Mr Aaron Whitfield v Master Tree Ninja T/A Tree Ninja/Adelaide Palm Tree Removal
[2018] FWC 6666
•29 OCTOBER 2018
| [2018] FWC 6666 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr Aaron Whitfield
v
Master Tree Ninja T/A Tree Ninja/Adelaide Palm Tree Removal
(U2018/8279)
| Deputy President Anderson | ADELAIDE, 29 OCTOBER 2018 |
Application for an unfair dismissal remedy – whether employee dismissed – section 386 Fair Work Act 2009 – changes to contract of employment – meaning of termination “on the employer’s initiative” – meaning of “forced” resignation – statutory exclusion of “demoted” persons – dismissal found - dismissal harsh, unjust and unreasonable – reinstatement inappropriate – compensation ordered
For the parties ease of reference, a shorthand summary of this decision and its reasons can be gleaned by reading paragraphs 111, 145, 146, 176, 177, 178 and 179.
Mr Aaron Whitfield (the applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his (alleged) dismissal by Master Tree Ninja Pty Ltd (Tree Ninja or ‘the employer’). He claims to have been unfairly dismissed on 26 July 2018. At the date of dismissal he was employed as a leading hand.
Tree Ninja oppose the application and raise a jurisdictional issue.
Tree Ninja says that Mr Whitfield could not have been unfairly dismissed because he was not dismissed. It says that Mr Whitfield ended his employment with Tree Ninja by action he took on 26 July 2018.
In response, Mr Whitfield says that Tree Ninja materially altered his contract of employment by announcing a decision to demote him, and that this conduct was a dismissal within the meaning of section 386(1)(a) of the FW Act. In the alternative, he says that if his conduct brought his employment to an end, he was forced to resign within the meaning of section 386(1)(b) of the FW Act. He seeks compensation.
On 6 September 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was referred to me for hearing and determination.
On 18 September 2018 I conducted a directions hearing. I issued directions on 19 September. I directed that the hearing deal with all issues in dispute, being the jurisdictional issues as well as merits and remedy. I granted permission for Mr Whitfield to amend his application by correcting the specified start date of his employment (16 December 2016 not 16 December 2017).
I decided to hear the matter by conference and the parties were directed to file written materials. Each did so.
I heard the matter by determinative conference on 23 October 2018. Both Mr Whitfield and Tree Ninja were self-represented. At the conclusion of the hearing I reserved my decision.
I received oral and documentary evidence from both parties.
Mr Whitfield gave evidence in his own right[1]. Tree Ninja’s evidence came from its owner Mr Hugh Currie[2] and an employee, Mr Thomas Henschke[3].
All the persons giving evidence were straightforward. They appear decent people who formerly had respect for each other and worked together effectively. They had been close workmates but now have a strained relationship (especially between Mr Currie and Mr Whitfield) given the events of 26 July (when Mr Whitfield’s employment ceased). That relationship has soured not simply because of the events of 26 July but because of a subsequent dispute over the alleged non-return by Mr Whitfield of intellectual property (SIM card and passwords) Mr Currie believes belong to him or his business, alleged cyber-attacks and alleged documents of a business and sensitive personal nature that he says can no longer be sourced by him through iCloud.
There are some relevant disputes of fact arising from the evidence. I do not consider any of the witnesses to have endeavoured to mislead but all placed some gloss on their evidence. I consider both Mr Currie and Mr Henschke downplayed the tone of voice and amount of swearing used by Mr Currie on 26 July. I consider that Mr Whitfield’s evidence concerning the SIM card and password to have been unconvincing.
The relevant factual differences are on matters of fine (but important) detail and largely consistent with fading recollections of a relatively brief but heated discussion that occurred twelve weeks prior. Where relevant to my determination, I make findings based on the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating documentary evidence, and the inherent plausibility of versions of events.
Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:
“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.”[4]
The Facts
I make the following findings.
Mr Whitfield’s employment
Tree Ninja is a privately-owned micro business. It has operated for approximately three years. It provides tree lopping and tree clearing services on commercial and residential property. Aside from its founder and owner Mr Currie, it employed two persons at the date of (alleged) dismissal, Mr Whitfield and Mr Henschke. It is a small business within the meaning of the FW Act. The business is operated from Mr Currie’s private residence.
Mr Whitfield is 27 years of age. He commenced with Tree Ninja as a casual employee on 16 December 2016. By written contract with Mr Currie, he was appointed a full time ground crew and climber on 1 June 2017[5]. Mr Whitfield received an Employee Handbook that same date.[6]
The business of Tree Ninja is usually conducted by either two or three person crews attending a job, depending on complexity.
Mr Currie reorganised the business in late March 2018. The then leading hand Mr Henschke stood down as leading hand for personal reasons, but remained in employment. Mr Currie offered the role to Mr Whitfield. Mr Whitfield accepted. His promotion to leading hand came with a sizeable salary increase, to $58,000 per annum plus superannuation.
The role of a leading hand included organising the day’s crew, overseeing the day’s job (or jobs), ensuring all necessary vehicles and equipment were available and in good condition and attending to the fuelling, servicing and repair of vehicles and equipment in-between jobs.
At the same time (March 2018), Mr Currie (although still actively engaged in the business) decided to take a less operational role (on crew) and instead attend to business development, management and business growth. The operational crews came to be comprised of Mr Whitfield, Mr Henschke and another employee (who resigned prior to the events of 26 July).
Events prior to 26 July
Mr Whitfield was working on a job on Friday 20 July 2018 as part of a three person crew. That day, Mr Currie joined Mr Whitfield and Mr Henschke on the crew. Mid-morning, whilst on the job, Mr Currie noted that Mr Whitfield appeared too ill to continue working, and sent him home (organising an Uber to take him home). Mr Whitfield went home. All was amicable between the crew.
Whilst continuing the day’s work, Mr Currie used machinery that jammed and which was not sufficiently sharp. That compromised the efficient conduct of the job. Mr Currie formed the view that Mr Whitfield was not adequately maintaining and servicing the company’s equipment.
On Monday morning 23 July Mr Whitfield advised Mr Currie that he was still sick with a chest infection and would not be able to work for a few days. He received an acknowledgement from Mr Currie but one he considered abrupt. Mr Whitfield was seen by his local doctor that Monday, and secured a sick certificate for three days (Monday 23rd to Wednesday 25th inclusive). The sick certificate did not relate to his partial absence on Friday 20th July because the doctor told Mr Whitfield that it was not his practice to backdate certificates.
Unknown to Mr Whitfield, during the Monday, Tuesday and Wednesday of that week Mr Currie asked persons associated with the business (including Mr Henschke) how they thought Mr Whitfield was performing. I find that Mr Currie was motivated to do so by a combination of his concern at rising fuel costs (Mr Whitfield was responsible for fuelling the vehicles and equipment) and his experience the previous Friday with poorly maintained equipment. When asked, Mr Henschke provided Mr Currie with his honest views about what he considered shortcomings in Mr Whitfield’s work; views that Mr Henschke repeated in his witness statement to the Commission[7] but which he had not communicated previously to Mr Whitfield.
By at least Wednesday 25 July Mr Currie formed the view that he (Mr Currie) had made an error in appointing Mr Whitfield as leading hand four months prior. He considered that he (Mr Currie) had taken his eye off the operational side of the business, and would need to return to active crew work to restore the high quality and high performance culture and standards he sought for his business. Mr Currie decided that he needed to demote Mr Whitfield by removing his leading hand responsibility and, for a period, re-take that role himself.
Mr Currie consulted a business adviser who was also his accountant (Mr Bulmer) about how to go about doing so. He was advised to meet Mr Whitfield face to face, to write down all of the issues of concern that were behind his restructure, and to set out how this would impact Mr Whitfield. He was advised that he should communicate to Mr Whitfield from those notes calmly and without emotion.
Whilst Mr Currie had decided to remove leading hand responsibility from Mr Whitfield, he had also decided not to make any other alterations to Mr Whitfield’s terms and conditions of employment. Relevantly, he did not intend to reduce Mr Whitfield’s salary despite it having risen by six to ten thousand dollars four months earlier when appointed leading hand. I accept Mr Currie’s evidence in this regard[8] because it is corroborated by his contemporaneous handwritten notes written on 25 July[9].
Mr Currie prepared four pages of handwritten notes on Wednesday 25 July[10]. They were headed “Aaron Whitfield – meeting (disciplinary)”. They were dated “26.07.18” being the date of the proposed meeting.
Pages one to three of Mr Currie’s notes set out seven areas of alleged performance deficiency:
Setting a poor example;
No work zones;
Taking “the piss”;
Not properly maintaining tools and equipment;
Fuel expenses “through the roof”;
Not following procedures; and
Damage to a customer’s wall.
None of these alleged deficiencies had previously been formally raised with Mr Whitfield, although from time to time Mr Currie had informally spoken to him about process and procedures, customer feedback and, on one occasion, a formal incident report concerning an earlier (February 2018) job had been prepared[11].
Page four of Mr Currie’s pre-meeting notes then proceeded to set out what Mr Currie intended to say by way of business restructure, and why. It read as follows:[12]
“Mate, it is clear to me that you are not a leader.’
Leaders are teachable, adaptable, set a good example and care for the quality and safety of the work that we do. You are not a leader!!
So here’s what we’re gonna do:
We’re 3 ninjas left now. From now on,
I’m coming back on crew. I’m going to quit BnI, pull our AdWords campaign and work full time on crew with you guys. And I’m the crew leader.
Aaron, nothing’s gonna change for you in terms of pay, but from now on your leadership is on pause – till such time as I feel comfortable putting you back in charge of the crew. You’ll be reinstated once our standards are in line with where things used to be, our machinery is maintained, records are updated, our damage bill is reduced, our expenditure on chains, fuel, spare parts, repairs goes down, you adhere to procedure as written out in your contract and the employee handbook.
Most of all, we play safe.”
Events of 26 July
Mr Whitfield returned to work on Thursday 26 July. At the day’s commencement he was told by Mr Currie there would be a meeting at the day’s end. Mr Whitfield sensed Mr Currie was unhappy with him, but did not ask and was not told what the meeting would concern. Mr Henschke was also told to attend the meeting.
Mr Whitfield had forgotten to bring his sick certificate to work. Sensing tension from Mr Currie, Mr Whitfield asked his partner to send a screen shot of the sick certificate, which Mr Whitfield passed on to Mr Currie. The screen shot was blurred.[13] This frustrated Mr Currie who could not read which days of absence the sick certificate related to.
At day’s end, Mr Whitfield was in Mr Currie’s backyard shed repairing equipment. Mr Currie called over Mr Whitfield and Mr Henschke to the meeting, held around an outdoor table setting. Mr Currie was holding his handwritten notes.
Mr Currie announced that the meeting concerned Mr Whitfield. He started to read from his notes, almost verbatim. Mr Currie initially spoke firmly and progressively became louder than normal to the point of his voice being abnormally raised.
When Mr Currie reached the fourth or fifth points, Mr Whitfield interjected at what he considered unfair criticism. Mr Currie immediately shouted back at Mr Whitfield words to the effect, “Be quiet, I’m speaking, you’ll get your chance”. Mr Currie continued to narrate points five, six and seven, loudly, firmly and directly.
He then immediately turned to page four of his notes. He read out the following:
“Mate, it is clear to me that you are not a leader.
Leaders are teachable, adaptable, set a good example and care for the quality and safety of the work that we do. You are not a leader!!
So here’s what we’re gonna do:
We’re 3 ninjas left now. From now on,
I’m coming back on crew. I’m going to quit BnI, pull our AdWords campaign and work full time on crew with you guys. And I’m the crew leader.
A factual discrepancy emerges as to what happened next.
Mr Whitfield says that at that point he stood up, put his hand in his pocket, pulled out the business mobile phone and business credit card and placed them on the table. He says that Mr Currie then said words to the effect “your position is no longer required. I can offer you a casual position or you can leave the phone and the card and get the fuck off my property” and then said “go on, fuck off”.
Mr Currie says in his witness statement[14] that he proceeded to read out the remainder of page four of his notes including his proposal that Mr Whitfield be paid the same but not be reinstated as team leader until improvement was made. However in his oral evidence, Mr Currie was less certain, thinking that he may only have reached the point of saying “And I’m the crew leader” before his flow was interrupted by Mr Whitfield standing up and placing his mobile phone and business credit card on the table[15].
I do not adopt either version in the precise form stated by either Mr Whitfield or Mr Currie. The truth is a combination of both.
Mr Whitfield’s version is not supported by Mr Henschke who witnessed the discussion around the table. Nor does it accord with Mr Currie’s pre-meeting handwritten notes, which are objective evidence of Mr Currie’s intention. For Mr Currie to have said ‘your job’s no longer required’ makes little sense. Mr Currie wanted Mr Whitfield to remain in employment. The job of leading hand was still required but was to be done, for a time, by Mr Currie. Nor does it accord with Mr Currie’s intention that Mr Whitfield be a casual employee, as Mr Whitfield claims. Mr Currie was intending Mr Whitfield to remain a full time worker.
Yet Mr Currie’s recollection was, on his own admission, not precise and there are differences between his two recollections. Nor do I consider that Mr Henschke’s evidence (which supports Mr Currie’s oral testimony) to be sufficiently independent to be relied upon. He denied that Mr Currie shouted or that Mr Currie swore profanely, evidence that I do not accept. Mr Currie did shout. Mr Currie did swear profanely. Mr Henschke placed a gloss on the discussion favourable to his current employer. That leads me to approach his evidence on this meeting with some caution.
I find that the discussion proceeded broadly in the way described by Mr Whitfield but not with the precise words he recollects. I find that after being told that Mr Currie was taking over as crew leader, Mr Whitfield realised that he was being demoted and stood up and placed the mobile phone and credit card on the table. I find that this occurred contemporaneously with Mr Currie continuing his narrative but with Mr Currie stopping before he concluded due to the unexpected turn of events (Mr Whitfield standing and removing the phone and card). Both Mr Whitfield and Mr Currie accepted in their evidence that these events occurred quickly and each was acting or speaking over the top of the other. I find that whilst Mr Currie, in all probability did say words to the effect “Aaron, nothing’s gonna change for you in terms of pay, but from now on your leadership is on pause”, Mr Whitfield was in the act of standing up by this stage and either did not hear or was no longer listening to what was being said. I do not find that Mr Whitfield was given a choice between casual work and no job. He was given a choice between demoted (non-supervisory) full time work and no job.
What is not in dispute is that Mr Whitfield, before he left the immediate vicinity, offered a handshake to Mr Currie as a parting gesture. Mr Currie shook his hand. I accept Mr Whitfield’s evidence that Mr Currie squeezed his hand harder than normal. I do not find that this was an act of deliberate aggression, as Mr Whitfield suggests. Mr Currie was angry that Mr Whitfield was leaving without hearing him out and agreeing to his restructuring proposal. In all probability he squeezed tightly without even knowing he was doing so. Mr Whitfield then said words to the effect “don’t be like that, or don’t end this like that” and again offered his hand. Mr Currie, angrily slapped Mr Whitfield’s hand away. Mr Whitfield walked off with Mr Currie angrily shouting words to the effect “get the fuck off my property” and “go on, fuck off”.
Mr Whitfield left the premises. He went home and told his partner that he thought he had been sacked.
26 July 2018 was also an ordinary weekly pay day. During the day Mr Whitfield received into his bank account his ordinary weekly wage of $871.44 nett.
Events following 26 July
The next day, Mr Whitfield checked his phone to see if there was any message from Mr Currie asking Mr Whitfield to turn up to work or asking why he had not turned up to work. He was not sure if Mr Currie would, once he cooled down, ask Mr Whitfield to get back to work. No message was received. In the absence of any message, Mr Whitfield concluded that his employment had ended. Mr Whitfield made no effort to contact Mr Currie to ascertain his employment status. Nor did Mr Currie contact Mr Whitfield to ascertain his intention.
A week passed with no communication between Mr Whitfield and the business.
On Friday 3 August Mr Whitfield sent Mr Currie a text message as follows:[16]
“Hey Hugh. Is there any chance I could have my annual leave and notice paid out as soon as possible please.”
Mr Currie replied asking for the return of company property. His text continued:
“you may email Anca, stating your date of resignation. Please cc me into it too…Then it will be done.”
A week later, on 9 August, Mr Whitfield and Mr Currie engaged in a long text conversation about the end of Mr Whitfield’s employment, and his entitlements. It started with Mr Whitfield again sending a text to Mr Currie asking for his annual leave and pay in lieu of notice.[17]
Mr Currie replied “you will be paid what you are owed in two equal instalments, as our accounts are nearly empty”. Mr Whitfield asked for specifics, adding that “as I have a deadline of 21 days to go to fair work sa if necessary and I am trying to not go down that path.” Mr Currie replied that two amounts of “994.19” will be paid on 10 and 17 August. He did not indicate what they would represent.
Mr Whitfield then replied:
“…As I was dismissed without notice and told to “leave the phone and the card and get the fuck of your property” this made it a dismissal without notice so I am entitled to 2 weeks payment in lieu of notice...”
Mr Currie then responded:
“Aaron, you left. After I told you that you would be no longer continuing as supervisor, and given the reasons why, I was about to propose a new agreement. At this point you handed me your work phone and bank card, shook my hand, shook Tommie’s hand, then tried to shake my hand again. I was so disappointed that you could once again not accept responsibility, that I refused to shake your hand a second time, and walked off. I did not hear from you until late the following week. You were never dismissed…”
Mr Whitfield then replied:
“I didn’t contact you within the week because I honestly believed you would do the right thing. Your reasons for my dismissal were not only sprung on me but I wasn’t even aloud (sic) to give you my opinion. They were scapegoats for the fact that I was sick and you didn’t like it. I didn’t get any warnings or (sic) your intentions to dismiss and regardless of any circumstances that is an unfair dismissal…”
Mr Whitfield commenced these proceedings on 10 August 2018.
Mr Whitfield believes that he is still owed a week’s pay (which he says was wrongly deducted from his annual leave), his annual leave loading and two weeks in lieu of notice.
Mr Currie says that Mr Whitfield was paid for all work up to and including 26 July, was paid accrued annual leave but was not paid notice in lieu because he resigned.
A dispute then arose over intellectual property.
On 19 August Mr Currie requested from Mr Whitfield iCloud details used to set up his former work phone. Mr Whitfield replied:[18]
“I will be happy to help. Just as soon as the issue regarding my final pay is resolved.”
On 3 September Mr Currie alleged a breach of the intellectual property provisions of Mr Whitfield’s contract. He repeated his request for the return of iCloud account details.[19]
That dispute remained live during these proceedings, evident by the following exchange:[20]
“Mr Currie: …I want to know, I want to know what is your plan with the, with my SIM card, and with the iCloud account, Tree Ninja?
Mr Whitfield: Ok, sure we can sort that out once we discuss the matter of unfair dismissal, it’s got nothing to do with this.
Mr Currie: Ok, ok I will just say while we’re here face to face, is that there is an investigation going on and charges will be laid, so I mean I want you to be aware of that, that the opportunity exists for you to just hand in my sim card, which belongs to me, and give me the account details for the [email protected] account so that I can get that information back and have it, because it belongs to me, it belongs to the company and we need it.”
Jurisdictional Issue
The jurisdictional issue requiring determination is whether Mr Whitfield was dismissed by the employer.
The exercise of the unfair dismissal jurisdiction under Part 3-2 of the FW Act is the exercise of a statutory jurisdiction. Whether an employee has been dismissed is to be assessed by reference to the statutory definition of dismissal in section 386(1):
(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.
The provisions of section 386(2)(c) may also be relevant to this matter:
(2) However, a person has not been dismissed if:
(c) the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
Mr Whitfield contends that Tree Ninja’s conduct on 26 July 2018 was a termination of his employment relationship “on the employer’s initiative”, or (in the alternative) that if he resigned then he was “forced to do so” because of the employer’s conduct.
Tree Ninja contend that it made no decision to dismiss Mr Whitfield, that it did not intend to end the employment relationship and that it did not, by conduct, force Mr Whitfield to resign. It says that Mr Whitfield terminated the employment relationship by handing in the work phone and credit card on 26 July and taking no steps thereafter to make himself available for work.
Was Mr Whitfield terminated on the employer’s initiative?
In determining whether Mr Whitfield was “terminated on the employer’s initiative” I take into account that this expression is concerned with the termination of the employment relationship, not the employment contract.[21]
Mr Whitfield relies on two primary issues to advance his submission. Firstly, the decision to remove him as a leading hand and secondly the absence of any action by the employer in the days after 26 July to offer him shifts in his former job (as leading hand) once Mr Currie cooled down.
I accept Mr Currie’s evidence that he did not intend to end the employment relationship. He intended to remove leading hand responsibilities from Mr Whitfield but otherwise continue to employ him on his pre-existing terms, with his agreement. In his evidence, Mr Currie put it this way:[22]
“I believe that he resigned that day. I know for damn sure that I didn’t fire him or say that he was going to take a pay cut or be put on casual, nothing like that was never ever said. It wasn’t a thought. It was always to continue working with him to try and get him back to that point where he could effectively lead a team that we would rebuild. I just never fired him.”
However, it is well established that an employer may by conduct dismiss an employee and end the employment relationship by materially and unilaterally altering contractual terms relating to pay, conditions or duties if such changes are to fundamental or essential terms. At law, this is described as the doctrine of repudiation of contract.
If Tree Ninja did in fact repudiate Mr Whitfield’s contract of employment it would be open for the Commission to find that it engaged in conduct that terminated the employment relationship on its initiative.
The concept of contractual repudiation in an employment context was summarised by a full bench of the Commission in City of Sydney RSL & Community Club v Balgowan[23] as follows:
“The question whether there has been a repudiation of the contract of employment is determined objectively, it is unnecessary to show a subjective intention to repudiate and is a question of fact not law. Relevantly, for present purposes, repudiation may exist where an employer reduces the wages of an employee without the employee’s consent or where there is a serious non-consensual intrusion on the nature of the employee’s status and responsibilities in a way which is not permitted by the contract. Similarly, if an employer seeks to bring about a change in the employee’s duties or place of work which is not within the scope of the express or implied terms of the contract of employment, the conduct may evince an intention to no longer be bound by those terms. Therefore, in these circumstances if an employee does not agree to the change, which if agreed would amount to a variation of the contract, the employee may claim to have been constructively dismissed.”
More recently, in the context of employee repudiation, a full bench said:[24]
“The test for repudiation is whether the conduct of the employee is such as to convey to a reasonable person, in the position of the employer, renunciation either of the contract as a whole or of a fundamental obligation under it. The issue turns upon objective acts and omissions and not on uncommunicated intention.”
The High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd[25] described the concept in the following terms:
“The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.”
I now apply these principles to the facts before me.
Was the employer’s decision to unilaterally withdraw leading hand responsibilities from Mr Whitfield a repudiation of his contract of employment?
Mr Whitfield’s written contract of employment is the one dated 1 June 2017 in which he agreed to work full time as a “ground crew / climber”.[26]
When Mr Whitfield was promoted to leading hand in March 2018 it was an offer made verbally and an offer accepted verbally. There is no evidence before me of that offer and acceptance being in writing. However, contractual principles recognise verbal agreements (with consideration) as being able to lawfully vary written contracts. This is the construction I place on Mr Whitfield’s promotion to leading hand in March 2018. It was a lawful variation of the 1 June 2017 contract, a variation whereby two contractual conditions were varied: Mr Whitfield’s duties as “ground crew / climber” were expanded by adding the title and responsibilities of leading hand, and in return his gross salary was increased to $58,000 per annum plus superannuation.
This was the status of Mr Whitfield’s contract of employment at the commencement of the disciplinary meeting on 26 July 2018.
A repudiation of this contract would have occurred if Tree Ninja’s conduct was, in the words of the Commission in Balgowan, “a serious non-consensual intrusion on the nature of the employee’s status and responsibilities in a way which is not permitted by the contract.”
I do not determine this question by reference to Mr Currie’s subjective intention (to not terminate the employment relationship). The law requires this question to be determined objectively. However I do take into account that Mr Whitfield’s contractual remuneration was not altered and that his terms and conditions of employment and duties were otherwise unaltered (except for the leading hand issue).
However, I am satisfied that unilaterally removing a contractual right to be employed as a leading hand was the removal of a fundamental right under his contract of employment. A leading hand, even in a small crew, has a materially enhanced status, role and responsibility. It had been, since March 2018, the new description of Mr Whitfield’s employment not just in title but in substance.
Accordingly, I conclude that Mr Whitfield’s contract of employment was repudiated by Tree Ninja’s unilateral decision made on 25 July and communicated on 26 July.
I am also satisfied that Mr Whitfield only stood up and handed back his work phone and work credit card once the decision to remove him as leading hand had been made and communicated.
I conclude that this was a dismissal on the employer’s initiative. Although Mr Currie wanted the employment relationship to continue, he was in fact advancing a new proposal, one which required Mr Whitfield’s agreement. This finding is supported by the terms of Mr Currie’s text of 9 August 2018 when he said to Mr Whitfield:[27]
“After I told you that you would be no longer continuing as supervisor, and given the reasons why, I was about to propose a new agreement.” (my emphasis)
In these circumstances I am satisfied that Mr Whitfield was terminated “on the employer’s initiative” within the meaning of section 386(1)(a) when he was advised that he would be removed from his job as leading hand. Hence he was, under the FW Act, dismissed.
Was Mr Whitfield forced to resign because of the employer’s conduct?
Given this conclusion, I do not need to determine whether Mr Whitfield resigned and was forced to resign within the meaning of section 386(1)(b).
However, in the event that a different view is held about section 386(1)(a), I set out my conclusion on the forced resignation issue.
Assuming for the moment that Mr Currie’s decision to remove Mr Whitfield from his job as leading hand but retain him on crew was not a termination of the employment relationship on the employer’s initiative, it is open to conclude (and I do so) that Mr Whitfield’s action to stand up, remove his work phone and work credit card from his pocket and place them on the table, then shake Mr Currie’s hand and walk to his car was a resignation.
If that is so, was Mr Whitfield forced to do so because of the conduct or course of conduct by Tree Ninja?
There was no other motivation or explanation for Mr Whitfield’s conduct other than being told that he was being removed as leading hand. It arose from the employer’s decision, and the employer’s decision alone. Although Mr Currie had business reasons for his decision, it was nonetheless that decision and that decision alone that precipitated the resignation.
However, was the resignation “forced”?
The legal principles governing the application of section 386(1)(b) of the FW Act are well established.
The test to be applied is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.[28]
The legislature has chosen to use the word “forced” as the basis for the causal connection, rather than looser or weaker formulations. The word is not defined in the FW Act. It is the past tense of the noun “force” and the verb “to force”. The noun and verb are defined in recognised English dictionaries to mean (in relevant contexts):[29]
“force (noun): coercion or compulsion”
“to force (verb): to cause or produce by effort; to attain by strength of effort”.
The word “forced” suggests the existence of conduct of such a character which compelled the outcome in the sense that the outcome was at least the probable consequence of the conduct such that an effective or real choice was denied. Whether an employee is “forced” to resign by the “conduct or a course of conduct of the employer” is a question of fact.
I do not conclude that Mr Whitfield was “forced” to resign within the meaning of the FW Act. Viewed objectively, his resignation was not the probable result of the employer’s conduct. He was not denied an effective or real choice but to resign.
Rather the contrary. Mr Whitfield effectively ended the meeting with Mr Currie as soon as he was told that he was being removed as leading hand. Had he not done so, and had he remained a few minutes longer and heard Mr Currie out, he would have discovered that he was being offered continuing employment in his pre-March 2018 role save that he would retain his post March 2018 (higher) income, and that there was some prospect that in the future he could return as leading hand.
Although it was Mr Currie who was primarily responsible for the heat of the moment (by raising his voice and shutting Mr Whitfield down until he, Mr Currie, had finished his written narrative), the heat of that moment was not sufficient to objectively force a resignation between work colleagues who, until then, rated themselves as friends.
I am satisfied that Mr Currie did give Mr Whitfield a choice to remain employed on a new agreement that was materially different in status and duties but no different from duties Mr Whitfield had performed four months prior, and on more pay than he had received four months prior. In other words, his choice was to keep the pay rise but do the less responsible job, or leave. In those circumstances that was a real and effective choice being put to Mr Whitfield. It was not a forced resignation.
Is Mr Whitfield’s dismissal captured by the exclusion for demotions in section 386(2)(c)?
Section 386(2)(c) of the FW Act provides for a statutory exclusion from the definition of dismissal in certain circumstances when an employee is demoted.
Those circumstances require the demotion to not involve a significant reduction in remuneration or duties and the employee remains in employment with the employer (my emphasis)[30].
The decision to remove Mr Whitfield from his role as leading hand was a demotion. I have found that it did not involve any reduction in remuneration, let alone any significant reduction. Section 386(2)(c)(i) is made out.
However, section 386(2)(c)(ii) is not made out. Mr Whitfield did not remain in Tree Ninja’s employment in the demoted position.
In these circumstances, Tree Ninja is not able to rely on the exclusion from the statutory definition of dismissal in section 386(2).
Conclusion on jurisdictional issue
Although Mr Whitfield was not forced to resign, the employer’s conduct in unilaterally removing him from his employment as a leading hand was a termination of employment at the initiative of the employer and thereby a dismissal within the meaning of section 386 of the FW Act. No exclusions from the statutory definition of dismissal apply.
In layman’s terms, my decision on the jurisdictional issue is this: before Mr Whitfield stood up and resigned, he had already been dismissed moments earlier by Mr Currie when told that he would no longer be doing the job of leading hand.
Having been dismissed on 26 July, Mr Whitfield’s application is within jurisdiction.
I am also satisfied on the facts that Mr Whitfield was a person “protected from unfair dismissal” within the meaning of section 382 of the FW Act.
I now consider whether Mr Whitfield’s dismissal was an unfair dismissal within the meaning of Part 3-2 of the FW Act.
Small Business Fair Dismissal Code
Given that Tree Ninja is a small business (as defined), section 385(c) of the FW Act provides that Mr Whitfield’s dismissal will not be an unfair dismissal if the dismissal was consistent with the Small Business Fair Dismissal Code.
The Small Business Fair Dismissal Code provides as follows:[31]
“Small Business Fair Dismissal Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
Mr Currie was motivated to demote Mr Whitfield because of perceived performance deficiencies (those set out in his pre-meeting handwritten notes), not for any misconduct (let alone serious misconduct). This question of Code compliance falls to be determined under the ‘Other Dismissal’ provisions of the Code, not its Summary Dismissal provisions.
Unlike the ‘Summary Dismissal’ provisions, the ‘Other Dismissal’ provisions of the Code make no reference to the employer holding a reasonable belief that certain conduct occurred. The giving of a prior reason, the giving of a prior warning, the giving of a chance to respond, the giving of a chance to rectify and the giving of a valid reason are all expressed as mandatory. The employer “must” do each of these things.
Mr Whitfield was given no advance notice that he was at risk of being demoted. Although from time to time he had been spoken to about work incidents, there was no evidence before me that these were anything other than discussions in the normal course of business.
The Code provides that “the employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.”
While Mr Currie believed that Mr Whitfield was not taking responsibility for problems that arose on his watch, and while the seven issues of concern with Mr Whitfield’s performance set out in his pre-meeting notes were grounded in his experience of the preceding Friday and subsequent discussions with other persons, the disciplinary meeting on 26 July was the first occasion they were put to Mr Whitfield. There had been no prior warning, whether verbal or in writing.
The Code provides that “the small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.”
Mr Currie did not give Mr Whitfield an opportunity to respond to the criticism nor rectify perceived problems with his performance before deciding to remove him as leading hand.
Finally, the Code provides that “a small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal.”
For these reasons and irrespective of whether Mr Currie’s criticisms of Mr Whitfield’s performance as leading hand were justified or not, I conclude that Mr Whitfield’s dismissal was not consistent with the Small Business Fair Dismissal Code. Nor did Tree Ninja produce evidence that it did so comply, as required by the Code.
Harsh, Unjust or Unreasonable
Given that Mr Whitfield’s dismissal was not consistent with the Small Business Fair Dismissal Code, he will have been unfairly dismissed if the dismissal was “harsh, unjust or unreasonable” having regard to the matters set out in section 387 of the FW Act.
I now consider those matters.
Valid reason
A valid reason is one that is sound, defensible and well founded and should not be capricious, fanciful, spiteful or prejudiced.[32]
Of the seven criticisms of Mr Whitfield’s performance set out in his pre-meeting handwritten notes, I am satisfied on the evidence before me that one of those matters – the failure to properly maintain tools and equipment – is made out. Mr Currie’s evidence of working with poorly maintained equipment on Friday 20 July was clear and was corroborated by the evidence of Mr Henschke. I also find that it was Mr Whitfield’s responsibility as leading hand to have such equipment in good working order at the commencement of each job.
Mr Whitfield’s evidence was that he was unable to access company funds to have a contractor sharpen and maintain equipment due to changes in company credit arrangements. Whilst this may have been so with respect to one service provider, I accept Mr Currie’s evidence that other service providers could have been used or a credit facility could have been made available if the problem had been drawn to his (Mr Currie’s) attention.
I am not satisfied on the evidence before me that the other six criticisms of Mr Whitfield’s performance are made out. Whilst Mr Currie’s notes provide some examples of deficiencies in each area, the criticisms are one-sided. I particularly reject the criticism that Mr Whitfield was responsible for fuel costs “through the roof”. Whether fuel costs had risen or not, that criticism can only be sustained if Mr Whitfield was the cause of such a rise. Mr Whitfield’s evidence was that new vehicle and machinery purchases contributed to the rise. This is a credible explanation. Mr Currie’s attempt to blame Mr Whitfield for high fuel costs by alleging erratic driving was particularly unpersuasive.
Although I accept that Mr Currie had otherwise genuine reasons for concern at whether Mr Whitfield was meeting the high standards he set for a leading hand of his business, none of the reasons individually or in combination were, at that point in time, a valid reason for dismissal. While the failure to maintain equipment in good working order could readily be a valid reason for dismissal, there is insufficient evidence before me to conclude that this failure was sufficiently sustained to have warranted dismissal.
I conclude that there were some performance deficiencies warranting counselling or warning but no valid reason to dismiss on 26 July.
Notification
Mr Whitfield was notified of Mr Currie’s criticisms of his performance only moments before he was told that he was no longer to be employed as a leading hand.
Opportunity to respond
Mr Whitfield was given no opportunity to respond to either the criticisms of his performance or the employer’s intention to remove him as leading hand until the decision had been made and communicated.
Support person
Not having been made aware of the purpose of the 26 July meeting, Mr Whitfield neither sought nor was denied permission to have a support person present.
Performance warnings
Mr Whitfield received no prior warnings or counselling concerning his performance other than general discussion with Mr Currie in the ordinary course of business.
Size of employer’s business
Tree Ninja is a micro business. I take this fully into account in assessing both valid reason and procedural fairness. I recognise the very real difficulties an employer such as Mr Currie faced juggling operational matters, business development, customer complaints, cash flow, financial pressures, staffing and crew issues – and each in the context of operating a business run from his private home that overlapped his personal life.
However, even making full allowance for these factors, the FW Act does not absolve a micro business from having to establish at least some broadly based measure of fairness when dismissing staff, both in terms of reason for dismissal and an opportunity to respond to allegations or to improve performance.
Human resource specialists
Mr Currie has no specialist human resource expertise and wisely sought advice from his business adviser Mr Bulmer in advance of the 26 July meeting.
Other matters
There are no other matters relevant that have not been otherwise considered.
Conclusion on merits
There were legitimate concerns held by the employer with some performance issues that warranted counselling or warning but no valid reason for dismissal. I find that Mr Whitfield’s dismissal was unreasonable.
I also find that the failure to provide Mr Whitfield an opportunity to respond to the employer’s criticisms and a failure to provide an opportunity to address those concerns before a decision was made to have been harsh and unjust.
In so concluding, I do not wish to be taken as suggesting that Mr Currie was wholly unfair in his actions. Clearly his foul language and shouting was out of line, contrary even to the advice of his own adviser to remain calm. He patently denied Mr Whitfield procedural fairness. However, for reasons previously stated, I consider that Mr Currie did present Mr Whitfield with a real and effective choice consequent on his demotion from leading hand - to keep a six to ten thousand dollar pay rise but return to the less responsible job as a ground crew / climber, or to leave.
In layman’s terms however, Mr Currie jumped the gun. Instead of putting forward his proposal (that Mr Whitfield work in an alternate role) as an option for discussion, he unilaterally decided to demote Mr Whitfield without prior warning. In doing so he acted unfairly. Even in a micro business context and in a work environment where issues of safety arise daily this was precipitous. There were other options in addition to the choice he intended to present – such as the option of openly and calmly discussing his criticisms of Mr Whitfield in private, and giving him a short but reasonable period of time to prove that he was leading hand material and could address the employer’s concerns.
For these reasons, Mr Whitfield’s dismissal was harsh, unjust and unreasonable.
Remedy
I consider it appropriate to order a remedy. The circumstances giving rise to the employment relationship ceasing are real and substantive. It would not be in the interests of justice for an employee, in light of my findings, to be denied a remedy.
I do not consider that reinstatement in the same or an alternate role to be appropriate. It was apparent from the proceedings that they, together with the post-dismissal wages dispute and the intellectual property dispute have taken their toll on Mr Currie. Mr Whitfield himself acknowledges that the relationship has broken down irretrievably such that reinstatement is inappropriate. I agree.
In these circumstances I consider that a remedy in the form of compensation as provided by statute is appropriate.
Section 392 of the FW Act provides as follows:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
I now consider each of the criteria in section 392 of the FW Act.
Viability: section 392(2)(a)
This is a micro business. Mr Currie’s evidence is that the business is profitable but severely cash flow constrained. Although it has some limited funds owed by creditors it has less than this sum in the bank. The evidence of Mr Currie discloses the quantum of these sums, and they were not challenged by Mr Whitfield in cross examination. As this decision is publicly available I elect not to publish those commercially sensitive figures as there is no public interest in doing so.
I am satisfied that a compensation order of even a moderate sum will adversely affect Tree Ninja’s cash flow and may be unable to be met except by overdraft or lengthy payment terms. However, this does not, of itself, mean that business viability is adversely impacted. Cash flow and business viability may be related but are not identical concepts.
Length of service: section (section 392(2)(b))
Mr Whitfield worked for Tree Ninja for one year and seven months.
Remuneration that would have been received: section 392(2)(c)
While Mr Whitfield had a reasonable expectation of ongoing full time employment, he had nineteen months service in a micro business that had only existed for three years. Whilst the business was profitable, it had cash flow problems and more recently a major IT crisis. Given Mr Currie’s decision that he needed to return to crew to re-establish operational performance standards, the business development activities that Mr Currie had been undertaking have been curtailed, with implications for growth.
Further, the concerns Mr Currie held about Mr Whitfield’s performance (or at least the objectively valid concerns) were required to be addressed to Mr Currie’s satisfaction if Mr Whitfield was to have a medium to long term future with the business.
There is also a reasonable likelihood that Mr Whitfield, even were he taken aside and calmly counselled or warned on the problems and given a short but reasonable chance to address them, would have taken issue with the criticisms and not remained in medium or long term employment, either by resigning or being dismissed on notice. Mr Whitfield had displayed an impulsiveness to walk out on 26 July before Mr Currie finished his narrative, notwithstanding that he was well and truly provoked by the lack of notice, the shouting and the foul language displayed by his employer.
In these circumstances (and particularly given the close working environment in this three person micro business and given the strained workplace environment and damaged relationships that would have arisen from a formal counselling or warning session) I consider that Mr Whitfield would have had a reasonable expectation of at least one month (four weeks) further employment. By the expiry of that period a high probability would have existed of a further altercation with Mr Currie, resulting in a forced parting of the ways.
I also make an allowance for the contingency that Mr Whitfield may have resigned of his own motion inside this period. I will apply a 25% contingency (one week discount) on this account.
Mitigating efforts: section 392(2)(d)
Mr Whitfield’s evidence is that he moved quickly after 26 July to seek alternative work. He found alternative work from September 2018, albeit non-full time and at a lesser rate of pay. I make no discount to the compensation payable on that account.
However, I consider it appropriate to take into account the fact that Mr Whitfield, had he not precipitously walked out on 26 July, would have been offered continuing employment which, objectively viewed, was a real and effective choice – of full time work for which he was skilled, on his leading hand rate of pay but without doing leading hand duties. In this respect, he did not fully mitigate his loss as work was available for him to undertake and would have been reasonable for him to perform – at least as an interim measure.
In these circumstances I will discount the amount of compensation payable by 25% (one week) on account of a failure to fully mitigate his loss.
Remuneration earned: section 392(2)(e)
Mr Whitfield earned no remuneration in the four week period after 26 July 2018. I make no deduction on this account.
Income likely to be earned: section 392(2)(f)
As compensation is not calculated for a period beyond the date of this order, there is no income likely to be earned that is to be taken into account by way of discount.
Other matters: section 392(2)(g)
There are no other matters or contingencies that need to be provided for.
However, I note that the parties remain in dispute over alleged underpayment of Mr Whitfield’s entitlements on termination. Whether the entitlements claimed by Mr Whitfield are due or not at law is not a matter on which the Fair Work Commission can exercise jurisdiction in unfair dismissal proceedings. The compensation I order will be for unfair dismissal, not for alleged underpayment of monies on termination. I make no findings in that regard.
I also note that I have made no findings concerning the post-employment conduct of Mr Whitfield or Tree Ninja concerning the intellectual property dispute that has arisen between the parties. I make no allowance in my orders on account of that matter. I simply encourage the parties to resolve that matter in light of this decision, as Mr Whitfield alluded to in his evidence.
Misconduct: section 392(3)
As Mr Whitfield was not dismissed for misconduct no discount is to be applied on this ground.
Shock, Distress: section 392(4)
I note that the amount of compensation allowable by the statute does not include a component for shock, humiliation or distress. Nor does it include any basis for punitive damages.
Compensation cap: section 392(5)
The amount of compensation I will order does not exceed the six-month compensation cap.
Payment by instalments: section 393
Given that Tree Ninja is a micro business with cash flow problems, a case exists for payment by instalments. However, the amount I will order is not large. I also take into account the desirability of minimising the potential for further complexity or conflict between the parties that may arise if instalments are ordered, given the post termination disputes that have already arisen.
On balance, I consider that providing Tree Ninja with a slightly longer period to make payment is preferable to ordering payment by instalments. I will order that payment be made within 28 days of the date of my order.
Conclusion on compensation
The compensation order I will make will be two week’s pay (four weeks less the two weeks of discount I have applied), less tax as applicable. It will be two week’s pay at the rate of Mr Whitfield’s ordinary time rate of pay at the date his employment ceased (26 July 2018) – that is, $58,000 per annum. The payment is a gross amount and the employer is to deduct tax as applicable to two week’s pay.
I will also order, as is the Commission’s usual practice, that the employer pay (in addition) superannuation on this amount at the applicable rate of Mr Whitfield’s contract of employment (9.5%) into the superannuation fund the employer was contributing on Mr Whitfield’s behalf whilst he was employed.
Thus, I will order that Mr Whitfield be paid the gross figure of $2,230.76 (2 x $1,115.38 per week[33]) plus 9.5% superannuation ($211.92) within 28 days (26 November 2018).
Conclusion
I find that Mr Aaron Whitfield was dismissed by Tree Ninja within the meaning of the FW Act.
I find that Mr Whitfield’s dismissal was harsh, unjust and unreasonable.
I consider that a remedy of reinstatement is inappropriate.
I consider that a remedy of compensation is appropriate. In conjunction with the publication of this decision I issue an order granting Mr Whitfield’s application and ordering that by 11.59pm on 26 November 2018 Master Tree Ninja Pty Ltd:
pay Aaron Whitfield the sum of $2,230.76 gross to be taxed according to law; and
pay the amount of $211.92 into the superannuation fund in respect of which Master Tree Ninja Pty Ltd was making contributions on behalf of Aaron Whitfield whilst he was in their employ.
DEPUTY PRESIDENT
Appearances:
A. Whitfield, on his own behalf
D. H. Currie, for the Respondent
Hearing details:
2018.
Adelaide.
23 October.
<PR701838>
[1] Statement of Aaron Whitfield (A1)
[2] Statement of Hugh Currie 11 October 2018 (R1); Further Statement of Hugh Currie (R2); Hugh Currie Outline of Submissions (R3)
[3] Statement of Thomas Henschke 10 October 2018 (R16)
[4] Pearse v Viva Energy Refining Pty Ltd[2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509
[5] R5
[6] R15
[7] R16 dot points under heading ‘Additional Information’
[8] evidence of Hugh Currie audio 23.10.18 at 2.26pm
[9] R10 page 4
[10] R10
[11] R14
[12] R10 page 4; see also evidence of Hugh Currie audio 23.10.18 at 11.35am
[13] R5, R6 and A10
[14] R2 paragraph 4
[15] evidence of Hugh Currie audio 23.10.18 at 11.35am
[16] A10
[17] A11; R11
[18] R12
[19] R13
[20] audio 23.10.18 at 2.46pm
[21] Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [21]; Mahoney v White [2016] FCAC 160 at [23]; Ayub v NSW Trains[2016] FWCFB 5500 at [24]
[22] evidence of Hugh Currie audio 23.10.18 at 3.42pm
[23] [2018] FWCFB 5 at [18]
[24] Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092 at [119]
[25] (2007) 233 CLR 115 at 44
[26] R8
[27] R11 page 10
[28] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47]; see also Mohazab v Dick Smith Electronics Pty Ltd 1995] IRCA 625; 62 IR 200; Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154; O'Meara v Stanley Works Pty Ltd PR973462 [2006] AIRC 496 (11 August 2006)
[29] Australian Concise Oxford Dictionary (2nd edition)
[30] Moyle v MSS Security Pty Ltd[2016] FWCFB 372 at [6] – [9]
[31] Fair Work Act 2009 - Declaration under subsection 388(1) - Small Business Fair Dismissal Code Ministerial Declaration 24 June 2009 commencement from 1 July 2009
[32] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373
[33] $58,000 per annum divided by 52 = $1,115.38 per week
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