Mr Blair Bonser v Nexus (Aust) Pty Ltd T/A Nexus Risk Services

[2016] FWC 3224

[2016] FWC 3224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Blair Bonser
v
Nexus (Aust) Pty Ltd T/A Nexus Risk Services
(U2016/4182)

DEPUTY PRESIDENT BINET PERTH, 8 JULY 2016

Application for relief from unfair dismissal - permission to be represented - jurisdictional objection - resignation - jurisdictional objection upheld - application dismissed.

[1] Mr Blair Bonser (Mr Bonser) has lodged an application pursuant to section 394 of the Fair Work Act 2009 (FW Act) in which he has asserted that the termination of his employment with Nexus (Aust) Pty Ltd T/A Nexus Risk Services (Nexus) was unfair (Application).

[2] Nexus have objected to the Fair Work Commission (FWC) hearing and determining the Application on the grounds that they say Mr Bonser resigned and was not dismissed by Nexus (Jurisdictional Objection). The Jurisdictional Objection was allocated to me for hearing and determination.

[3] Taking into account the parties circumstances, and their wishes, I determined that a Determinative Conference would be the most effective and efficient way to determine the Jurisdictional Objections.

[4] In accordance with Directions issued on 29 April 2016, the parties filed and served outlines of submissions, witness statements and documentary evidence in relation to the Jurisdictional Objection and an application by Nexus seeking permission to be represented.

[5] Consideration of the Jurisdictional Objections proceeded through a Determinative Conference convened on 23 May 2016. At the Determinative Conference Mr Bonser and his wife, Mrs Lisa Bonser, gave evidence on Mr Bonser’s behalf. Mr Michael Ellis (Broking Operations Manager), Mr Kevin Burston (Claims Consultant) and Ms Ainji Russell (Operations Manager) gave evidence on behalf of Nexus.

Permission to be Represented

[6] At the Determinative Conference Mr Bonser represented himself. Ms Victoria Stamper sought permission to represent Nexus.

[7] Section 596 of the FW Actprovides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

…”

[8] In summary, Ms Stamper submitted that she should be granted leave because she said the Jurisdictional Objection raised was complex and that, in her view, there were significant facts in dispute. Ms Stamper conceded that the Nexus employee who would otherwise appear (Ms Russell) did have experience with HR matters but would normally seek external advice for complex matters or appearances. Ms Stamper pointed out Ms Russell was herself a witness and therefore this would make appearing unduly complex. Ms Stamper also noted that Mr Bonser was represented by counsel at the preliminary stages of this matter.

[9] In reply, Mr Bonser submitted that leave should not be granted because, in his view, there were no complex factual or legal issues. He asserted that there was no evidence that leave for Nexus to be represented would make the proceedings more efficient nor that Nexus could not be adequately represented by Ms Russell.

[10] Cambridge C in Karkamakar v Australian Campus Network Pty Ltd[2013] FWC 2340 made the following comments about section 596 of the FW Act:

“[9]These provisions represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of Decisions of the Commission which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before the Commission as compared with the Australian Industrial Relations Commission. In this respect I refer in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board [2011] FWA 1520.

[10]Further, the legislative intention underpinning s.596 of the Act has been the subject of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton (Warrell) and I refer in particular to paragraph 25 of that Judgment.

[11] Upon examination of subsection 596 (2) there appears to be three, and only three, criteria which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the Hearing of a claim for unfair dismissal. The three criteria which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability; and (c) fairness.”

[11] Permission for Nexus to be represented was refused on the grounds that the legal and factual issues in dispute are narrow and simple. According to her witness statement, Ms Russell has a Bachelor of Business majoring in Human Resources and has more than 20 years’ experience in the management of staff as a Bank Manager. Given her experience and qualifications I was satisfied that Ms Russell would be able to effectively represent Nexus. In my view to have allowed Nexus to be represented when Mr Bonser was not would have been unfair. I therefore refused Ms Stamper leave to appear and, after a brief adjournment, Ms Russell conducted the case on behalf of Nexus.

Background Facts

[12] The following facts were agreed or not disputed by the parties:

a. Nexus is an insurance broker based in Western Australia with offices in Perth, Bunbury, Albany, Geraldton and Katanning. Nexus has 45 employees including 13 commercial brokers who provide insurance services and advice to clients. 1

b. The Managing Director of Nexus is Mark Patterson who is based in the Bunbury Office. Ms Russell is the Operations Manager and Company Secretary and is also based in the Bunbury Office. 2 Mr Ellis is the Broking Operations Manager and is based in the Perth Office and reports to Mr Patterson.3

c. Mr Bonser commenced employment with Nexus as a Commercial Insurance Broker on 22 February 2010. He was based in the Perth office. He specialised in insurance placements, risk and insurance advice for small to medium businesses. 4

d. Nexus engage Mr Kevin Burston as an independent Claims Consultant to provide workers compensation claims advice to the brokers that Nexus employ. He is not an employee of Nexus however he attends the Nexus West Perth office approximately once per week for half a day. 5

[13] On Wednesday 11 December 2015 Mr Bonser and Mr Ellis met to discuss concerns Mr Bonser held in relation to his remuneration package and office administrative support. It is during this discussion that Nexus say that Mr Bonser verbally tendered his resignation. Nexus say that Mr Bonser subsequently repeated his verbal resignation during a second discussion between Mr Bonser and Mr Ellis held on 12 December 2015. Mr Bonser denies that he ever tendered his resignation orally or in writing and says that his employment was terminated at the initiative of Nexus.

Statutory Framework

[14] Section 396 of the FW Act requires that the FWC decide four preliminary issues before considering the merits of an application for unfair dismissal.

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[15] I am satisfied that the Application was made within the twenty one day period required by subsection 394(2) of the FW Act. I am also satisfied that the Small Business Fair Dismissal Code which applies to employers of fewer than fifteen employees does not apply to Mr Bonser’s dismissal.

[16] Section 382 of the FW Act sets out the circumstances that must exist for Mr Bonser to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[17] It is uncontested that Mr Bonser had completed the minimum employment period and that the sum of Mr Bonser’s annual rate of earnings was less that the high income threshold. Consequently, I am satisfied the Mr Bonser was protected from unfair dismissal.

[18] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[19] The parties conceded, and I am satisfied, that the Small Business Fair Dismissal Code did not apply in the circumstances and that the dismissal was not a case of genuine redundancy.

[20] What is contested is whether Mr Bonser was dismissed or whether he brought his employment to an end at his own initiative.

[21] The term ‘dismissed’ is defined in section 386 of the FW Act as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(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.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

Consideration

[22] On Monday 7 September 2015, Mr Bonser met with Mr Patterson as a part of the 2015 performance review cycle. At that meeting Mr Bonser had hoped to have concerns which he held about his 2014 remuneration addressed. Instead he says that Mr Patterson indicated that Nexus proposed to reduce Mr Bonser’s future remuneration. Mr Bonser objected to this proposal and he says that he and Mr Patterson agreed that Mr Patterson would provide details of the proposed package in writing and Mr Bonser would document his concerns about his remuneration package and his level of administrative support.

[23] As agreed, Mr Bonser detailed his concerns about his remuneration and administrative support arrangements in an email to Mr Patterson dated 9 September 2015. 6

[24] On or around the first week of December 2015, Mr Bonser approached Mr Ellis to seek his assistance to resolve concerns that Mr Bonser held about his remuneration and the adequacy of his office support which Mr Bonser had previously raised with Mr Patterson. Mr Bonser and Mr Ellis agreed to meet to discuss the matters on Wednesday 9 December 2015. 7

[25] On Wednesday 9 December 2015 at 10.49am Mr Bonser indicated in an email to business connections that he was planning to leave Nexus. 8

“On 9 Dec 2015, at 8:52 AM, Justin Dyson <[email protected]> wrote:

You going out on your own Blair ?

Justin Dyson
Partner
SRB Legal
Insurance Lawyers”

From: Blair Bonser
Sent: Wednesday, 9 December 2015 10:49 AM
To: Justin Dyson
Subject: Re: Lunch
Attachments: srb%20logo%20small198246.jpg

That’s the plan

Sent from my iPhone”

[26] At around 11:00am the same day, Mr Bonser and Mr Ellis met in a coffee shop in West Perth. Mr Bonser’s and Mr Ellis’ recollections of the conversation differ significantly.

[27] Mr Bonser says that Mr Ellis informed him that he had discussed Mr Bonser’s concerns with Mr Patterson and that he and Mr Patterson considered them resolved. Mr Bonser says that he decided that the meeting had been a waste of time and decided to end it and instead speak directly to Mr Patterson. 9

[28] Mr Ellis says that Mr Bonser told him that they did not need to discuss his concerns because he had decided to resign. Mr Ellis says that Mr Bonser expressly used the words ‘I resign’. 10 Mr Ellis says that Mr Bonser went on to say that he had been thinking about resigning for some time and intended to start his own business.11 Mr Ellis says he informed Mr Bonser that he would be given 48 hours to consider his position and, in the meantime, Mr Bonser should continue to perform his normal duties at the Perth office.12

[29] Mr Bonser denies using the words ‘I resign’ or any words to that effect. He says that he is certain he did not use such words because he did not have another job to go to. 13

[30] Mr Bonser does concede that he told Mr Ellis that:

“I am looking elsewhere and have even considered becoming an Authorised Representative.” 14

[31] On Thursday 10 December 2015 Mr Bonser attended the Nexus office and performed his normal duties. He left the office at 2:00pm to attend an appointment on his way home. 15

[32] At 4:00pm Mr Patterson called Ms Russell and told her that he had met with Mr Bonser the previous day and Mr Bonser had told him that he wished to resign. Ms Russell says that Mr Patterson told her that he planned to follow up with Mr Bonser to confirm that he still wished to resign. 16

[33] On Friday 11 December 2015 Mr Bonser arrived at his office at 6.30am and sent Mr Burston an email requesting that Mr Burston meet him later that same day to discuss a claim. 17 Mr Burston gave evidence that he would normally just meet with brokers rather than book specific appointment times.18

[34] At some time between 10.45am and 11:00am that day, Mr Ellis went to the door of Mr Bonser’s office. Mr Bonser and Mr Ellis have differing recollections of the conversation which then ensued.

[35] Mr Bonser says the following conversation took place: 19

Mr Ellis: “Are you resigning today?”
Mr Bonser: “I am doing my job and have secured some new business yesterday which I’ve arranged for Bec Leix to process on the Nexus System, probably go on yesterday or today.”
Mr Ellis: “Are you resigning today?”
Mr Bonser: “Did you tell Patto of our conversation?”
Mr Ellis: “I’m duty bound. So are we going head to head on this? You don’t own the clients.”
Mr Bonser: “I have never breached a trade restraint”

[36] On the other hand, Mr Ellis says he said to Mr Bonser:

“You have had 48 hours to think about this now. Have you changed your mind?”

[37] Mr Ellis says that Mr Bonser confirmed that the resignation he provided verbally on Wednesday 9 December 2015 still stood and that he did not propose to change his mind. According to Mr Ellis, Mr Bonser told him he would provide a written resignation later in the day. 20

[38] Consistent with Mr Bonser’s evidence, Mr Ellis says he asked Mr Bonser whether he wanted to purchase his portfolio or go head to head and Mr Bonser indicated to him that he would not breach his restraint. 21

[39] At around 11:00am Mr Bonser met with Mr Burston to discuss a claim. Mr Bonser says that he was ‘rattled’ by his conversation with Mr Ellis and concedes he told Mr Burston that he should keep an eye on the claim because: “I didn’t look like I would be at Nexus much longer”. 22Mr Bonser says he did so because after his conversation with Mr Ellis he thought it was likely that his days at Nexus were numbered.23 Mr Burston says that Mr Bonser said to him: “I’m resigning today anyway”. Mr Burston gave sworn evidence that he was certain that Mr Bonser used the words ‘I am resigning’.24

[40] Mr Bonser says he left the office at 12.30pm to attend a client meeting and then went directly home. 25

[41] Ms Russell does not normally work Fridays however at 5:00pm Ms Russell called Mr Ellis and asked him what had happened at his meeting with Mr Bonser the previous Wednesday. Ms Russell says Mr Ellis told her that Mr Bonser had told him he resigned but that he had given Mr Bonser until the next day to reconsider. Ms Russell says that Mr Ellis told her that he had met with Mr Bonser again and that Mr Bonser had not changed his mind and would forward a written resignation shortly. Ms Russell says that she informed Mr Ellis that she would commence the Nexus exit procedure first thing Monday morning to ensure business information and client lists were secure. 26

[42] On Monday 14 December Mr Bonser says that he attended a scheduled client appointment out of the office before going to a lunch with an “extended friendship group”. 27 Nexus say that they did not expect Mr Bonser to work for them on this date.28

[43] Mr Ellis says that at around 10am he called Ms Russell to discuss the process for dealing with Mr Bonser’s verbal resignation. He says he and Ms Russell agreed that they would confirm in writing with Mr Bonser that his resignation had been accepted and that he was not required to work during the balance of his notice period. 29

[44] At around 11.40am and 12.20pm Ms Russell attempted to call Mr Bonser. On the second occasion she left a message requesting that he call her. Unable to get in contact with Mr Bonser, at 12.56pm Ms Russell sent him a message noting that she had been informed by Mr Ellis that Mr Bonser had resigned and requesting that Mr Bonser call her to discuss the Nexus separation procedure. 30

[45] At 1.28pm Mr Ellis sent an email to staff advising them that Mr Bonser had tendered his resignation and would be serving his notice period from home. 31 Mr Bonser replied to Mr Ellis two minutes later by email saying:

“Micheal
Thank you
I’ll drop by with nexus [SIC] assets” 32

[46] Mr Bonser returned Ms Russell’s call at sometime between 1.30pm and 1.40pm. Mr Bonser and Ms Russell’s recollections of the conversation differ. Mr Bonser says that he told Ms Russell that he had not resigned. He says that Ms Russell said, nevertheless, the Nexus termination process will take place. 33 Ms Russell says that Mr Bonser asked why she believed he had resigned when he had not put anything in writing. Ms Russell says that she explained that Mr Ellis told her that Mr Bonser had verbally resigned on both 9 December and 11 December 2015. She says she asked Mr Bonser whether Mr Ellis had misunderstood him, however Mr Bonser did not answer her, preferring instead to share his views about the management of the company. Ms Russell says that she then asked Mr Bonser directly whether he had resigned and she says that, again, Mr Bonser declined to answer her.34

[47] Ms Russell says that she then rang Mr Ellis to inform him that Mr Bonser had asked her why she thought he had resigned. Ms Russell says that Mr Ellis sounded surprised and confirmed that Mr Bonser had stated that he resigned on both 9 December 2015 and 11 December 2015. 35

[48] At some time between 1.40pm and 1.55pm Ms Bonser called Mr Bonser. He advised her what had happened and she says she told him that he should ring or email Nexus to tell them that he had not resigned. 36

[49] At 1.55pm Mr Bonser sent an email to all Nexus Brokers stating that:

“To all
Despite the communication I have advised Ainji Russell by telephone that I had not resigned in writing.
And questioned why I would have continued working as evidenced by my attendance in the west Perth office Thursday and Friday of last week.
Thank you for your supportive thoughts” 37

[50] Mr Bonser says that this email was rushed and he was uncertain about whether it was successfully sent until his wife confirmed she had received a copy at their home email address. 38

[51] At around 2:00pm Mr Burston called Ms Russell to inform her that Mr Bonser had mentioned to him on Friday that he had resigned. 39 Mr Burston confirmed the details of his conversation with Mr Bonser in an email to Ms Russell at 3:04pm on that same day. In his email Mr Burston recounted that:

“During our discussion, which centered primarily around claims I was working on and some that sounded likely there were going to be heading my way, Blair made the comment “I’m resigning today”. 40

[52] Mr Bonser attended the Nexus office at or after 2:00pm. He says the receptionist, Ms Jordan Buss, advised him that Mr Ellis was not available, however she would collect Mr Bonser’s personal belongings and bring them to the counter. Mr Bonser says that during this time a number of staff came to the reception area offering words of support. Mr Bonser says that he provided all the company equipment in his possession, including security passes and credit cards, in exchange for the box of his personal possessions, then he left the office. 41

[53] Later the same night at 10.21pm Ms Russell forwarded Mr Bonser by email a letter confirming the termination of his employment. 42 The letter stated inter alia:

“On 9 December 2015 and 11 December 2015 you met with Michael Ellis and informed Michael of your decision to resign from the position of Commercial Broker. Nexus has accepted your resignation effective 9 December 2015 and you will not be required to attend the West Perth office during your notice period. ”43

[54] Mr Bonser served a period of gardening leave from 14 December 2015 until 15 January 2015. He did not file his Application until 1 February 2016. 44

Conclusion

[55] This matter turns entirely on its facts. Mr Blair’s recollections differed from each of the Respondent’s witnesses. I am therefore required to determine this matter by making decisions about the credibility of the various witnesses and the evidence they gave. Having watched and listened to the witnesses give evidence and having considering all the corroborative documentary evidence before me, I set out below what I believe most probably occurred.

[56] Following his 2014 performance review, Mr Bonser became disenchanted with Nexus because his remuneration and support expectations were not met. 45 When it became clear in the 2015 performance review cycle that his concerns would not be resolved to his satisfaction, it appears (from his email of 9 December 2015 to his business connections) that he decided to ‘go out on his own’. This is consistent with Mr Burston’s evidence that Mr Bonser did not appear to be enjoying working at Nexus and would seldom attend Nexus functions.46

[57] Mr Ellis had only been in his role for a short period. There is no evidence of any ill will between him and Mr Bonser, nor any evidence that he would gain in any way from the loss of an experienced broker like Mr Bonser. Mr Bonser proffered no reason why Mr Ellis would ‘make up’ Mr Bonser’s resignation.

[58] In these circumstances, Mr Ellis’ recollection of events should be preferred. I am therefore satisfied that Mr Bonser proffered his resignation at the meeting he had with Mr Ellis on Wednesday 9 December 2015 and that Mr Ellis advised him that he would give Mr Bonser 24 – 48 hours to reconsider his decision.

[59] This version of events is consistent with Ms Russell’s evidence that Mr Ellis informed her of Mr Bonser’s resignation the following day and his intention to provide Mr Bonser with a ‘cooling off’ period.

[60] For the same reasons as above I also prefer Mr Ellis’ recollection of the conversation on Friday 10 December 2015 between Mr Bonser and himself. The fact that Mr Bonser concedes that he and Mr Ellis discussed whether Mr Bonser planned to breach any trade restraint is consistent with the evidence of Mr Ellis that Mr Bonser orally confirmed his resignation during their discussion that day. Mr Ellis’ version of events is consistent with Mr Burston’s evidence that Mr Bonser told him shortly after Mr Bonser’s meeting with Mr Ellis that he had resigned. Mr Burston is not an employee of Nexus and his demeanour and evidence suggested he was a credible witness. I am therefore satisfied that Mr Bonser confirmed on Friday 10 December 2015 that he had not changed his mind and still wished to resign.

[61] Ms Russell’s explanation that she does not work Fridays and that Mr Ellis was not familiar with the organisation’s exit procedures provides an adequate explanation for why logistical arrangements for Mr Bonser’s departure did not commence until Monday 14 December 2015.

[62] On Ms Russell’s instruction, Mr Ellis sent an email to all staff at 1.28pm on Monday 14 December 2015 advising them that Mr Bonser had tendered his resignation. Mr Bonser’s response:

“Micheal … Thank you … I’ll drop by with nexus [SIC] assets”

is difficult to be read other than as an acknowledgement of the factual accuracy of the content of Mr Ellis’ email and therefore corroborates the evidence given by the Respondent’s witnesses that Mr Bonser had tendered his resignation.

[63] It was not until after Mr Bonser spoke to his wife that there is any contemporaneous evidence that he contested whether or not he had resigned. In an email to all staff at 1.55pm he stated that he “… had not resigned in writing.”

[64] His choice of words, in my view, is critical. He did not say he had not resigned. Instead he stated that he had not resigned in writing. Based on all the evidence which is before me, what I believe is most likely to have occurred is that, during his telephone conversation with his wife, Mr Bonser decided or was convinced by his wife that he should not in fact resign and his email was an effort to ‘recover’ the situation by asserting that his earlier resignation was not binding because it had not been in writing.

[65] Unfortunately for Mr Bonser, at this point in time his employer had already accepted his resignation. Resignations do not need to be in writing to be effective. Once notice is given an employer is entitled to rely on it. 47 There is no evidence that the decision to offer his resignation was made in the heat of the moment and, in any event, Mr Bonser was given adequate opportunity to withdraw it and did not do so. Therefore, there is no basis on which Mr Bonser might argue he ought to have been entitled to withdraw his resignation without the consent of Nexus.

[66] I therefore find that the termination of Mr Bonser’s employment was at his own initiative and not at the initiative of Nexus. I also find that he was not forced to resign because of conduct, or a course of conduct, engaged in by his or her employer.

[67] Mr Bonser was therefore was not “dismissed’ for the purposes of section 385 of the FW Act and is not therefore protected from unfair dismissal pursuant to section 396 of the FW Act. In these circumstances the FWC is unable to consider the merits of his application for a remedy from unfair dismissal. Mr Bonser’s Application is dismissed.

[68] An order dismissing the Application will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

B Bonser, Applicant.

A Russell for the Respondent.

Hearing details:

2016.

Perth:
May 23.

Final written submissions:

Applicant,16 May 2016

Respondent,9 May 2016

 1   Exhibit R1.

 2   Exhibit R2.

 3   Exhibit R3.

 4   Exhibit R1.

 5   Exhibit R4, Transcript PN200-203.

 6   Exhibit A4.

 7   Exhibit A2 and R3.

 8   Exhibit R6.

 9   Exhibit A2.

 10   Transcript PN134.

 11   Transcript PN136.

 12   Exhibit R3.

 13   Exhibit A2.

 14   Exhibit A1 and R3.

 15   Exhibit A1.

 16   Exhibit R2, Transcript PN256.

 17   Exhibit A1.

 18   Transcript PN224 – 227.

 19   Exhibit A2.

 20   Exhibit R3, Transcript PN137.

 21   Exhibit R3.

 22   Exhibit R4.

 23   Exhibit A2.

 24   Exhibit R4, Transcript PN213-214.

 25   Exhibit A2.

 26   Exhibit R2, Transcript PN256.

 27   Exhibit A2, Transcript PN303.

 28   Exhibit R2 and R3.

 29   Exhibit R3.

 30   Exhibit A2, A7, Transcript PN256.

 31   Exhibit R2 and R3.

 32   Exhibit R5.

 33   Exhibit A2.

 34   Exhibit R2, Transcript PN256.

 35   Exhibit R2.

 36   Exhibit A3.

 37   Exhibit A7.

 38   Exhibit A2.

 39   Exhibit R2 and R4, Transcript PN216-220.

 40   Exhibit R2.

 41   Exhibit A2.

 42   Exhibit R2.

 43   Exhibit A8.

 44   Exhibit A1.

 45   Exhibit A2.

 46   Exhibit R4.

 47   Birrell v Australian National Airlines Commission (1984) 5 FCR 447.

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