Mark Groves v Armitch Pty Ltd T/A Armitch Pty Ltd

[2017] FWC 826

[2017] FWC 826

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Groves
v
Armitch Pty Ltd T/A Armitch Pty Ltd
(U2016/10765)

COMMISSIONER PLATT ADELAIDE, 8 FEBRUARY 2017

Application for relief from unfair dismissal – minimum employment period – genuine redundancy – Small Business Fair Dismissal Code – whether dismissal harsh, unjust or unreasonable – reason provided for the dismissal was false and cannot constitute a valid reason – dismissal harsh, unjust or unreasonable – compensation awarded.

Overview

[1] On 29 August 2016, Mr Mark Groves lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Armitch Pty Ltd T/A Armitch Pty Ltd (Armitch).

[2] Armitch operates the Hahndorf Veterinary Clinic (the Clinic) and Mr Groves was engaged as a small animal veterinarian/clinician. Armitch also had an interest in the adjacent Equine Clinic.

[3] Mr Groves’ application was filed outside of the 21 day time limit. On 18 November 2016, the Commission issued a Decision 1 extending the time for Mr Groves to lodge his application to the date upon which he filed in the Commission.

[4] The matter was the subject of a Determinative Conference on 19 December 2016. Mr Groves represented himself and Mr Arnold, the Proprietor represented Armitch with Mr Flower, who was a consultant to Armitch and acted as General Manager. At the conclusion of the hearing Armitch was given an opportunity to submit a profit and loss statement and Mr Groves was provided with time to comment on any material provided.

[5] Mr Groves’ relevant evidence can be summarised as follows:

• Mr Groves was employed with the task of rebuilding the veterinary practice with a view to turning the role into a more permanent one and potential for a partnership or shared ownership. 2



• Mr Groves was employed by Armitch on a casual basis from 1 September 2014 to 30 November 2015 and on a part time basis from 1 December 2015 to 29 July 2016.



• Mr Groves was covered by the Animal Care and Veterinary Services Award 2010 [MA000118] (the Award). 3



• Mr Groves hours of work were determined by client consultations and surgery which were then grouped in blocks to reduce overhead costs. 4



• Mr Groves expected to have regular work each week with the number of hours increasing over time. 5 There was an expectation that over time Mr Groves would be provided with full time employment with the opportunity for potential profit sharing or partnership. The expectation for regular and on-going work was reinforced by his appointment to a part time position from 1 December 2015.



• Mr Groves submitted his time books 6 and payroll records7 and an analysis of his hours of work in support of his contention that his hours were regular and systematic during the period of his ‘casual’ employment, and further that he had an expectation of continuing employment on a regular and systematic basis. Mr Groves submitted that his ‘casual’ service should count towards the minimum employment period.



• Mr Groves was paid $40 per hour as a casual employee, and $30 per hour as a part time employee. 8



• In addition, during the period of 1 September 2014 to 30 November 2015, Mr Groves regularly worked unpaid hours.



• On 5 July 2016, Mr Groves was verbally advised of the impending sale of the business and his dismissal by way of redundancy by Mr Arnold.



• On 10 and 11 July 2016, Mr Groves requested he be provided with a letter of termination for Centrelink purposes and sought the letter indicate that the Hahndorf Veterinary Clinic practice was sold and that his position had become redundant. 9



• On 12 July 2016, Mr Flower prepared a letter to Mr Groves which advised that ‘as a result of the impending sale of the Hahndorf Vet Clinic business’ his employment would be terminated by way of redundancy on 29 July 2016’. 10



• On 14 July 2016, Mr Groves received an email from Mr Flower which amongst other things appears to have responded to an offer from Mr Groves to work in the transition to the new owner. Mr Flower’s stated ‘Thanks for the offer of working in transition, but I don’t believe you would be required as the new owner will start by doing similar hours to you as it builds up’. 11



• Mr Groves employment ceased on 29 July 2016.



• At the time of his dismissal, Mr Groves believed that the business had been sold. Subsequently he learned that was not true and Ms Amanda Auricht had been employed to perform the work previously undertaken by him.



• During the period of part time employment prior to his dismissal Mr Groves was working an average of 25.8 hours per week. 12



• On 29 August 2016, Mr Groves lodged his unfair dismissal application.



• Mr Groves challenged the accuracy and the validity of the Financial Statements submitted by Armitch after the hearing on the basis that they were unaudited and could not be subject to further scrutiny.

[6] The evidence on behalf of Armitch given by Mr Arnold and supplemented by Mr Flower is summarised as follows:

• Mr Groves was employed on a casual basis from 1 September 2014 until December 2015. 13



• Mr Groves hours were determined by the number of scheduled appointments, which were grouped. The Clinic would advise Mr Groves each Friday when he would need to attend for work. 14



• Mr Arnold initially contended that Mr Groves’ working hours did not increase during his casual contract of employment, but then accepted that there had been a slight increase. 15



• The part time contract entered into in December 2015 was for a fixed period of 6 months to see if it would be profitable. 16



• Mr Groves had ‘set him up’ by working hard when he was a casual employee and then sat back and became unproductive as soon as he was given a permanent part time position. 17



• Mr Arnold had been seeking to sell the Clinic for some time but as the business revolved around a ‘key man’ it was difficult to sell. 18 Mr Arnold talked to a number of potential purchasers in May/June 2016.



• In mid-June Mr Arnold had some discussions with Ms Auricht. 19 Ms Auricht was working for another business and did not want to discontinue that association. It was agreed that she would work with the Clinic and see how that went.20



• The decision to dismiss Mr Groves was made on or about 10 June 2016. 21 In the period between that date and when Mr Groves was informed, Mr Arnold spoke to Mr Flower about how the decision would be progressed and how much notice Mr Groves would be provided with.22 The Hahndorf Veterinary Clinic was not a ‘priority business’ for Mr Arnold.23



• Whilst Mr Flower had the authority to write the termination letter, there was not any impending sale of the Hahndorf Veterinary Clinic, Mr Arnold contended that Mr Groves requested those words be included in the letter dated 12 July 2016. 24 Mr Arnold rejected the contention that he lied to Mr Groves, accepted that the reason given was false, and contended the letter was poorly worded.25 Armitch submitted that Mr Groves lured Mr Flower into giving a ‘not completely true’ email regarding an impending sale for Centrelink purposes.



• Mr Groves employment was terminated on 29 July 2016.



• Mr Arnold did not advise Mr Groves that his dismissal was due to financial considerations. 26



• The redundancy was genuine as Mr Groves knew the business was for sale, and it remained on the market. 27 Mr Arnold has not reached or entered into any agreement to sell the Clinic to Ms Auricht or any other person.28



• Mr Arnold accepted he did not meet the requirements of clause 8.2(c) of the Award in that he failed to provide information about the major change in writing to Mr Groves.



• After his dismissal, about half of Mr Groves’ work was performed by Ms Auricht, the balance was undertaken by Mr Arnold or persons from the Equine Clinic.



• Ms Auricht commenced working for the Clinic as a casual employee on about 15 August 2016. 29



• As to reinstatement, Armitch submitted that the work that Ms Auricht performed could have been done by Mr Groves, but as he had refused to purchase the business there was no potential for succession. 30



• At the time of the hearing Ms Auricht had been employed for 4 months and was working about 9 hours per week. 31



• Mr Arnold suggested that if a suitable purchaser was not found, the Hahndorf Veterinary Clinic might be closed.



• Mr Arnold suggested the business was not in a good financial position and any order of compensation would strain the business.



• After the hearing, Mr Flower provided an unaudited profit and loss statement for the Hahndorf Small Animal Vet Clinic for the years ending 30 June 2015 and 2016. That statement revealed a gross profit of $66K in 2015 and $64K in 2016. Overall a loss of $14K was made in 2015 and a loss of $27K in 2016.

Minimum employment period

[7] Armitch is a small business within the meaning of s.23 of the Act in that it had fewer than 15 employees at the time of Mr Groves’ dismissal. Section 382 requires Mr Groves to have served the minimum employment period of 12 months.

[8] In Mr Groves’ case, he was employed on a part time basis between 1 December 2015 and 29 July 2016. Mr Groves needs to show that his hours of work in the 12 months prior to his dismissal where of such a nature to meet the requirements of s.384(2) of the Act, that is they were regular and systematic, such that Mr Groves had a reasonable expectation of continuing employment on a regular and systematic basis.

[9] Mr Groves usefully submitted a graphic analysis 32 of the hours that he had worked. Armitch argued that the hours worked varied within each fortnight. This appears to be the result of the grouping of programmed work to allow for the efficient use of the facility and other support staff. It can be seen from the graph below that Mr Groves never worked less than 10 hours per week, and that the average number of hours increased each week until the decision was made to place Mr Groves in part time employment. By July 2015, Mr Groves was working an average of about 15 hours per week. I have disregarded any unpaid hours worked by Mr Groves.

[10] In my view Mr Groves’ hours were such to meet the requirements of s.384(2) of the Act and, when considered with his part time employment period, I find that Mr Groves has met the minimum employment period requirement.

[11] I find that Mr Groves is a person protected from unfair dismissal under s.382 of the Act.

Was the dismissal a genuine redundancy?

[12] Section 389 of the Act states:

“389 Meaning of genuine redundancy

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

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

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

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

(b) the employer’s enterprise; or

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

[1] Armitch represented to Mr Groves that his dismissal was due to the pending sale of the business. This representation was false, whilst the business was for sale no agreement to sell the business had been made. Armitch accepted that the representation was false.

[2] It appears to me that Armitch decided that it may be able to sell the business to Ms Auricht if she could work within the business, in much the same vein as Mr Groves was engaged. In order to allow that to occur, Mr Groves employment needed to be terminated. This is not a change in operational requirements that is capable of supporting a genuine redundancy.

[3] Mr Groves was covered by the Award. Clause 8.2 of the Award relevantly states:

“8.2 Consultation about changes to rosters or hours of work

(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.

(b) The employer must:

(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and

(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.

(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.”

[4] Having determined to dismiss Mr Groves on 10 June 2016, Armitch did not notify Mr Groves until 5 July 2016. This delay was not adequately explained and as a result I find that Mr Groves was not advised as soon as possible after the decision was made.

[5] In addition, Armitch failed to comply with clause 8.2(c) of the Award which required certain information to be provided in writing. I find that the Award consultation obligations have not been satisfied, and the requirements of section 389(1)(b) of the Act have not been met.

[6] The evidence reveals that half of Mr Groves work continued to be performed after his dismissal by a new casual employee, Ms Auricht. This role was not offered to Mr Groves and the only reason for not doing so appeared to relate to Mr Groves’ decision not to purchase the business. I find that Armitch’s failure to offer that role to Mr Groves breached the redeployment obligations contained in s.389(2) of the Act.

[7] In light of my findings above the dismissal cannot be regarded as a genuine redundancy as described in s.389 of the Act.

Did Armitch comply with the Small Business Fair Dismissal Code?

[8] Section 385 of the Act defines unfair dismissal, as follows:

“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.”

[9] Section 388 of the Act states:

“388 The Small Business Fair Dismissal Code

The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(1) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[10] The Code as declared is set out as follows:

“The Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. 
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. 
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. 
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[11] At the time of the dismissal Armitch employed less than 15 employees and was a small business employer as defined in s.23 of the Act.

[12] Mr Groves was not summarily dismissed.

[13] On the evidence before me the reason provided to Mr Groves to support his dismissal - the impending sale of the business - was false. It appears to me that Mr Groves was dismissed so as to allow Ms Auricht (a potential purchaser in the eyes of Mr Arnold) to work within the business.

[14] A valid reason needs to be ‘sound, defensible or well founded’, 33 a false reason can never be characterised as such.

[15] In addition, the reason in this case did not relate to Mr Groves conduct or capacity.

[16] I find that the dismissal was inconsistent with the Code.

[17] I now turn to consider whether the dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.

Was the dismissal harsh unjust or unreasonable?

Valid reason - s.387(a)

[18] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd.³⁴

[19] In my view, in order for a reason to be valid it must be a true representation of the events relied upon. In this matter, Armitch conceded that the reason given to Mr Groves was false. Whilst the business was for sale, it had not been sold nor was any sale pending. I do not accept the allegation that Mr Flower prepared the letter so as to appease Mr Groves. The content of the termination letter was a matter for Mr Flower to determine and he also represented the same basis for the dismissal in other correspondence. The representation made to Mr Groves by Armitch was an ‘alternative truth.’

Notification of valid reason - s.387(b)

[20] Mr Groves was not advised of the true reason for the dismissal.

Opportunity to respond - s.387(c)

[21] Mr Groves was not given an opportunity to respond to the real reason for the dismissal

Any unreasonable refusal by the employer to allow Mr Groves to have a support person present to assist at any discussions relating to dismissal - s.387(d)

[22] There is no evidence before me that Mr Groves requested to have a support person present.

Warnings relative to unsatisfactory performance - s.387(e)

[23] The termination was not based on unsatisfactory work performance.

Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)

[24] Armitch is a small business employer with no dedicated Human Resources support other than Mr Flower. Whilst allowance should be made for Armitch’s unfamiliarity with the Act and Award consultation provisions, it should have been obvious that providing a false reason to support a dismissal is not acceptable.

Other matters considered relevant - s.387(h)

[25] Armitch conceded that it failed to meet the consultation requirements contained in the Award. In addition it failed to offer Mr Groves alternative employment which was available.

Conclusion

[26] The Explanatory Memorandum to the Act 35 explains the approach of the Commission in considering the elements of section 387:

“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”

[27] In Byrne and Frew v Australian Airlines Pty Ltd,³⁶ the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

“It may be that the termination is harsh but not 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.”

[28] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Groves’ employment was harsh, unjust or unreasonable.

6. Remedy

[29] The relevant provisions of Division 4 of Part 3-2 of the Act state:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.

…

392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

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

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

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

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

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

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

Misconduct reduces amount

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

Shock, distress etc. disregarded

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

Compensation cap

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

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

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

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

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

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

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

[30] The prerequisites contained in ss.390(1) and (2) of the Act have been met in this case.

[31] Mr Groves did not seek reinstatement and I am satisfied that it is not appropriate in this case.

[32] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances.

[33] I now turn to whether compensation in lieu of reinstatement is appropriate.

[34] A recent Full Bench in McCulloch v Calvary Health Care Adelaide³⁷ confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul’s Licensed Festival Supermarket³⁸ remains appropriate.

[35] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the Act,³⁹ it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of the employer - s.392(a)

[36] Whilst there was evidence before me that Armitch suffered a loss in 2015 and 2016, I note that the business continues to operate and at the time of the hearing it continued to employ a casual employee performing the same work provided by Mr Groves for 9 hours per week. I do not believe that the compensation awarded will threaten the viability of Armitch.

The length of Mr Groves’ service with the employer - s.392(b)

[37] Mr Groves was employed by Armitch for 1 year and 9 months.

The remuneration Mr Groves would have received, or would have been likely to receive, if he had not been dismissed - s.392(c)

[38] Mr Groves’ work performance was not the subject of adverse comment.

[39] Mr Groves did not indicate any desire to leave the employ of Armitch, and he offered to continue to work to transition the business to the purchaser.

[40] The financial circumstances of Armitch were such that it may have made changes to its workforce had it not dismissed Mr Groves. Importantly, I note that in the 4 months after the dismissal, Armitch continued to employ Ms Auricht as a casual employee, and at the time of the hearing, she was working 9 hours per week to undertake the work previously performed by Mr Groves.

[41] In the circumstances, I believe it is reasonable to assess compensation in this matter on the basis that Mr Groves would have undertaken the role performed by Ms Auricht and worked 9 hours per week for a period of 12 months, had he not been dismissed. I have also considered that in the absence of an improved financial position or sale, Armitch may have reduced Mr Groves’ hours, dismissed Mr Groves (at which time Mr Groves may have been entitled to a severance payment) or ceased trading at all. Alternatively, Mr Groves may have resigned. In light of these possibilities I propose to discount the 12 month period by 50%.

The efforts of Mr Groves to mitigate the loss suffered by him because of the dismissal - s.392(d)

[42] At the time of the hearing, Mr Groves was seeking to secure alternative employment.

Remuneration earned by Mr Groves during the period between the dismissal and the making of the order for compensation and the amount of any income likely to be earned by Mr Groves during the period between the making of the order for compensation and the actual compensation - ss.392(e) and (f)

[43] Mr Groves had not secured paid work and appears to have received social security benefits. No discount to the compensation awarded arises from this.

Any other matter that the FWC considers relevant and the remaining statutory parameters - s.392(g)

[44] No discount arises as a result of any misconduct by Mr Groves.

[45] Mr Groves worked out his notice and was not paid a redundancy entitlement.

[46] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[47] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or half the high income threshold immediately before the dismissal. 40 The amount of compensation awarded is less than this limit.

[48] Taxation is to be paid on the amount determined.

[49] I believe that the compensation detailed below is appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.⁴¹

[50] I award compensation in the amount of $9360, which represents the amount Mr Groves would have been paid if he worked 9 hours per week for a period of 26 weeks (at his casual rate of $40 per hour) following the dismissal.

[51] An Order 42 reflecting this decision will be issued.

COMMISSIONER

Appearances:

M Groves on his own behalf.

D Arnold with P Flower, on behalf of the Respondent.

Hearing (Conference) details:

2016.

Adelaide:

December 19.

 1   [2016] FWC 8308

 2   Exhibit A6

 3   PN289-290

 4   Exhibit A1

 5   Exhibit A14, [14]

 6   Exhibit A5

 7   Exhibit A4

 8   Exhibit R1

 9   Exhibit R5

 10   Exhibit A3

 11   Exhibit R5

 12  Exhibit A4

 13   Exhibit R2

 14   PN329-337

 15   PN307, 317

 16   Exhibit R2

 17   Exhibit R2

 18   PN469-477

 19   PN499

 20   PN501-PN505

 21   PN463

 22   PN518

 23   PN658

 24   PN551

 25   PN579-592

 26   PN573-574

 27   Exhibit R2

 28   PN541-542

 29   PN509-510, 544

 30   PN547-548

 31   PN831

 32   Exhibit A8

 33   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

34 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 35   Explanatory Memorandum to the Fair Work Bill 2008

36 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24

37 [2015] FWCFB 873

38 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431

39 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446

 40   Section 392(5) of the Act

41 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32]

 42   PR590114

Printed by authority of the Commonwealth Government Printer

<Price code C, PR590112>