Mr Cameron Hanson v Rhino Rack T/A Rhino Rack Perth
[2019] FWC 1235
•25 FEBRUARY 2019
| [2019] FWC 1235 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mr Cameron Hanson
v
Rhino Rack T/A Rhino Rack Perth
(U2018/9259)
DEPUTY PRESIDENT BINET | PERTH, 25 FEBRUARY 2019 |
Application for an unfair dismissal remedy – application dismissed.
[1] On 9 September 2018, Mr Cameron Hanson (Hanson) filed an application (Application) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) for a remedy with respect to his dismissal by Rhino Rack Australia Pty Ltd (Rhino Rack).
[2] The issues in dispute between the parties could not be resolved by conciliation before a staff conciliator, or before myself, and the matter was listed for arbitration. Taking into account the parties’ circumstances, and their wishes, it was determined that a determinative conference rather than a hearing would be the most effective and efficient way to determine the matter.
[3] In light of this the Application was listed for hearing and determination by way of a Determinative Conference on 18 December 2018.
[4] On 7 November 2018 directions were issued to the parties to file materials in advance of the hearing of the Application (Directions). The Directions required Mr Hanson to file inter alia an outline of submissions and any evidence upon which he wished to rely by Thursday, 15 November 2018. The Directions also required the parties to file a Statement of Agreed Facts by Thursday, 29 November 2018.
[5] Mr Hanson filed his evidence in support of his Application on 15 November 2018 but failed to file an outline of submissions by the due date.
[6] Rhino Rack’s representatives forwarded a draft Statement of Agreed Facts to Mr Hanson at 6am on Thursday 29 November 2018 for his consideration but Mr Hanson did not respond. On 30 November 2018 he was contacted by my Chambers and asked to respond to Rhino Rack’s representatives.
[7] On 3 December 2018 Mr Hanson was warned that if he failed to file an outline of submissions or did not provide a response to the draft Statement of Agreed Facts by 12 noon on Thursday, 6 December 2018 Rhino Rack may make an application pursuant to section 399A of the FW Act to dismiss his Application on the grounds that he had not complied with a direction of the FWC.
[8] On Friday 7 December 2018 Rhino Rack made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that:
“Mr Hanson failed to comply with the Deputy President’s directions when:
a. He failed to file and serve an outline of submissions on 15 November 2018;
b. He filed an undated witness statement in an unacceptable format on 15 November 2018;
c. He failed to file and serve a Document List on 15 November 2018;
d. He failed to jointly prepare an Agreed Statement of Facts with Rhino Rack for filing on 29 November 2018;
e. He failed to file and serve an outline of submissions on 6 December 2018; and
f. He failed to provide Rhino Rack’s legal representatives with his responses to the draft Agreed Statement of Facts by 6 December 2018.”
[9] Section 399A of the FW Act provides as follows:
“399A Dismissing applications
a. The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: for another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
b. The FWC may exercise its power under subsection (1) on application by the employer.
c. This section does not limit when the FWC may dismiss an application.”
[10] On 10 December 2018 Mr Hanson was invited to file submissions in response to the Dismissal Application by 12 noon, Thursday, 13 December 2018.
[11] Mr Hanson attempted to contact Chambers on 10 December 2018 however the FWC’s phone lines suffered a nation wide failure and were not operational. On 11 December 2018 Mr Hanson filed an outline of submissions and provided a response to the draft Statement of Agreed Facts. He explained that he had intended to reply to the draft Statement of Agreed Facts on 30 November 2018 however he had inadvertently sent the email to the wrong email address. On 12 December 2018 he provided a Document List and explained that he had incorrectly assumed that the document was intended to be for his own assistance and that he did not realise that it was required to be filed. On the same date he provided a numbered and signed witness statement.
[12] Given that Mr Hanson filed the majority of his materials in accordance with the timeframes set out in the Directions, that he is a self represented litigant unfamiliar with legal processes, that he eventually complied with the Directions to the best of his ability and that he did so within a timeframe which did not prevent Rhino Rack properly preparing their case I declined to grant the Dismissal Application and informed the parties accordingly on 13 December 2018.
[13] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. Rhino Rack sought permission to be represented by a lawyer. This was not opposed by Mr Hanson and having considered the submissions filed on behalf of Rhino Rack I was satisfied that granting Rhino Rack permissions to be represented would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[14] At the Determinative Conference Mr Hanson gave evidence on his own behalf and tendered a witness statement on behalf of Mr Dean Poulton (Poulton). Rhino Rack elected not to cross examine Mr Poulton. Mr Gerard Boyce of Counsel (Boyce) appeared on behalf of Rhino Rack with Ms Josey. Mr Boyce called the following witnesses to give evidence on behalf of Rhino Rack:
a. Mr Paul Epthorp – National Sales Manager of Rhino Rack (Epthorp)
b. Mr Derek Caudwell – Branch Supervisor, Western Australia (Caudwell)
c. Mr Brayden Fredericks – Storeman (Fredericks)
[15] Mr Fredericks worked alongside Mr Hanson as a Storeman. Mr Caudwell is responsible for the day to day running of Rhino Rack’s Western Australian branch. His responsibilities included the supervision of Mr Fredericks and Mr Hanson and the three office employees employed by the Western Australian branch. Mr Caudwell reports to Mr Epthorp who is a member of the senior leadership team of the business. Mr Epthorp is based in New South Wales and gave his evidence by video conference link. 1
[16] Final written submissions were subsequently filed by Mr Hanson on 30 December 2018 and Rhino Rack on 9 January 2019. Despite the explanation I provided at the conclusion of the Determinative Conference, and subsequent explanation provided by Chambers, that the closing submissions were not an opportunity to introduce new evidence, Mr Hanson’s closing submissions contained a significant amount of new evidence. Given this evidence was not given under oath or subject to cross examination I have not taken this evidence into account in reaching this decision.
Background
[17] Mr Hanson commenced employment with Rhino Rack on 4 April 2017 pursuant to a written contract of employment which provided inter alia: 2
“The Employee must ensure that they know the Employer’s occupational health and safety policies and procedures.
…
The Employee agrees to comply and adhere to the polices and procedures of the Employer which are notified to the Employee and as varied from time to time. Breach of a policy or procedure may result in the termination of employment including summary termination in cases of serious breach as determined by the Employer.” 3
[18] Mr Hanson was employed by Rhino Rack in the position of Storeman at Rhino Rack’s premises in Welshpool, Western Australia (Welshpool Premises). 4
[19] The Welshpool Premises consist of a building with a warehouse at the rear, where items are stored for picking, packing and shipping (Warehouse) and an office with a lunch room at the front (Office). The Office has eaves which run along the length of the building which provide some shelter from the prevailing weather conditions. Running along the front of the building between the road and the Office is a parking area (Carpark). In the left hand corner of the Carpark when viewed from the road is an emergency muster area (Muster Area). The entry to the Office is to the left of the front of the building when viewed from the road. There is a driveway from the road running down the right hand side of the building from which the Warehouse is accessed (Driveway). 5
[20] There is a safety chain at the doorway of the Warehouse which Rhino Rack say is intended to prevent unauthorised entry to the Warehouse to ensure the safety of visitors (Safety Chain). 6
[21] Rhino Rack say that they operate a roster in the Warehouse with scheduled breaks so that there is always someone available to meet courier or delivery drivers at the doorway of the Warehouse. Mr Caudwell says that the storemen are expected to adhere to the roster and only take breaks when rostered to do so. 7
[22] Rhino Rack have a policy with respect to smoking in the workplace which is contained in its Employee Handbook (No Smoking Policy). 8 Under the heading “Personal behaviour at work” it states that employees must:
“… smoke in designated areas during meal breaks only and never in-doors within Rhino Rack premises …
Under the heading “Personal actions for fire/environmental prevention” it states that employee’s must:
“If a smoker, observe the Company’s “No Smoking” policy by smoking only in the designated outside smoking areas.
Under the heading “Smoking” it states that:
“Smoking is only permitted in designated areas and during recognised breaks.
Smoking is prohibited in:
• All Company controlled buildings.
• All major thoroughfares and within three (3) meters of access points to buildings such as doors, windows, air vents etc.
• Other areas not designated as no smoking areas by signage.
• All company controlled vehicles.”
[23] In October 2017 Mr Caudwell says that he attached a copy of the page of the Employee Handbook which stated that employees must only “… smoke in designated areas during meal breaks only and never in-doors within Rhino Rack premises …” to the Warehouse notice board along with a hand drawn “mud map” of the Welshpool Premises which indicated the location of the designated smoking area (Mud Map). 9
[24] The designated smoking area is located in an area of the Carpark at the front of the building. A sign identifying the designated smoking area is attached to the left hand wire boundary fence (when the Welshpool Premises are viewed from the road). The words “smoking area” are written near the left hand boundary fence of the Carpark on the Mud Map displayed on the Warehouse notice board. The boundaries of the designated smoking area are in dispute between the parties. Rhino Rack say the designated smoking area is limited to an area within a few metres of the sign. Mr Hanson says that he believed that he was permitted to smoke anywhere in the parking area between the road and the building. 10
[25] Rhino Rack also have a policy that no food or drink, other than water, may be consumed in the Warehouse (Ban on Eating/Drinking in the Warehouse). Signs stating: “No food or drinks (water only) to be consumed in the warehouse” were posted on the lunchroom noticeboard and the notice board next to the login/logout iPad in the Warehouse during Mr Hanson’s employment. 11
[26] Mr Caudwell says that in early 2018 he observed a number of employees breaching the No Smoking Policy. As a consequence Mr Caudwell called a meeting on 19 January 2018 with employees including Mr Hanson at which he discussed the Smoking Policy and the designated smoking area. Mr Caudwell says that at the meeting he said words to the effect that:
“The company has policies that need to be adhered to, including the no smoking policy and the designated smoking area. I understand that you are smokers but the reality is that you either comply with the policies or lose the right to smoke anywhere on site.
This is the first and last verbal warning about smoking outside of the designated smoking area.
There will be no more discussion on this issue. It is non-negotiable.”
[27] Mr Hanson concedes a meeting occurred but says that the designated smoking area had not yet been established at the time the meeting occurred. 12 Mr Fredericks confirmed that he and Mr Hanson attended the meeting. Mr Fredericks also confirms that at that meeting Mr Caudwell reminded employees that the Smoking Policy was contained in the employee handbook and that smoking was only permitted in the designated smoking area.13 Mr Fredericks was also adamant that the designated smoking area had not been established at the time the meeting occurred. I have accepted Mr Caudwell and Mr Fredericks’ recollections of the date and content of the meeting.14
[28] On 13 March 2018 Mr Caudwell says that, in the presence of Mr Fredericks, he warned Mr Hanson on the second occasion that Mr Hanson had been late for work that week and that if he was late again it would lead to the termination of Mr Hanson’s employment. Mr Caudwell sent an email to Mr Epthorp the same day detailing these events. 15 Mr Fredericks corroborated Mr Caudwell’s recollections that the meeting occurred.16 Mr Hanson says that on the day in question he slept in and when he woke up he called Mr Caudwell to let him know he would be running late. He says that Mr Caudwell said that it was ok and that he should get to work as soon as he could. Mr Hanson says that in light of this instruction he took time to shower and make lunch before he left for work.17
[29] On 6 April 2018 Mr Hanson was observed by Mr Caudwell smoking whilst driving a forklift in the Driveway. Mr Hanson concedes he was smoking on this occasion. 18
[30] On 19 April 2018 Mr Caudwell observed Mr Hanson appear from behind a rubbish bin located at the rear of the Welshpool Premises. Mr Caudwell says that he believed that Mr Hanson had been smoking because he smelt of cigarette smoke. Mr Hanson denies he was smoking and says that he was checking on his bike which was parked behind the rubbish bin. 19
[31] Mr Caudwell says that on 3 May 2018 and 9 May 2018 he observed Mr Hanson smoking outside the designated smoking area in the muster area which is located at the front of the Office at the opposite end of the Carpark to the smoking area sign. 20 He also says that on a number of occasions between May 2018 and August 2018 he observed Mr Hanson walk down the Driveway with a lit cigarette.21 Mr Hanson denies that he was smoking on these occasions.22
[32] Mr Caudwell says that on or around 23 May 2018 he issued a verbal warning to Mr Hanson for smoking outside of the designated smoking area. 23 Mr Hanson denies this occurred.24
[33] On 25 May 2018 Mr Caudwell issued Mr Hanson with a letter alleging that Mr Hanson had breached the No Smoking Policy by smoking outside the designated smoking area on 6 April 2018, 19 April 2018 and 3 May 2018. The letter invited Mr Hanson to provide a response by 28 May 2018. The letter invited him to contact Mr Caudwell if he had any queries. Mr Hanson did not respond to the letter. 25
[34] Mr Caudwell says that on a number of occasions between May 2018 and June 2018 he warned Mr Hanson that eating and drinking in the Warehouse was a contravention of the Warehouse rules. 26
[35] Mr Caudwell says that on 6 June 2018 he observed Mr Hanson smoking less than 1 meter from the front door of the building. On the same day he requested that Mr Andrew Beroukas, Rhino Rack’s HR Assistant, issue Mr Hanson with a second written warning with respect to breaching the No Smoking Policy. Mr Caudwell informed Mr Epthorp that he intended to hold a meeting with staff and reinforce the location of the designated smoking area and the consequences of breaching company policies. 27
[36] Mr Caudwell says that on 26 July 2018 he observed Mr Hanson drinking a cup of coffee in the Warehouse and that he warned Mr Hanson that this was a contravention of the Warehouse rules. 28
[37] Mr Caudwell says that on 30 July 2018 he observed Mr Hanson eating a pie in the Warehouse and that he warned Mr Hanson that this was a contravention of the Warehouse rules. Mr Caudwell says that he told Mr Hanson that this would be his last warning for breaking company policies and for eating or drinking in the Warehouse and that any further incidents could lead to the termination of Mr Hanson’s employment. According to Mr Caudwell, Mr Hanson confirmed that he understood that he would not be given any more chances. 29
[38] On 13 August 2018 Mr Hanson arrived at work after his rostered commencement time and made himself a cup of coffee rather than commencing his duties. Mr Caudwell says that he approached Mr Hanson and told him that he should commence work immediately. 30
[39] Mr Caudwell says that on a number of occasions between September 2017 and August 2018 Mr Hanson left the Safety Chain on the ground when it should have been blocking the entrance to the Warehouse.
[40] On 16 August 2018 a new employee, Mr Peter Gaglia (Mr Gaglia), informed Mr Caudwell that Mr Hanson had instructed him to leave the Safety Chain on the ground. Mr Caudwell took the view that this was a new low in Mr Hanson’s approach to his duties and company policies and sought approval to commence disciplinary action against Mr Hanson. 31
[41] On 17 August 2018 Mr Caudwell met with Mr Hanson in the presence of Mr Fredericks. Mr Caudwell says that he told Mr Hanson that he had been observed drinking coffee in the Warehouse again that morning and that given his ongoing non compliance with company policies and procedures a disciplinary process would commence which could lead to the termination of his employment. Mr Hanson was handed a letter by Mr Caudwell after Mr Caudwell read it aloud to him (Show Cause Letter). The Show Cause Letter noted that 32:
a. Notwithstanding a group discussion regarding the No Smoking Policy in January 2018 and written warning on 23 May 2018 Mr Hanson had been observed smoking outside the designated smoking area on 6 April 2018, 19 April 2018 and 3 May 2018 and since that time had been frequently observed smoking in the Driveway.
b. Mr Hanson was observed drinking coffee in the Warehouse on 26 July 2018 despite having been counselled on two prior occasions not to consume drinks in the Warehouse.
c. On 30 July 2018 Mr Hanson was observed eating a pie in the Warehouse and was verbally warned that any further breaches of company policy would result in the termination of his employment.
d. On 13 August 2018 Mr Hanson arrived late for work and made coffee outside his designated break time in disregard of the roster and the efficient operation of the Warehouse.
e. Despite being aware that the Safety Chain was intended to ensure the safety of visitors to the Warehouse by preventing their entry unless they are accompanied, Mr Hanson routinely failed to hang up the Safety Chain and on 16 August 2018 instructed a new employee not to hang up the chain.
[42] The Show Cause Letter asked Mr Hanson to respond to the following allegations (Allegations):
“Specifically it is alleged that:
You have repeatedly failed to followRhino-Rack’s directions to you to smoke only in the designated smoking area;
• You have repeatedly failed to follow Rhino-Rack’s warehouse operation rules and have consumed food and drink in the warehouse whilst conducting your duties;
• You have ignored Rhino-Rack’s direction in relation to break times and have failed to devote your full attention to your duties during work time;
• You have breached Rhino-Rack’s established safety procedures by repeatedly failing to hang up the safety chain and by telling a new employee to leave it on the floor.”
[43] The Show Cause Letter explained that in light of Mr Hanson’s repeated breaches of policy and procedure that Rhino Rack were contemplating the termination of his employment. The letter set out the disciplinary process to be followed including that Mr Hanson would be given an opportunity to respond to the Allegations by 10am on Monday 20 August 2018. The letter also advised that he would be suspended on full pay in order to provide him with time to properly prepare his response to the Allegations and the proposed termination of his employment. 33
[44] On 20 August 2018 Mr Hanson emailed a response to the Allegations. In his response Mr Hanson stated that: “… for the most part I can’t say I’m innocent … “ He claimed that he had not intentionally been trying to disregard company policies and procedures but that he was a creature of habit and had found it hard to break or change the routines he had developed. He went on to say that he found it hard to accept that Rhino Rack were treating his conduct so seriously. 34
[45] In relation to the Allegations of breaching the No Smoking Policy Mr Hanson conceded he was smoking on 6 April 2018 but denied he was smoking as alleged on 19 April 2018 and 3 May 2018. In relation to the Allegations that he observed on multiple occasions smoking between the designated smoking area and the Office he said the area in which smoking was authorised was not clear and that he didn’t realise it would be “… such an issue…” but that he would modify his behaviour in the future. 35
[46] In relation to the Allegations that he consumed food and drink in the Warehouse he conceded that he did eat the pie as alleged but that he was rostered for a late break, he was hungry and his consumption of the pie did not disturb the performance of his duties. He also conceded that he did drink coffee on the two occasions alleged but explained that on one occasion he was thirsty because he’d ridden to work and on the other occasion it was cold. 36
[47] In relation to the Allegation that he ignored the rostered break times he asserted that his rate of work was reasonable. 37
[48] In relation to the Allegation that he failed to hang the chain up he explained that he was not solely responsible for the Safety Chain. He denied that he instructed Mr Gaglia to leave the Safety Chain on the floor but conceded that he did not hang it across the door way because he expected anther customer shortly. 38
[49] On the grounds that over the preceding six months Mr Hanson had continually failed to respond to repeated clear instructions and had failed to take responsibility for his actions Mr Caudwell formed the view that Mr Hanson’s employment was no longer sustainable. 39
[50] On 21 August 2018 Mr Hanson attend a further meeting with Mr Caudwell and Mr Fredericks and was handed a letter confirming the termination of his employment (Termination Letter). 40
[51] The Termination Letter sets out the conduct with which Rhino Rack had taken exception and the counselling and warnings issued to, Mr Hanson in relation to that conduct. The Termination Letter sets out Mr Hanson’s responses to the Allegations and concludes that the explanation provided by Mr Hanson that he was unaware of the seriousness of his conduct and that he is willing to change his behaviour is insincere in light of the counselling, informal and formal warnings issued to Mr Hanson. 41
[52] The Termination Letter confirmed that Mr Hanson’s employment would end effectively immediately but that he would be paid two weeks pay in lieu of notice. 42
[53] Mr Hanson submits he was unfairly dismissed and seeks an Order that he be reinstated and be awarded back pay. In the alternative he seeks an Order for compensation of six months wages. 43
Protection from Unfair Dismissal
[54] An order for reinstatement or compensation may only be made if Mr Hanson was protected from unfair dismissal at the time of his dismissal. Section 382 of the FW Act sets out the circumstances that must exist for Mr Hanson 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.”
[55] There is no dispute, and I am satisfied, Mr Hanson has completed the minimum employment period, and is covered by a modern award. 44 Consequently, I am satisfied the Applicant was protected from unfair dismissal.
Was Hanson’s dismissal unfair?
[56] 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.”
[57] It is not contested, and I am satisfied, that Mr Hanson was dismissed for the purposes of section 385(a) of the FW Act.45 I am also satisfied that the Small Business Fair Dismissal Code, which applies to employers of fewer than 15 employees, does not apply to Mr ‘Hanson’s dismissal.46 There is no assertion that Mr ‘Hanson’s dismissal involved redundancy.47
[58] I am also satisfied that the Application was made within the 21 day period required by subsection 394(2) of the FW Act.48
Was Hanson’s dismissal harsh, unjust or unreasonable?
[59] Having been satisfied of each of subsections 385(a), (c) and (d) of the FW Act, it is necessary to determine whether Mr Hanson’s dismissal was harsh, unjust or unreasonable. The criteria to be taken into account when assessing whether a dismissal was harsh, unjust or unreasonable are set out at section 387 of the FW Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the Commission considers relevant.”
[60] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[61] To determine whether Mr Hanson’s dismissal was, in the circumstances, harsh, unjust or unreasonable, it is necessary to consider the criteria set out in section 387 of the FW Act.
Did Rhino Rack have a valid reason for dismissing Hanson? (s.387(a))
[62] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal. A valid reason is one which is ‘sound, defensible and well-founded’ 49 and not ‘capricious, fanciful, spiteful or prejudiced.’50 The reason or reasons relied upon by an employer as a valid reason for dismissal need not be the ones given to the employee at the time of the dismissal.51 The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.52
[63] Rhino Rack submit that there were valid reasons for Mr Hanson’s dismissal related to his conduct and behaviour in the workplace. These reasons were summarised in the Show Cause Letter as follows: 53
“…
• You have repeatedly failed to follow Rhino-Rack’s directions to you to smoke only in the designated smoking area;
• You have repeatedly failed to follow Rhino-Rack’s warehouse operation rules and have consumed food and drink in the warehouse whilst conducting your duties;
• You have ignored Rhino-Rack’s direction in relation to break times and have failed to devote your full attention to your duties during work time;
• You have breached Rhino-Rack’s established safety procedures by repeatedly failing to hang up the safety chain and by telling a new employee to leave it on the floor.”
[64] In relation to the alleged breaches of the No Smoking Policy Mr Hanson says that smoking was previously permitted anywhere in the Carpark provided it was beyond 3 metres from the Office door. Mr Hanson also claims that no induction explaining the boundaries of the designated smoking area was provided when the No Smoking Policy was implemented. 54
[65] It is a term of Mr Hanson’s contract of employment which he signed in April 2017 that he comply with Rhino Rack policies and procedures as varied from time to time. His contract of employment also contains an express warning that a failure to comply with policies and procedure may result in the termination of his employment. 55
[66] Rhino Rack have a policy with respect to smoking in the workplace which is contained in its Employee Handbook. The No Smoking Policy prohibits smoking other than during rostered breaks in the designated smoking area. 56
[67] Mr Hanson admits that he was aware of the existence of the Employee Handbook and that his employment contract required that he familiarise himself with its contents. 57
[68] Mr Hanson concedes that shortly after Mr Caudwell’s employment with Rhino Rack in September 2017 Mr Caudwell made employees aware that there would be a designated smoking area. He also concedes that there was a sign attached to the fence indicating the location of the designated smoking area. 58
[69] Mr Caudwell says that in October 2017 he attached a copy of the page of the Employee Handbook which stated that employees must only “… smoke in designated areas during meal breaks only and never in-doors within Rhino Rack premises …” to the Warehouse notice board along with the Mud Map indicating the location of the designated smoking area. 59 Mr Hanson does not deny that he did so.60 Mr Caudwell also says that held a meeting with employees on 19 January 2018 during which Mr Caudwell reminded employees that the No Smoking Policy was contained in the employee handbook and that smoking was only permitted in the designated smoking area.61
[70] Both the sign affixed to the fence and the markings on the Mud Map indicate that the designated smoking area is in the left hand corner of the Car Park. The boundaries of the smoking area were unmarked and there might be some debate about its precise boundaries. However it is not uncommon for smoking areas to be unmarked, but for a sign, and I am satisfied that a reasonable person would have understood the sign and the Mud Map to imply that the designated area was limited to within a couple of metres of the sign.
[71] In cross examination Mr Hanson conceded that as a smoker he should be aware of where he was, and wasn’t, permitted to smoke both in public and private spaces. He also conceded that he did nothing to clarify where he was permitted to smoke in the workplace. 62
[72] I am satisfied that Mr Hanson should have been aware of the No Smoking Policy from at least October 2017 and the location of the designated smoking area from at least 19 January 2018, if not earlier.
[73] Mr Hanson also claims that the designated smoking area was insufficient, without seats and unsheltered. Mr Hanson did not identify the basis on which he asserts that an employer is required to provide a smoking area of specific size or ambience or how a failure to do so would make the No Smoking Policy unenforceable. 63
[74] Mr Hanson concedes that he breached the No Smoking Policy on 6 April 2018. 64 Mr Hanson however claims that he did not breach the No Smoking Policy after he was issued with the Written Warning on 23 May 2018.65 Mr Caudwell says that he observed Mr Hanson smoking outside the designated smoking area on various occasions both before and after the Written Warning was issued.66
[75] Given:
• that Mr Hanson is a regular smoker;
• Mr Hanson’s view that the smoking facilities were inadequate and the policy unreasonably restrictive;
• Mr Hanson’s more expansive view of the boundaries of the designated smoking area;
• Mr Hanson’s admission that if he got a lift to work he may alight from the vehicle with a lit cigarette: 67
“You know, as a general rule, as I have stated, we would try to stay as close to the sign as possible, but, say, every now and then … a mate would drop me off at work so, you know, I might be smoking in the car when he pulls in the driveway and get out and finish my cigarette. Is that – its very petty to go and make a complaint about such an action.”
• the implication that Mr Hanson smoked on his way between the designated area and the Warehouse in Mr Hanson’s following question to Mr Caudwell in cross examination.
“And also was I the only one that smoked coming back from the designated area back into the warehouse?”
And the following exchange:
“… well Mr Caudwell wasn’t happy about, me you know, me smoking as I was coming back into the warehouse basically. My break time was up, its time for me to start heading back into the warehouse, but I’ve still got, you know, that much of a smoke left. See, tobacco is expensive these days. I am going to try and smoke as much of that cigarette before I get to about where the front door is...”
• Mr Hanson’s assertion that he was unaware that the policy would be enforced because no induction was provided in relation the policy;
• Mr Hanson’s assertion that he was obliged only to try to follow company policy not to actually follow it.
• the contemporaneous evidence which discusses alleged breaches of the policy by Mr Hanson; 68 and
• Mr Hanson’s failure to respond contemporaneously to the Written Warning to deny the allegations. 69
[76] I am satisfied that it is probable that Mr Hanson breached the No Smoking Policy on multiple occasions before and after the Written Warning was issued.
[77] In relation to the allegation of eating and drinking in the Warehouse Mr Hanson concedes that he may have had food in his possession in the Warehouse but denies that he consumed it in the Warehouse. Mr Hanson claims that eating and drinking in the Warehouse was previously permitted and that no induction was provided when the no eating or drinking policy was implemented. He says that the warnings he was given by Mr Caudwell in relation to consuming the pie and the coffee in the workplace were given in an informal manner and that he did not appreciate the significance of the warnings. Mr Hanson submits that the no eating or drinking policy is unfair because office staff are permitted to drink in the Office. He also alleges that Mr Caudwell himself breached the policy when he arranged for a barbecue to be set up in the Warehouse to cook food for a staff function. 70
[78] Mr Hasson asserts that no induction was provided with respect to the ban on eating and drinking in the Warehouse, however he concedes that ban on eating and drinking sign has been displayed on the notice board in the lunch room since October 2017. 71 Given the evidence of the signs in the workplace72 and that Mr Hanson’s own witness Mr Poulton states in his witness statement that: “We could not eat or drink coffee in the Warehouse …” I am satisfied that Mr Hanson was, or should have been, aware of the ban on eating and drinking in the Warehouse.
[79] It is a term of Mr Hanson’s contract of employment which he signed in April 2017 that he comply with Rhino Rack policies and procedures as varied from time to time. His contract of employment also contains an express warning that a failure to comply with policies and procedure may result in the termination of his employment. 73
[80] The focus of Mr Hanson’s submissions that breaches of the ban on eating or drinking in the Warehouse could not constitute a valid reason for his dismissal focuses primarily on his view that the Warehouse staff were being treated inequitably as compared to the Office staff. 74 Mr Caudwell conceded that he consumed coffee in the Office and that he arranged for a barbecue to be held as part of a staff function. Mr Caudwell concedes that the barbecue was placed in the doorway of the Warehouse but says that the food cooked on it was only consumed in the lunch room.75
[81] Rhino Rack provide a lunchroom for employees to consume food and drinks in and meal breaks in which to do so. It is not unreasonable that they prohibited the consumption of food and drinks elsewhere outside of rest breaks. I appreciate that Mr Hanson felt frustrated by the perceived inequity of a ban on food and drink in the Warehouse which did not apply in the Office, However I am satisfied that the policy of no food or drink (other than water) in the Warehouse is not an unreasonable one. Unlike in the Office, heavy and potentially dangerous equipment such as forklifts are operated in the Warehouse. Eating and drinking while operating such equipment poses potential safety risks. Food and drink also pose a risk to stock stored in the Warehouse. It is not unreasonable for Rhino Rack to take steps to prevent stock damage.
[82] Mr Hanson concedes that he may have had food in his possession in the Warehouse but at the Determinative Conference repeatedly denied that he had breached the policy by consuming food or drink in the Warehouse. I note however that in his response to the Show Cause Letter Mr Hanson stated:
“On 26 July when I was drinking coffee I was not in the middle of processing an order …”
In Exhibit A2 he stated:
“On the week I was eating a pie in “F” aisle I was last on the morning break rotation and as I don’t usually have time for breakfast in the morning before I leave my house, by the time the last break time slot comes around quite often all three of us have gotten quite hungry.”
[83] Mr Caudwell says that he observed Mr Hanson consuming food and drink in the Warehouse on multiple occasions and on numerous occasions warned him that this was a contravention of the Warehouse rules. 76 On 30 July 2018 having observed Mr Hanson consuming a pie in the workplace Mr Caudwell says that he told Mr Hanson that this would be his last warning for breaking company policies and for eating or drinking in the Warehouse and that anymore incidents could lead to the termination of Mr Hanson’s employment.77
[84] Having observed the witnesses give evidence, considering the consistency of their oral and written evidence and taking into account any corroborative evidence I favour Mr Caudwell’s evidence over that of Mr Hanson. I am satisfied that notwithstanding that Mr Hanson was aware of the policy banning the consumption of food and drink in the Warehouse, and had been counselled about doing so, Mr Hanson breached the policy on multiple occasions.
[85] In relation to the allegation that Mr Hanson ignored Rhino Rack’s direction in relation to break times and failed to devote his full attention to his duties during work time, Mr Hanson concedes that he did not observe the rostered rest breaks when he arrived at work on 13 August 2018 and made himself a coffee.
[86] Mr Caudwell says that Mr Hanson was routinely late for work and that this could be verified by the perusal of his timesheets. 78 Rhino Rack did not tender any of Mr Hanson’s time sheets. Mr Hanson says that during his employment with Rhino Rack he was only late on two occasions. I note that on 13 March 2018 Mr Caudwell says that, in the presence of Mr Fredericks, he warned Mr Hanson on the second occasion that Mr Hanson had been late for work that week that if he was late again it would lead to the termination of Mr Hanson’s employment. Mr Caudwell sent an email to Mr Epthorp the same day detailing these events.79 Mr Fredericks corroborated Mr Caudwell’s recollections of the meeting occurring. Mr Hanson tendered his timesheet for the week commencing Monday 12 March 2018. The timesheet indicates that Mr Hanson commenced at his contracted start time of 8:30am on every day that week except Tuesday 13 March 2018 when he’s recorded to have arrived 29 minutes late.80 Mr Hanson also says that on the day that he slept in he called Mr Caudwell to let him know he would be running late. He says that Mr Caudwell said that it was ok and that he should get to work as soon as he could. Mr Hanson says that in light of this instruction he took time to shower and make lunch before he left for work.81
[87] I am not satisfied that Mr Hanson arrived late to work on other than two occasions he admitted doing so.
[88] In relation to the Allegation with respect to the Safety Chain Mr Hanson denies that he told Mr Paglia to leave the chain on the floor. Mr Hanson concedes that he told him not to hang it back up but he says he did so because he needed to drive the forklift through the entry to the Warehouse. He says that he would not have told Mr Paglia to leave the Safety Chain on the floor because it is his practise to hang the chain on the opposite hook whenever he was leaving the entry unchained. 82
[89] Rhino Rack allege that Mr Hanson left the Safety Chain on the ground on multiple occasions in circumstances when there were no people or vehicles immediately entering or exiting from the warehouse. 83 Mr Hanson submits that a failure on his behalf to comply with the Safety Chain policy could not form a valid reason for his dismissal because84:
a. It was necessary for him to remove the Safety Chain to perform his duties.
b. He was not the only employee responsible for ensuring the Safety Chain was in place.
c. The Safety Chain was not such a significant safety issue that a failure to ensure it was in place could justify disciplinary action.
d. Far more significant safety matters such as Mr Poulton’s safety boots, workplace bullying and safety meetings were overlooked by Rhino Rack and therefore safety was not a priority for Rhino Rack.
[90] Mr Hanson says that he was immediately suspended following the Safety Chain incident and therefore did not have an opportunity to meet what he described as “… new expectations that now were suddenly brought to his attention.” 85
[91] Mr Hanson states in his Statement of Evidence that he was instructed by Mr Caudwell in the first two weeks after Mr Caudwell was employed that the chain was required to be hung back up between customers. Mr Hanson says that he did not agree with the procedure and claimed that it reduced productivity. 86 Mr Caudwell commenced employment with Rhino Rack on 15 September 2017. Mr Hanson was on his own admission aware of the company expectations with respect to the Safety Chain 11 months before he was dismissed. Therefore despite his assertion otherwise I am satisfied that Mr Hanson had time to meet the company’s expectations with respect to the Safety Chain long before the incident on 16 August 2018.
[92] Given:
• Mr Hanson’s view as to the lack of worthiness of the procedure;
• Mr Hanson’s assertion that he was obliged only to try to follow company policy not to actually follow it;
• the consistency of Mr Hanson’s oral and written evidence as compared to Mr Caudwell’s; and
• My observations of the Mr Hanson in the witness box
I accept Mr Caudwell’s evidence that Mr Hanson failed to secure the Safety Chain in circumstances that he should have.
[93] Mr Hanson alleges that other employees breached the No Smoking Policy or ignored the ban on eating and drinking in the Warehouse or failed to hang up the Safety Chain. He asserts that he was dismissed for petty reasons as a consequence of a vendetta against him on the part of Mr Caudwell. Mr Hanson points to Mr Caudwell’s failure to arrange a company uniform for him as evidence that Mr Caudwell intended to find a reason to dismiss him and commendations from a previous supervisor that his workgroup were good to manage. 87
[94] Mr Hanson submits that the company’s expectations with respect to smoking, drinking and eating in the workplace and the use of the Safety Chain changed, and that he was not aware of the company’s new expectations and was not given a reasonable opportunity to change his behaviour in light of these new expectations. 88
[95] Mr Caudwell concedes that in the past smoking, eating and drinking may have been tolerated in the workplace, however he says that he was specifically employed to ensure appropriate policies and procedures were put in place and complied with. This was confirmed by Mr Epthorp. 89
[96] Mr Caudwell concedes that Mr Hanson was not the only employee who failed to follow policy and procedure in relation to smoking, eating or drinking in the workplace. Mr Caudwell says that he applied the policies and procedures without fear or favour and that Mr Hanson was not targeted. For example, Mr Caudwell tendered a written letter of warning he issued to a colleague of Mr Hanson’s for smoking outside the designated smoking area on 27 April 2018. 90
[97] Mr Caudwell denies holding any personal grudge against Mr Hanson. In fact, he says that he purchased a uniform for Mr Hanson with his own funds because Rhino Rack were taking too long to administratively process arrangements for the uniform to be purchased. 91
[98] I am satisfied the policies, procedures and directions applied to Mr Hanson were reasonable and lawful. I am satisfied that Mr Hanson was, or should have been, aware of these policies, procedures and directions. I am satisfied that Mr Hanson repeatedly breached these policies, procedures and directions notwithstanding that he was informally and formally warned not to do so and was warned in his contract of employment and subsequently that continued breaches of policies, procedures and directions may lead to the termination of his employment.
[99] While Mr Hanson’s conduct may not in isolation have justified his dismissal, in a similar way to the conclusion reached by Sams DP in Dickson v Calstores Pty Ltd[2011] FWA 6858 I am satisfied that Mr Hanson’s conduct involved, in aggregate, a consistent pattern of behaviour that demonstrated a repeated disregard for and refusal to comply with Rhino Racks lawful and reasonable policies procedures and directions. 92 I am satisfied in those circumstances Mr Hanson’s conduct constituted a valid reason for his dismissal.
Was Hanson notified of the reason for his dismissal? (s.387(b))
[100] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,93 in explicit terms,94 and in plain and clear terms.95 In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151, a Full Bench of the Australian Industrial Relations Commission, dealing with a similar provision of the Workplace Relations Act 1996 (Cth), stated that:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[101] The reasons for Mr Hanson’s dismissal were set out in the Show Cause Letter. The same letter explained in detail the policy or procedure which Mr Hanson’s alleged conduct had breached, provided particulars of when and where the breach was alleged to have occurred and articulated the rationale for the relevant policy or procedure. 96
[102] I therefore find that Mr Hanson was notified of the reason for his dismissal.
Was Hanson provided with an opportunity to respond to the reasons for his dismissal? (s.387(c))
[103] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.97
[104] The Show Cause Letter was handed to Mr Hanson on 17 August 2018. The Show Cause Letter invited Mr Hanson to provide a response to the Allegations by 10am on Monday 20 August 2018. Mr Hanson was relieved on full pay from performing his duties so that he had time to properly prepare his response to the Allegations and the proposed termination of his employment. 98
[105] Mr Hanson provided a written response to the Allegations on 20 August 2018. 99
[106] I therefore find that Mr Hanson was given an opportunity to respond to the reasons for his dismissal.
Was Hanson unreasonably refused a support person? (s.387(d))
[107] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. There is however, no positive obligation on an employer to offer an employee the opportunity to have a support person.100
[108] Mr Hanson concedes that he did not ask to have a support person with him during discussions relating to his dismissal.101
[109] I find that Rhino Rack did not unreasonably refuse to allow Mr Hanson to have a support person present at discussions relating to his dismissal.
Was Hanson given warnings regarding his unsatisfactory performance? (s.387(e))
[110] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.102
[111] Neither Rhino Rack or Mr Hanson assert that Mr Hanson was dismissed for unsatisfactory performance. 103 This factor is therefore irrelevant. In any event if the breaches of policy, procedure or directions could be characterised as a question of poor performance I am satisfied on the evidence before me that Mr Hanson was warned that his conduct did not meet Rhino Rack’s expectations.
What is the impact of the size of Rhino Rack and the presence or absence of dedicated human resources management specialist/expertise on the procedures followed? (s.387(f) and s.387(g))?
[112] Rhino Rack submits that it does not have a dedicated experienced human resource department or specialist. It says it employs only one human resource assistant who performs mainly administrative functions.104 For the reasons set out elsewhere in this decision I am satisfied that Rhino Rack provided Mr Hanson with procedural fairness and its limited internal human resource expertise did not impact on the procedures followed.
Are there any other relevant matters? (s.387(h))?
[113] Section 387(h) provides the FWC with a broad scope to consider any other matters it considers relevant to the determination of whether the dismissal of an employee was harsh, unjust or unreasonable.
[114] There are no other matters before me that would make Mr Hanson’s dismissal harsh, unjust or unreasonable. 105
Conclusion
[115] Having considered each of the matters specified in s.387, I am satisfied that the dismissal of Mr Hanson was proportional to the persistent nature of his conduct and was not in all the circumstances harsh, unjust or unreasonable.
[116] An Order will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr C. Hanson on his own behalf.
Mr G. Boyce of Counsel for the Respondent.
Hearing details:
2018.
Perth.
18 December.
Final written submissions:
Applicant, 12 December 2018.
Respondent, 21 December 2018.
Printed by authority of the Commonwealth Government Printer
<PR705285>
1 Exhibit R3 at [4]-[5], Exhibit R4 at [4] and Exhibit R5 at [5].
2 Exhibit A2 at [1].
3 Exhibit R2.
4 Exhibit R1 at [12]-[13].
5 Exhibit R5 at [8] and Attachment DC-1.
6 Exhibit R5 at [23] and Attachment DC-7 and DC-8.
7 Exhibit R5 at [21].
8 Exhibit R1 at [5] and Exhibit R5 at Attachment DC-2.
9 Exhibit R5 at [10] and Attachment DC1 and DC3.
10 Exhibit R1 at [6], Exhibit R6, Exhibit R5 at [11] at DC-4 and Exhibit A1 at [1].
11 Exhibit R1 at [10] and Exhibit R5 at [17].
12 Transcript PN641.
13 Exhibit R4 at [6].
14 Exhibit A1 at [2], Exhibit R6, Exhibit R4 at [4] and Transcript at PN641-642.
15 Exhibit R3 at Attachment PE-1.
16 Exhibit R4 at [7].
17 Transcript at PN748-749.
18 Exhibit R1 at [15] and Exhibit R5 at [13] and Attachment DC9.
19 Exhibit R5 at [13], Transcript at PN256 and PN725.
20 Exhibit R5 at [13].
21 Exhibit R5 at [14].
22 Transcript at PN259-PN263.
23 Exhibit R5 at [15].
24 Transcript at PN265.
25 Exhibit R1 at [20] and Exhibit R5 at [16] and Attachment DC-5.
26 Exhibit R5 at [18].
27 Exhibit R3 at Attachment PE-2.
28 Exhibit R5 at [19].
29 Exhibit R5 at [20]-[21].
30 Exhibit R5 at [22].
31 Exhibit R3 at [8].
32 Exhibit R1 at [30], Exhibit R5 at [26] and Attachment DC-8.
33 Exhibit R5 at Attachment DC-8.
34 Exhibit R1 at [31] and Exhibit R5 at Attachment DC-9.
35 Exhibit R5 at Attachment DC-9
36 Ibid.
37 Ibid.
38 Ibid.
39 Exhibit R3 at [10], Exhibit R5 at [27]-[28].
40 Exhibit R1 at [32] and Exhibit R5 at [29] and Attachment DC-10.
41 Exhibit R5 at Attachment DC-10.
42 Ibid.
43 Exhibit A2 at Q.7.
44 Respondent’s Outline of Submissions at [23].
45 Ibid.
46 Ibid.
47 Ibid.
48 Ibid.
49 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
50 Ibid.
51 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373 and 377-378.
52 Ibid.
53 Exhibit R5 at Attachment DC-8.
54 Exhibit A1 at [2].
55 Exhibit R2.
56 Exhibit R1 at [5] and Exhibit R5 at Attachment DC-2.
57 Transcript at PN236-PN239.
58 Transcript at PN168.
59 Exhibit R5 at [10] and Attachment DC1 and DC3.
60 Transcript at PN226.
61 Exhibit R4 at [6] and Exhibit A1 at [2].
62 Transcript at PN212 to PN213.
63 Exhibit A1 at [1].
64 Exhibit R1 at [15] and Exhibit R5 at [13] and Attachment DC9.
65 Exhibit A1 at [3].
66 Exhibit R5 at [13]-[14].
67 Transcript PN194.
68 Exhibit R3 at Attachment PE-2.
69 Exhibit R1 at [20] and Exhibit R5 at [16] and Attachment DC-5.
70 Exhibit A1 at [4]-[9] and Applicants Closing Submissions.
71 Transcript at PN227-PN228.
72 Exhibit R1 at [10] and Exhibit R5 at [17].
73 Exhibit R2.
74 Exhibit A3 at [7].
75 Transcript at PN703.
76 Exhibit R5 at [18].
77 Exhibit R5 at [20]-[21].
78 Transcript at PN795.
79 Exhibit R3 at Attachment PE-1.
80 Exhibit R4 at [7] Transcript at PN378 Exhibit A5.
81 Transcript at PN748-749.
82 Exhibit A1 at [10].
83 Exhibit R5 at [24].
84 Exhibit A1 at [15] and Applicant’s Closing Submissions.
85 Exhibit A1 at [13].
86 Exhibit A2 at q.4f.
87 Exhibit A1 at [15], Exhibit A2 at q.4f and Applicant’s Closing Submissions.
88 Exhibit A1at [13].
89 Transcript at PN570.
90 Exhibit R5 at [30] and Attachment DC-11.
91 Transcript at PN687-PN688.
92 Pearson v Linfox Australia Pty Ltd [2014] FWC 446 at 51.
93 Chubb Security Australia Pty Ltd v Thomas (Print S2679) at [41].
94 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151].
95 Previsic v Australian Quarantine Inspection Services (Print Q3730).
96 Exhibit R5 at Attachment DC-11.
97 RMIT v Asher (2010) 194 IR 1, 14–15.
98 Exhibit R1 at [30], Exhibit R5 at [26] and Attachment DC-8.
99 Exhibit R5 at Attachment DC-9 and Transcript at PN64-65.
100 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
101 Exhibit A2 at q.6 and Transcript at PN66.
102 Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 237.
103 Exhibit A2 at q.5 and Respondent’s Outline of Submissions and Transcript at PN67.
104 Respondent’s Outline of Submissions at [39].
105 Respondent’s Outline of Submissions at [40].
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