Mr Jan Bakker v Ice Cap Pty Ltd

[2020] FWC 6344

[2020] FWC 6344

FAIR WORK COMMISSION

DECISION

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

Mr Jan Bakker
v
ICE CAP PTY LTD
(U2020/6468)

DEPUTY PRESIDENT ASBURY BRISBANE, 27 NOVEMBER 2020

Application for an unfair dismissal remedy.

Background

[1] Mr Jan Bakker (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by ICE CAP PTY LTD (the Respondent). The Applicant was employed by the Respondent from 26 March 2019 as on a part-time basis working three days per week as a workshop technician, performing a range of duties principally in the Respondent’s workshop. In March 2020 the Applicant’s working week was reduced to two days and he was then dismissed on 30 April 2020. The reasons for the dismissal as set out in the termination letter given to the Applicant were: “the current situation and lack of productive work.”

[2] Initially in its Form F2 Response to the application the Respondent did not object to the application on the grounds that the dismissal was a case of genuine redundancy. However, as the matter progressed the Respondent did advance this objection.

[3] The Applicant contends that the reason for his dismissal was that he queried his pay and that he could not be dismissed while in receipt of JobKeeper payments. The Applicant also contends that his position was not redundant because there was work for him to perform and the Respondent did not comply with requirements to consult with him in any event.

[4] The matter was allocated to me to determine. I decided that it was appropriate to hold a hearing for this purpose. In making that decision, I had regard to the views of the parties, together with the fact that a hearing would be the most effective and efficient way to resolve this matter. Directions were issued requiring the parties to file outlines of submissions and statements of evidence from witnesses they intended to rely on at hearing. The hearing was conducted, in person, on 14 September 2020.

[5] The Applicant gave evidence at the hearing in support of his application. Evidence for the Respondent was given by its Director Mr Lawrence Smith.

Initial matters to be considered

[6] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application. There is no dispute between the parties in relation to three of these matters and I am satisfied on the evidence that:

a) the Application was made within the period required in s 394(2) of the Act;

b) the Applicant is a person protected from unfair dismissal; and

c) Notwithstanding a statement in its Form F3 Response to the application that it had less than 15 employees, the Respondent is not a small business employer on the basis that it has several related entities.

[7] The fourth matter I am required to consider is whether the dismissal was a case of genuine redundancy. In its Form F3 Response to the application, the Respondent did not initially raise a jurisdictional objection on the ground of genuine redundancy. It was however apparent from the Respondent’s material that this was a live issue and as the matter progressed the Respondent pressed this objection. I note that if the Respondent did not press this objection, I would nonetheless have been required to consider it as a threshold matter. If I find that the dismissal was a case of genuine redundancy, then I must dismiss the application for an unfair dismissal remedy. If I find to the contrary, that the Applicant’s dismissal was not a case of genuine redundancy, then I must consider the merits of the application and determine whether the Applicant was unfairly dismissed and if so an appropriate remedy for unfair dismissal. I first address the relevant facts.

Facts

[8] The Respondent undertakes work for a range of clients in the hospitality industry including hotels, motels and pubs. Mr Smith’s evidence, which the Applicant did not dispute, was that the Applicant was employed on a part-time basis working 24 hours per week to undertake work on refrigeration cassette units being supplied by one of the Respondent’s larger customers. Initially there was enough work for the Applicant with three 8 hour days per week being worked. After several months the client stopped supplying the units and the client advised that they may restart supply, but this was uncertain. Mr Smith retained the Applicant in employment doing general repairs and workshop maintenance while he waited to see what the client would do in relation to the cassettes.

[9] The work undertaken by the Applicant as listed in the Applicant’s witness statement included:

•  Driving cars in and out of the workshop;

•  Unpacking, checking and storing machines arriving in the workshop;

•  Reclaiming gas out of old and faulty machines;

•  Dismantling faulty machines for scrap;

•  Brining metal scrap to the scrapyard;

•  Repairing, cleaning, testing and packing machines;

•  Repairing damaged tools;

•  Cutting old cartons to size and placing them in a carton bin;

•  Marking parts for jobs including cutting, drilling and welding;

•  Putting the Council bin on the street;

•  Overall improvement of the workshop;

•  Tracing parts for technicians on site;

•  Storing returned parts and new stock in the storeroom;

•  Stock take;

•  Repairing food trucks;

•  Delivering or picking up fridges with other technicians on site.

[10] The Applicant continued to perform this work until start of the COVID-19 Pandemic which resulted in a large percentage of clients being lost. Mr Smith conducted a tool-box meeting with employees on 19 March during which the possible impact of the COVID-19 Pandemic was discussed. The minutes of that meeting which were tendered by the Applicant indicate that employees were informed that they could be required to reduce their working hours to a two or three day week to keep everyone on board and the goal was to keep everyone in employment.

[11] Mr Smith’s evidence was that because of the nature of the Respondent’s clients, work dried up rapidly and Mr Smith started to reduce the hours of all employees in the week commencing 1 April consistent with the advice given to employees on 19 March. Mr Smith tendered a document evidencing a decline in hours worked by employees which showed that by 8 April 2020 he had terminated the employment of one technician and had reduced the hours of others significantly. At that point the Applicant’s weekly hours had been reduced from 24 to 16. The Respondent applied for the JobKeeper subsidy and all employees including the Applicant received those payments.

[12] The Applicant said that when JobKeeper payments commenced, he was required to increase his hours to 3 days per week but when he received his payslip he was paid less than his previous hourly rate and no superannuation. The Applicant queried this with office staff and was informed that they would check with the bookkeeper, who subsequently advised that the Applicant had been correctly paid. The Applicant disagreed with this and brought in information from the ATO website to indicate that his payments were not correct. The Applicant said that on 30 April 2020, Mr Smith came to see him in the workshop and stated that he had heard the Applicant was not happy with his pay. According to the Applicant, Mr Smith said if the Applicant was not happy Mr Smith would have to let him go. When the Applicant responded by stating that it was Mr Smith’s decision, Mr Smith said: “that’s it, you’re sacked, I will pay you out your entitlements.”

[13] Those entitlements were also not correctly paid and the Applicant said that this was not rectified until the Respondent received correspondence from the Commission. Mr Smith said that the Applicant’s hours were increased back to 24 per week after he received JobKeeper payments. Mr Smith also said that there was an error with the Applicant’s pay resulting in the Respondent being required to top it up so that the Applicant received his full hourly rate for the 24 hours per week he was working. This issue was not rectified until after the Applicant ceased his employment.

[14] Mr Smith accepted that the termination of the Applicant’s employment corresponded with the time that the Applicant raised issues about his pay. However, Mr Smith said that he terminated the Applicant’s employment because the work he was doing was not generating any income and notwithstanding that the Respondent was receiving the JobKeeper subsidy for the Applicant, it was still a cost to maintain the Applicant in employment. In relation to that work, Mr Smith said that the work was generated just to keep the Applicant busy and was filling in time in the hope that work would return. The work included welding metal frames that were requested by a client and work on Mr Smith’s house. Mr Smith said that the work was not generating any income and the situation became unsustainable and reached the point where Mr Smith decided that there would not be work for the Applicant at the end of the COVID-19 Pandemic. The Applicant agreed that Mr Smith told him that the business could no longer carry him.

[15] Mr Smith said that the Applicant asked why he could not be kept on JobKeeper and Mr Smith informed him that he could not do this because he had decided there would not be a position for the Applicant at the end of the Pandemic. In relation to consultation with the Applicant, I had the following exchange with Mr Smith:

“Mr Smith, you can agree or disagree with this: at no point did you sit down with Mr Bakker and say, "Look, this is just - it's not working out, I'm finding jobs for you, it's not making me any money, I need to let you go. Is there anything you can think of that I haven't thought of that you could do that could make me money?" You didn't have that discussion with him, did you? ---- No. The only thing I had was a couple of weeks prior where I sat down and said to Jan, "Look, this is not looking good for us." That's about it. I said, "I don't know where this is going to go, but it's not looking good for us" and I was just not talking to Jan about "us", I was talking generally about everything.

But you didn't say to him - - -? ---- No.

- - - "Your job is not making me - what you're doing is not making me any money, I need to let you go, unless you can" - - -? ---- No, I didn't actually have that discussion, no.

All right? ---- It's just that I thought - I figure - no, I should never have thought that Jan would have understood that that was the situation, but, you know - -” 1

[16] Mr Smith also gave evidence that as at the week ending 27 May 2020, he had dismissed a third technician. As a result, the Respondent has reduced the number of technicians it employs from seven to four and the four remaining technicians work in the field unlike the Applicant who worked in the workshop. Further, Mr Smith said that the work previously performed by the Applicant in the workshop is being undertaken by Mr Smith assisted by two apprentices who were also retained in employment. The Applicant was paid two weeks’ in lieu of notice on the termination of his employment, albeit that there was a delay in the payment being made.

Genuine redundancy

Legislation

[17] Section 389 of the Act defines genuine redundancy as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

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

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[18] “Associated entity” has the meaning given by s 50AAA of the Corporations Act 2001 (Cth).

[19] A job is a collection of duties and tasks performed by an employee. In determining a job is redundant, it is necessary to draw a distinction between the employee’s job and the employee’s duties. 2 A dismissal may be a redundancy within the meaning in s. 389(1)(a) of the Act in a number of circumstances including where the duties remain and operational changes result in fewer employees being required to perform those duties.3 A dismissal may be a redundancy within the meaning in s. 389(1)(a) of the Act in a number of circumstances including where the duties performed by an employee remain and are distributed to other employees so that overall, fewer employees are required in the workplace.

[20] The effect of s. 389 of the Act is that where that where all requirements in the section are met and a dismissal is a genuine redundancy within the meaning of the section, an employee who is dismissed as a result of his or her job being made redundant is not protected from unfair dismissal. In short, where an employer complies with s. 389 of the Act, the employer has a complete defence to an unfair dismissal application. Failure to comply with one or more of the obligations does not mean that a particular position is not genuinely redundant in the sense that the redundancy is bona fide on the basis that the employer no longer requires a job to be performed. For example, a failure to consult or to reasonably redeploy the employee whose job is redundant may result in a finding of unfair dismissal. However in circumstances where a failure to consult would not have changed the outcome the remedy may be limited to compensation for a reasonable period in which consultation could have occurred.

[21] The JobKeeper subsidy is not a mechanism by which employers are required to keep employees in employment until the COVID-19 Pandemic subsides and/or the JobKeeper scheme ceases, in circumstances where their jobs are, or become redundant. The circumstances during the COVID-19 Pandemic are evolving rapidly as employers position their enterprises to survive. While JobKeeper payments may significantly subsidise wages they do not cover all costs of maintaining an employee in employment. An employer is entitled to make a decision that a job is not sustainable and will not be sustainable when the Pandemic subsides and to make that position redundant, regardless of the eligibility of the employer or the employee in the job, to receive JobKeeper payments. The mere fact that an employer has claimed JobKeeper payments for an employee at some point does not entitle that employee to remain employed in circumstances where the employee’s job is or becomes redundant.

The employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise (s 389(1)(a))

[22] In the present case I find that while some of the workshop duties performed by the Applicant remain they are being performed by Mr Smith and two apprentices. There have been no additional persons employed and the overall numbers of technicians has reduced. This situation has been brought about by operational changes as a result of the COVID-19 Pandemic and decisions made by the Respondent’s Director as to the types of employees to be retained in employment to position the Company to survive.

[23] Accordingly, the employer no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise, notwithstanding that some or all of the duties remain to be done.

Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s 389(1)(b))

[24] For there to be a genuine redundancy within the meaning of s 389 of the Act, the Respondent must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy. I find that the Applicant was covered by the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award).Clause 9 of the Manufacturing Award relevantly provides as follows:

“9.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[25] Consultation for the purposes of s. 389(1)(b) of the Act is required to be meaningful and not merely an afterthought. Consultation after an irrevocable decision has been made is not sufficient to meet the requirements of the provision, 4 and the employer is required to give the employee a bona fide opportunity to influence5 or persuade the decision maker.6

[26] While the Respondent conducted a tool-box meeting in March 2020 and discussed possible impacts of the COVID-19 Pandemic, I do not accept that the discussion was sufficient to meet the consultation obligations under the Award.

[27] The Respondent did not inform the Applicant – either collectively with other employees or individually – of the potential for his position to be made redundant and the resulting termination of his employment. I find that the consultation obligations in the Manufacturing Award were not met in relation to any redundancy of the Applicant’s position.

Was it reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer (s 389(2))

[28] The evidence does not support a finding that it would have been reasonable for the Applicant to have been redeployed within the Respondent’s enterprise or any associated entity. The Respondent has reduced the numbers of technicians it employs and those who have been retained in employment are field technicians. While the Applicant may have been capable of performing this work he was employed in the workshop and did not ordinarily work in the field. it is also the case that the employees who have been retained are working reduced hours. I find that it was not reasonable in all of the circumstances for the Applicant to have been re-deployed in the Respondent’s enterprise.

Conclusion on genuine redundancy

[29] For the reasons stated, the Applicant’s dismissal was not a genuine redundancy within the meaning of the Act. It is therefore necessary to consider whether the Applicant’s dismissal was unfair on the basis of the criteria in s. 387 of the Act.

Unfair dismissal

[30] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:

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 FWC considers relevant.

[31] In relation to these criteria, the Applicant was not dismissed for any reason related to his capacity or conduct. It is not in dispute that the Applicant was a hard worker and there is no evidence of any issues relating to his conduct or capacity. Accordingly, the criteria in s. 387(a) is not relevant to the question of whether the Applicant was unfairly dismissed. Given that the reason for dismissal did not relate to capacity or conduct, the consideration in s. 387(b) and s. 387(c) is not relevant. There were no discussions about the Applicant’s dismissal and the Applicant did not request a support person so that s. 387(d) is also not relevant. Further, the dismissal did not relate to unsatisfactory performance and the question of whether the Applicant was warned is not relevant to the question of whether his dismissal was unfair and accordingly the consideration in s. 387(e) is not relevant.

[32] With respect to s. 387(f) and (g), the Respondent is a small business. The Respondent does not have dedicated human resource management specialists or expertise. While the Respondent did not fulfil its obligations to consult the Applicant about the redundancy this is explained – at least in part – by these considerations.

[33] With respect to s. 387(h) there are a number of matters which in my view are relevant to the question of whether the Applicant’s dismissal was unfair. There is no dispute that the Applicant was viewed by Mr Smith as a hard worker. The Applicant had worked for the Respondent for fourteen months. The Applicant is 63 years of age and as such, he has had difficulty in obtaining other employment and will likely continue to experience such difficulty in the foreseeable future.

[34] I have also had regard for the fact that despite my finding that the Applicant’s dismissal was not a genuine redundancy within the meaning in s. 389 of the Act, the Applicant’s position was made redundant and the redundancy was bona fide. However, weighing the considerations in s. 387 of the Act, I am satisfied that the Applicant was unfairly dismissed. The dismissal was unfair because the Applicant was not informed that his position was in jeopardy due to economic downturn and because he was not given a reasonable opportunity to at least attempt to mitigate the loss of his employment by virtue of the failure to consult.

Remedy

[35] Having found that the Applicant was protected from unfair dismissal, and that his dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted to him. The Applicant did not seek the remedy of reinstatement. I accept that it would be inappropriate to reinstate the Applicant in all the circumstances, particularly in light of the fact that the Applicant’s position is redundant notwithstanding that his dismissal was not a case of genuine redundancy as defined on s. 389 of the Act.

[36] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 7

[37] Having regard to all the circumstances of the case, including the fact that the Applicant has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.

[38] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to the Applicant. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

[39] The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket 8 and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases as follows:9

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 5: Apply the legislative cap on compensation.

Remuneration the Applicant would have received, or would have been likely to receive, if she had not been dismissed (s 392(2)(c))

[40] Calculations of damages or compensation involve an element of speculation in determining an employee’s anticipated period of employment. This is because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 10

[41] In the present case, the Applicant’s dismissal was not a case of genuine redundancy because of the failure to consult with him. In all of the circumstances, I find that consultation would not have changed the outcome of the decision to dismiss the Applicant and he would have remained in employment for no more than a further two weeks, which is a reasonable time for consultation to have been undertaken.

[42] The Applicant’s ordinary hourly rate was $34.50 per hour and had he remained in employment for a further two weeks, the Applicant would have earned the amount of $1,656.00. I am satisfied that is the remuneration that the Applicant would have received, or would have been likely to receive, if he had not been dismissed.

Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))

[43] At the point the matter was heard the Applicant had not earned any other income and no adjustment should be made on this basis.

Viability (s 392(2)(a))

[44] No submission was made on behalf of the Respondent that any particular amount of compensation would affect the viability of the Respondent’s business. My view is that no adjustment will be made on this account given the amount of compensation I have decided to award.

Length of service (s 392(2)(b))

The Applicant’s length of service with the Respondent (14 months) does not justify any adjustment to the amount of compensation.

Mitigation efforts (s 392(2)(d))

[45] The Applicant is 63 years of age. He states that he has applied for a number of positions and has been unsuccessful. This is unsurprising in the current environment. In all the circumstances, my view is that the Applicant acted reasonably to mitigate the loss suffered by him because of the dismissal and I do not consider it appropriate to reduce the compensation on this account.

Any other relevant matter (s 392(2)(g))

[46] It is necessary to consider whether to discount the remaining amount ($1,656.00) for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which the Applicant was subject might have brought about some change in earning capacity or earnings. 11 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

[47] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision. 12

[48] Because I am considering an anticipated period of employment which has already passed (two weeks from 30 April 2020), there is no uncertainty about the Applicant’s earnings, capacity or any other matters during that period of time. In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $1,656.00 for contingencies.

[49] I do not intend make any deduction for wages paid to the Applicant in lieu of notice, on the basis that those wages would have been required to be paid in any event if the Applicant’s employment had continued for the period I have estimated that he would have remained in employment.

[50] I have considered the impact of taxation, but my view is that I prefer to determine compensation as a gross amount and leave taxation for determination.

Misconduct (s 392(3))

[51] The Applicant did not engage in any misconduct, so my view is that this has no relevance to the assessment of compensation.

Shock, distress or humiliation, or other analogous hurt (s 392(4))

[52] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap (s 392(5)-(6))

[53] The amount of $1,656.00 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which the Applicant was entitled in his employment with the Respondent during the 26 weeks immediately before his dismissal. In those circumstances, my view is that there is no basis to reduce the amount of $1,656.00 by reason of s 392(5) of the Act.

Instalments (s 393)

[54] No application has been made to date by the Respondent for any amount of compensation awarded to be paid in the form of instalments.

Conclusion on compensation

[55] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is no basis for me to reassess the assumptions made in reaching the amount of $1,656.00. 13

[56] For the reasons I have given, my view is that a remedy of compensation in the sum of $1,656.00 (less taxation as required by law) in favour of the Applicant is appropriate in the circumstances of this case. The Order will also require the payment of superannuation contributions into the Applicant’s nominated fund in the amount of $157.32. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

The Applicant on his own behalf.

Mr L Smith for the Respondent.

Hearing details:

14 September.

2020.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR724889>

 1   Transcript PN234 – 237.

 2   Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488.

 3 Ibid at [19].

 4   Masawan v Escada Textilvertrieb T/A Escada [2011] FWA 4239 at [19] citing CFMEU v Newcastle Wallsend Coal Company Ltd (1998) IR 202.

 5   Siriwardhana v FDGH Pty Ltd t/as Caltex Fitzroy North [2013] FWC 5609 at [18].

 6   Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frith & Associates [2014] FWCFB 1276at [35].

 7   Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]

 8 (1998) 88 IR 21

 9   Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431

 10   Double N Equipment Hire Pty Ltd v Humphries[2016] FWCFB 7206 at [16]-[17]

 11   Ellawala v Australian Postal Corporation Print S5109 at [36]

 12   Enhance Systems Pty Ltd v Cox PR910779 at [39]

 13   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]