Miss Samaka Sophia Ndege v World Gym Sunshine Pty Ltd

[2013] FWC 3633

[2013] FWC 3633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Samaka Sophia Ndege
v
World Gym Sunshine Pty Ltd
(U2012/14920)

COMMISSIONER LEWIN MELBOURNE, 14 JUNE 2013

Alleged unfair dismissal- application for relief - jurisdictional objection- casual employee- small business- minimum period of employment- continuous service- regular and systematic employment- reasonable expectation.

[1] This Decision concerns an Application under s. 394 Fair Work Act 2009 (the Act) for relief in relation to the termination of the employment of Ms Sophia Ndege with World Gym Sunshine Pty Ltd (World Gym).

[2] World Gym has objected to the Commission dealing with the Application on the ground that Ms Ndege was not a person protected from unfair dismissal at the time her employment came to an end.

[3] Ms Ndege was a casual employee of World Gym. Her employment commenced on 29 August 2011. While this is disputed by World Gym, Exhibit A4 in the proceedings is an original document, which I consider is properly characterised as an employment agreement, which evidences the commencement of the casual employment relationship on 29 August 2011.

[4] It is appropriate to set out the content of a letter from World Gym to Ms Ndege. See Appendix A.

[5] World Gym, in my view without firm foundation, submits that Ms Ndege’s employment commenced on 2 September 2011.

[6] The evidence indicates that Ms Ndege performed work for World Gym in the fortnightly pay period between 17 August 2011 and 30 August 2011 for which she was paid on 2 September 2011. 1

[7] The last day upon which Ms Ndege was rostered to and performed work for World Gym was 29 September 2012. However, Ms Ndege was not informed that her casual employment with World Gym would end until 8 October 2012, which will be referred to further in due course.

[8] I have previously dealt with an Application for an extension of time for the filing of Ms Ndege’s s.394 Application. World Gym was advised of the hearing in that proceeding and chose not to attend. Ms Ndege gave evidence about the history of her employment at the hearing. At the conclusion of the hearing, I found that Ms Ndege’s employment had been terminated on 8 October 2012. That Decision was given ex termpore on 15 March 2013 and has not been challenged by way of appeal by World Gym. I intend to decide this matter consistently with my finding accordingly. Moreover, on the evidence before me, Ms Ndege was given notice of the end of the employment relationship with World Gym on 8 October 2012 and the dismissal was effected simultaneously thereby. 2

[9] World Gym submit that Ms Ndege left the employment on 16 June 2012 and commenced new employment with World Gym on 14 July 2012. Consequently, in World Gym’s submission, neither between the commencement of her employment and 16 June 2012 or between 14 July 2012 and 8 October 2012 did Ms Ndege complete the applicable minimum period of employment prescribed by s.383 and s.384 of the Act. This is because World Gym is a small business employer to which s.383(b) applies and those allegedly discrete employment relationships do not in either case extend to a period of one year.

[10] It is convenient at this point to set out Division 2 - Protection from Unfair Dismissal - Part 3-2- Unfair Dismissal of Chapter 3 of the Act.

Division 2—Protection 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.

Note: High income threshold indexed to $123,300 from 1 July 2012

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[11] As noted, for Ms Ndege to be a person protected from unfair dismissal she must have completed the relevant minimum period of employment, which in this case is 12 months.

[12] Ms Ndege and Mr Mailing, who is a Director of World Gym, each gave evidence in relation to the circumstances obtaining to the employment of Ms Ndege by World Gym in the period of time between 16 June 2012 and 14 July 2012.

[13] Mr Mailing’s evidence would have me conclude that the employment, which commenced on 29 August 2011, came to an end on 16 June 2012, either because Ms Ndege indicated that she was leaving the employment and that any future employment was a matter which would be subject to her convenience and agreement or Mr Mailing indicated that the employment would end on that date and that any future employment would be new employment, or, a combination of these alleged incidents of a conversation between them, around the time of 16 June 2012.

[14] Ms Ndege on the other hand gave evidence that prior to her departure she had notified the Administration Manager and Mr Contreras, her Supervisor, of an impending unavailability for work due to overseas travel to study in Hong Kong and Dubai and that it was agreed she would not be rostered to work during this period of time but would resume her duties on 14 July 2012.

[15] I prefer the evidence of Ms Ndege on this subject. Whilst I accept that Ms Ndege and Mr Mailing discussed her intended absence, I do not accept Mr Mailing’s evidence that the conversation in anyway effected the termination of the casual employment relationship. Ms Ndege’s account of the arrangements which she made for her absence, the evidence concerning the rostering of employees and in particular the rostering of her hours of work, the communication she had with Mr Contreras concerning the arrangements which had been made and evidence that she informed Mr Contreras, at his request, that she would return to work on 14 July 2012, impress me sufficiently to prefer her account of the conversation with Mr Mailing.

[16] Mr Mailing’s account of the conversation between himself and Ms Ndege is incompatible with the surrounding circumstances and inherently improbable having regard to the evidence of Ms Ndege, which I accept, of her exchanges with the Administration Manager and her Supervisor. Moreover, Ms Ndege rebutted Mr Mailing’s account in cross examination and I found that rebuttal convincing.

[17] I am also fortified in this conclusion by the fact that Mr Mailing’s evidence makes no reference to discussion of the period of “notice to leave” referred to in the letter of offer shown in Appendix A.

[18] It is also of note that in addition to that letter Ms Ndege exhibits a document dated 23 September 2011, the contents of which are set out in Appendix A, which include express consideration of termination of the casual employment relationship, such that if Ms Ndege had terminated the employment without giving the “notice to leave” in the letter of offer this may have lead to a deduction of two weeks’ pay. On the evidence before me no such notice or deduction was mentioned or discussed in the conversation between Ms Ndege and Mr Mailing referred to by World Gym, nor was any such deduction made.

[19] It is now appropriate to set out provision s.22 of the Act.

22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down underPart 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.

Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2

(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2:

(a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:

(i) any period of unauthorised absence; or

(ii) any other period of a kind prescribed by the regulations; and

(b) a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and

(c) subsections (1), (2) and (3) do not apply.

Note: Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2 deal, respectively, with requests for flexible working arrangements, parental leave and related entitlements, and notice of termination or payment in lieu of notice.

(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.

When service with one employer counts as service with another employer

(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer(taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.

Note: For example:

(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and

(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc.

(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a) the following conditions are satisfied:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(8) A transfer of employment:

(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and

(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.

[20] Having regard to s.22 of the Act, the consequence of my conclusion concerning the nature of Ms Ndege’s absence between 16 June 2012 and 14 July 2012 is that the casual employment relationship did not come to an end on 16 June 2012 and that, for the purposes of s.22 of the Act, the period between 16 June 2012 and 14 July 2012 was a period of unpaid authorised absence from the casual employment relationship.

[21] It is to be noted that, this period of absence is a period in respect of which s22(3) operates.

[22] It is convenient to now summarise the effect of my consideration and findings so far, as follows; Ms Ndege’s employment commenced on 29 August 2011 and ended on 8 October 2012, the period between 16 June 2012 and 14 July 2012 does break the period of continuous employment, but does not count towards the length of Ms Ndege’s continuous service with World Gym for the purposes of the minimum period of employment provisions of the Act.

[23] A consequence of all this is that, without any other consideration, Ms Ndege’s period of employment totals 12 months 13 days. This is arrived at by reducing the period between 29 August 2011 and 8 October 2012, as required by s.22 of the Act, by the number of days between 16 June 2012 and 18 July 2012 to determine the period of Ms Ndege’s continuous service with World Gym.

[24] It will be observed that, having regard to s.383(b) and s.384(1), subject to any other consideration, these findings would mean that Ms Ndege has completed the relevant minimum employment period.

[25] However, before concluding accordingly it is necessary to deal with further submissions made on behalf of World Gym.

[26] World Gym submit that, in addition to what I have found to be an authorised absence between 16 June 2012 and 14 July 2012, Ms Ndege was absent between the 28 July 2012 and 14 August 2012. In response to an Order by the Commission World Gym submitted records of attendance and performance of hours of work of Ms Ndege which include this period. Those records and attendance were marked as Exhibit R2.

[27] The records show the following:

Day	Date	Start	Finish	Break	Total Hours
Saturday	28/07/2012	7:45am	6:00pm	½ hour	10.25 hours
Saturday	04/08/2012	7:45am	6:00pm	½ hour	9.75 hours
Sunday	05/08/2012	9:00am	5:00pm	-	8 hours
Saturday	11/08/2012	7:45am	6:00pm	½ hour	9.75 hours

[28] Moreover, Mr Mailing did not give evidence about the details of the alleged absences during the period identified, which World Gym submit should be taken into account for the purpose of calculating the period of Ms Ndege’s continuous service. Nor did Mr Mailing put to Ms Ndege what the particulars of such alleged absences were, the precise number of them, or the dates upon which it is submitted such absences occurred.

[29] Mr Mailing also suggested there were other absences to those referred to above. However, Mr Mailing did not identify those absences in his evidence in chief. While he put a general assertion to Ms Ndege in cross examination I find this approach unsatisfactory and inconclusive. It does not provide a sound evidentiary basis upon which I could calculate any further deduction from the period of continuous service of Ms Ndege for the purposes of my consideration of the jurisdictional objection of World Gym.

[30] Pay advices and records of Ms Ndege’s attendance have been provided for fortnightly pay periods between 17 August 2011 and 29 September 2012. With the exception of the period of the days between 16 June 2012 and 14 July 2012, there are either records of attendance or pay advices for Ms Ndege which establish that Ms Ndege worked, or was paid for work, during each of the pay periods between 17 August 2012 and 12 October 2012.

[31] I am not satisfied on the evidence before me that there were relevant absences in the period identified by World Gym or more generally, other than the period between 16 June 2012 and 14 July 2012. Consequently, my conclusion that the period of continuous service of Ms Ndege for the purpose of calculating the period of her employment was 12 months and 13 days stands. Even if it were to count the period of continuous service as between 29 August 2011 and 29 September 2012 and deduct the 27 days absence between 16 June 2012 and 14 July 2012, Ms Ndege’s employment would be one year and 4 days.

[32] It is informative to refer to consideration of the statutory provisions concerning the minimum period of employment by a Full Bench of Fair Work Australia. In the matter of Wayne Shortland v The Smiths Snackfood Co Ltd 3, the Full Bench made the following observations concerning the consideration of what will constitute the minimum period of employment of a casual employee:

[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.

(Emphasis added)

[33] A further submission on behalf of World Gym is that Ms Ndege was not employed on a regular and systematic basis and that during the period of her employment she did not have a reasonable expectation of continuing employment with World Gym on a regular and systematic basis.

[34] Ms Ndege gave informative evidence of the way in which the days upon which she worked and the hours that she worked were rostered by World Gym. There is no doubt that, with the exception of the period between 16 June 2012 and 14 July 2012, Ms Ndege was regularly rostered for work. The material, looked at overall, supports this conclusion. The viva voce evidence of Ms Ndege, which in its particulars was not effectively overturned by World Gym, is convincing of this conclusion.

[35] Something will be regular if it is “usual, normal or customary.” 4 Something will be systematic if the properties of the thing are “having, showing or involving a system method or plan.”5

[36] On my evaluation of the casual employment relationship agreed to and performed by Ms Ndege and World Gym it was customary for Ms Ndege to be rostered to work as required for the whole of the period of continuous service I have found to be the case. This was effected by a system of methodically rostering staff four weeks in advance on a rolling basis. Until 8 October 2012, this way of conducting the casual employment relationship had characteristics of regularity and system, in my judgement. Ms Ndege had a reasonable expectation of this employment continuing until the termination of her employment, for reasons which will be further elaborated.

[37] Ms Ndege exhibited the roster system. 6 Her evidence was that a rolling roster based on four weeks in advance would be posted each week so that employees would be on notice of what their days and hours of work would be over the coming four weeks. In essence the operational methodology of the four weekly in advance roster system was that the past week would be deleted and a new roster for the fourth of the four coming weeks added. I accept this evidence.

[38] Ms Ndege’s name, according to her evidence, was regularly and systematically included in that roster. Mr Mailing’s evidence does not refute this. The actual days of attendance of the rostered employees had some variation in the usual course of events, such as illness or misadventure, however, in my view, the rosters posted by World Gym for Ms Ndege systematically notified her of regular casual engagements and continuous employment as a casual employee. Albeit not necessarily on the same days, or for exactly the same hours on each roster.

[39] In my view, in considering the relevant statutory provisions, it would be wrong to conclude that a casual employee will only be regularly and systematically employed for a year if they are engaged on the same day or days of the week, fortnight or month and only for the same number of hours on such days. Rather, in my view the facts looked at as a whole must be evaluated and the regularity and systematic nature of the casual employment must be judged accordingly.

[40] An exemplary discussion can illustrate the appropriateness of such an approach having regard to the statutory intention. Assume that a casual employee is rostered to work on two days of the week, each week, for six hours on each day. It would be a simple matter for an employer, who is not a small business employer, not to roster the employee in one week of each six monthly period. Over a period of ten years the employee would have been rostered to work 500 weeks but because the employee was not regularly rostered to work each week for the 520 weeks in that decade it could be submitted that the casual employee was not regularly rostered to work and was never a person protected from unfair dismissal. Requiring perfect symmetry of regular days or hours of work would clearly defeat the intention of the legislature to afford protection from unfair dismissal to the class of casual employee regularly and systematically employed as such with a reasonable expectation of that employment continuing.

[41] World Gym further submits that Ms Ndege, because she was a casual employee, could have no reasonable expectation that at the conclusion of each four week roster period that her employment would continue. In my view, in addition to an inherent incompatibility with the rolling nature of the roster system I have described, this submission misconceives the nature of the statutory provisions of s. 384(2) of the Act. Those statutory provisions are predicated on the fact of casual employment. Moreover, the reasonable expectation referred to in those provisions is a reasonable expectation of continuing casual employment on a regular and systematic basis by the relevant employee, objectively evaluated in all the relevant circumstances by the Commission. That evaluation commences with the casual nature of the employment and is directed to consideration of all the relevant circumstances of the employment, for the purpose of characterisation of the casual employment as regular and systematic or otherwise. The question to be answered is; on the evidence before the Commission, was the casual employment relationship conducted such that the employment can be reasonably categorised as regular and systematic and could the employee have a reasonable expectation of the continuation of such employment up until the time when, for whatever reason, the employment ceases by the employer’s termination of it.

[42] In coming to the necessary conclusion, in all the relevant circumstances, it is appropriate to have regard to the agreement between World Gym and Ms Ndege of how the casual employment relationship would be conducted. The letter of offer and the document of 15 September 2011 7 defined the nature of the employment relationship, it clearly contemplated that Ms Ndege would be rostered to work. The rostering system was notification of regular employment which was put into effect systematically. Pay was fortnightly. Moreover, it was demanded by World Gym that within the system of regularly rostered work “we expect a reasonable amount of flexibility.”

[43] Considering the evidence as a whole, I conclude that, objectively, Ms Ndege’s claim to have had a reasonable expectation that the causal employment relationship she entered into with World Gym would continue is sound. Objectively considered, the system of rostering the work and the regularity of her casual employment combine to ground such a reasonable expectation. Moreover, Ms Ndege was in frequent contact with Mr Contreras. This is evidenced by various text messages between them concerning the performance of her duties. Ms Ndege gave evidence at the extension of time hearing that on 8 October 2012 Mr Contreras had rung her. Her evidence in this respect was that Mr Contreras said as follows:

Tony Contreras. So on 8 October what did you receive?---I received a phone call from Tony Contreras.

Phone call. What did he say?---Stating that - he said that, “Sophia, the team is going to be transformed to a 24 hour gym and we no longer require any casual or part time employees as we are going to employ full time employees so you are no longer needed.”

[44] This evidence supports a conclusion that it was necessary, in Mr Contreras’ view, to inform Ms Ndege of a reason why her employment would come to an end. That reason rested upon a reorganisation of the system of employment used by World Gym. Up until that time, Ms Ndege’s hours of work were a component part of an assemblage of hours of work of various employees rostered on a four week in advance rolling roster. Clearly, the purpose of Mr Contreras’ phone call was to communicate to Ms Ndege that she could no longer have any expectation of employment with World Gym in accordance with the system of work conducted on the basis of the employment agreement entered into by her with World Gym to commence on 29 August 2011. If Ms Ndege did not have such a reasonable expectation then the action and words of Mr Contreras bear no reasonable explanation.

[45] I also consider the words of the letter of offer contained in Exhibit A4, as follows, to have provided such an expectation when considered together with her experience of the performance of the employment agreement, until 8 October 2012. In that letter of offer World Gym concluded with the statement below.

‘We look forward to a long and enjoyable relationship together.’

[46] I therefore, reject World Gym’s submission that Ms Ndege was not regularly and systematically employed for the period of her employment and could not have a reasonable expectation of continuing casual employment of that kind. On the contrary I find that Ms Ndege was a casual employee of World Gym between 29 August 2011 and 8 October 2012, was regularly and systematically employed and in all the circumstances had a reasonable expectation that the employment would continue, until 8 October 2012. However, the period of Ms Ndege’s continuous service for the purposes of calculating the period of Ms Ndege’s employment under s.384 of the Act was less than the total period of employment but greater than one year.

[47] I find that Ms Ndege completed the relevant minimum period of employment in order for her to be a person protected by unfair dismissal on 8 October 2012.

[48] The jurisdictional objection is dismissed. An Order will issue accordingly.

COMMISSIONER

Appearances:

Ms S.Ndege - Applicant

Mr W.Mailing - for the Respondent

Hearing details:

2013

Melbourne

May 5

Final written submissions:

Applicant: 6 June 2013.

Respondent: 9 May 2013.

 1   Exhibit A5

 2   Workpac Pty Ltd v M Bambach [2012] FWAFB 3206.

 3   [2010] FWAFB 5709

 4   A. Delbridge and J.R.L Bernard The Macquarie Concise Dictionary (2nd ed, The Macquarie Library Pty Ltd, 1992).

 5   Ibid.

 6   Exhibit A2.

 7   Appendix A.

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