Mr Aaron Kyle Van Luyn v Southern Aviation Pty Ltd T/A Bunbury Flying School

Case •

[2022] FWC 1698

•

30 September 2022
[2022] FWC 1698

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Aaron Kyle Van Luyn
v

Southern Aviation Pty Ltd T/A Bunbury Flying School

(U2022/650)

DEPUTY PRESIDENT BINET

PERTH, 30 September 2022

Application for an unfair dismissal remedy

  1. On 11 January 2022, Mr Aaron Van Luyn (Mr Van Luyn) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Southern Aviation Pty Ltd T/A Bunbury Flying School (Bunbury Flying School).

  1. On 27 January 2022, Bunbury Flying School filed a Form F3 - Employer Response to Unfair Dismissal Application, noting it had no jurisdictional objections to the Application. 

  1. On 14 April 2022 the parties participated in a conciliation conference but the matters in dispute could not be resolved.

  1. Taking into account the parties wishes and circumstances a determinative conference, rather than a hearing, was determined to be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a determinative conference in Perth on 5 July 2022 (Determinative Conference).

  1. Directions for the filing of materials in advance of the Determinative Conference were issued to the parties on 27 April 2022 (Directions).

  1. At the Hearing, Mr Van Luyn represented himself and Bunbury Flying School was represented by Ms Pamela Margaret Ray, the Administrator of Bunbury Flying School (Ms Ray).

Evidence

  1. The Directions required the parties to file their witness evidence in chief in advance of the Determinative Conference.

  1. In accordance with the Directions Mr Van Luyn filed a witness statement setting out his evidence in chief.[1]  At the Determinative Conference Mr Van Luyn gave further oral evidence and was cross examined by Ms Ray. 

  1. Mr Van Luyn applied for, and was granted, an order that Mr Bradley Smith (Mr Smith) attend the Determinative Conference to give evidence in relation to Mr Van Luyn’s dismissal.[2] Mr Smith is employed by Bunbury Flying School as an Instructor, Safety Manager and Ground School Manager.  His duties include teaching flying, investigating incidents and administrative duties associated with maintaining the Registered Training Authority status of the Bunbury Flying School.  At the Determinative Conference Mr Smith gave further oral evidence and was cross examined by Ms Ray. 

  1. In accordance with the Directions Bunbury Flying School filed witness statements setting out the evidence in chief of the following witnesses:

·Ms Ray[3];

·Mr Adam Stephen Levay  – Chief Flying Instructor and Head of Operations (Mr Levay); and

·Ms Katie Lea Hesson – Student liaison and Administrator Assistant (Ms Hesson).

  1. Both Bunbury Flying School witnesses gave further oral evidence at the Determinative Conference and were cross examined by Mr Van Luyn.

  1. Mr Smith is a friend of Mr Van Luyn.  While his evidence in chief was supportive of Mr Van Luyn under cross examination his evidence was less so.  Ms Hesson and Mr Levay appeared to be earnest and honest witnesses. I have favoured the evidence of Ms Hesson and Mr Levay where it differs from Mr Smith’s evidence.

  1. The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Determinative Conference (DCB). The DCB was admitted at the Determinative Conference as an exhibit and marked Exhibit DCB1. 

  1. During the Determinative Conference Bunbury Flying School raised a jurisdictional objection to the Application asserting that Bunbury Flying School was a small business for the purpose of the FW Act and that the dismissal occurred in accordance with the Small Business Fair Dismissal Code (Jurisdictional Objection).  The parties were permitted to file further evidence and submissions in relation to the Jurisdictional Objection.  Those further materials were filed by the Bunbury Flying School on 7 July 2022 and by Mr Van Luyn on 27 July 2022.

  1. Final written submissions were filed by Mr Van Luyn on 4 August 2022. Final written submissions were filed by Bunbury Flying School on 10 August 2022.

  1. In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Background

  1. Bunbury Flying School is a constitutional corporation.[4] 

  1. Mr Van Luyn was offered employment by Bunbury Flying School on 17 May 2019 as a full time Grade 3 Flight Instructor pursuant to an Employment Agreement dated 17 May 2019.  The Employment Agreement unsigned by Mr Van Luyn provided for a 13 month period of employment commencing on 30 May 2019 and concluding on 30 June 2020.[5]

  1. Mr Van Luyn ultimately commenced employment with Bunbury Flying School on 5 June 2019 on a full time basis as a Grade 2 Pilot Instructor working 38 hours five days per week.  He says that his duties as an Instructor were to train pilots in single engine aircraft under day and night visual flight rules for recreational, private and commercial pilot licences.[6]

  1. On 8 April 2021 the parties both signed a new employment agreement (Employment Agreement).  The Employment Agreement provided for a two year term concluding on 7 April 2023 and an annual salary of $55,000 plus superannuation.[7]

  1. During his employment Mr Van Luyn was covered by the Air Pilots Award.[8]

  1. Mr Van Luyn was given two pay rises during his employment.  In the letter dated 28 June 2019 informing him of his first pay rise Ms Ray stated inter alia that: [9]

“Your commitment to your position as a Grade 3 Instructor a [SIC] Bunbury Flying School is appreciated and felt that your skills, knowledge and commitment are an asset to our team.  We would like to thank you for your continued time, commitment, initiative once again.”

  1. In a letter dated 12 April 2021 informing Mr Van Luyn of his second pay rise Ms Ray stated as follows:[10]

“Please treat this information as confidential, as not all staff have received a pay increase at this time.
 …

We have reviewed your annual salary and have increased it to $55,500 pa. …

Your commitment to your position as a Flight Instructor at Bunbury Flying School is appreciated and we feel that your skills, knowledge and commitment are an asset to our team and have increased your salary accordingly.

We would like to thank you for your continued time, commitment, initiative once again.”

  1. On Thursday 28 November 2019 Mr Levay and Ms Ray held a disciplinary meeting with Mr Van Luyn at which they raised concerns with respect to his management of an aeroplane fire and tardiness.  Mr Van Luyn was subsequently issued with a first warning in relation to these matters.[11]  Mr Van Luyn disputed the warning.[12]

  1. On 15 November 2021 the Western Australian government issued a public health directive that prohibited workers working in airports unless they had received their first COVID-19 vaccination by 31 December 2021 or were exempt from doing so (Public Health Order).[13]

  1. On 26 November 2021 Mr Van Luyn’s brother had an adverse response to a Pfizer vaccination.  Concerned that he might experience a similar response on 6 December 2021 Mr Van Luyn told Ms Ray that he would wait until a non MRNA vaccination became available before getting vaccinated.[14] 

  1. On, or around, 20 December 2021 Mr Van Luyn and Ms Ray had further discussions about his vaccination status.  Mr Van Luyn says that during that discussion Ms Ray agreed that Mr Van Luyn could take two weeks personal leave at full pay commencing on 31 December 2021, then take annual leave at half pay then unpaid leave until a non MRNA vaccine became available.[15]  At that time Mr Van Lynn had only 20.47 hours of annual leave and 78.67 hours of personal leave accrued.[16]

  1. Mr Van Luyn concedes that at that time there was no confirmed release date for a non MRNA vaccine in Western Australia.[17]

  1. On 20 December 2021 Ms Ray attended a management meeting at which a decision was made to terminate Mr Van Luyn’s employment effective 31 December 2021.[18]

  1. Ms Ray subsequently drafted a letter informing Mr Van Luyn that he was dismissed (Termination Letter).  On 22 December 2021 Ms Ray sent an email to Mr Levay instructing Mr Levay to meet with Mr Van Luyn on 24 December 2021 (the last working day before Christmas) in the presence of Ms Hesson and provide the Termination Letter to Mr Van Luyn.[19]

  1. After receiving Ms Ray’s email, Mr Levay reviewed Mr Van Luyn’s work schedule and decided to meet with Mr Van Luyn in the presence of Ms Hesson later the same day, 22 December 2021.  At 10:45am Mr Levay and Ms Hesson met with Mr Van Luyn (Termination Meeting).  Mr Levay handed Mr Van Luyn the Termination Letter giving Mr Van Luyn notice that his employment would be terminated effective 31 December 2021.  The Termination Letter, which was dated 24 December 2021, stated as follows:[20]

“24th December 2021

Dear Aaron

Termination of your employment

I am writing to you about the termination of your employment with Southern Aviation Pty Ltd t/a Bunbury Flying School.

As you are aware our student numbers have been decreasing over the past year and it is due to this that we are regretfully termination your employment as of December 31st 2021.

You will be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment. If you have been paid annual leave in advance any amount of annual leave still owing will be deducted from your final pay.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman.  If you wish to contact them you can call 13 13 94 for visit their website at wish you every successful in your future employment endeavours and should you require a reference please do not hesitate to contact Adam and/or myself.

Yours sincerely

Pamela Ray”

  1. Both Mr Levay and Ms Hesson say that after reading the letter Mr Van Luyn said: “I actually saw this coming” and said he needed some time to process the letter.  Ms Hesson informed Mr Van Luyn that she was available to speak to him further about the letter and he could continue to work during the notice period or he could cease work immediately. Mr Van Luyn then left the meeting room.[21] 

  1. An hour after the meeting Ms Hesson messaged Mr Van Luyn and let him know that she was available to discuss the letter further if he wanted. Mr Van Luyn declined her offer.

  1. After another hour Mr Van Luyn collected his belongings and left.[22]

  1. Before leaving Mr Van Luyn approached Mr Levay and asked Mr Levay if he would provide a reference for him.  Mr Levay says that he agreed to do so because he believed Mr Van Luyn was a competent pilot and suited to airline or charter worker even though his ‘high standards’ made him inpatient and unpopular with students and overly cautious about flying in poor weather.[23]

  1. Ms Hesson sent an email to other employees later the same day informing them that Mr Van Luyn was dismissed because of a lack of student numbers and because Mr Van Luyn presently only had one student due to personality clashes between Mr Van Luyn and his students and students not wanting to fly with him.[24]

  1. Bunbury Flying School closed for Christmas from Friday 24 December 2021 to Monday 3 January 2022.  Instructors rostered during this period were directed to take annual leave.[25]

  1. On 29 December 2021 Mr Van Luyn sent an email to Ms Ray seeking further clarification about the reasons for the termination of his employment.  Mr Van Luyn queried whether the termination of his employment was a genuine redundancy and if so whether he was entitled to severance pay.  Ms Ray responded the following day informing Mr Van Luyn that she would respond to his queries when she returned to work on 3 January 2022.[26]

  1. On 3 January 2021 Ms Ray responded to Mr Van Luyn’s request for clarification about the reasons for the termination of his employment and explained that:[27]

“Hello Aaron,

Your termination of employment was made on a number of factors:

·Students are allocated to instructors per intake - within 3 months we have had a number of your students requesting transfers to other instructors, this has happened a number of times which has led you to only having 1 student at the present time.

·Voicing your opinion of some students as not worth the effort of training as they ‘would not make it as commercial pilots’ has led to student prejudice and preferential treatment of more favoured students or training syllabus.

·Poor time management on your behalf has led to a larger ratio of cancelled lessons

·Not completing your daily scheduled lessons, routinely running late.

·Booking lessons in advance is routinely left until I complete them or until I ask you to do this.

In our opinion you do not have the best interest of the business or the students as your priority whilst working with us and therefore we have terminated your employment. Your termination is not a redundancy nor are we restructuring the school. We have three tail wheel Instructors available, you were never employed as a specialist Instructor in that area.

I have attached a copy of the April employment contract, as stated at the time of signing the Pilot Award overrides this agreement. You chose to walk out on Thursday 23rd December once your meeting with Adam and Katie was concluded, you did not return to discuss this matter as you stated. Our intention is to pay out all owing entitlements and leave as owing on the 31st December 2021 and you are entitled to four weeks pay in lieu of wages. This payment is as stated below from the NES :

Amount of notice or payment in lieu of notice (2) The employer must not terminate the
employee’s employment unless: (a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or (b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

As discussed with you at the beginning of December all staff due to the state mandatory
regulations, were required to be vaccinated by December 31st. As you have not had your first vaccination you are unable to work for us as of January 1st 2022 until you have been vaccinated. We agreed that you would use your personal leave at half pay during this period and then if further time was required any additional holiday leave would be used. I have paid out today all your holiday leave owing 20.47 hours and also your 78.67 hours of personal leave.

I hope this clarifies matters for you, should you require anything further please do not hesitate to contact me.”

  1. On 5 January 2021 Mr Van Luyn responded to Ms Ray disputing her allegations with respect to his performance and the calculation of his final pay. Ms Ray responded on 7 January 2022 asserting that Mr Van Luyn was not entitled to payment in lieu of notice after 31 December 2022 because from this date he was prohibited from working by the Public Health Order.[28]

  1. On 9 January 2021, at Mr Van Luyn’s request, Mr Levay provided Mr Van Luyn with a reference which states as follows:[29]

To whom it may concern,

Aaron Van Luyn was employed Sothern Aviation as a grade 2 Flying Instructor from June 2019 to 24th of December 2021.

As a flight instructor Aaron’s attention to detail was meticulous in all aspects of him performing his duties of a Flight Instructor. Aaron demanded perfection from all his students. I had the opportunity to Flight test all of Aaron’s students and I found them to be of a highly satisfactory standard and they passed first time.

Aaron’s forte was Tailwheel endorsements which was one of his main roles of being a grade 2 flying instructor.

Aaron is a very safe and competent Pilot/Flying Instructor a trait which he instilled into all his students. I wish him every success in his future endeavours as a Flight Instructor.

Adam Levay”

  1. On 5 February 2022 the Western Australian government issued a public health directive that prohibited persons working in critical businesses unless they had received both COVID-19 vaccinations by 1 February 2022 or were exempt from doing so (Public Health Order).[30]

  1. Mr Van Luyn did not ultimately receive his first COVID vaccination until 22 February 2022 and his second until 15 March 2022.[31]

  1. Mr Van Luyn filed the Application on 11 January 2022.[32]

  1. Mr Van Luyn has provided evidence of his efforts to mitigate his loss since his dismissal.  He eventually secured permanent employment on 6 May 2022.  Between the date of his dismissal and securing this employment he earned only $2500-$3000.[33]

  1. Mr Van Luyn seeks an order for payment of compensation in accordance with sections 390(3) and 392 of the FW Act up to the maximum amount allowable.[34]

Is Mr Van Luyn protected from unfair dismissal?

  1. An order for reinstatement or compensation may only be issued if Mr Van Luyn was unfairly dismissed and Mr Van Luyn was protected from unfair dismissal at the time of his dismissal. 

  1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

  1. 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
  2. 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 Fair Work Regulations 2009 (Cth) (FW Regulations), is less than the high income threshold.

  1. For the purposes of Part 3-2 of the FW Act a person is an employee if they are employed by a national system employer. There is no dispute and I am satisfied that Bunbury Flying School is a national system employer[35] and Mr Van Luyn is therefore a national system employee. 

  1. Depending on the number of employees employed by an employer the minimum employment period is either six or twelve months.

  1. Mr Van Luyn commenced employment with Bunbury Flying School on 5 June 2019.[36] Mr Van Luyn was dismissed on 31 December 2021.[37]

  1. I am therefore satisfied that, at the time of dismissal, Mr Van Luyn was an employee who had completed a period of employment of at least the minimum employment period.[38]

  1. There is no dispute, and I am satisfied, that the Award applied to Mr Van Luyn’s employment at the time of his dismissal.[39]  Mr Van Luyn’s annual income was $55,000.  His annual earnings fell below the high income threshold of $158,500 which prevailed at the time of his dismissal.[40]

  1. Consequently, I am satisfied that Mr Van Luyn was a person protected from unfair dismissal.

Was Mr Van Luyn unfairly dismissed?

  1. Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

  1. the person has been dismissed;
  2. the dismissal was harsh, unjust or unreasonable;
  3. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
  4. the dismissal was not a case of genuine redundancy.

Was Mr Van Luyn dismissed?

  1. Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.

  1. Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

  1. There was no dispute, and I find, that Mr Van Luyn’s employment with Bunbury Flying School was terminated at the initiative of Bunbury Flying School.[41]

  1. I am therefore satisfied that Mr Van Luyn has been dismissed within the meaning of section 385 of the FW Act.

Was Mr Van Luyn’s dismissal a case of genuine redundancy?

  1. Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

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

  1. I accept Bunbury Flying School’s evidence that Mr Van Luyn’s dismissal was not due to Bunbury Flying School no longer requiring his job to be performed by anyone because of changes in Bunbury Flying School’s operational requirements.

  1. I am therefore satisfied that the dismissal was not a case of genuine redundancy.

Was Mr Van Luyn’s dismissal consistent with the Small Business Fair Dismissal Code?

  1. Section 388 of the FW Act provides that a person’s dismissal is consistent with the SBFD Code if:

  1. 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
  2. the employer complied with the SBFD Code in relation to the dismissal.

  1. A “small business employer” is defined in section 23 of the FW Act as:

    “23 Meaning of small business employer

    (1)       A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

    (2)       For the purpose of calculating the number of employees employed by the employer at a particular time:

    (a)       subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

    (b)       a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

    (3)       For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

    (4)       To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

    (a)       the employee who is being dismissed or whose employment is being terminated; and

    (b)       any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

  2. Bunbury Flying School submits that at the time of giving Mr Van Luyn notice of his dismissal it was a small business employer within the meaning of section 23 of the FW Act.

  3. Bunbury Flying School filed evidence that at the time it gave Mr Van Luyn notice of his dismissal it employed fourteen employees namely ten permanent full time employees, three permanent part time employees and one casual employee.  No evidence was tendered to support the assertion that the casual employee was not employed on a regular and systematic basis.  Bunbury Flying School say that Ms Ray is an independent contractor and not an employee of Bunbury Flying School.  The list of employees provided by Bunbury Flying School did not include Mr Van Luyn.

  1. By virtue of sub section (4) of section 23 in determining whether a national system employer is a small business employer at a particular time the employees that are to be counted include the employee who is being dismissed.

  1. In these circumstances I am satisfied that at the time of giving Mr Van Luyn notice of his dismissal Bunbury Flying School did not employ fewer than 15 employees.

  1. Consequently, I find the Bunbury Flying School was not a small business employer within the meaning of section 23 of the FW Act at the time of giving Mr Van Luyn notice of his dismissal.

  1. As Bunbury Flying School is not a small business employer within the meaning of the FW Act, I am satisfied that the SBFD Code does not apply to Mr Van Luyn’s dismissal.

Was the Application made within the period required?

  1. Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.

  1. Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.

  1. It is not disputed, and I find, that Mr Van Luyn was dismissed from his employment effective 31 December 2021 and made the Application on 11 January 2022.[42] I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.

Was the dismissal harsh, unjust or unreasonable?

  1. The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[43]

  1. Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

a.whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

b.whether the person was notified of that reason;

c.whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

d.any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

e.if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;

f.the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;

g.the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

h.any other matters that the FWC considers relevant.

  1. Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.[44]

Was there a valid reason for the dismissal related to Mr Van Luyn’s capacity or conduct?

  1. In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[45] and should not be “capricious, fanciful, spiteful or prejudiced.”[46] It is not the role of the FWC to stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.[47]

  1. The employer carries the onus of establishing a valid reason.[48]

  1. The Termination Letter identifies the reason for Mr Van Luyn’s dismissal as:[49]

    “As you are aware our student numbers have been decreasing over the past year and it is due to this that we are regretfully termination your employment as of December 31st 2021.”

  1. In her email to staff informing them of Mr Van Luyn’s dismissal on the day of his dismissal Ms Hessson described the reasons as:[50]

“… the lack of student numbers this year and the fact he had only 1 student due to personality clashes and students not wanting to fly with him.” 

  1. In her 3 January 2021 email Ms Ray clarified that the reasons for Mr Van Luyn’s dismissal were as follows:[51]

“Your termination of employment was made on a number of factors:

·Students are allocated to instructors per intake - within 3 months we have had a number of your students requesting transfers to other instructors, this has happened a number of times which has led you to only having 1 student at the present time.

·Voicing your opinion of some students as not worth the effort of training as they ‘would not make it as commercial pilots’ has led to student prejudice and preferential treatment of more favoured students or training syllabus.

·Poor time management on your behalf has led to a larger ratio of cancelled lessons

·Not completing your daily scheduled lessons, routinely running late

·Booking lessons in advance is routinely left until I complete them or until I ask you to do this.

In our opinion you do not have the best interest of the business or the students as your priority whilst working with us and therefore we have terminated your employment. Your termination is not a redundancy nor are we restructuring the school. We have three tail wheel Instructors available, you were never employed as a specialist Instructor in that area.”

  1. In the Employer Response the reasons for dismissal are described as follows:[52]

“1.      Students are allocated to flight instructors per course intake we have 4 intakes per year usually with 6-8 students - within 3 months after commencement of training a number of Aaron’s students were requesting transfers to other instructors, this has happened a number of times which has led Aaron only having 1 student at the present time.

2.        Aaron has voiced his opinion of some student’s capabilities as not worth the effort of training as they ‘would not make it as commercial pilots’. This has led to student prejudice and preferential treatment of more favoured students or training syllabus.

3.        Poor time management on Aaron’s behalf has led to a larger ratio of cancelled lessons than another Instructor. At the time of making this decision Aaron ratio of cancelled lessons was at 50%

4.        Not completing your daily scheduled lessons, routinely running late

5.        Booking lessons in advance is routinely left until I complete them or until I ask you to do this”

Evidence in relation to performance generally

  1. Ms Hesson and Mr Levay both presented as earnest and honest witnesses.  In the course of the performance of their own duties they both had the opportunity to form a view about the performance by Mr Van Luyn of his duties.

  1. Ms Hesson’s duties as Student Liaison included interviewing all new students and matching them with an appropriate instructor.  She was also responsible for resolving issues students faced with: thier instructors, their progress or with other students.  Her evidence is that she found it difficult to ensure Mr Van Luyn maintained a viable number of students because of his unpopularity with students.  She attributed the lack of popularity to poor time keeping on Mr Van Luyn’s part, a lack of tolerance on Mr Van Luyn’ss part for students who did not progress quickly and a poor work ethic on Mr Van Luyn’s part.

  1. Mr Levay is the Chief Flying Instructor had oversight of flying by instructors and students.  Mr Levay says that while he believed Mr Van Luyn to be a competent pilot Mr Van Lyn was not suited to instructing students because he did not relate to students well.  Mr Levy says that Mr Van Luyn was reluctant to instruct students in conditions Mr Levay believed were safe.  Mr Levay also says that Mr Van Luyn’s expectations of students were unreasonably high and that he often had personality clashes with students.  Mr Levay says that as a consequence Mr Van Luyn was unpopular with students. Mr Levay insists that Mr Van Lyn was aware that Ms Ray was concerned about these deficiencies in his performance.

  1. Both Ms Hesson and Mr Levay assert that Mr Van Luyn was aware of his own shortcomings and consistent with this commented at the Termination Meeting that he ‘saw’ his dismissal coming.[53]  Mr Smith confirmed that Ms Ray had mentioned on a number of occasions she was dissatisfied with Mr Van Luyn’s performance.  Mr Smith says that for this reason he had endeavoured to give Mr Van Luyn some tips to improve his performance.[54]

Allegation  – Low student numbers

  1. Mr Van Luyn alleges that he had four students at the time of his dismissal although he concedes that one of them was on a break.  Mr Van Luyn says that the number of students he had was unrelated to his performance as an instructor and was a consequence of:[55]

a.        a business wide decrease in student numbers,
b.        a decision by Ms Ray not to allocate available students to him,

c.he was rostered to work on Sunday’s and students preferred not to attend lessons on the weekend.

  1. Mr Smith gave evidence that instructors might have up to 12 students at a time and normally have 4-5 full time students.[56].

  1. The December 2021 meeting minutes record that Mr Van Luyn had three students and other instructors having six to eight students.[57]

  1. Ms Ray says that at the time of his dismissal Mr Van Luyn had only one full time student and two part time tail wheel students.  Mr Smith conceded under cross examination that Mr Van Luyn did have low student numbers, confirming that Mr Van Luyn had only one full time student at the time of his dismissal.[58] This is also consistent with letter sent by Ms Hesson to staff on the day of Mr Van Luyn’s dismissal. 

  1. Ms Hesson, whose primary role was to allocate students to instructors, says that she had difficulty allocating students to Mr Van Luyn.  Ms Hesson says Mr Van Luyn’s impatience with students who didn’t progress quickly limited the students she could allocate to him forcing his student numbers lower.[59]  She also says that he was less in demand than other instructors because he was unpopular with students due to his poor time management skills.[60] 

  1. Mr Smith confirmed under cross examination that it was difficult to find appropriate student matches for Mr Van Luyn and that personality clashes led Mr Van Luyn having fewer students than other instructors.

Allegation  – Transfer requests

  1. Ms Ray says that typically within three months after commencement of training a number of Mr Van Luyn’s students would request transfers to other instructors.

  1. Mr Van Luyn conceded that five students requested a transfer to another instructor.  He says that two transfer requests were denied by Ms Ray, one student deferred before a transfer was approved, and only two transfers were approved.  According to Mr Van Luyn of the two transfers which were approved one was for a student who wanted a Monday to Friday roster.  He says the other was an underperforming student who responded negatively to feedback he gave her.[61]

  1. Ms Hesson gave evidence about two students who made formal complaints about Mr Van Luyn, Students 203 and 433.  Student 203 complained that Mr Van Luyn didn’t like him and was always late to classes which meant he didn’t have time to teach him correctly.  Mr Levay took the student for a class and showed him the skills he was lacking.  The student was able to demonstrate competency and continued with his training.  Student 433 complained that Mr Luyn was unhappy with his progress and indicated that he felt that this was a consequence of Mr Van Luyn’s teaching style.  The student was transferred to another instructor.  The instructor discovered the student was not correctly taught by Mr Van Luyn.  As a consequence, Bunbury Flying School had to refund the tuition fees to the student.[62]

  1. Mr Smith confirmed that a number of Mr Van Luyn’s students requested a transfer and that this resulted in a higher than acceptable workload for other instructors.[63]

Allegation  – Adverse comments about students

  1. Mr Van Luyn and Mr Smith say that discussing student progress was a normal practise at staff meetings[64].  Mr Van Luyn concedes that he stated that a particular student was unlikely to succeed in a commercial career but says that this was justified by significant deficiencies in the student’s English language proficiency amongst other shortcomings. Mr Van Luyn concedes that he also referred another student to Mr Levay because the student was failing to make any progress.  Mr Van Luyn says that even after transferring to the chief flying instructor the student continued to fail to make progress and eventually left the course.

  1. Both Ms Hesson and Mr Levay say that Mr Van Luyn would complain about students who didn’t progress quickly enough and insist that they should be withdrawn from the course. Mr Levay gave as an example Student 203.  After Mr Van Luyn told him that the student should be withdrawn Mr Levay met with the student who told him that Mr Van Luyn was always late for his lessons and didn’t have time to teach him properly.  Mr Levay took the student for a class and showed him the skills he was lacking.  Mr Levay says that the student was able to demonstrate competency and continued with his training.[65]

Allegation  – Poor time management and high ratio of cancelled lessons

  1. Mr Van Luyn alleges that delays and cancellations occurred because of factors beyond his control such as administrative staff clearing his schedule to book tailwheel endorsements, poor weather conditions, aircraft being left unprepared by previous pilots, unavailability of planes and student absences or lateness.[66]  Mr Van Luyn also alleges that there was a workplace culture which tolerated lateness.[67]

  1. Ms Hesson gave evidence that Mr Van Luyn appeared to lack motivation and initiative.  She gave as an example his practise of sitting in reception on his phone when flights were cancelled rather than rescheduling lessons or attending to administrative tasks.  She also gave evidence that Mr Van Luyn was frequently sick on a Sunday but fit for work the next day.[68]

  1. Ms Hesson says that Mr Van Luyn’s students regularly complained about Mr Van Luyn’s poor time management skills to her when she met with them.  She says students told her that he would be late for flights and that consequently he would need to take over pre flight preparations and taxing.  Ms Hesson reports that the students complained that this denied them the opportunity to learn and practise these skills.[69]

Allegation  – Failing to Book Lessons in Advance

  1. Ms Ray says that Mr Van Luyn routinely failed to book lessons in advance contrary to her direction.

  1. Mr Smith concedes that the requirement to provide two weeks of advance scheduled was brought up at monthly staff meetings with the instructors.  Mr Smith also concedes that all instructors “try their best to maintain a forward scheduled”.[70]

  1. Mr Smith identified a number of factors which can make forward scheduling difficult which do not appear to be specific to Mr Van Luyn such as weather, maintenance and aircraft availability.  He did not explain why Mr Van Luyn might reasonably be less able to meet this requirement than other instructors.

  1. Mr Van Luyn did not not deny that he failed to book lessons in advance rather he complained that insufficient equipment was available when he needed it and described the requirement as “a pointless exercise”.

Conclusion with respect to Valid Reason

  1. There appears to be no dispute that Mr Van Luyn was a competent pilot.  While there is limited documentary evidence in relation to allegations of poor performance of his duties as an instructor the weight of the oral witness evidence suggests that he was less well suited to training student pilots. 

  1. Whether or not Mr Van Luyn had one or three students at the time of his dismissal it is clear from what limited documentary evidence is available that he generally had less students than other instructors.  A fact of which he could not have been ignorant of given the regular reporting of student numbers at staff meetings.

  1. I accept the witness evidence that the reason he typically retained fewer students and/or was difficult to match with students was because of his reputation among students and staff of possessing poor time management skills and a tendency to impatience with students that did not progress quickly. I also accept the evidence that he failed to comply in a timely manner to directions given to him by Ms Ray and was not proactive in his work ethic.

  1. The consistent evidence of the witnesses, corroborated by Mr Van Luyn’s statement on receiving notice of his dismissal that “he saw it coming” is that notwithstanding the lack of a formal written performance management program the issues with his performance were ongoing and were matters of which Mr Van Luyn was not unaware.

  1. Based on the evidence before me I find that a valid reason existed for Mr Van Luyn’s dismissal.

Was Mr Van Luyn notified of the valid reason?

  1. Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[71] and in explicit,[72] plain and clear terms.[73]

  1. Bunbury Flying School submit that Mr Van Luyn was notified of the reasons for his dismissal in the Termination Letter.

  1. The Termination Letter did not set out the reasons for the termination of Mr Van Luyn’s employment in explicit, plain or clear terms.  Rather the implication from the words contained in that letter is that Mr Van Luyn’s role was redundant due to a decline in student numbers generally not of a consequence of poor performance on his part. 

  1. The actual reasons for the termination of his employment were not conveyed to Mr Van Luyn until 3 January 2021 after Mr Van Luyn’s dismissal when Ms Ray responded to Mr Van Luyn’s request for a more detailed explanation of the reasons for his dismissal.

Was Mr Van Luyn given an opportunity to respond to any valid reason related to his capacity or conduct?

  1. An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[74]

  1. The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[75] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[76]

  1. The evidence is that the decision to terminate Mr Van Luyn’s employment effective 31 December 2021 was made at the management meeting held on 20 December 2021.[77]

  1. The Termination Letter did not set out the real reasons for the termination of Mr Van Luyn’s employment in explicit, plain or clear terms.  Rather the implication from the words contained in that letter is that Mr Van Luyn’s role was redundant due to a decline in student numbers generally not of a consequence of any inadequacies in his performance. 

  1. The actual reasons for the termination of his employment were not conveyed to Mr Van Luyn until 3 January 2021 when Ms Ray responded to Mr Van Luyn’s request for clarification about the reasons for the termination of his employment.[78]

  1. After Mr Van Luyn was handed the Termination Letter Ms Hesson indicated to him that she was available to speak to him further about the content of the letter.  An hour after the meeting she messaged Mr Van Luyn to remind him that she was available to discuss the letter further if he wanted.  Not withstanding her offers to discuss the letter there is no evidence which suggests that this would have provided any opportunity for the decision to terminate being reconsidered.[79]

Did Bunbury Flying School unreasonably refuse to allow Mr Van Luyn to have a support person present to assist at discussions relating to the dismissal?

  1. Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

  1. Mr Van Luyn was unaware of the purpose of the meeting with Mr Levay and Ms Hesson before attending the meeting at which they informed him of his dismissal.[80]  He therefore did not have the opportunity to request that a support person attend the meeting.

  1. There is however no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” [81]

  1. I am satisfied that Bunbury Flying School did not unreasonably refuse to allow Mr Van Luyn to have a support person present at discussions relating to his dismissal. However, I consider the failure to identify the reason for the Termination Meeting and/or to invite Mr Van Luyn to bring a support person with him to the Termination Meeting is matter that is relevant and should be taken into account under section 387(h) of the FW Act.

Was Mr Van Luyn warned about unsatisfactory performance before the dismissal?

  1. Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.[82]

  1. On Thursday 28 November 2019 Mr Levay and Ms Ray held a disciplinary meeting with Mr Van Luyn at which they raised concerns about his aspects of his performance including tardiness.  Mr Van Luyn was subsequently issued with a first warning in relation to these matters.[83]  While Mr Van Luyn disputed the validity of the warning the fact remains that the issue of tardiness was raised with him at this time.[84] 

  1. Other concerns about his performance appear to have been dealt with on an ad hoc and informal basis, raised in staff meeting meetings generically or overcome by making adjustments to operations to accommodate those concerns (for example allocating Mr Van Luyn less students). 

  1. While apart from the written warning there is no other documentary evidence of performance concerns being raised with Mr Van Luyn it appears that Mr Van Luyn was made informally aware that concerns existed about aspects of his performance.

  1. For example, it is clear from Mr Van Luyns’ own evidence that he was aware that Ms Ray was dissatisfied with his tardiness in scheduling and that she held differing views from him in relation to appropriate weather conditions for instructing.  In fact, it is the evidence of Mr Levay and Ms Hesson that after reading the Termination Letter Mr Van Luyn said: “I actually saw this coming”.[85] 

  1. While a business of the scale of Bunbury Flying School is not expected to have highly sophisticated performance review and improvement programs greater effort could and should have been made to clearly articulate more formally to Mr Van Luyn the precise nature of the concerns the business held about his performance and importantly that these concerns were such that his employment was in jeopardy.

To what degree would the size of Bunbury Flying School’s enterprise and the absence of dedicated human resource management specialists or expertise be likely to impact on the procedures followed in effecting the dismissal?

  1. Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.[86] 

  1. Bunbury Flying School is a small scale business without internal human resources support and with limited financial capacity to secure advice externally.  This is reflected in the deficiencies in the process they adopted in effecting the dismissal.

What other matters are relevant?

  1. Section 387(h) of the FW Act requires the FWC to take into account any other matters that the FWC considers relevant to determining whether the dismissal was harsh, unjust or unreasonable.

  1. Mr Van Luyn submits that regard ought to be had to the following matters:

a.The staff who issued the Termination Letter did not have the authority to reverse the dismissal decision therefore Mr Van Luyn was denied the opportunity to try to convince the decision maker to reverse the decision to dismiss him.

  1. The termination occurred on the last business day before Christmas.

  1. Bunbury Flying School submit that regard ought to be had to the following matter, namely that as a consequence of the Public Health Order Mr Van Luyn was unable to perform his duties as a flight instructor from 1 January 2022 until he received his second vaccination on 5 March 2022.[87]

  1. It is also relevant that Mr Van Luyn was not made aware of the purpose of the meeting on 24 December 2021 before attending the meeting.  He therefore did not have the opportunity to prepare a response to the allegations made against him or to arrange for a support person to attend the meeting with him.

  1. There is no dispute that Mr Van Luyn is a good pilot.  His attention to detail in preparing his materials in these proceedings confirm that he is attentive to detail and through.  Important traits for a pilot charged with the safety of his passengers.  However, the witness evidence supports a conclusion that Mr Van Luyn was not a good fit for his role as an instructor with Bunbury Flying School.  His exacting standards and his direct manner evident in these proceedings explain why he was harder to match and less popular with students. 

  1. Perhaps in a large and more profitable flying school a niche might have existed for Mr Van Luyn.  However, a business of the scale of Bunbury Flying School dependent on student demand is under a significant financial imperative to fly whenever safe to do so, utilise instructors as efficiently as possible and attract and retain as many students as possible.  An instructor reluctant to fly in conditions deemed safe by the Chief Instructor, impatient and unpopular with students, not proactive in the efficient use of his time and non- compliant with directions intended to efficiently run the business is difficult to accommodate.  This situation worsened significantly when Mr Van Luyn chose to wait for an alternative vaccine and was prohibited from working for an indefinate period of time.

  1. While there was no clearly documented performance management process the evidence suggests that Mr Van Luyn was not unaware that concerns existed in relation to his performance.  He disagreed with Ms Ray about when he should fly and how he should schedule his flying.  The fact that he routinely had less students than other instructors could not be ignored given student numbers was the subject of monthly meetings.

  1. Certainly more could have been done by Bunbury Flying School to more clearly articulate its concerns and more importantly impress upon Mr Van Luyn that if not addressed the concerns would result in the termination of his employment.  However, given his response to previous efforts to warn him about concerns with respect to his performance and his continued assertion throughout these proceedings that his performance of his duties was faultless it seems unlikely that such a process if engaged in would have led to a different outcome.

  1. In any event the Public Health Order intervened.  Mr Van Luyn was unable to perform the inherent requirements of his role from 31 December 2021.  This could and most likely would have formed a valid reason for his dismissal. 

  1. In the ordinary course of events a dismissal occurring shortly before Christmas might be viewed as harsh and unreasonable.  However, in the circumstances of this case Mr Van Luyn had before his dismissal already sought the agreement of his employer to access his accrued leave and commence unpaid leave due to his inability to comply with the Public Health Order.  His accrued leave entitlements were paid to him upon his dismissal.

  1. On the evidence before it appears that if the dismissal had not occurred when it did Mr Van Luyn had in any event envisaged being without pay from 1 January 2022 until he was able to secure a Novavax vaccination at some unconfirmed time in the future.

  1. In the particular circumstances of this case, notwithstanding the deficiencies in the dismissal process, I am not satisfied that Mr Van Luyn’s dismissal was not harsh, unjust or unreasonable.  Even if it were found to be so I would be disinclined to make an order for compensation given that Mr Van Luyn on his own evidence was unable to perform the inherent requirements of his role while unvaccinated and that this of itself was likely to have led to his dismissal prior to the date on which he was eventually vaccinated.

Conclusion

  1. I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.

  1. I have considered and given due weight to each factor as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.

  1. Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Van Luyn was not harsh, unjust or unreasonable.

  1. Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Van Luyn was unfairly dismissed within the meaning of section 385 of the FW Act. The Application is therefore dismissed.

  1. An Order[88] to this effect will be issued with this Decision.


DEPUTY PRESIDENT

Appearances:

Mr A Van Luyn, for the Applicant.
Ms P Ray, for the Respondent.

Hearing details:

2022
PERTH
5 July

Final written submissions:

Applicant’s written submissions, 20 July 2022 and 4 August 2022.
Respondent’s written submissions, 7 July 2022 and 10 August 2022.


[1] Digital Court Book (DCB) [6].

[2] PR731956.

[3] DCB (n 1) [660]-[667].

[4] Ibid [6].

[5] Ibid [414].

[6] Ibid [7]-[8], [590].

[7] Ibid [417].

[8] Ibid [10], [590].

[9] Ibid [85].

[10] Ibid [90]-[92].

[11] Ibid 477-[491].

[12] Ibid 154-161.

[13] Air Services and Border Worker (Restrictions on Access) Directions (No.2).

[14] DCB (n 1) [15]-[17].

[15] Ibid.

[16] Ibid [67]-[72], [707]-[711].

[17] Ibid [20].

[18] Ibid [660]-[667].

[19] Ibid [660]-[667], [679].

[20] Ibid [21]-[24], [670]-[672], [420]-[425].

[21] Ibid [673], [682].

[22] Ibid [682]-[686].

[23] Ibid [674]-[676].

[24] Ibid [581].

[25] [533]-[535].

[26] Ibid [665]-[666], [703]-[705].

[27] Ibid [67]-[72], [707]-[711].

[28] Ibid [73]-[78].

[29] Ibid [80]-[84].

[30] Critical Business Worker (Restrictions on Access) Directions (No.2).

[31] DCB (n 1) [492].

[32] Ibid [408].

[33] Ibid [183].

[34] Ibid 391.

[35] Ibid [6], [636]. Bunbury Flying School Outline of Submissions re Small Business filed on [insert] at page 2

[36] Ibid [6].

[37] Ibid.

[38] Ibid [640]. Bunbury Flying School Outline of Submissions re Small Business filed on [insert] at page 2

[39] Ibid [641].

[40] Ibid [493]-[532], [642].

[41] Ibid [639], [660]-[667].

[42] Ibid [408], [637].

[43] (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).

[44] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), (Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[45] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[46] Ibid.

[47] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[48] Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243.

[49] DCB (n 1).

[50] Ibid [580]-[582].

[51] Ibid [67]-[72].

[52] Ibid [594]-[598].

[53] Ibid [702].

[54] Ibid [277].

[55] Ibid [95] – [103].

[56] Ibid [255].

[57] Ibid [573]-[579]

[58] Ibid [253].

[59] Ibid [690]- [691].

[60] Ibid [687]-[693].

[61] Ibid [104]-[107].

[62] Ibid [694]-[698].

[63] Ibid [257].

[64] Ibid [209].

[65] Ibid [676], [687]-[693].

[66] Ibid [121]-[127].

[67] Ibid [128]-[137].

[68] Ibid [699]-[702].

[69] Ibid [692].

[70] Ibid [215]-[218].

[71] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73].

[72] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[73] Ibid.

[74] Crozier (n 71), 151 [75].

[75] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

[76] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

[77] Ibid [660]-[667].

[78] Ibid [67]-[72], [707]-[711].

[79] Ibid [673], [682]-[686].

[80] Ibid [660]-[667], [679].

[81] Explanatory Memorandum, Fair Work Bill 2008 (Cth), Ibid [1542].

[82] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

[83] Ibid [477]-[491].

[84] Ibid [154]-[161].

[85] Ibid [673], [682].

[86] Jetstar v Meetson-Lemkes (2013) 239 IR 1, Ibid [21] – [22], [68].

[87] Ibid [361].

[88] PR746366.

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Byrne v Australian Airlines Ltd [1995] HCA 24
Jones v Dunkel [1959] HCA 8
Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333