Mitchell Charles v Wild Desert Employment Co Pty Ltd
[2024] FWC 2073
•2 AUGUST 2024
| [2024] FWC 2073 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mitchell Charles
v
Wild Desert Employment Co Pty Ltd
(C2024/2219)
| COMMISSIONER PERICA | MELBOURNE, 2 AUGUST 2024 |
Application to deal with contraventions involving dismissal
On 5 April 2024, Mr. Mitchell Charles filed an application under s 365 of the Fair Work Act 2009 alleging he was dismissed from his employment with Wild Desert Employment Co Pty Ltd (Wild Desert) in contravention of Part 3-1.
Wild Desert made a jurisdictional objection that Mr. Charles was not dismissed as required by s 365(a). The Commission’s powers to deal with a dismissal dispute under s 368 are subject to the determination of any jurisdictional issues.
The jurisdictional objection was heard by determinative conference on 18 June 2024 by Microsoft Teams. Mr. Charles represented himself. He and Ms. Susan Leigh Marcus gave evidence for Mr. Charles. Wild Desert was represented by its Human Resource Manager Ms. Karen Brockwell. The witnesses for Wild Desert were Ms. Brockwell and Mr. Randall Hockey, Wild Desert’s operations manager.
For the reasons that follow I have decided Mr. Charles was not dismissed. The Commission cannot deal with a dispute under s 365 unless the
person has been dismissed. The application fails for want of jurisdiction and is therefore dismissed.
FACTS
Wild Desert provides labour for clients who operate oil rigs, transport operations and mobile camps in the oil and gas industry. Its clients include Santos, Beach Energy and Arrow Energy.
On 27 September 2021, Mr. Charles signed terms and conditions of employment with Wild Desert in the form of a letter. He was employed as on a “casual basis” as a Lease Hand Level 1 commencing on 14 October 2021. Clause 6 of the Contract entitled “Hours of Work
states “as a casual employee there is no guarantee of ongoing or regular work”.[1] He was later employed as a derrickman.
The casual employees of Wild Desert who work on rigs receive a text message from their HR Lead about the next period of available work.[2] Ms Brockwell’s evidence was “casual employees are free to confirm availability for that work or say no. Saying no to a period of work is not unusual and does not impact on their opportunities for future periods of work.”[3]
In October 2021, Mr. Charles commenced work on Rig 4 in the Cooper Basin which is operated by Santos. He was then moved to Rig 10 which is operated by Beach Energy. Mr. Charles suffered, workplace injury and was cleared to return to work in June 2023. He then worked five days on Rig 30 for Arrow Energy. He then worked on Rig 2 a smaller rig operated by Santos known as “Flushby”.[4]
Events of 28 and 29 November 2023
Mr. Charles’ evidence was:[5]
· On 28 November 2023, he was called into the lunch room together with his co-workers by the field supervisor, Ben Doyle. Mr. Doyle showed the crew pictures which included damage on rigs and “wear and tear” on the work environment. Mr. Charles’ evidence was that he responded that the damage in those pictures had been reported a few weeks ago.
· Later that day, Mr. Charles was approached by Mr. Doyle who called him a “liar” and a “grub” in front of the other workers. Mr. Charles waited until Mr. Doyle had finished talking and then walked away. He subsequently made a complaint to the workplace health and safety officer.
· On 29 November, Mr Charles had a conversation with Mr. Curtis Wehl, his manager, and was asked to withdraw the complaint because “it may potentially cause me to lose my job”. He subsequently withdrew the complaint.
17 December 2023 – email concerning replacement worker for Mr. Charles
Mr Hockey, in his witness statement which was tendered into evidence,[6] gave the following context about an e-mail “Ben” at Wild Desert had received at 8:58 AM on 17 December 2023 from the “Rig Rep” at Flushby Rig, Mr. Dave Phillips, an employee of Santos (the Santos e-mail):
“Towards the end of his December 2023 hitch, Mr. Charles complained of a back injury which resulted in him resting at camp for several days. Mr. Charles was temporarily replaced on the Flushby Rig 2 by another worker.”[7]
The Santos e-mail was attached to Mr. Hockey’s statement, and it concerned “Jay”, the Wild Desert employee who had replaced Mr. Charles while he was injured:
“Jay has indicated that he is happy either way to stay on this rig or return to rig 4, and basically it is up to Wild Desert where he ends up.
I have noticed already that the crew’s demeanour and work ethic seem to have improved since Jay has been on site. To date (2 days) Jay has proven to be far more capable, enthusiastic, positive, hands on (not standing back and waiting for others to do the work), responsive to direction, knowledgeable (and willing to share/ mentor others) and appears to have a much better rapport with both Curtis and myself.
I think he would be a bonus to retain on the Flushby rig (if possible), a far greater asset and with a future in the oil and gas industry, unlike the fellow who he has temporarily replaced due to having a sore back.
Additionally, I note regards the sore back, that this was not reported to me at the time, other than a comment in passing some 24 hours later.”
Mr. Charles did not cross examine Mr. Hockey in relation to this e-mail and I accept it as a business record of Wild Desert.
19 December 2023 events
Mr. Charles’ evidence was:
On 19 December 2023, he was given an eight-month assessment by Mr. Doyle. Mr. Charles was told there were several issues around his performance and safety standards. Mr. Charles was of the opinion that “they were relatively minor and trivial”.[8]
Mr. Charles also gave uncorroborated evidence that Mr. Doyle had asked other staff members to collect information so that he could justify terminating him. Mr. Charles evidence was that he was told at the end of the meeting that “improvement was needed with his performance”.[9]
Wild Desert tendered an “employee assessment report” dated 19 December 2023 into evidence.[10] It was signed by Mr. Charles and Mr. Curtis Wehl, his manager. Mr. Charles conceded in evidence that Mr. Wehl had been present during the eight-month assessment meeting conducted by Mr. Doyle but had not said anything.[11]
There are criticisms of the work of Mr. Charles in this employee assessment report. These criticisms included: “Mitch will always have an excuse if there is something that he has done wrong”. On the performance indicator titled ‘The employee maintains sound working relationships with others’, it states “again, up and down in this area they are getting on as a crew and other days there is a lot of bickering between each other”. There is a general comment in the document as follows:
“At the start of a couple of hitches I’ve spoken to Mitch about picking his game up in areas where he is lacking. Mitch has been on rigs for a number of years now and has a decent knowledge of operations at his position level. Mitch is inconsistent with his work ethic, motivation and planning some days good and some days poor. I would like Mitch to stay consistent when it comes to some of these areas… ensuring tasks get done that I ask him, staying motivated and doing the job properly for the first time instead of me having to ask him to redo it. I ‘ve seen Mitch when he’s switched on and focused and have no problem with him but the challenge for him is to stay at that level consistently. I would like Mitch to take responsibility for his actions, learn from them and get on with the job instead of making excuses. If Mitch can perform and stay at a high level of performance, he will find that the job us much easier as no one is constantly on his back about issues. I hope Mitch takes this on board and works on the areas of concern.”
19 December 2023 was the last shift Mr. Charles undertook for Wild Desert.
Texts between Mr. Charles and Ms. Zappala on 6 and 7 January 2024
Ms. Brockwell tendered her own statement into evidence. It referred to and attached a series of text messages between Mr. Charles and Ms Katherine Zappala, a HR Lead at Wild Desert. They included a 6 January 2024 text where Mr. Charles indicated he was “good for work” and a 7 January 2024 text were Mr. Charles asked whether there was “any news”.
8 January 2024 conversation between Mr Hockey and Mr. Charles
On 8 January 2024, Mr. Charles had a telephone call with Mr. Hockey. Mr. Hockey told him there were no shifts available, but he would be placed into the casual pool.[12] Mr Hockey’s evidence was he called Mr. Charles and advised him that he “would not be returning to Flushby Rig 2”.[13] Mr. Hockey then told Mr. Charles he “would be placed in the casual pool and would be considered should other opportunities (outside Cooper Basin or short-term work for other clients) arise”. Mr. Hockey goes on: “At no point did I tell Mr. Charles that he would never be considered for work with Wild Desert”.[14]
Mr. Hockey described the casual pool in his evidence:
“Casual pool employees are often given the opportunity to pick up work where their skills and experience match the opportunities, For example he might get work for a client that is a week or so at a time…it is certainly not the case that casual pool employees languish without being offered work. Unfortunately, however no suitable opportunities arose from January 2024 to April 2024 that matched Mr Charles skills and experience that are also suitable from Wild Desert’s client operations/relationship perspective, given the limitations around which clients we could place him with.”[15]
Subsequent to this meeting, at 12:16 PM on 8 January 2024, Mr. Hockey sent an e-mail to Ms. Brockwell that “I have called Mitchell Charles today and notified him that due to his recent poor attitude and behaviours on site, he will not be returning to Flushby. We currently have surplus rig crew with Rig 4 shutting down, he will be placed in a casual workers pool.”[16]
At 10:00 AM and 12:00 PM on 8 January 2024, Mr. Charles sent text messages to Ms. Zappala stating: “Hey I still haven’t received a manifest”. He sent a further text requesting a copy of all his “hitch assessments” from the start of his employment. Ms. Zappala responded that she could not provide them.[17]
At 2:06 PM on that day, Mr. Charles sent a text to Mr. Hockey as follows:
“I do apologise if my work ethics haven’t been up to Wild Desert standards lately. I love what I do and I’m good at it. I also only to be given another chance to prove that I’m a hard and respectful worker, who will strive to uphold the Wild Desert name.”[18]
22 January to 30 January 2024 text messages
On 22 and 29 January 2024, Mr. Charles enquired whether there was any work. On both occasions Ms. Zappala confirmed that there was no work “at the moment”
On 30 January 2024, Mr. Charles and Mr. Hockey had the following text exchange:[19]
Mitchell Charles
Hey mate the girls from HR have told me to ask you if there’s any work available for me cheers
Randall Hockey
Mitch as discussed you have been placed in the casual workers pool and we cannot guarantee work. If something comes up we will be in touch
Mitchell Charles
Funny I’ve been there for 2 years never heard of the casual pool until you stand up for yourself and your crew, then abused by your field supervisor. Made to look like lazy and hopeless only to be given no notice and borderline homeless. Bout sums it up.”
Mr. Hockey did not respond to this text.
Mr. Charles subsequently sent a text to Ms. Zappala:[20]
“I’ve reached out to Randall and have no luck. 7 weeks with no work and I’m not sure how I am supposed to support myself, being still employed by Wild Desert after two years of constant work, I am not sure how much longer I can wait for a call. I only ask if there is any intention of me returning to work in the near future so I can plan or look for further employment elsewhere, as I have a family to support.”
19 March 2024 text exchange between Mr. Charles and Ms. Zappala on an Employment Separation Certificate
On 19 March 2024, Mr. Charles had the following text exchange with Ms. Zappala:[21]
Mitchell Charles
Can I have my termination certificate please?
Katherine ZappalaHi Mitch, you need to e-mail payroll if you are chasing a separation certificate
Mitchell Charles
“Not separation certificate, termination I’m assuming I’m not working there anymore. I’ve heard nothing back from anyone”
Katherine Zappala
That’s not something I have anything to do with. I will follow up with Karen and Randall but they are in meetings for the next few days.
3 April 2024 telephone conversation between Mr. Charles and Mr. Hockey
On 3 April 2024, Mr Charles had a telephone conversation with Mr. Hockey. What was said during this conversation is contested.
Mr. Charles gave evidence that he was told by Mr. Hockey that Wild Desert “had made the decision to let me go, and I would be receiving an employment separation certificate in order to show that I had been terminated”.[22]
Mr. Hockey in his evidence says “on 3 April 2024, Mr. Charles called me to ask what was going on with his work. At that point, I advised him we did not have any opportunities at this point but that he remained in the casual pool should a suitable opportunity arise”.[23]
In his oral evidence at the hearing, Mr. Hockey stated he had said to Mr. Charles “he would not be returning to the Flushby Rig”.[24] Mr Hockey denies he said to Mr. Charles that the “decision had been made to let him go and he would be receiving a separation certificate in order to show that he had been terminated due to a work shortage”. When those words were put to him in his oral evidence, Mr. Hockey said, “No, I did not say that.”[25]
Ms. Markus, who is Mr. Charles’ mother, gave oral evidence that she was present when Mr. Charles took the call from Mr. Hockey. Mr. Charles and Ms. Markus were at home, outside in her entertainment area. Ms. Markus says she made a note in her diary that it took place precisely at 11:49AM.[26] It was her evidence that Mr. Charles took the call out loud on speaker and then took it off speaker to have the discussion with Mr. Hockey. Ms. Markus said she was standing close to Mr. Charles and heard him say during the conversation “Right so I haven’t got a job anymore. I have been terminated”. She also said that after the conversation had concluded Mr. Charles had said to her “Wild Desert has terminated me, has terminated my employment”.[27]
At 11:31AM on 3 April 2024, Mr. Hockey sent an e-mail to Ms. Brockwell that stated: “With the poor feedback we have received from Flushby and Santos regarding Mitchell’s performance we will not be bringing him back to Flushby. I have called him today to notify him.”
On 4 April 2024, an employment separation certificate was issued by Wild Desert. The reason for the separation given was “shortage of work” and “last worked 19 December 2023”.
Evidence about advertisements for Wild Desert jobs
Mr. Charles in his evidence stated that during the period he was told there was no work available, Wild Desert had placed job advertisements for Derrickmen. Attached to his statement was an advertisement dated 11 March 2024 for derrickmen, lead floorhands, floorhands and leashands at Rig 22.[28]
Ms. Brockwell cross examined Mr. Charles about this particular advertisement as follows:[29]
Karen Brockwell
I did have a question on that dot point 14, on page 62, where Mr Charles states that we were actively hiring derrick hands. Mr Charles, were you aware that the derrick hands that were being asked to express interest were required to have an IWCF3BOP ticket, were you aware of that?
Commissioner Perica
What's that?
Karen Brockwell
So that is an international well control forum ticket that is required for this position to work with this client in Queensland. It is a minimum requirement of the role which Mr Charles did not hold that qualification nor has he been flagged to be able to be promoted up into that role. So given his skillset and his capabilities, he could not take on one of those roles in Queensland with this client, he doesn't have the formal training. That's why I'm asking Mr Charles if he was aware of that.…
Karen Brockwell
Were you aware that they had to have a level 3 BOP ticket?
Mitchell Charles
I was not aware, no.…
Karen Brockwell
Further to that, we were recruiting, that was the requirements of the role. Mr Charles, are you aware that that rig didn't actually commence operations until 30 May 2024?
Mitchell Charles
I was not aware. The ad didn't specify the requirements for positions.”
RELEVANT LAW AND CONTENDING ARGUMENTS
Relevant law
In order for the Commission to exercise its power to deal with a dispute under s 365, it must find as a jurisdictional fact the Applicant has been dismissed. The meaning of “dismisses” is governed by the definition in s 12 which directs the reader to s 386:[30]
386 Meaning of dismissed.
(1)A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Mr. Charles argues he was either dismissed on 3 April 2024 or constructively dismissed
Mr. Charles argues the conversation he had with Mr. Hockey on 3 April 2024 effected a termination at the initiative of the employer under s 386(1)(a).[31]
In the alternative, Mr. Charles argues if he resigned by requesting a separation certificate the circumstances surrounding the last three months of his employment show he was “forced to resign” under s 386(1)(b). The two circumstances referred to in his outline include:
· the failure to provide shifts from 19 December; and
· he was told there were no opportunities available to him which was “contradicted” the failure to provide him work when “job advertisements had been published on social media[32]”
Wild Desert argues Mr. Charles was not dismissed
Wild Desert argues it did not engage in any conduct with the intention of ending the employment relationship with Mr. Charles. The contract of employment did not entitle Mr. Charles to any work at all, let alone any particular hitches. Mr. Charles was free to decline a hitch when it was offered to him. It follows, in the argument of Wild Desert the failure to provide shifts does not amount to a termination of employment.[33]
It also argues there were no other steps taken by Wild Desert that could amount to a termination on its initiative:[34]
· Based on third party feedback and preferences, Wild Desert could not offer Mr. Charles any shifts at Flushby.
· Mr. Charles was placed within a casual pool of employees who would be considered should a suitable vacancy arise.
· For the period of time that Mr. Charles was in the casual pool of employees, there were no opportunities available that were suitable for his skill level and experience.
Wild Desert argues it did not engage in conduct with the intention of ending the employment relationship. Placing Mr. Charles in the casual pool did not have the intention of bringing the employment relationship to an end. The casual pool was created to maintain the relationship where there was no work available for casual employees.[35]
CONSIDERATION
Was Mr Charles dismissed?
The 19 March request for an employment separation certificate
An Employment Separation Certificate is a document used by former employees to allow them to apply for benefits from Centrelink. It assists in determining the amount of unemployment benefits that an individual should be paid while they are unemployed and between jobs.
The issue of an Employment Separation Certificate is predicated on a “separation” of the relationship between the employer and employee. A certificate can only be issued once the employment relationship is ended.
The text dated 19 March 2024 in which Mr. Charles requested a certificate was sent because of his frustration that he was not getting any shifts from Wild Desert. It is based on Mr. Charles’ assumption that his employment had been terminated. His employment had not been terminated at that stage, he was allocated to the casual pool in a manner consistent with his contract of employment which expressly did not “guarantee ongoing or regular work”.
It could be the issue of the certificate by Wild Desert on 4 April 2024 was an acceptance of his 19 March 2024 request for an employment separation certificate. It could be that Wild Desert ceased his employment on 4 April by reason of a request for a Separation Certificate which was initiated by Mr. Charles.
This conclusion is dependent on my finding on what occurred in the telephone conversation between Mr. Hockey and Mr. Charles on 3 April 2024. If I find Mr. Hockey terminated the employment of Mr. Charles on that date the nexus between his request and the cessation of employment on 4 April 2024 is broken and Mr. Charles employment would have been terminated at the initiative of the employer.
Was Mr Charles dismissed on 3 April 2024?
The question of whether or not Mr. Charles was dismissed on 3 April 2024 for the purposes of s 386(1)(a) rises or falls on a finding of what occurred in the telephone conversation between Mr. Charles and Mr. Hockey on that day.
Mr Hockey states that on 3 April 2024, he told Mr. Charles that he would not be returning to Flushby and he categorically denies that he said that Wild Desert had “made a decision to let him go and he would be receiving an employment separation certificate in order to show he had been terminated.”
The relatively contemporaneous e-mail Mr. Hockey sent to Ms. Brockwell shortly after this meeting reflects his version of events. It states: “with the poor feedback we have received from Flushby and Santos regarding Mitchell’s performance we will not be bringing him back to Flushby” and “I have called him today to notify him”.
The evidence of Ms. Markus cannot be determinative. She conceded she did not hear what Mr. Hockey had said.[36] Her oral evidence was she had “precise” evidence of when the conversation had occurred because she had recorded “11:49 AM” in her diary.[37] This is not consistent with the documentary evidence of Mr. Hockey. Mr. Hockey was reporting to Ms. Brockwell the outcome of that conversation at 11:31 AM.[38] At best the evidence of Ms. Markus is evidence of Mr. Charles’ reaction to what was said to him. It is of low probative value to support his version of the conversation with Mr. Hockey.
I have made an assessment of the competing evidence of Mr. Hockey and Mr. Charles based on their demeanour as witnesses in the hearing. Mr. Hockey had a clear memory of what was said in the conversation and was a more credible witness. On that basis, I prefer the evidence of Mr. Hockey. The subsequent and contemporaneous e-mail Mr. Hockey sent to Ms. Brockwell supports his version of that conversation.
Finding
I therefore find Mr. Charles was not dismissed by Mr. Hockey on 3 April 2024. His employment was ended at his initiative when his 19 March 2024 request for an employment separation certificate was complied with on 4 April 2024.
Was Mr. Charles forced to resign under s 386(1)(b)?
The test in Bupa[39] whether or not an employee was forced to resign under s 386(1)(b) is whether “the employer engaged in the conduct with the intention of bringing the employment to an end or whether the termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign”.
Mr. Charles relies on the failure to provide shifts after 19 December 2023.
It is irrefutable that his contract of employment was for casual work and that “there was no guarantee of ongoing and regular work” in that contract. The “failure to provide shifts” in this case needs to be seen through that contractual prism. Wild Desert were not obligated to provide him regular work.
The reason he was no longer offered shifts at Flushby was not in the control of Wild Desert. The Santos e-mail clearly expresses a preference by Santos for the worker “Jay” over Mr. Charles at Flushby. Mr. Charles contests the performance issues that were raised in the last three-week stint he had at Flushby. Nonetheless, he signed the eight-month performance assessment which indicates that performance issues were raised with him on 19 December 2023.
On 8 January 2024, following the telephone conversation with Mr. Hockey where he was told that he would no longer work at Flushby he apologised by text saying “I do apologise if my work ethics haven’t been up to Wild Desert standards lately. I love what I do and I’m good at it. I also only to be given another chance to prove that I’m a hard and respectful worker, who will strive to uphold the Wild Desert name”.
Mr. Charles says that he signed the performance document and sent that text to keep his job. Irrespective of the merit of Santos preference for Jay over Mr. Charles, the decision that Mr. Charles would no longer be placed at Flushby was initiated by Santos, not Wild Desert.
As his assignment at Flushby could no longer be offered to him, Wild Desert placed him in the casual pool. I accept the argument by Wild Desert that the placement of Mr. Charles in the casual pool was designed to continue his employment rather than to end it. He could no longer work at Flushby. The casual pool provided an alternative and a lifeline for his employment.
Mr. Charles argues the failure of Wild Desert to allocate him work from December 2023 to April 2023 was conduct that “had the probable result that he had no real choice than to resign” because work was available and Wild Desert had “no intention of providing Mr. Charles with future opportunities”. Mr. Charles relied on the 11 March 2024 social media advertisement placed by Wild Desert for derrickmen and other occupations.
The uncontested evidence before me was the 11 March 2024 advertisement was for derrickmen with qualifications which Mr. Charles had not attained. Further, none of the jobs that were advertised would be available until May 2024 which was after his employment had ceased. It follows that Mr. Charles was not qualified for the advertised derrickmen positions, and in any event none of the jobs advertised where available during the period he claims no work was being offered to him. It follows that advertisement cannot support the argument he propounds.
Finding
The ending of Mr. Charles’ placement at Flushby cannot be regarded as an initiative of Wild Desert but of its client. Placing Mr. Charles in the casual pool had the effect of preserving rather than ending his casual contract relationship with Wild Desert. The casual pool arrangement was consistent with his contract of employment. The advertisement he relies on to show that Wild Desert had “no intention of offering him employment” was for derrickman positions that Mr. Charles was not qualified to undertake, and the jobs would only have become available after his employment contract was finished.
I therefore find from 19 December 2023 until 3 April 2024, Wild Desert neither engaged in conduct with the intention of bringing Mr. Charles employment contract to an end nor did it engage in conduct that had the probable effect that Mr. Charles had no choice but to resign.
CONCLUSION
Mr. Charles was not dismissed under s 386. It follows that an element required for the Commission to deal with a dispute under s 365, namely a dismissal, is not present. The application fails for want of jurisdiction and is therefore dismissed.
COMMISSIONER
Appearances:
Mitchell Charles, the Applicant, for himself
Karen Brockwell on behalf of the Respondent
Hearing details:
18 June 2024
Microsoft Teams
[1] The contract and schedule are at DCB at 15 to 27.
[2] DCB at 13 – Statement of Ms. Brockwell.
[3] Ibid.
[4] DCB at 34 – Statement of Mr. Hockey.
[5] DCB at 61-62 – Statement of Mr. Charles.
[6] As “R3” at DCB at 34 to 35.
[7] DCB at 34 at paragraph 8.
[8] DCB at 62 – Statement of Charles at numbered paragraphs 7 to 10.
[9] Ibid.
[10] R4.
[11] PN369.
[12] DCB at 62.
[13] DCB at 35 – Statement of Hockey at numbered paragraph 10.
[14] Ibid.
[15] Ibid at numbered paragraph 12.
[16] DCB at 38.
[17] DCB at 28.
[18] DCB at 39.
[19] DCB at 40.
[20] DCB at 30.
[21] Ibid.
[22] DCB at 62 at numbered paragraph 16.
[23] DCB at 35 at numbered paragraph 14.
[24] PN179.
[25] PN183 to 184.
[26] PN440.
[27] PN441 to PN475.
[28] DCB at 79.
[29] PN 411 to 422.
[30] Coles Supply Chain v Milford [2020] FCAFC 152 at paras [15], [86].
[31] DCB at 58-59.
[32] DCB at 59.
[33] DCB at 11.
[34] Ibid.
[35] Ibid.
[36] PN467.
[37] PN444.
[38] DCB at 41.
[39] Bupa Aged Care Australia Pty. Ltd [2017] FWCFB 3941 at [47].
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