaint about Mr Roberts was during the meeting on 21 January 201486. This is consistent with Ms Bignell’s evidence that she convened the meeting on 21 January 2014 (which she had arranged on 20 January 2014) for the purpose of discussing Mr Roberts’ complaints. In addition the Applicant did not suggest to Ms Bicknell during cross examination that she was mistaken or lying about who had convened a meeting87.
Decision to terminate the Applicant’s employment
[36] Ms Bignell gave evidence that following the meeting with the Applicant on 21 January 2014, she prepared a memorandum to Mr Bob Carter the head Human Resources Manager of the Respondent 88.
[37] Mr Carter gave evidence that after an initial discussion with Ms Bignell on 20 January 2014 concerning the complaints that Mr Roberts had made, he instructed Ms Bignell to convene a meeting with the Applicant to discuss the complaints and to obtain his version of events and explanation 89. Mr Carter said that on 21 January 2014 he received from Ms Bignell a copy of Ms Bignell’s memorandum (referred to above), a statement from Mr Baldwin, copies of Mr Roberts’ complaints and a statement from Mr Roberts90. During cross examination Mr Carter also gave evidence that he considered the notes prepared by Mr Conibear91. Mr Carter also had been given a statement of Mr Peter Cooper a VTW Trade Inspector with the Respondent92. Mr Cooper was working in the area at the time the altercation between the Applicant and Mr Roberts took place on 20 January 2014. The statement tends to corroborate the content of the complaint made by Mr Roberts, a copy of which was also with Mr Carter. Mr Cooper was unavailable to be called as a witness in these proceedings as he was on leave93. Although the Respondent did not rely on the content of the statement, the Applicant was asked whether he wishes to challenge the content and if so, I would arrange for Mr Cooper to be available for cross-examination by telephone94. The Applicant said he was not challenging the veracity of the statement made by Mr Cooper95.
[38] Mr Carter’s evidence was that he considered the material provided by Ms Bignell, took into account the Respondent’s disciplinary policy, the training undertaken by the Applicant in relation to appropriate conduct and the conduct proscribed by the Defence Instructions (General) 96, and concluded that the Applicant verbally assaulted Mr Roberts and that Mr Roberts would have felt threatened as a result and that he considered the Applicant’s conduct amounted to serious misconduct.97
[39] Mr Carter said that on 22 January 2014 he recommended to the managing director of the Respondent that the Applicant’s employment be terminated for serious misconduct and that a letter to that effect was prepared and sent to the Applicant 98.
[40] The steps that Mr Carter took in arriving at his recommendation to the managing director of the Respondent were not challenged by the Applicant. I accept Mr Carter’s evidence.
The dismissal
[41] By letter incorrectly dated 23 January 2014 (should be 22 January 2014) the Applicant was advised that his employment was to end with effect from close of business Wednesday, 22 January 2014. The letter advises the Applicant that “there is no doubt that you used crude and extremely profane language in the workplace which was specifically targeted at your Program Manager. This language was not provoked and the whole incident has therefore been classified as “serious misconduct”” 99.
Consideration and application of the statutory framework
Protection from Unfair Dismissal
[42] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of his dismissal, protected from unfair dismissal under the Act.
Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[43] There is no dispute, and I am satisfied, the Applicant was, on 22 January 2014, protected from unfair dismissal within the meaning of s. 382.
Was the dismissal unfair?
[44] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out at s. 385 of the Act existed. Section 385 provides:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
[45] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s. 386 of the Act. As I indicated earlier, in these reasons the Small Business Fair Dismissal Code did not apply to the Respondent and that the dismissal of the Applicant was not for reasons of redundancy.
Harsh, unjust or unreasonable
[46] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out at s. 387 of the Act:
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.
[47] I am obliged to consider each of these matters in reaching my conclusion and I do so below, having regard to the factual findings earlier made. 100
[48] The ambit of the words ‘harsh, unjust or unreasonable’ in the context of a dismissal was explained in Byrne v Australian Airlines Ltd 101by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[49] Ultimately however it is the matters set out in s. 387 of the Act to which regard must be had.
[50] The substance of the Applicant’s argument that his dismissal was harsh, unjust or unreasonable is summarised below. The Applicant submitted that the termination of his employment was unfair because he had not been given any previous warnings or cautions about his language and that he had thought that the meeting which had been convened on 21 January 2014 had been convened at his request to deal with the complaint that he had made about Mr Roberts 102. The Applicant also submitted that the language that he used was normal for the workplace, that the language used was not in any way threatening or suggesting threats of harm or damage, the language that he used was provoked and he did not have an opportunity to discuss his dismissal with his employer or his concerns of bullying and inappropriate behaviour103.
[51] The Respondent submitted that its dismissal of the Applicant was not harsh, unjust or unreasonable and its argument 104 is summarised below:
● The Applicant failed to attend for work during the week of 13 January 2014. He failed to explain his absence to his employer;
● The Applicant failed to attend the workplace on 20 January 2014 until he was direct to do so by Mr Roberts;
● The Applicant swore at Mr Roberts during their meeting on 20 January 2014 and behaved in a manner that was aggressive;
● The Applicant’s conduct and behaviour towards Mr Roberts and his failure to attend for work during the week of 13 January 2014 were put to the Applicant during the meeting between the Applicant and Ms Bignell on 21 January 2014;
● The Applicant was given an opportunity to respond to these matters during that meeting;
● The Respondent did not accept that the Applicant had been provoked or that an acceptance of swearing in the workplace generally mitigated the seriousness of the Applicant’s conduct towards his manager;
● The Respondent was entitled to treat the Applicant’s conduct towards Mr Roberts as sufficiently serious to justify summary dismissal and the conduct was inconsistent with the continuation of the working relationship.
[52] The Respondent submits it had a valid reason for the Applicant’s dismissal related to his conduct and it also relies upon his unauthorised absence from work during the week commencing 13 January 2014 as justifying its dismissal of the Applicant 105.
[53] I have considered the competing submissions in the context of my earlier findings and in my consideration of each of the criteria in s. 387 of the Act below.
Valid reason - s.387(a)
[54] There must have been a valid reason for the dismissal of the Applicant related to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 106 The reason should be “sound, defensible and well founded”107 and should not be “capricious, fanciful, spiteful or prejudiced.”108 Where, as in the present case, the Respondent relies on conduct of the Applicant to justify its decision to terminate his employment, I must be satisfied that the conduct as alleged by the Respondent occurred.109 A mere suspicion of conduct does not amount to a valid reason.110
[55] In the context of the present case, whether the reason for dismissal was a sound, defensible and well-founded reason depends in part on whether the Applicant engaged in the conduct alleged and whether the Respondent was entitled to summarily dismiss him for the conduct.
[56] As is apparent from my earlier findings I have concluded that the Applicant used abusive and offensive language directed towards his manager Mr Roberts. I have also concluded that the Applicant behaved in an aggressive manner towards Mr Roberts during their meeting on 20 January 2014 by scrunching up his timesheet and slamming it down on Mr Roberts’ desk. The context in which the incident occurred is also important. The context was that the Applicant had failed to attend for work during the week of 13 January 2014, he had failed to attend for work on the morning of 20 January 2014 until directed to do so by Mr Roberts, and Mr Roberts was holding him to account. In the circumstances there was no provocation, merely accountability. That did not warrant the Applicant’s reaction which in his own words he described as “unleashed” and that he informed “David exactly what I thought of him” 111.
[57] The Respondent accepts that swearing in the workplace is not uncommon. However there is in my view a qualitative difference between swearing in the workplace per se and swearing directed to one’s manager (or to another employee) which is not only offensive but highly personalised. In my view the Applicant’s statement directed to Mr Roberts that “you are a big fat cunt” and later “how do you like that you cunt” is both offensive and highly personalised. When the language is coupled with the conduct, namely the slamming of the time sheet down on Mr Roberts’ desk, it is hardly surprising that Mr Roberts became concerned for his own safety. In the circumstances I am satisfied that the conduct of the Applicant which I have found to have occurred and in the context in which it occurred, is aptly described as misconduct. I am also satisfied that the Applicant’s conduct on 20 January 2014 was sufficiently serious to justify the summary dismissal. Conduct of that kind directed at a manager who was endeavouring to hold to account an employee who did not attend for work in the previous week, did not have permission to be absent and who on the morning of 20 January 2014 also did not attend for work, it is not justified, was contrary to the Defence Instructions (General) and was conduct inconsistent with the continuation of an ongoing employment relationship between the Respondent and the Applicant. In my view there was a valid reason for the Applicant’s dismissal relating to his conduct.
[58] In considering whether there was a valid reason for the Applicant’s dismissal, the inquiry is not confined to whether the reason the employer gave for the Applicant’s dismissal was a valid reason but rather the question is whether there was a valid reason for the Applicant’s dismissal 112. The Respondent did not give as a reason for its dismissal of the Applicant the fact that the Applicant had been absent from work during the week commencing 13 January 2014 without authorisation. The Applicant accepts that he was absent from work during that week but says that he was confused about whether he should complete an annual leave request form. I find the explanation unconvincing. An employee is not entitled to absent himself from the workplace without authorisation or at least notice to the employer of the absence. If an employee proposes to take leave to which they are entitled they should give notice of the intention and complete the relevant leave request form. The Applicant did none of this. He simply decided that he would not attend for work. In my view this conduct in all the circumstances is consistent with an intention to no longer to be bound by the contract of employment and also provides a valid reason for the Applicant’s dismissal related to the Applicant’s conduct.
Notification of the valid reason - s.387(b)
[59] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 113 in explicit terms114 and in plain and clear terms115. In Crozier v Palazzo Corporation Pty Ltd116 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 117
[60] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason in s. 387(c), involves consideration of whether procedural fairness was afforded the Applicant before his dismissal was effected. Satisfaction of the notification requirement will usually require a straightforward factual inquiry to be made, namely: what was the Applicant told about the reason for the dismissal, before the dismissal took place?
[61] The Applicant was notified of the reason the Respondent relied on to justify dismissal, namely the conduct directed toward Mr Roberts. This occurred at a meeting held on 21 January 2014 between the Applicant and Ms Bignell and this notification was given before the decision to dismiss the Applicant. The Applicant was notified of the reason related to his absence from work during the week of 13 January 2014 even though reference was not made to it in the letter of termination. The notes of the meeting of 21 January 2014 clearly record the discussion of the absence and the Applicant’s response 118
[62] I am satisfied that the Applicant was notified of the reason for his dismissal before the decision to dismiss was made by the Respondent.
Opportunity to respond - s.387(c)
[63] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. The consideration of whether and to what extent that opportunity was given is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 119 Recently in Pitts v AGC Industries Pty Ltd120 a Full Bench of the Commission said:
“In considering whether the Commissioner was satisfied that the dismissal of the Appellant was harsh, unjust or unreasonable the Commissioner was required to take into account, inter alia, whether the Appellant was given an opportunity to respond to any reason related to his capacity or conduct. This opportunity must have been afforded to the Appellant before a decision to dismiss is made. The process involved in providing the Appellant with such an opportunity does not require formality and is to be applied in a common sense way, to ensure that the Appellant has been treated fairly. In this regard we reject so much of the Appellant’s submissions which asserts that this requires an employer to conduct a meeting with the employee to inform the employee of the reasons for the proposed dismissal or otherwise provide the employee with an opportunity to address the concerns in writing.” 121 (Citations omitted)
[64] The evidence clearly establishes that the Applicant was given an opportunity on 21 January 2014 to respond to the allegations concerning his conduct toward Mr Roberts, and to the allegation that he had absented himself from work during the week commencing 13 January 2014 without authorisation, and I am so satisfied.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[65] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the evidence that Ms Bignell had suggested to the Applicant that he may wish to bring a support person with him into the meeting of 21 January 2014. The Applicant attended the meeting with Mr Conibear as his support person.
Warnings regarding unsatisfactory performance - s.387(e)
[66] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct 122. For the reasons given earlier in this decision I am satisfied that the Respondent dismissed the Applicant for reasons relating to conduct and not his performance. The Respondent did not rely on, and did not make any submission to the effect that the Applicant’s dismissal related to his performance. It follows that in the circumstances of this case, this factor is not a material consideration.
Impact of the size of the Respondent on procedures followed - s.387(f)
[67] The size of the Respondent’s enterprise did not impact on the procedures followed by the Respondent in effecting the dismissal. Nor was any submission made by either party, which would suggest that this factor is a material consideration in the context of this case.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[68] The absence of dedicated human resource management or expertise in an employer’s enterprise may also impact on the procedures followed by an employer in effecting a dismissal. The evidence in this case so far as it relates to this consideration is uncontroversial. It is clear that the Respondent not only had access to dedicated human resources expertise but that it used that expertise in the form of Ms Bignell and Mr Carter. This factor is a neutral consideration in the context of this application.
Other relevant matters - s.387(h)
[69] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant.
[70] I have taken into account that the Applicant had not been previously counselled about his use of inappropriate language. I do not place much weight on this fact because it is not suggested that the Applicant has previously used highly offensive and personalised language directed towards a superior and that this has been tolerated. Moreover the Applicant has accepted that he had received training about appropriate conduct and language.
[71] I have also taken into account, that which appears to be accepted by the Respondent, that the environment in which the Applicant worked, which is controlled by the Australian Army, is one in which a degree of swearing appears to be tolerated and where swearing is not uncommon. However as I have indicated above, there is a qualitative difference between swearing in the workplace per se, and swearing at a manager that involves highly offensive and personalised language. It was not suggested by the Applicant that this latter form of swearing is either commonplace or accepted. Consequently I place little weight on the fact that swearing in the workplace which the Applicant worked may not be uncommon.
[72] Finally I have taken into account the fact that the Respondent accepts that a relevant factor in determining whether the Applicant’s employment should have been terminated and in assessing the seriousness of the conduct was the Applicant’s anxiety condition, and relevantly, whether that condition contributed to his behaviour on 20 January 2014 123. The Applicant did call any medical evidence which would suggest that his condition contributed to his conduct directed toward Mr Roberts on 20 January 2014. Furthermore, I accept the Respondent’s uncontested assertion made during final submissions that the Respondent took into consideration the fact that the Applicant wanted the Respondent to take into account previous workplace incidents which had caused his condition and that the Respondent considered those but did not think that they were sufficiently relevant to counter the seriousness of the conduct engaged in by the Applicant124. Ultimately I have come to the view that this is not a factor which weighs in the Applicant’s favour.
Conclusion
[73] Taking into account each of the matters discussed above, I have come to the conclusion that the dismissal of the Applicant was not harsh, unjust nor unreasonable. In my view, the Applicant’s conduct when viewed in its totality, justified dismissal summarily. On the evidence that I have accepted, the Applicant’s conduct directed to his manager Mr Roberts was offensive and highly personalised, and inappropriate in a workplace. It occurred while his manager was asking the Applicant to account for his unauthorised absence from work. Further his unauthorised absence showed a disregard for his obligations as an employee. The Applicant’s conduct was in my view inconsistent with a continuation of the contract of employment.
[74] The application for an unfair dismissal remedy is dismissed. An order to that effect is issued separately in PR553771.
DEPUTY PRESIDENT
Appearances:
M. Baldwin on his own behalf
I. Meagher for the Respondent
Hearing details:
Melbourne.
2014.
2 July
1 Exhibit A1 at [1]
2 Ibid; Exhibit R4 at [5]
3 Exhibit R4 at [16]
4 Exhibit R3 at [1]
5 Exhibit R4 at attachment H
6 Exhibit R3 at [23]
7 Transcript PN 29 - PN 34
8 Exhibit R2 at [5]
9 Ibid at [6]
10 Ibid at [8]
11 Exhibit R3 at [1]
12 Exhibit R2 at [9]
13 Transcript PN 124
14 Transcript PN 125
15 Transcript PN 136
16 Transcript PN 138 – PN 140; Exhibit R4 at [15] and Annexure G thereto
17 Transcript PN 141
18 Exhibit R4 Annexure G at [5]
19 Exhibit R4 Annexure G at [12]
20 Exhibit R4 at [5] and Annexure A thereto at page 3
21 Exhibit R2 at [10] – [14]
22 Exhibit R2 at [14] – [24] and Annexures A – C thereto
23 Exhibit R3 at [12]
24 Ibid
25 Ibid at [13]
26 Ibid at [14] – [15]
27 Transcript PN 458 – PN 464
28 Transcript PN 161 – PN 165
29 Transcript PN 343
30 Exhibit R3 at [8]
31 Ibid
32 Transcript PN 170 – PN 171
33 Transcript PN 174 – PN 175
34 Transcript PN 175 – PN 176
35 Transcript PN 177
36 Transcript PN 186 - PN 192
37 Exhibit A2 at page 1
38 Ibid
39 Transcript PN 202, PN 205
40 Transcript PN 202 – PN 207
41 Transcript PN 177
42 Transcript PN 208 – PN 211
43 Transcript PN 211
44 Transcript PN 212
45 Ibid
46 Exhibit R3 at [17] –[ 20]
47 Ibid at [21]
48 Ibid at [22]
49 Transcript PN 230 – PN 232
50 Transcript PN 234
51 Transcript PN 235
52 Transcript PN 244
53 Transcript PN 245
54 Transcript PN 469; PN 485-PN498
55 Transcript PN 495- PN 498
56 Exhibit R3 at [23]
57 Ibid
58 Ibid at [24] – [25]
59 Ibid at [26]
60 Ibid at [28] and Annexure B thereto
61 Ibid at [29] and Annexure C thereto
62 Exhibit A2 at page 1
63 Ibid
64 Ibid at page 2
65 Ibid
66 Ibid
67 Ibid
68 Ibid
69 Transcript PN 266-PN282
70 Transcript PN 458 – PN 506
71 Transcript PN 473 – PN 479
72 Exhibit R3 at Annexure C
73 Exhibit A1 at [6 ]– [9]
74 Transcript PN 280 – PN 281
75 Exhibit R2 at [36] and Annexure B thereto
76 Transcript PN 688 – PN 699
77 Transcript PN 276
78 Exhibit R2 Annexure E at page 3
79 Ibid
80 Ibid at page 5
81 Transcript PN 421
82 Transcript PN 296, PN 392 – PN 403
83 Exhibit R4 at [8]
84 Exhibit R2 Annexure E at page 1
85 See PN 688 - PN 699
86 Transcript PN 300 – PN 301
87 Transcript PN 657 – PN 658
88 Exhibit R2 at [37] and Annexure F thereto
89 Exhibit R4 at [7] – [8]
90 Ibid at [9] – [10] and Annexures B, C and D thereto
91 Transcript PN 525 – PN 526
92 Exhibit R5
93 Transcript PN 577; PN 588 - PN 590
94 Transcript PN 593 - PN596
95 Transcript PN 594 - PN 597
96 Exhibit R4 at Annexures E, F and G
97 Ibid at [11] – [15]
98 Ibid at [16] – [17] and Annexure H thereto
99 Ibid at Annexure H
100 Sayer v Melsteel[2011] FWAFB 7498
101 (1995) 185 CLR 410 at 465
102 Exhibit A1 at [10 a]
103 Ibid at [10 b – e)
104 See Respondent’s submission 23 June 2014
105 Transcript PN 343 – PN 344
106 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378
107 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
108 Ibid
109 King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213)
110 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1
111 Exhibit A2 at page 2
112 MM Cables v Zammit AIRC Full Bench Print S8106
113 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
114 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
115 Previsic v Australian Quarantine Inspection Services Print Q3730
116 (2000) 98 IR 137
117 Ibid at 151
118 Exhibit R2 Annexure E at page 2
119 RMIT v Asher (2010) 194 IR 1 at 14-15
120 [2013] FWCFB 9196
121 Ibid at [4]
122 Annetta v Ansett Australia (2000) 98 IR 233 at 237
123 Transcript PN 738
124 Transcript PN 744
Printed by authority of the Commonwealth Government Printer
<Price code G, PR553747>
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