Mr Diego Barbaro v Monsoon Industries Pty Ltd
[2023] FWC 1796
•7 AUGUST 2023
| [2023] FWC 1796 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Diego Barbaro
v
Monsoon Industries Pty Ltd
(C2023/2928)
| COMMISSIONER CONNOLLY | MELBOURNE, 7 AUGUST 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether the applicant was dismissed – no dismissal - jurisdictional objection upheld - application dismissed.
On 21 May 2023, Mr Diego Barbaro (the Applicant) lodged a general protections application against Monsoon Industries Pty Ltd (the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 2 May 2023, he was dismissed in contravention of the general protections provisions of the Act.
On 14 June 2023, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection, asserting that Mr Barbaro had not been dismissed. The Respondent contended that Mr Barbaro had voluntarily resigned from the company on 2 May 2023 by walking out on the job.
As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection, whether the Applicant was dismissed, before I can exercise powers under s.368 of the Act to deal with the dispute about whether the dismissal was in contravention of the general protections provision.
On 21 June 2023, Directions were issued for the filing of material in respect of the jurisdictional objection, and a Hearing was scheduled for 21 July 2023.
In summary, I have found that whilst Mr Barbaro’s employment has clearly ended in unfortunate circumstances, the cessation of his employment relationship does not constitute a dismissal within the meaning of s.386 of the Act.
The basis of this finding and the Order made by the Commission are set out in this decision.
Factual Background
Mr Barbaro commenced employment with the Respondent in a role that involved welding fold up doors. He was first employed on a part-time basis between 8 August 2022 and 25 October 2022 (the first period). He was re-employed in a different welding role on a casual basis from 8 February to 2 May 2023 (the second period). It is the second period of employment that is relevant for the purposes of this decision.
Monsoon Industries Pty Ltd is an established manufacturing business involved in the manufacture of steel and aluminium roller shutters, truck doors and grilles along with providing preventative maintenance and emergency repair services. It has a number of factory and service operations across Australia, including its Melbourne facility where the Applicant worked.
During the course of his employment, Mr Barbaro’s alleges that he identified and reported a number of safety issues relating to the performance of welding duties and the operation of forklifts. These allegations were not tested in these proceedings as they are not material to the question of the events of the 2 May 2023 and whether Mr Barbaro was dismissed within the meaning of s.386.
On the 2 May 2023, the Applicant was involved in an animated and heated exchange with a co-worker (Ms Sonia Crott, Production Coordinator) regarding a request to perform work that he was concerned may put his safety at risk. Mr Barbaro admits that during this conversation he was “frustrated” and spoke in a very “direct” manner.[2] He maintains that he acted in this way out of concern with being requested to perform work he believed was unsafe but maintains that he was not aggressive.
Whilst the details of this exchange were not examined in these proceedings, it is not disputed that this exchange occurred in the office area and was witnessed by Mr Azmy in an adjoining office, the General Manager of the Respondent.
Following this exchange, Mr Barbaro returned to work. Later in the day, approximately 3 hours after the exchange with Ms Crott, Mr Azmy approached Mr Barbaro on the workshop floor and engaged in another exchange. Following this exchange, the Applicant left the workplace.
The facts of this second exchange are disputed by the parties and are material to this dispute.
On the following day, 3 May 2023, Mr Barbaro returned to the workplace for a brief period to document safety concerns which have been raised in these proceedings.
Mr Barbaro contends that he was directly dismissed by Mr Azmy and was instructed to leave the workplace and not to apply for work with Monsoon Industries again. He also contends that the termination of his employment was prohibited by the provisions of section 365 of the Act, constituting adverse action. By way of remedy, he is seeking reinstatement to his position (following workplace improvements) or compensation.
It is the Respondent’s contention that it was Mr Barbaro’s decision and actions in leaving the workplace on the 2 May 2023 and not attending work that ended the employment relationship. The Respondent further asserts that Mr Barbaro’s actions were not forced on him by his employer and did not create a situation which left him with no other choice but to act as he did, and that any termination of his employment was not contemplated or expressed by Mr Azmy. The Respondent is opposed to Mr Barbaro’s reinstatement and any award of compensation.
Legislation
Section 365 of the Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 386 of the Act provides the meaning of dismissed:
“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.”
The Hearing
A Hearing was conducted in person, on 21 July 2023, commencing at 10:00 AM. The Applicant represented himself, and the Respondent was represented by Mr Anthony Powter (of Counsel) with permission being granted pursuant to s.596 of the Act.
A digital court book, containing all materials filed by the parties was compiled and distributed to the parties prior to the Hearing. I received the entirety of the digital court book into evidence, subject to appropriate weight being given to the evidence that was tainted by opinion, irrelevance or hearsay.
The Applicant’s Evidence
The Applicant’s fundamental position is that he was dismissed by Monsoon Industries Pty Ltd. He has provided both a written and oral submissions in advance of this position along with relevant documentation, including his Form F8, and gave sworn evidence to the Commission.
The Applicant stated that on 2 May 2023 he was asked to lift 6 axles of steel, weighing approximately 65kg each, with his hands or a forklift. Concerned that he could not perform this task safely, the Applicant “proceeded to the office with the intention of raising this safety issue with the manager.”[3]
His evidence is that upon arriving at the office he encountered Ms Sonia Crott in the foyer and that he “asked her if he could speak to the Manager to report the unsafe work request.”
The Applicant’s evidence is that Ms Crott response was “you can tell me.”
He then stated that “In a frustrated and very direct manner, I told her I was not going to lift those axels, as they were too heavy and in the wrong place.” Whilst the Applicant maintains he did not swear or become aggressive in this discussion with Ms Crott, he does not dispute that in this conversation he had spoken to Mrs Crott in a “frustrated and very direct manner.”
Following this conversation, the Applicant states that he and Ms Crott proceeded to the factory floor where Ms Crott confirmed that he did not have to lift the axels if he felt unsafe. As a result, the Applicant resumed working on other tasks and considered the issue he had raised to be resolved.
It is the Applicant’s evidence that some 3 hours later the General Manager of Monsoon Industries, Mr Matt Azmy “summoned” him to the centre of the factory floor in front of his work colleagues.
The Applicant submits that these work colleagues, (including Roma, Sita, Kyle, Pov and Tony) were present on the factory floor when this conversation occurred and were within a range of 6-8 metres of himself and Mr Azmy. Whilst he did not call any of these other employees as witnesses, the Applicant indicated that the fact the employer also did not ask these witnesses to appear could be interpreted as an omission by the Commission.
Furthermore, he submits that the conversation that then occurred between himself and Mr Azmy proceed as follows:
“Azmy: “Never talk to Sonia like that again” (and he used an adjective I did not understand) DO YOU UNDERSTAND!” (in an aggressive tone, staring at me in a threatening way and dominant body language.)
Diego: The reason why I spoke to Sonia was to express my safety concern.
We both continued to repeat ourselves, me trying to express the reason for the discussion and Mr Azmy to get me to acknowledge his point. I then complied with his request by saying:
Diego: yes, I understand but I was doing nothing wrong, I am expressing a safety issue.
Azmy: Leave, leave now, pick up your stuff and go and don’t apply for a job here again.
I then proceeded to collect my tools and Mr Azmy questioned if I was taking mine.
I confirmed they were and proceeded to walk out.
Roma was on my right & Sita on my left as I exited the factory.
As I passed Mr Azmy on my exist these words were exchanged”
Azmy: And fuck off.
Diego: excuse me
Azmy: fuck off!”[4]
It is the Applicant’s primary submission that in saying to him “leave, leave now” “don’t apply for a job here again” and “fuck off”, Mr Azmy was terminating his employment within the meaning of s.386(1)(a). He maintains that they could be no other ordinary meaning to these words and that had Mr Azmy not said these words to him he would have continued to work and not left the workplace.
Further, the Applicant submits that it was a direct result of the words and actions of his employer through Mr Azmy, that left him no other choice but to follow the direction given to him and leave the workplace and his employment, thus satisfying the requirements of s.386(1)(b).
The Applicant’s further evidence is that on 3 May 2023, he attended the workplace for the purposes of taking photographic evidence to support his safety concerns and the making of a complaint.
He submits that at no time (including on 3 May 2023) did Mr Azmy, Mr Kent or any other representative of the employer reach out to him and provide him an opportunity to confirm his decision to resign if that is what they genuinely believed had occurred the day before.
The Respondent’s Evidence
The Respondent’s primary submission is that there has not been a dismissal as defined by s.386 and as such the Applicant has not been “dismissed” as identified in s.365(a). Therefore, the Applicant has no standing to bring a general protections application under s.365 of the Act. The Respondent has provided both written and oral submissions along with witness statements of Mr Darrin Kent (Factory Manager) and Mr Matt Azmy (General Manager), both of whom gave sworn evidence in these proceedings.
The Respondent submits that the casual employment relationship between the Applicant and the Respondent was not terminated at the initiative of the Respondent. Referring to the Act and a series of authorities, including Mohazab v Dick Smith Electronics Pty Ltd (1995), the respondent submitted that for a dismissal to have occurred there “must be a dismissal at the initiative of the respondent so as to terminate the employment relationship.”[5]
The circumstances and history of Mr Barbaro’s employment with the Respondent are not in dispute. Nor is it disputed by the Respondent that on the morning of 2 May 2023, the Applicant was engaged in a conversation with Ms Crott in office area.
The Respondent did not lead any evidence in relation to the content of the conversation between Mr Crott and the Applicant but submitted that it was a heated conversation and that it was visibly witnessed by Mr Azmy in an adjoining office.
This was not disputed by the Applicant and is accepted by the Commission.
The Respondent submits that on 2 May 2023, Mr Azmy was in his office and observed the Applicant engaging in what appeared to be a heated conversation with Ms Crott which attracted his attention.
In sworn evidence to this Commission, Mr Azmy stated that:
“12. The nature of the exchange was loud and was overheard by myself and the other senior managers. The applicant was yelling and acting aggressively towards Ms Crott and this attracted my attention. I looked at Ms Crott and she waived her hand at me in a manner which I took as she was handling the situation. The applicant and Ms Crott then left the area outside my office.
13. I could not fully understand what the Applicant and Ms Crott were saying, but I observed that the application was being rude and aggressive. The applicant was in a dominant stance and yelling at Ms Crott. He was standing very close to Ms Crott and raising his voice and he was arguing with her, it looked like a very uncomfortable situation for Ms Crott”.[6]
The Respondent submits that this event led Mr Azmy to initiate the conversation of the afternoon of 2 May 2023 with the Applicant.
Mr Azmy’s evidence is that:
“I was concerned as to the conduct of the applicant and wanted to follow up with him and Ms Crott on my return. Upon returning to work after lunch I went to follow up the matter with both Ms Crott and the applicant. Upon entering the factory, I saw the applicant first, so I approached him. There were no other persons present with us.”[7]
Mr Azmy further gave evidence that the conversations that then occurred between Mr Azmy and the Applicant proceeded as follows:
“Azmy:‘ Your actions and comments towards Sonia that I oversaw are not appropriate, especially towards your Coordinator. You must stop this. From what I’ve seen and heard, you are not acting appropriately.’
Diego: ‘I yelled, So what!’
Azmy: ‘You must apologize to Sonia, and I ask that you do so.’
Diego: ‘You want me to apologize…I’m not going to apologize.. I’m not apologizing to her. There is no need to apologize as I’ve done nothing wrong. I’m not apologizing.’
The Applicant kept on repeating that he would not apologize for at least two-three times that I can recall. The conversation then continued with words to the effect:
Azmy: ‘All I want from this conversation is two things, one to apologize to Sonia, two, you have to promise me this will never happen to Sonia, or anyone else again.’
Diego: ‘You’re not a good manager. Are you trying to show me your capability!’
Azmy: ‘My capability is I am keeping quiet in your position of aggression. You are yelling at me. If you insist on what you are doing and are not prepared to do what I ask you, this is not a place for you to work.’The Applicant then went to pick up his gear and tools, and I did not know what he was doing and what he was taking so I asked him with words to the effect:
Azmy: ‘What are you doing? Diego: ‘I’m picking up my tools.’ Azmy: “Are they yours?’
Diego: ‘Yes, these are my personal tools.’
It appeared to me the Applicant was packing up his gear to leave and was not intending to return to the workplace, so I said to him:
Azmy: ‘Is this really what you want to do? ’
The Applicant did not respond but kept packing up his gear. I then moved away to the side of the Factory. The Applicant then passed me as he walked out of the Factory and said to me words to the effect:
Diego: ‘Thank you for giving me the job again.”[8]
The Respondent contends that that at no time did Mr Azmy inform the Applicant that he had been terminated. As such it is the Respondent’s submissions that the requirements of s.386(1)(a) have not been met.
The Respondent further submits that by Mr Azmy asking the Applicant “Is this really what you want to do?” does not amount to conduct by an employer resulting ‘directly’ or ‘consequently’ in the termination of the employment to satisfy the requirements of s.386(1)(b).
Rather, the Respondent submits that the Applicant was legitimately asked to correct his behaviour by apologising to a co-worker and informed that his actions would not be tolerated in the workplace. Further, that the Applicant did not have no other option but to resign, in fact he was given the opportunity to not only apologise but to alter his decision to pack up his tools and leave the workplace.
With reference to the events of the 3 May 2023, the Respondent provided the witness statement of Mr Darrin Kent whose sworn evidence was that he witnessed the Applicant attending the workplace on 3 May 2023 to take photos and requested him to leave. The Respondent submits that at no time did the Applicant indicate he was attending the workplace to work, seek to work or clarify what had occurred the previous day.
The Respondent’s final submission is that neither the words, actions or omissions of the Respondent on 2 May 2023 resulted in a dismissal of the Applicant within the meaning of s.386. Rather, that as a casual employee the Applicant did not return to work, and he did so either because he had decided to leave or in the erroneous belief that the Respondent had dismissed him. Therefore, not amounting to the termination of employment having occurred at the initiative of the employer.
Observations on the Evidence
There are sharp and significant factual differences between the principal witnesses in this case. The evidence of the Applicant differs markedly and materially to that of the evidence of the Respondent’s principal witness, Mr Azmy.
Significantly, there are no other reliable witnesses or significant sources of evidence of use for these proceedings.
The Applicant has called no additional witnesses, while maintaining that there were a number of witnesses to the material conversations between himself and Mr Azmy. The Respondent’s provided the additional witness statement of Mr Darrin Kent. However, Mr Kent’s sworn evidence under examination is that he was not witness to the conversation between Mr Azmy and the Applicant. I found the evidence of Mr Kent to be reliable.
During the Hearing, it was established and conceded that there were at least 2 or 3 other people on the factory floor when Mr Barbaro and Mr Azmy were engaged in conversation. The consistent evidence before the Commission from both parties was that all these individuals where between 6-10 metres away. There was no evidence from either party to suggest any of these persons where in a position to hear and give evidence on the conversation between the Applicant and Mr Azmy. Consequently, the Commission is principally left with the evidence of Mr Azmy and the Applicant to determine this matter.
Turning to the evidence of Mr Azmy, I found it to be consistent, measured, and credible. I accept his evidence where it conflicts with that of the Applicant. His recall of the details, his tone, and character with which he presented before the Commission appeared to me to be reliable. His experience as a senior manager in a senior role accustomed to dealing with employee relations matters, conflict situations and matters of dispute with either employees or customers leads me to favour his version of what occurred on 2 May 2023. While there may be some discrepancies in his submissions overall, I am satisfied that in material terms and sentiment, that the details of the conversation between himself and Mr Barbaro on the afternoon of 2 May 2023 are, in general terms, as he described them.
Mr Barbaro was in a difficult position as both the Applicant and advocate in these proceedings. However, I do think that Mr Barbaro at all times sought to assist the Commission in both its proceedings and with his evidence and overall conduct. However, as the Applicant, I found that his sense of injustice and unfairness in what he perceived to have occurred influenced his evidence. Although I do not completely discount his evidence, this led to an inability to look beyond his sense of injustice which influenced the quality of this evidence and the character with which it was presented before the Commission.
What happened on 2 May 2023.
Having regard to the evidence that is before the Commission, I find on the balance of probabilities that the events of the 2 May 2023 were as set out below.
· Sometime during the normal course of his duties that morning, the Applicant was requested to perform work he considered to be unsafe.
· In response, the Applicant appropriately sought to raise these concerns with his relevant manager. He did this by leaving the workshop floor and proceeding to the management office.
· On arrival in the foyer of the manager’s offices, the Applicant first encountered Ms Sonia Crott. Mr Barbaro’s asked Ms Crott if he could speak to the Manager to report an unsafe work request.
· Ms Crott invited the Applicant to tell her his concerns. Concerned, and frustrated, Mr Barbaro’s then proceeded to raise and describe his concerns to Ms Crott.
· I am satisfied that the evidence of this exchange is enough to justify the concern of any reasonable person witness to it. In particular, if they had a responsibility to both Ms Crott and Mr Barbaro as was the case with Mr Azmy, General Manager of Monsoon Industries.
· Following this exchange, the Applicant and Ms Crott returned to the workshop floor where Mr Barbaro was satisfied, he did not have to perform work he considered unsafe. The Applicant then resumed his normal duties and considered the matter concluded until he was spoken to by Mr Azmy later in the day.
· Due to other commitments Mr Azmy was unable to follow up his concerns with what he had observed earlier in the day until he returned to the workplace after lunch. On entering the workplace, Mr Azmy saw the Applicant first and proceeded to speak to him.
· Mr Azmy initially sought an explanation from the Applicant of the conversation he had observed occur between him and Ms Crott earlier in the day. In doing so, I do not believe that Mr Azmy had, or formed the intention, of either terminating the Applicant’s employment, or forcing the Applicant to resign by leaving him no choice but to do so.
· In speaking to the Applicant, Mr Azmy further sought an apology for the Applicant’s behaviour towards Ms Crott and a commitment from the Applicant that it does not happen again.
· In response, Mr Barbaro asserted that he did nothing wrong and initially declined to agree to apologise to Ms Crott or commit to not acting in such a way again.
· While it is likely that both men spoke in raised voices and with some agitation towards each other, on the balance of the evidence it was Mr Azmy who remained calmer and retained his composure as this conversation progressed.
· The evidence before the Commission does not support a version of these event where Mr Azmy said words to the effect of “leave, leave now pick up your stuff and don’t apply for a job here again” and “fuck off.”[9]
· However, I do find that Mr Azmy did say words to the effect of “if you insist on what you are doing and are not prepared to do what I ask, this is not the place for you to work.”[10]
· On hearing these words and misunderstanding their intention and meaning the Applicant proceeded to back up his tools and leave the workplace.
· On seeing the Applicant do this, Mr Azmy asked the Applicant in words to the effect of “What are you doing? And further, “Is the really want you want to do?”[11]
· Mr Barbaro did not respond to this question but proceeded to pack up his gear. Mr Azmy moved away to the side of the factory.
· The Applicant then left the workplace. Mr Azmy returned to his office.
Consideration
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa)[12] a Full Bench of the Commission examined the relevant authorities at great length and summarised the definition of dismissed under s.386(1) as follows:
“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable period of time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied her is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was a probable result of the employer’s conduct such that the employee had no effective choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
This question was further considered by the Full Court of the Industrial Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd[13]where at p205 it said:
“a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”
…
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly and important feature is the act of the employer results directly or consequently in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”
In O’Meara v Stanley Works Pty Ltd,[14] the Full Bench of the Australian Industrial Relations Commission expanded on Mohazab, and stated:
“In our view the full statement of the reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of the Full Benches of this Commission in Pawel and ABB Engineering require that there be some action on the part of the employer which is either intended to bring the employment relationship to an end or has the probable result of bringing the employment relationship to an end.
It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment. Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab.
In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (emphasis added).”
In the present case, the Applicant has submitted that when Mr Azmy said to him “leave, leave now” “don’t apply for a job here again” and “fuck off” Mr Azmy was terminating his employment within the meaning of s.386(1)(a). He maintains that they could be no other ordinary meaning to these words and that had Mr Azmy not said these words to him he would have continued to work and not left the workplace.
The evidence that has been presented to this Commission does not support this version of events. Critically, there is insufficient evidence before the Commission to find that Mr Azmy used words, or words to the effect, as has been alleged.
The conversation with Ms Crott is material, not in that it justified the behaviour of the Applicant, but that it justified the action of Mrs Azmy in initiating the subsequent conversation with the Applicant.
In this second conversation, I am not persuaded that the Respondent terminated the employment of the Applicant. Nor do I find that the employer engaged in conduct (or course of conduct) that was intended to bring the employment of Mr Barbaro to an end, was likely to have that result or was the principal constituting factor leading to the cessation of the employment relationship.
Further, I have found that by using the words to the effect of “Is that really what you want to do” the Respondent was in fact providing the Applicant with a choice both to give an apology and to reconsider his actions.
With regard to whether or not Mr Azmy or the employer in some other form, should have done more to clarify the actions of the Applicant, I do not consider this to be the case on the evidence presented. In attending the workplace on 3 May 2023, the Applicant made no attempt to return to work, to clarify or remedy what had occurred the previous day or confirm if the casual employment relationship had come to an end.
For the reasons stated above, however, this outcome was not a consequence of the conduct of his employer.
Conclusion
Accordingly, I find that Mr Barbaro was not dismissed by the Respondent and for that reason, the Commission lacks the jurisdiction to allow his s.365 claim to proceed. The Application must be dismissed.
An Order reflecting this decision will be issued separately.[15]
COMMISSIONER
Appearances:
Mr D Barbaro, on his own behalf
Mr A Powter (of counsel), on behalf of Monsoon Industries Pty Ltd
Hearing details:
2023
Melbourne (in person)
21 July
[1] [2020] FCAFC 152.
[2] Applicant’s outline of submissions [15].
[3] Ibid [11].
[4] Ibid [17].
[5] Respondent’s outline of submissions [21] – [30].
[6] Witness Statement of Mr Matt Azmy [11] – [15].
[7] Ibid [15].
[8] Ibid [15].
[9] Applicant’s outline of submissions [17].
[10] Witness Statement of Mr Matt Azmy [15].
[11] Ibid.
[12] [2017] FWCFB 3941.
[13] (1995) 62 IR 200.
[14] PR973462.
[15] PR764931
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