Mr Jeb Hendricks v Catholic Education Western Australia (CEWA)
[2023] FWC 1553
•27 JUNE 2023
| [2023] FWC 1553 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jeb Hendricks
v
Catholic Education Western Australia (CEWA)
(U2022/8740)
| DEPUTY PRESIDENT BINET | PERTH, 27 JUNE 2023 |
Application for an unfair dismissal remedy
On 26 August 2022, Mr Jeb Hendricks (Mr Hendricks) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Catholic Education of Western Australia (CEWA).
Mr Hendricks was dismissed after an incident occurred in which he was alleged to have engaged in a physical and verbal altercation with a female student (Incident) while employed as a mathematics teacher at Irene McCormack Catholic College in Butler, Western Australia (IMCC).
On 19 September 2022, CEWA filed a Form F3 - Employer’s response to unfair dismissal application stating that it had no jurisdictional objections to the Application.
On 23 September 2022 and on 11 October 2022, the parties participated in conciliation conferences. The matters in dispute could not be resolved.
Taking into account the parties wishes and circumstances, a hearing, rather than a determinative conference, was determined to be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a hearing in Perth on 8 February 2023 (Hearing).
Directions for the filing of materials in advance of the Hearing were issued to the parties on 23 November 2022 and amended on 9 December 2022 and 12 December 2022 (Directions).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
CEWA sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing, Mr Hendricks represented himself and CEWA was represented by Mr Cheyne Beetham of Counsel.
Evidence
The Directions required the parties to file their witness evidence in chief in advance of the Hearing.
In accordance with the Directions, Mr Hendricks filed a witness statement setting out his own evidence in chief.[2] He also filed a witness statement setting out the evidence in chief of Mr Tony Summers (Mr Summers).[3]
Mr Summers is a teacher employed by CEWA at IMCC. Mr Summers’ witness statement, but for one brief paragraph referring to Mr Hendricks, deals exclusively with various concerns or complaints that Mr Summers has with respect to the management of ICMM. I note that Mr Summers has been subject to disciplinary action by ICMM.
At the Hearing, Mr Hendricks gave further oral evidence and was cross examined. Mr Summers was not required by CEWA for cross examination.
In accordance with the Directions, CEWA filed witness statements setting out the evidence in chief of the following witnesses:
a.Ms Debbie White – Assistant Deputy Principal of IMCC (Ms White).[4]
b.Mr Andrew Billingsley– Deputy Principal of IMCC (Mr Billingsley).[5]
c.Mr Peter Collins – Principal of IMCC. He was appointed to this role on 1 January 2022. (Mr Collins).[6]
d.Mr Dalton Ryan – CEWA Employment Relations Consultant (Mr Ryan).[7]
Ms White was supervising students with Mr Hendricks at the time the Incident occurred and obtained witness statements from witnesses to the Incident. Mr Billingsley conducted the investigation into the Incident (Investigation). Mr Collins was the decision maker in relation to the decision to dismiss Mr Hendricks.
All of the CEWA witnesses gave further oral evidence at the Hearing and were cross examined by Mr Hendricks.
The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing date (DCB). The DCB was admitted at the Hearing as a single exhibit and marked ‘Exhibit DCB’.[8]
Final written submissions were filed on behalf of Mr Hendricks on 23 February 2023. Final written submissions were filed by CEWA on 2 March 2023.
In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision. Although I note that Mr Hendricks filed in excess of 2000 pages of materials, a large volume of which were not relevant to the issues which I am required to determine.
In accordance with PR750399, all student names have been redacted.
Background
CEWA oversees the operation of 163 Catholic schools and colleges in Western Australia.
On 7 September 2018 Mr Hendricks accepted an offer of employment with CEWA as Head of Mathematics at IMCC in Butler, Western Australia (IMCC).[9] Earlier in his life he served in the United States Navy.[10]
His contract of employment provided that his appointment was for two years commencing 1 January 2019 and that his continuation in employment would be subject to review before the end of December 2020 (Employment Contract).[11]
In signing the Employment Contract, Mr Hendricks acknowledged that he would be bound by the Roman Catholic Archbishop of Perth Teachers Enterprise Bargaining Agreement 2015 (Agreement)[12] registered by the Western Australian Industrial Relations Commission and would comply with the policies of CEWA and IMCC.[13]
Mr Hendricks’ relationship with his superiors at IMCC and CEWA increasingly soured during the course of his employment.
2020 Performance Review
In June 2020, Mr Hendricks’ performance as the Head of Mathematics was reviewed by a panel of four staff reviewers in accordance with the terms of the Employment Contract. The review identified a number of areas requiring focus, including:[14]
“• Developing skills in managing a diverse group of staff and being able to relate better to students.
• Communicating effectively and not speaking without thinking. Realising that your viewpoint and extreme opinions can often make conversations become uncomfortable within the office.
• Gaining educational leadership skills and experience including the ability to listen, challenge and act with justice, integrity and care.
• Improving your understanding of WACE and SCSA requirements and the WA Curriculum including grading and standards.
…
• Creating working relationships with students and gaining the balance of clear boundaries whilst students still enjoy learning.
• Being more open and flexible to being mentored, undertaking observation and listening to feedback.”
As a consequence of the review, Mr Hendricks’ contract was only renewed for a further year although the Employment Contract provided for the possibility of an extension of up to three years. Mr Hendricks was informed that a review would be conducted in Term 3 2021 to determine whether any further extension would be granted.[15]
Mr Hendricks disputes the negative assessments made in the review.[16]
On 16 September 2020 and 1 October 2020 Mr Hendricks emailed Dr Debra Sayce, Executive Director of CEWA (Dr Sayce), asserting that he was entitled to copies of the documents relied upon for his review and that Mr Marshall, the then Principal at ICMM, had inappropriately refused to provide them. Dr Sayce responded on 21 October 2020 confirming that Mr Hendricks was not entitled to the information he sought.[17]
On 26 October 2020 Mr Hendricks wrote to Dr Sayce communicating his disagreement with the decision. [18]
Referral of concerns to external parties
Since early 2020, Mr Hendricks has ventilated various concerns regarding the management of IMCC.
Between 29 and 30 October 2020, Mr Hendricks exchanged e-mails with the office of the Archbishop of Perth to communicate concerns he held with the direction of IMCC. He was informed that the Archbishop considered it inappropriate to interfere with the operations of the school. [19]
On 20 November 2020 Mr Hendricks sent a letter to IMCC School Advisory Council communicating concerns about the school’s operations. [20]
Between 20 November 2020 and 25 January 2021 Mr Hendricks sent a series of emails to numerous individuals including CEWA consultants, the Chair of IMCC School Advisory Board and the Chair of the Catholic Parish Pastoral Council critical of the college leadership. [21]
On 3 February 2021 Mr Hendricks sent a complaint letter to Dr Sayce about IMCC’s grading model. The letter also details a disagreement between Mr Hendricks and Mr Marshall over maths extension classes. [22]
On 16 February 2021 Dr Sayce responded by letter to Mr Hendricks’ letter stating that
CEWA has no policy to address the two issues addressed by Mr Hendricks. [23]
On 2 March 2021 Mr Hendricks contacted the School Curriculum and Standards Authority (SCSA) alleging that ICMM has breached SCSA policy standards with respect to reporting the achievements of pre-primary to year 10.[24]
On 3 March 2021, Mr Hendricks wrote to CEWA seeking protection under CEWA’s whistleblower policy in relation to his allegation that IMCC had breached SCSA policy standards.
On 6 May 2021 CEWA emailed Mr Hendricks to communicate that CEWA would request SCSA perform a review. [25]
SCSA subsequently determined that IMCC should grade students differently.[26]
NAPLAN Testing
In May 2021 a dispute arose between Mr Hendricks and his superiors at IMCC in relation to the scheduling of NAPLAN assessments for IMCC students. The NAPLAN assessment for 2021 was scheduled for a two-week period from 11 to 21 May 2021. [27]
On 13 May 2021 Ms White emailed all teaching staff at IMCC communicating a change to the NAPLAN schedule with two assessments to be performed on the following morning due to a technological failure preventing one of the tests being taken that day. [28]
Mr Hendricks raised concerns about the appropriateness of the rescheduling with Ms White, Mr Billingsley and Mr Marshall. Mr Marshall, Ms White and Mr Billingsley decided to proceed with the rescheduling. Mr Billingsley says that Mr Hendricks indicated that he intended to contact parents and that he told Mr Hendricks that it was not appropriate to do so.[29] Mr Hendricks disputes this.[30]
On 13 May 2021 at 8:49pm Mr Billingsley emailed IMCC parents explaining the change in NAPLAN schedule for 14 May 2021. The e-mail states: [31]
“If you [parents] are concerned about any challenges your child may be experiencing as a result of NAPLAN please contact their Assistant Deputy Principal.”
Mr Hendricks then used the school communication platform to send a message to Year 7 and Year 9 parents as follows:[32]
“Good morning,
Late yesterday, I became aware of changes to the NAPLAN schedule for Year 7 and 9 students. Instead of one NAPLAN test, two NAPLAN tests will be set for today. I tried to communicate my concerns to the appropriate individuals without success.As a consequence I am obligated as the Head of Mathematics at IMCC and by the School’s Code of Conduct to inform you of situations that may impact your child’s outcomes. Setting the Numeracy OLNA for Periods 3 & 4 will likely negatively impact the overall Year 7 & 9 outcomes for two primary reasons:
1. “Cognitive fatigue influences students’ performance on standardized tests.” This statement comes from an article (link pasted below) that details how standardised test results decline as the day progresses.
2. The congnitive (sic) fatigue is increased by the fact all students will have already taken a stressful assessment fewer than two hours earlier.
I can only conclude that students, as a cohort, should be expected to perform less well on this important individual assessment simply because of timing. The importance is especially true for Year 9 students as they can complete a graduation requirement by achieving Band 8.
I have done what I can to look out for the best interests of your children. If you have concerns I recommend using the CEWA’s “Dispute and Complaints Resolution” process with the first step in this case of contacting the School’s Principal.
Kind regards, Mr Jeb Hendricks
Head of Mathematic, Irene McCormack Catholic College
Communication to a cohort of parents in this manner is typically only done by members of the Senior Executive of the school.
An investigation was subsequently conducted in relation to Mr Hendricks actions. [33]
The investigation substantiated the allegation that Mr Hendricks undermined the IMCC leadership team and damaged the reputation of CEWA by emailing the parent cohort about his concerns contrary to the instruction not to do so.[34]
On 17 August 2021 Mr Hendricks was issued with a written warning in relation to the incident. The warning stated that he was expected in the future to comply with all lawful and reasonable directions to adhere to his duty of confidentiality and comply with the Code. [35]
Having received the warning letter, on 24 August 2021, Mr Hendricks wrote to
Mr Marshall rejecting the warning and advising he was forwarding various documentation to appropriate “external bodies”.[36] He explained that:[37]
“I have done my best to serve God at IMCC and I will continue to do so. Every action I have taken over the past 34 months has been with Him at my side as I have spent hundreds of hours discerning His wishes and fulfilling, to the best of my ability, His expectations of me. Unfortunately, in my opinion CEWA Ltd (at least with respect to many of CEWA Ltd leaders' actions at IMCC) operates in its own interests and not in the interests of the students, parents, and community that trusts us to act in accordance with the Gospel Values. My true failure has been the inability to find the right words to convince the right people of the wrong being perpetrated at IMCC. God expects me to bear this cross in His service so I must use every available means to achieve His desired outcomes.”
Mr Hendricks ultimately forwarded the documentation to various individuals including the Archbishop of Perth, Dr Sayce, and a number of employees of CEWA.[38]
2021 Performance Review
In accordance with the Contract of Employment a review of Mr Hendricks performance was conducted between June and August 2021. Mr Marshall consulted with the Executive Council who unanimously decided not to renew Mr Henricks’ contract as Head of Mathematics.
Consequently, Mr Marshall decided to not renew Mr Hendrick’s contract.[39]
On 2 September 2021 Mr Marshall wrote to Mr Hendricks saying that the CEWA would not offer Mr Hendricks a third term as Head of Mathematics and his tenure in that role would cease on 31 December 2021. The letter stated that Mr Hendricks could continue working as a teacher). [40]
The letter explained that the decision to not offer a third term was made because:[41]
“The review report identified concerns that affect your leadership as Head of
Mathematics. This included:
• In voicing strong opinions, you can create the perception that you are abrupt and not always happy to respect the opinion of others.
• That you carry a zealous approach as a member of the Academic Council and your relationship with the College Leadership Team, including the Deputy Principal.These concerns affect your capacity to:
• Work collaboratively focusing on teachers providing students with learning environments that are engaging and challenging, so that students develop a strong desire to achieve and for ongoing learning.
• Being able to oversee the development and implementation of outcomes in the
programming, assessment, feedback and reporting of the Learning Area and work with the Leadership Team to develop learning programs and school wide pedagogy that assists all students achieve.
• Provide evidence of dynamic, engaging relevant pedagogy.”
Mr Hendricks asserts that the refusal to extend his employment in the role of Head of Mathematics was in retaliation for him reporting to SSCA his allegations that the ICCM leadership team had not complied with SSCA directives.[42]
Mr Hendricks proceeded to forward the 2 September 2021 correspondence from Mr Marshall along with other correspondence between himself and Mr Marshall to the IMCC College Academic Council and employees of CEWA.
An investigation was commenced into Mr Hendricks’ actions in forwarding this correspondence.[43]
The investigation found that Mr Hendricks breached the College Code of Conduct by forwarding operationally sensitive private information which had the potential to undermine the integrity of the processes used by the College to assess the performance of its leaders.[44]
As a consequence, on 5 November 2021 ICMM issued Mr Hendricks with a second written warning (Second Written Warning).[45] The Second Written Warning stated that:[46]
“Jeb, you are expected to comply with all lawful and reasonable directions, adhere to
confidentiality, and comply with the Code of Conduct which are inherent requirements of your employment contract. Should this not occur, disciplinary action, including but not limited to termination of your employment may result.Confidentiality and Support
I take this opportunity to remind you that this process is strictly confidential and must not be discussed with anyone, whether Involved In the process or not. Any suspected breach of confidentiality will be taken very seriously and investigated as a separate Issue with possible disciplinary action, If substantiated.”
Mr Hendricks asserts that he was entitled to share the correspondence and that therefore the Second Written Warning was unjustified.[47]
Mr Hendricks continued his employment with CEWA in the role of teacher from 1 January 2022.[48]
Proceedings before Commissioner Williams
On 17 January 2022 Mr Hendricks filed an application (First Application) pursuant to Section 394 of FW Act with the FWC alleging he was unfairly dismissed by CEWA when CEWA declined to offer him a third term in the role of Head of Mathematics and informed him that from 1 January 2022 he would be employed in the role of teacher.
Mr Hendricks’ application for a remedy for unfair dismissal was heard by Commissioner Williams on 3 August 2022. On 12 October 2022 Commissioner Williams handed down his decision dismissing Mr Hendricks’ application.[49]
Commissioner Williams found that decision not to offer Mr Hendricks a further extension of his appointment as Head of Mathematics was sound and defensible. He also found that Mr Hendricks’ email to parents regarding the NAPLAN testing breached a lawful and reasonable direction and improperly undermined the school’s leadership.[50]
On 31 October 2022 Mr Hendricks applied for permission to appeal Commissioner Williams’ decision. The Appeal was adjourned pending the determination of this Application.[51]
It appears to me on the materials before me that Commissioner Williams’ decision was open to him.
Incident
On Friday 24 June 2022 an incident occurred on a footpath alongside a public road which ultimately resulted in a female student making a complaint about Mr Hendricks.
Mr Hendricks, Ms White and a number of other teachers were supervising a group of approximately 120 students as they returned on foot to the IMCC after an event offsite. Ms White was walking at the front of the group and Mr Hendricks was walking further back in the group.[52]
Mr Hendricks was walking with a group of approximately 20 students when he observed a small stick of approximately 5cm length and 15-20 grams hit the ground near two male students. He subsequently saw a small stone of approximately 3cm diameter fly towards the same students. Looking for the source of the objects, he spotted a year ten 15 to 16 year old indigenous female student whom he did not know on the opposite side of the sidewalk and slightly behind him bend over to pick up a stick similar to the first object he saw land. He approached the student and asked if she had thrown the rock. She told him she had ‘rolled the rock’. He instructed her to walk with him so they could discuss the incident. She declined and walked ahead of him accompanied either side by two other female students.[53]
Mr Hendricks then restrained the student and the two exchanged words.[54]
He described the events which followed in a subsequent Show Cause Response as follows:[55]
“j. At that time, I was behind and on the student's left. I reached up with my right hand to slow the student's progress by taking hold of the backpack. I did not jerk or pull but used just enough force to maneuver myself between her and the other students and the direction in which we were heading. I could not be sure if the student still had the stick in her hand.
k. The student immediate screamed at me "don't touch or pull my hair''.I. I paused very briefly, assessed the situation recognizing the student has little respect for authority (she had a nose ring as well as dismissing teacher's instruction).
m. In a commanding voice I made three things clear:i. I did not pull your hair
ii. You will stop throwing objects at students
iii. You will comply with teacher instructions
n. I have no recollection of touching the student's body in any way but cannot completely rule it out as I may have intuitively responded to a student action. I do not recall feeling any immediately physical threat to which I may have responded intuitively because of previous training. However, I am confident I did not touch or hold the student's arms.
o. The entire incident lasted for about one to two minutes, and everyone returned normally to IMCC.”
Shortly before Ms White reached the school oval the female student approached Ms White and told her that she needed to speak to her. Ms White told the student she would speak to her later. The student assisted that Ms White speak to her immediately. Ms White took her aside to speak to her. Ms White’s evidence is as follows (with the name of the student redacted):[56]
“2.7 I moved away with [REDACTED] from the group of students for privacy.
2.8 [REDACTED] proceeded to tell me that she was ‘in the wrong’ as she was kicking stones and throwing sticks towards two boys that were walking ahead of her. [REDACTED] identified the two boys as [REDACTED] and [REDACTED].
2.9 She said that Jeb Hendricks told her off for kicking stones and she said, ‘I deserved that, I did’.
2.10 However, [REDACTED] told me that she initially thought a student had grabbed her backpack but then she realised it was Jeb. She said words to the effect that Jeb had ‘tried to stop me going ahead and he pulled my hair’ or that he ‘grabbed her pigtail’.
2.11 I was concerned that [REDACTED] said Jeb had grabbed her hair and I said, ‘are you okay?’
2.12 I said to [REDACTED] words to the effect of ‘Monday morning come to my office and write a full report. Please don’t talk to anyone. Please tell your parents so it’s not a surprise. I will contact you on the Monday to ensure we are following up.’
2.13 I did not speak to Jeb at that point as he was with the other teachers.
2.14 Jess McGaw (Teacher – Drama, English and Performing Arts) (Jess) also came up to me and said ‘I was a bit worried about an interaction I saw between Jeb and [REDACTED]’.
2.15 I moved Jess well away from the students to speak to her.
2.16 Jess said, ‘I was very worried and I thought that they that were going to fight each other.’
2.17 I told Jess that I needed to see her on Monday to discuss the Incident.
2.18 After that point, the students were dismissed and I went back to the office.
2.19 Later that afternoon, when I was going past the photocopier I saw Jeb was there. I asked Jeb ‘how did the day go’ and Jeb mentioned that he had an interaction with [REDACTED].
2.20 I said ‘I might need to follow that up.’
2.21 Jeb said words to the effect ‘I was grabbing her backpack when she was walking’.”
Between 4pm and 6pm on Friday 24 June 2022 Ms White informed Mr Billingsley that the female student concerned, and Ms McGall, had both reported the Incident to her. Ms White informed Mr Billingsley that the student involved wished to go home, so she had released the student and would arrange speak to the student’s mother and conduct some further inquiries before raising the issue with Mr Hendricks.[57]
On Monday 27 June 2022 before lunch time Ms White interviewed and obtained statements from the female student and four other students whom she believed had witnessed the Incident. Ms White instructed each student that they were not to speak to anyone about the Incident other than their parents.[58]
The first two students she interviewed were the boys. Ms White interviewed them separately but explained that she had only one incident form with her so she had them both separately write on the same piece of paper.[59]
The first boy said in his statement:[60]
“As we were walking back from the North. I saw Mr Henricks trying to grab the back of [REDACTED] bag to get her to stop since she was walking ofr [sic] but i’m not sure what happened prior to instigate that.”
The second boy said in his statement that:[61]
“When we were walking I saw Mr Henricks try and grab [REDACTED] bag and missed the first time then grabbed it the second time with more force. Then [REDACTED] turned around and said “stop grabbing my hair” then they started arguing…”.
Later the same day Ms White asked the female student involved to write a statement. The female student wrote:[62]
“… then I felt a tug on my bag and I thought it was [REDACTED] so I didn’t pay much attention then I felt someone pull my pony tail so I turned around to see Mr Hendricks was the one pulling my bag and hair. I than (sic) swore at him and he got in my face and said don’t (sic) talk or disrespect me like that and than (sic) I said dont (sic) touch or pull my hair he than (sic) grabs my arms and pulls me closer and says dont (sic) talk to me or disrespect me again…”
Ms White discussed her statement with female student and says that the female student told her that she did not believe that Mr Hendricks accidently grabbed her hair while trying to grab her bag.[63]
Later the same day Ms White interviewed the two female students who witnessed the Incident. In her written statement the first student reported that Mr Hendricks:[64]
“He then sped up until he was behind her telling her that she had to walk with him when she refused he grabbed the handle of her bag as well as her hair refraining her from walking he started pulled (sic) her back towards him he then let go of her bad (sic) only pulled her hair. She then turned towards him asking what he was doing. They started yelling at each other when he grabbed her shoulders and was screaming into her face. She then walked away to tell another teacher”.
The second female student reported that Mr Hendricks:[65]
“Mr Hendricks had told [REDACTED] to walk next to him until we got back to school, she said no and kept walking. He then grabbed the strap on the bag on [REDACTED] back and told her again to walk with him. She kept walking and the (sic) he grabbed her hair from behind her and [REDACTED] turned around and said what the f* are you doing let go of my hair. She then kept walking but Mr Hendricks had stood in front of her and grabbed (sic) both of her arms and started yelling at her. When she was getting yelled at [REDACTED] and I were told to keep walking ahead.’
After Ms White obtained the above statements from the students, Mr Collins asked her to follow up the next day with the teachers who witnessed the Incident.[66]
On Tuesday, 28 June 2022, Ms White spoke with Mr Peter Mazzini, a Design and Technology teacher (Mr Mazzini), privately in his office. She says that he told her he saw Mr Hendricks yelling at the female student but did not hear what was said. Mr Mazzini also confirmed his recollections in two emails sent to Ms White on 28 June 2022. Mr Mazzini reported that he saw Mr Hendricks close to the female student yelling at her, but he did not see any physical contact between them.[67]
On the same day Ms White spoke to Ms Jess McGaw (Ms McGaw). Ms McGaw reported that she witnessed a heated conversation between Mr Hendricks and the female student while they were approximately 30 centimetres apart. Ms McGaw told Ms White she did not see Mr Hendricks pull the students hair but did hear her say ‘it doesn’t give anyone the excuse to pull my hair’. Ms McGaw reported that Mr Hendricks’ hands were closed in fists and she was fearful that a physical fight was imminent.[68]
On Wednesday, 29 June 2022, Ms White spoke with Ms Marlise Viljoen (Ms Viljoen). Ms Viljoen confirmed her recollections in an email she sent to Ms White as follows:[69]
‘During our walk back, I heard load voices to my left as we were walking and I saw [REDACTED] and Mr Hendricks using raised voices at each other. Mr Hendricks and [REDACTED] was face to face shouting at each other. I observed Mr Hendricks accusing [REDACTED] that she threw students with rocks and [REDACTED] accused Mr Hendricks that he pulled her hair. I stepped closer and asked [REDACTED] to walk with me as she is in my care group, [REDACTED] and I walked off towards the school with the group of students.’
After receiving the witness statements from Ms White, Mr Billingsley and Mr Collins contacted Mr Ryan. Mr Ryan advised Mr Collins to stand Mr Hendricks down until a formal investigation into the Incident was completed.[70]
Mr Billingsley and Mr Collins met with Mr Hendricks on 30 June 2022. Mr Hendricks questioned the purpose of the meeting and was informed that it was to deal with an incident involving a student which occurred the previous week. Mr Hendricks concedes that he indicated that he was happy to proceed without a support person present. [71]
Mr Billingsley and Mr Collins informed Mr Hendricks that a complaint had been made about his conduct and that he would be stood him down on full pay pending an investigation into the complaint.[72]
Mr Hendricks was affronted by the allegations and insisted that he was simply carrying out his duty of care in the face of ‘challenging behaviour’ from the student.[73]
Mr Hendricks insisted that he could not be lawfully stood down and that the advice from CEWA to stand him down was given for ulterior motives. Mr Collins says that Mr Hendricks told him that he could not tell him what to do. He also reports that Mr Hendricks body language and verbal tone suggested defiance and anger,[74]
Mr Hendricks indicated that he wanted to review a decision of the FWC on his work computer which he insisted established that he could not be lawfully stood down.[75]
Mr Collins permitted Mr Hendricks to return with Mr Billingsley to his office to locate the case. Mr Hendricks could not locate the case. Mr Collins contacted CEWA to seek further advice in light of Mr Hendricks refusal to leave the school. Mr Collins was advised that if Mr Hendricks refused to leave then he should call the police. Mr Collins then joined Mr Billingsley in Mr Hendricks office and informed Mr Hendricks that CEWA had reconfirmed that the standdown was lawful.[76]
Mr Hendricks told Mr Collins that there were people “on his list” and that if Mr Collins proceeded with standing him down Mr Collins would be added to “his list”. Mr Collins asked Mr Hendricks to clarify what he meant by this. [77]
Mr Hendricks eventually agreed that he would leave and pursue the matter later. He packed up his belongings and was escorted by Mr Collins and Mr Billingsley to his vehicle telling them en route that ‘you would need better body guards than you two to escort me off’.[78]
Mr Hendricks agrees that he questioned the legality of the standdown, but says that he was in a jovial state when Mr Collins arrived in his office and that he had decided by that point to deescalate the situation by leaving. He asserted that the period of time between being instructed to leave until his departure was only 25 minutes and could not therefore be considered excessive.
Mr Collins confirmed the stand down in writing in a letter dated 30 June 2022, which warned that a potential outcome of the investigation would include termination of the Mr Henrick’s employment (Stand Down Letter). The Stand Down Letter directed that Mr Hendricks maintain confidentiality in relation to the Incident while an investigation was undertaken. [79]
“While you are stood down, you are directed to refrain from any contact or communication with students, parents and other staff members on any aspect in relation to both the College and CEWA Ltd. This is in line with standard procedure.
Confidentiality and Support
I take this opportunity to remind you that this process is strictly confidential and must not be discussed with anyone, whether involved in the process or not. Any breach of confidentiality will be taken seriously and investigated thoroughly.”
Later, on 30 June 2022, Mr Hendricks challenged the scope of the confidentiality restriction by way of email to Mr Collins. Mr Collins clarified that Mr Hendricks could discuss the matter with his support person, lawyer and family. By way of a reply email Mr Hendricks further challenged the legal basis for the confidentiality direction.[80]
Mr Collins appointed Mr Billingsley to conduct the investigation into the Incident.[81]
On 1 July 2022, IMCC sent Mr Hendricks a letter by email containing the allegations that Mr Hendricks (Allegation Letter): [82]
a.made forceful physical contact with a female student’s bag on two occasions while the student was carrying the bag on her back and on the second occasion he grabbed the student’s hair by pulling it;
b.then placed both his hands on the student’s arms physically holding her while engaging in a loud, heated, verbal exchange in close proximity; and
c.refused to comply with a lawful and reasonable directive to leave the College grounds, until after Mr Collins informed him that he would contact the police.
The Allegation Letter invited Mr Hendricks to provide a response by 20 July 2023.
In relation to confidentiality the Allegation Letter stated:[83]
“Confidentiality and Support
I take this opportunity to remind you that this process is strictly confidential and
must not be discussed with anyone, whether involved in the process or not. However, it is understood that you may wish to consult with your nominated support person or advocate. Any breach of confidentiality will be taken very seriously.”
On 1 July 2022 Mr Hendricks called Mr Collins. Mr Collins recollections of the discussion are as follows:[84]
“Jeb called back at 10:05am and I told him that I was taking advice on the investigation process from CEWA. Jeb told me that my predecessor took the same advice from the same people and that I ‘saw what happened to him and where he is now’. I told Jeb that what he was saying to me felt like a ‘threat’. Jeb told me that he worked for God and he did not feel compelled to take someone else’s ‘recommendation, suggestions or orders’. Jeb asked if he could give his response earlier than we asked for it as it was a ‘simple situation’ that was ‘blown out of proportion’.”
Later the same day Mr Hendricks sent an email to Mr Collins in which he stated:[85]
“The truth is I don’t believe Debra Sayce or Dalton Ryan or CEWA care about you or anyone beneath them. I do care about you. I care about everyone including Debra and Dalton and I have communicated with them several times.
… The truth is I believe you have alienated many of the staff by your actions with several of our peers. You probably received advice from Dalton/CEWA on these matters. I cannot say if the advise is good or bad, but it has left you many disgruntled staff and some holes in staffing as well. I am only going to communicate the truth as that is my purpose. I will write letters and e-mails until good prevails, not necessarily for me, but for the community. Your predecessor was dropped by CEWA because of CEWA’s own inadequacies (advice/policies/etc) and CEWA showed how much it cared for his decades of service…”
Mr Hendricks responded to the Allegations by letter dated 4 July 2022 (Investigation Response). [86] He described the incident as follows:[87]
“j. At that time, I was behind and on the student's left. I reached up with my right hand to slow the student's progress by taking hold of the backpack. I did not jerk or pull but used just enough force to manoeuvre myself between her and the other students and the direction in which we were heading. I could not be sure if the student still had the stick in her hand.
k. The student immediate screamed at me "don't touch or pull my hair''.I. I paused very briefly, assessed the situation recognizing the student has little respect for authority (she had a nose ring as well as dismissing teacher's instruction).
m. In a commanding voice I made three things clear:i. I did not pull your hair
ii. You will stop throwing objects at students
iii. You will comply with teacher instructions
n. I have no recollection of touching the student's body in any way but cannot completely rule it out as I may have intuitively responded to a student action. I do not recall feeling any immediately physical threat to which I may have responded intuitively because of previous training. However, I am confident I did not touch or hold the student's arms.
o. The entire incident lasted for about one to two minutes, and everyone returned normally to IMCC.”
Mr Hendricks explained that he was aware that the Perth District Court had earlier that year found a teacher negligent when a student received a permanent eye injury from an object thrown by another student. He asserted that he had acted in accordance with the Court’s decision. He insisted that his actions were necessary and appropriate and that the Incident did not merit an investigation into teacher misconduct.
Mr Hendricks signed the letter “Commander, USN (ret)” it would appear in an effort to intimidate Mr Collins.[88]
On 5 July 2022 Mr Hendricks sent an email to Dr Sayce containing a formal complaint about Mr Collins’ handling of the Investigation. Mr Hendricks copied Mr Collins and Mr Billingsley into the correspondence.[89]
On 5 July 2022 Mr Hendricks raised with the FWC a concern that his standdown and the related directions in relation to confidentiality would impede his ability to prepare and file his materials with respect to his First Application.[90]
On 5 July 2022 CEWA’s lawyers confirmed in writing to Commissioner Williams’ Chambers and Mr Hendricks that:[91]
“…the reference to confidentiality is confined to the present investigation of the applicant’s conduct and does not restrict him from regular conversations with people (unrelated to the investigation).
We are also instructed that the direction to adhere to confidentiality only relates to the present investigation and is not intended for the unfair dismissal application…”
Following a conference held on 5 July 2022 by the FWC in relation to the First Application, Mr Ryan confirmed in writing the agreed outcomes. In relation to confidentiality, he recorded that:[92]
“…It is confirmed that the confidentiality around the current investigation commenced on 30 June 2022 (Investigation) does not preclude you from having the following conversations:
(a) with individuals regarding your unfair dismissal application in the Fair Work Commission U2022/832;
(b) with any advisors or advocates engaged by you, or any support persons nominated by you, as part of the Investigation; and
(c) with individuals on matters, such as social or private matters, unrelated to the lnvestigation...”
On 20 July 2022 a parent sent Mr Hendricks an email providing health information about a student and noting that she had copied the correspondence to two other teachers. Contrary to the instruction to keep the Investigation confidential Mr Hendricks responded, as follows:[93]
“The school and I are currently working through an issue at the moment. Until that is resolved I will not be at school”
Mr Billingsley considered the evidence available to him and on 22 July 2022 provided his investigation report to Mr Collins (Investigation Report). The Investigation Report was through and detailed. It identified the source of all evidence and summarised the evidence, distilled the allegations from that evidence, identified potential contractual and common law breaches, identified, and applied the relevant investigation procedural guidelines, set out summaries of findings and made recommendations. [94]
The Investigation Report noted that Mr Hendricks provided comprehensive and detailed recollections of parts of the incident such as the weight and length of the stone and stick. However, he could not recall with any precision aspects which potentially constituted misconduct such as whether he touched the backpack once or twice, or whether he touched the student on any occasion. [95]
Based on the findings of the Investigation and Mr Hendricks’ existing disciplinary history, the Investigation Report recommended that Mr Collins review Mr Hendricks’ suitability for ongoing employment. [96]
On Tuesday 26 July 2022 Mr Collins and Mr Billingsley met with Mr Hendricks and his support person Mr Summers to discuss the findings of the Investigation and to provide Mr Hendricks with the opportunity to respond to the findings.
Mr Collins handed Mr Hendricks a letter (Show Cause Letter) explaining that the Investigation found on the balance of probabilities that Mr Hendricks had (Allegations):
a.made forceful physical contact with a female student’s bag twice while the student was carrying the bag on her back and the second time the applicant grabbed the student’s hair by pulling it;
b.placed both his hands on the student physically holding her while engaging in a loud, heated, verbal exchange in close proximity; and
c.refused to comply with a lawful and reasonable direction to leave the College grounds, until after Mr Collins informed Mr Hendricks that he would contact the police.
Mr Hendricks was invited to show cause why his employment should not be terminated by Friday 29 July 2022.[97]
Later, on 26 July 2023 Mr Hendricks sent an email to Mr Collins asserting that he would not provide a response to the Allegations until he was provided with copies of the witness statements.[98]
Mr Collins subsequently offered to extend the date to show cause to 5:00 PM on 1 August 2022.[99]
On 1 August 2022, Mr Hendricks provided a response denying the Allegations (Show Cause Response). [100] Mr Hendricks’ response is summarised as follows:
a.He was critical that more students were not interviewed and that he was not informed of the identity of the student witnesses.
b.He conceded that Ms Viljoen did arrive towards the end of the Incident.
c.In addition to the previous information he provided about the Incident, he added that he now recalled the student touching her hair when he spoke to her and therefore he asserted that could not have been touching her shoulder or arms.
d.Earlier in the response he stated that in grabbing the students bag he may have inadvertently grabbed some of her hair but did not intentionally do so. Later in his response he concedes that it was “likely that some strands” of her hair were pulled.
e.Earlier in the response, he conceded that some physical contact may have occurred when he tried to move between the female student and the two other students walking with her but insisted that he did not hold or touch the students shoulders or arms. Elsewhere in the response, he categorically states that “At no time did I touch the claimant”.
f.He asserted that his refusal to leave the school when directed by Mr Collins was less serious than characterised in the Investigation Report.
g.He pointed out that he had and continued to dispute the validity of his prior disciplinary warnings.
He went on to state:[101]
“7. To perform my responsibilities as a teacher, I used the minimum of force necessary to ensure a duty of care for all students. I am fortunate to be uniquely qualified to make and execute these decisions based upon my training and experience from 2002 - 2005 when I was assigned to Law Enforcement Physical Security Unit 0188.
8. Ultimately, the complainant made several bad choices leading up to this point including disregarding a teacher's (my) direct instruction multiple times. Had any of these choices not occurred, none of what happened would have been necessary.
9. Based on my review of the investigation findings and my understanding of a teacher's responsibilities I performed my job well though some strands of hair may have been unintentionally caught up in the situation. As such, no misconduct occurred on my part. The complainant's misconduct, however, is obvious.”
On 3 August 2022 Commissioner Williams heard the First Application. [102]
On 5 August 2022 Mr Collins and Mr Billingsley met with Mr Hendricks and Mr Summer to inform him that IMCC had determined to dismiss Mr Hendricks for serious misconduct (without notice) and provide him with a letter confirming the termination of his employment (Termination Letter). [103]
The Termination Letter identifies the reasons for dismissal as: [104]
a.The substantiation of the allegations that he restrained a student, pulled her hair and yelled at her.
b.Contrary to lawful and reasonable direction not to do so communicated with members of the school community following his stand down on 20 July 2022 by accessing the Colleges SEQTA system and sending emails to the school community.
The Termination Letter notes that the decision to terminate took into account Mr Hendricks’ prior disciplinary warnings.[105]
On 2 November 2022 Mr Hendricks sent an email to an unknown number of parents of students of the IMCC asking for support for his case and saying that the College:[106]
“For the akward part; my departure from IMCC was not voluntary and is heading towards resolution at the Fair Work Commission (FWC). IMCC has worked very hard to besmirch my reputation to justify their actions .. Believe me, I am not the only teachers that has been harmed by the school’s leaders (sic) tactics. Three other staff were forced to quite for unfair reasons during Semester 1 this year and several others in 2021. I. on the other hand, refused to resign and chose to fight against what I felt were immoral actions … I am grateful for the opportunity to serve you and your kids to the best of my ability …”
IMCC became aware of the email after receiving complaints from parents about being contacted by Mr Hendricks after his departure from the school.[107]
Mr Hendricks seeks reinstatement and orders that his service be deemed continuous from the date of his termination. He also seeks orders that he be paid an amount for the remuneration lost because of the dismissal.[108]
Alternatively, Mr Hendricks seeks an order for payment of compensation in accordance with sections 390(3) and 392 of the FW Act up to the maximum allowable. He asserts that he has been unable to secure any alternative employment since his dismissal.
Mr Collins says that he has lost trust and confidence in Mr Hendricks’ capacity to operate effectively as part of the teaching staff given his behaviour over the last few years. His evidence is that Mr Hendricks ought to be able to easily secure alternative employment because of the high demand for mathematics teachers. For example, Mr Collins says at the time he prepared his witness statement there were 79 and 450 positions for teachers being advertised on SEEK and on the Education Department websites respectively.[109]
Is Mr Hendricks protected from unfair dismissal?
An order for reinstatement or compensation may only be issued if Mr Hendricks was unfairly dismissed and Mr Hendricks was protected from unfair dismissal at the time of his dismissal.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
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; and
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 Fair Work Regulations 2009 (Cth) (Regulations), is less than the high income threshold.
For the purposes of Part 3-2 of the FW Act an ‘employee’ means an employee of a national system employer. There is no dispute and I am satisfied that CEWA is a national system employee and Mr Hendricks is therefore a national system employee.
If the employer is not a small business, the ‘minimum employment period’ is six months ending at the earlier of the following times:[110]
a.the time when the person is given notice of the dismissal; or
b.immediately before the dismissal.
There is no dispute,[111] and I am satisfied, that CEWA is not a small business employer for the purposes of section 383 of the FW Act.
Mr Hendricks commenced employment with CEWA on 1 January 2019.[112] Mr Hendricks was dismissed on 5 August 2022. [113]
I am therefore satisfied that, at the time of dismissal, Mr Hendricks was an employee who had completed a period of employment of at least the minimum employment period.
There is no dispute, and I am satisfied, that the Agreement applied to his employment at the time of his dismissal.[114] Consequently, I am satisfied that Mr Hendricks was protected from unfair dismissal.
Was Mr Hendricks unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a.the person has been dismissed;
b.the dismissal was harsh, unjust or unreasonable;
c.the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d.the dismissal was not a case of genuine redundancy.
Was Mr Hendricks dismissed?
Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
There was no dispute, and I find, that Mr Hendricks’s employment with CEWA was terminated at the initiative of CEWA.[115]
I am therefore satisfied that Mr Hendricks has been dismissed within the meaning of section 385 of the FW Act.
Was Mr Hendricks’ dismissal a case of genuine redundancy?
Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
a.the 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.
It was not in dispute,[116] and I find, that Mr Hendricks’s dismissal was not due to CEWA no longer requiring his job to be performed by anyone because of changes in CEWA’s operational requirements.
I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Was Mr Hendricks’s dismissal consistent with the Small Business Fair Dismissal Code?
Section 388 of the FW Act provides that a person’s dismissal is consistent with the Small Business Fair Dismissal (SBFD) Code if:
a.immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
b.the employer complied with the SBFD Code in relation to the dismissal.
It was not in dispute,[117] and I find, that CEWA was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of fourteen (14) employees.
As CEWA is not a small business employer within the meaning of the FW Act, I am satisfied that the SBFD Code does not apply to Mr Hendricks’s dismissal.
Was the Application made within the period required?
Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.
Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.
It is not disputed, and I find, that Mr Hendricks was dismissed from his employment on 5 August 2022[118] and made the Application on 26 August 2022[119]. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
Was the dismissal harsh, unjust or unreasonable?
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 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.”[120]
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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);
b.whether the person was notified of that reason;
c.whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
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;
e.if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
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;
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.
Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.[121]
Was there a valid reason for the dismissal related to Mr Hendricks’ capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[122] and should not be “capricious, fanciful, spiteful or prejudiced.”[123] It is not the role of the FWC to stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.[124]
The employer carries the onus of establishing a valid reason.[125]
CEWA identify its reasons for dismissing Mr Hendricks as follows:
a. his engagement in physical and forceful conduct with a young female student;
b. his engagement in a loud, heated verbal exchange with the student in public;
c. his refusal to comply with a lawful and reasonable direction to leave school premises after being stood down;
d. his breach of a lawful and reasonable direction to not communicate with school community members during his stand down.
Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.[126] The question of whether the alleged conduct took place and what it involved is to be determined by the FWC on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[127]
Did the conduct occur?
On the evidence before me I find that on Friday 24 June 2022 an incident occurred on a footpath alongside a public road which ultimately resulted in a female student making a complaint about Mr Hendricks. The incident was of sufficient seriousness for the student to immediately locate a more senior teacher and insist that she be allowed to report the incident to her. [128]
Mr Hendricks acknowledges that an interaction occurred of the general nature described by the student. There is nothing to suggest that the student made the report falsely, maliciously or with some other agenda.
The student without prompting reported to Ms White that she had done something wrong and accepted that it was appropriate that she be verbally disciplined. When interviewed the student proffered that she had swore at Mr Hendricks. [129] To the extent that the student provided more details when interviewed those details included aspects which reflected adversely on the student. [130] I therefore accept the credibility of the subsequent witness statement obtained by Ms White from the student. The evidence is that Mr Hendricks did not know the student prior to the incident. Mr Hendricks’ evidence is that he did not intend to take any further disciplinary action against the student in relation to the incident. There is no other evidence to suggest any motivation for the student to make up the incident or over dramatise the incident.
There is no evidence to suggest collusion between the student witnesses. While the female student witnesses are described as friends of the female student no such relationship is ascribed to the male student witnesses. The student witnesses gave evidence adverse to the female student including that she swore at Mr Hendricks and yelled at him. Evidence that would most likely have disciplinary consequences for the student. The student witness evidence is corroborative without being so similar to suggest collusion.
There is no explanation proffered by Mr Hendricks as to why the teacher witnesses would provide untruthful or over dramatised evidence. The evidence of the teacher witnesses is consistent with each other and with the evidence of the students.
Mr Hendricks is critical of the Investigation on the basis that additional witnesses were not interviewed.[131] The evidence suggests that the witnesses who were interviewed were the closest in physical proximity to the Incident and most likely to have observed and recall the Incident. There is no evidence to suggest that other students or teachers present would have provided different evidence. Mr Hendricks chose not to call any such witnesses.
While there is no other evidence to suggest any motivation for the student to make up or over dramatize the incident. Mr Hendricks’ own evidence discloses motivations consistent with the allegations about his conduct. Firstly he admits he may have responded intuitively because of his training (presumably a reference to his military training and/or experiences). [132] Secondly his stereotyping of the student as having little respect for authority because of her nose ring. [133] This is consistent with the student’s report that Mr Hendricks told her not to disrespect him. [134] While Mr Hendricks’ familiarity with Sidhoum v Minister for Education [2022] WADC 35 might provide a explanation for him intervening in the student’s conduct it does not provide justification for physical intervention or verbal aggression of the nature alleged.
On the evidence before me I find that Mr Hendricks restrained the student in a physical and forceful way in a public place. Mr Hendricks concedes that he restrained the student.[135] He concedes that the student immediately claimed he pulled her hair and concedes that he might have done so, albeit inadvertently. [136] Only minutes after the incident the student reported she had been physically restrained and her hair had been pulled. [137] Her evidence in her subsequent witness statement was consistent with her original report. [138] Contemporaneously, Ms McGaw reported that an inappropriate interaction had occurred.[139] When interviewed she confirmed that she heard the female student say her hair had been pulled. Most concerningly, she reported that it appeared that a physical fight was imminent. [140]
When interviewed, the student witnesses reported that Mr Hendricks grabbed the student’s bag with force and restrained her. They also report that he grabbed her hair and that the student had made reference to her hair being pulled. [141] The teacher witnesses all report hearing the female student accuse Mr Hendricks of pulling her hair. Mr Hendricks concedes that he cannot rule out that he touched the student’s body or that he may have pulled her hair. [142]
On the evidence before me I find that Mr Hendricks engaged in a loud, heated verbal exchange with the student in a public place. Mr Hendricks concedes that he engaged in a loud verbal exchange.[143]
When interviewed the student reported a heated exchange with Mr Hendricks close to her face.[144] This is consistent with Ms McGaw’s contemporaneous evidence as well as the evidence she gave when interviewed.[145] The student witnesses reported Mr Hendricks yelling at the female student and screaming into her face. [146] Both Ms Viljoen and Mr Mazzini when interviewed confirmed that they observed Mr Hendricks yelling at the student in close physical proximity to her. [147]
Mr Billingsley and Mr Collins met with Mr Hendricks on 30 June 2022 and informed Mr Hendricks he would be stood down on full pay pending an investigation into the complaint.[148] There is no doubt that Mr Hendricks was and remains affronted by the allegations.[149] Mr Hendricks concedes that he insisted that he could not be lawfully stood down.
I accept Mr Collins evidence that Mr Hendricks told Mr Collins that Mr Collins could not tell him what to do. He also reports that Mr Hendricks’ body language and verbal tone suggested defiance and anger,[150] I accept Mr Collins evidence that Mr Hendricks stated that there were people “on his list” and that if Mr Collins proceeded with standing him down Mr Collins would be added to “his list”.[151] This is consistent with other evidence before me that Mr Hendricks had in the course of earlier interactions with the executive of the school and of CEWA formed the view that he was being victimised and was keeping a list of the purported culprits.
While Mr Hendricks did eventually leave the school of his own volition I am satisfied that his response to his stand down was intended to intimidate Mr Collins with the goal to have the instruction retracted.[152] I accept that Mr Collins genuinely formed the view that Mr Hendricks was not going to leave voluntarily. This is consistent with the evidence that Mr Collins sought advice as to how Mr Hendricks could be removed from the school forcibly.
In relation to confidentiality, the Stand Down Letter directed that Mr Hendricks maintain confidentiality in relation to the Incident while an investigation was undertaken. [153]
“While you are stood down, you are directed to refrain from any contact or communication with students, parents and other staff members on any aspect in relation to both the College and CEWA Ltd. This is in line with standard procedure.
Confidentiality and Support
I take this opportunity to remind you that this process is strictly confidential and must not be discussed with anyone, whether involved in the process or not. Any breach of confidentiality will be taken seriously and investigated thoroughly.”
In relation to confidentiality the Allegation Letter stated:[154]
“Confidentiality and Support
I take this opportunity to remind you that this process is strictly confidential and
must not be discussed with anyone, whether involved in the process or not. However, it is understood that you may wish to consult with your nominated support person or advocate. Any breach of confidentiality will be taken very seriously.”
On 20 July 2022 a parent sent Mr Hendricks an email providing health information about a student and noting that she had copied the correspondence to two other teachers. Mr Hendricks responded as follows:[155]
“The school and I are currently working through an issue at the moment. Until that is resolved I will not be at school”
Mr Hendricks asserts that his correspondence was not in breach of the instruction to keep the Investigation confidential because Mr Collins informed him in writing on 1 July 2022 that the confidentiality obligation did not restrict him from having ‘regular conversations with people.’
Given that the parent had copied other teachers into the correspondence, and he was stood down from teaching it would not appear strictly necessary for Mr Hendricks to respond to the communication at all. However, to the extent courtesy required that he did so Mr Hendricks could have simply acknowledged the communication. It was entirely unnecessary for him to explain why he was not at school. The fact that there ‘was an issue between him and the school was precisely the category of information he was directed not to share. It is not a ‘regular conversation’ as contemplated by the exceptions to confidentiality conveyed by Mr Collins to Mr Hendricks.
Mr Hendricks also asserts that his correspondence was not in breach of the instruction to keep the Investigation confidential because of an email, dated 5 July 2022, from CEWA’s solicitors to the FWC[156] and a letter from Mr Ryan dated 8 July 2022[157].
In the 5 July 2022 correspondence CEWA’s lawyers confirmed in writing to Chambers and Mr Hendricks that:[158]
“Dear Associate
Ahead of today’s 2pm hearing, we attach an email chain from the respondent to the applicant ending 1 July 2022.
That confirms that the reference to confidentiality is confined to the present investigation of the applicant’s conduct and does not restrict him from regular conversations with people (unrelated to the investigation).
We are also instructed that the direction to adhere to confidentiality only relates to the present investigation and is not intended for the unfair dismissal application”
Following a conference held on 5 July 2022 by the FWC in relation to the First Application Mr Ryan confirmed in writing the agreed outcomes. In relation to confidentiality he recorded that:[159]
“Confidentiality
It is confirmed that the confidentiality around the current investigation commenced on 30 June 2022(Investigation) does not preclude you from having the following conversations:
(d) with individuals regarding your unfair dismissal application in the Fair Work Commission U2022/832;
(e) with any advisors or advocates engaged by you, or any support persons nominated by you, as part of the Investigation: and
(f) with individuals on matters, such as social or private matters, unrelated to the lnvestigation.”
The carve outs of confidentiality in both these letters are extremely limited. Mr Hendrick’s communication with the parent was not for social or private matters. The reference to the reason for his absence from work was directly related to the Investigation and clearly within the scope of the confidentiality restriction.
Did the conduct justify termination?
In signing the Employment Contract Mr Hendricks agreed to comply with all CEWA and IMCC policies.[160]
The school’s Code of Conduct makes child safety paramount. For example, the aim of the Code is described as follows:[161]
“1.Aim
Child safety, including physical, social and emotional well-being, is of paramount
importance when carrying out all functions and activities within the College. In fulfilling our responsibilities, all staff have a duty of care for students’ safety and well-being, which is often described as ‘a level of care that is greater than that of a reasonable expert. To meet this obligation, staff must adopt a code of conduct that meets the highest professional standards whenever or wherever a staff-student relationship exists. The purpose of the Code of Conduct is to describe minimum standards of conduct in all behaviour and decision making to ensure the safety and well-being of students.”
The Code goes on to state that:[162]
“The Principal expects you to conduct yourself personally and professionally in a way that maintains public trust and confidence in you, your school and the Church.
You have a responsibility to students and their family, other members of the school community and the wider community to provide and support safe and competent education and care of students.
You acknowledge the inherent vulnerability of the students in your care.”
…………
“You ensure the safety and well-being of students are the primary focus of your actions and decisions and take precedence over any other considerations including the reputation of the school and your own needs.”[163]
Employers are entitled to implement lawful and reasonable policies designed to protect their operations and have a legitimate interest in ensuring that those policies are observed by employees. A failure to observe such a policy constitutes a breach of a fundamental term of the contract of employment.[164]
Mr Hendricks says that his conduct was not in breach of any relevant policies, was appropriate and was justified because he had a duty of care to stop students throwing objects at other students. While Mr Hendricks’ familiarity with Sidhoum v Minister for Education [2022] WADC 35 might provide a plausible explanation for intervening in the female student’s conduct, it does not provide justification for physical intervention or verbal aggression of the nature engaged in by Mr Hendricks.
It is important to note that Sidhoum v Minister for Education[165] involved vastly different circumstances. In that case, a majority of boys in a classroom were loudly arguing, were refusing to participate in class, and began throwing computer stands at each other.
Mr Hendricks says that his conduct was consistent with the Western Australian Department of Education document entitled “Physical Contact with Students”.[166] The document does not apply to Mr Hendricks or CEWA as an employee and an employer in the private school system. In any event the document confirms that physical contact is not to be used to discipline students, nor is it an appropriate response to “bad behaviour” or as a method of forcing compliance. Relevantly, the document notes that it is not appropriate to grab a student to ensure they comply with directions.
While there may be circumstances in which intentional physical contact by a teacher to restrain a student may be appropriate those circumstances are limited. Those limited number of circumstances narrow as student age increases and their capacity to comprehend and respond to verbal instructions improves. The contact should not exceed the minimum necessary in the circumstances. It is difficult to envision circumstances in which engaging in verbal altercation with a raised voice with a student at close proximity might be appropriate. Given the physical proximity of the student there appears to be no reason why it would be necessary or appropriate for Mr Hendricks to raise his voice.
Mr Hendricks is not a young and inexperienced teacher who might easily become flustered or who had not had the opportunity to have established his authority among the student cohort. Mr Hendricks is a man of maturity and solid build. He has been a teacher for some time and is not new to the school. His physical size, speech and the manner in which he carries himself gives an air of authority. The student with whom he engaged was a fifteen year-old Indigenous girl. He did not know the student, so had no reason to presume that she had behavioural difficulties which might require assertive restraint. In the circumstances of this case, I do not accept that the physical intervention or verbal aggression engaged in by Mr Hendricks was appropriate or necessary. Nor was it consistent with the relevant policies by which he was bound.
While Mr Hendricks did eventually leave the school of his own volition, I am satisfied that his response to his stand down was intended to intimidate Mr Collins with the goal to have the instruction retracted. Mr Hendricks’ communication with the parent was not for social or private matters. The reference to the reason for his absence from work was directly related to the Investigation and clearly within the scope of the confidentiality restriction. Both incidents are part of a pattern of conduct engaged in by Mr Hendricks throughout the course of his employment of attempting to have directions and decisions with which he did not agree retracted by intimidation or embarrassment by being circulated to a wider audience.
Based on the evidence before me and the submissions of the parties for the reasons above, I find that valid reasons existed for Mr Hendricks’ dismissal.
Was Mr Hendricks notified of the valid reason?
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[167] and in explicit,[168] plain and clear terms.[169]
Mr Collins and Mr Billingsley met with Mr Hendricks on 30 June 2022 to alert him to the Allegations.[170]
Particulars of the Allegations were put to Mr Hendricks in writing on 1 July 2022 in the Allegations Letter.[171]
On Tuesday 26 July 2022 Mr Collins and Mr Billingsley met with Mr Hendricks and his support person Mr Tony Summers another teacher at the school to discuss the findings of the Investigation and to provide Mr Hendricks with the opportunity to respond to the findings.[172] Mr Collins handed Mr Hendricks the Show Cause Letter which set out the findings of the Investigation.[173]
On 5 August 2022 Mr Collins and Mr Billingsley met with Mr Hendricks and Mr Summer to inform him that IMCC had determined to dismiss Mr Hendricks for serious misconduct. The reasons for dismissal were confirmed in writing in the Termination Letter. [174]
I am satisfied that Mr Hendricks was notified of the reasons for his dismissal before the decision was made to terminate his employment.
Was Mr Hendricks given an opportunity to respond to any valid reason related to his capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[175]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[176] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[177]
Mr Billingsley and Mr Collins met with Mr Hendricks on 30 June 2022 and informed Mr Hendricks that a complaint had been made about his conduct and that he would be stood down on full pay pending an investigation into the complaint.[178]
On 1 July 2022 the particulars of the allegations were provided in writing to Mr Hendricks in the Allegation Letter. The Allegation Letter invited Mr Hendricks to provide a response by 20 July 2023.
Mr Hendricks responded to the Allegations on 4 July 2022 in his Investigation Response.[179]
Mr Billingsley considered all the evidence available to him and on 22 July 2022 provided the Investigation Report to Mr Collins (Investigation Report). The Investigation Report was thorough and detailed. It identified the source of all evidence and summarised the evidence; distilled the allegations from that evidence; identified potential contractual and common law breaches; identified and applied the relevant investigation procedural guidelines; and set out summaries of findings and made recommendations. [180]
On Tuesday 26 July 2022 Mr Collins and Mr Billingsley met with Mr Hendricks and his support person Mr Tony Summers another teacher at the school to discuss the findings of the Investigation and to provide Mr Hendricks with the opportunity to respond to the findings. Mr Hendricks was provided with the Show Cause Letter which set out the findings of the Investigation and invited Mr Hendricks to show cause why his employment should not be terminated by Friday 29 July 2022.[181]
Mr Collins subsequently offered to extend the date to show cause to 5pm on 1 August 2022.[182]
On 1 August 2022 Mr Hendricks provided his response to the Show Cause Letter by way of the Show Cause Response.[183]
On the evidence before me I am satisfied, that Mr Hendricks was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did CEWA unreasonably refuse to allow Mr Hendricks to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” [184]
Mr Hendricks was accompanied by a support person to the meetings held on 26 July 2022 and 1 August 2022. He says that the lack of support person at the 30 June 2022 meeting at which he was informed of his stand down weighs in favour of his dismissal being unfair.
Mr Hendricks was not denied a support person at the 30 June 2022 meeting. On his own evidence he was aware that he was entitled to have a support person present if he wished. He acknowledges he was told whether he chose to do so was a matter for him.[185] There is no evidence to suggest that he was prevented having a support person present.
I am satisfied that CEWA did not unreasonably refuse to allow Mr Hendricks to have a support person present at discussions relating to his dismissal. This consideration is therefore neutral in this Application.
Was Mr Hendricks warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this consideration is not relevant to this Application.[186]
To what degree would the size of CEWA’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.[187]
CEWA is a large business.[188]
I am satisfied that the procedures followed by CEWA were appropriate having regard to the size of its enterprise. This consideration is therefore neutral in this Application.
To what degree would the absence of dedicated human resource management specialists or expertise in CEWA’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
The absence of dedicated human resource management specialists does not relieve an employer extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”[189]
CEWA’s enterprise did not lack dedicated human resource management specialists and expertise.[190]
I am satisfied that the procedures followed by CEWA were appropriate having regard to the fact that it had access to dedicated human resource management specialists and expertise. This consideration is therefore neutral in this Application.
What other matters are relevant?
Section 387(h) of the FW Act requires the FWC to take into account any other matters that the FWC considers relevant to determining whether the dismissal was harsh, unjust or unreasonable.
Mr Hendricks alleges that Ms White and Mr Billingsley made false statements in the hearing of the First Application. He says that this led Commissioner Williams to make errors of fact in his decision and that I should attach limited weight to their evidence in these proceedings.
My assessment of Ms White and in particular Mr Billingsley was that they appeared to be honest and credible witnesses.
Mr Hendricks asserts that he has been the subject of ongoing victimisation at the hands of CEWA and his superiors at IMCC.
Mr Hendricks initially asserted that he was treated inconsistently to other employees of IMCC and sought production of documents which might support this assertion. CEWA provided details of nine separate serious misconduct investigation which it undertook between 2021 and 2022. Three involved Mr Hendricks, one related to Mr Summers and five related to other employees. Mr Hendricks concedes that these documents reveal that he was treated no differently than the other employees. He now argues that these materials instead reveal that CEWA’s misconduct investigations are systematically procedurally unfair.
Mr Hendricks has been in almost continual battle with his superiors and employer since he commenced employment at IMCC.
He has accused his immediate superiors of widescale dishonesty in the sworn evidence they have given in these proceedings and in the First Application. While submitting that any negative or adverse comment they might make is untruthful he simultaneously says any positive comments should to be treated as truthful. He has accused his employer of corruption, attributing findings in the Royal Commission to the current incumbent decision makers: Mr Hendricks is convinced that he is being victimised. He assesses the conduct of his superiors at ICMM and CEWA through this lens and seems unable to view events objectively in particular the appropriateness of his own behaviour.
The manner in which he has ventilated his differences with his superiors and his employers has made his ongoing employment unsustainable.
Conclusion
I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.
I have considered and given due weight to each factor as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Hendricks was not harsh, unjust or unreasonable.
Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Hendricks was unfairly dismissed within the meaning of section 385 of the FW Act. The Application is therefore dismissed.
An Order[191] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr J Hendricks, for the Applicant.
Mr C Beetham, for the Respondent.
Hearing details:
2023
PERTH
8 February
Final written submissions:
Respondent’s final written submissions filed 2 March 2023.
Applicant’s final written submissions filed 23 February 2023.
[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB) 264-274.
[3] Ibid 1983-1986.
[4] Ibid 2042-2048.
[5] Ibid 2057-2093.
[6] Ibid 2094-2104.
[7] Ibid 2200-2201.
[8] FWC Transcript of Proceedings, 8 February 2023, 22 at [PN198] (Binet DP).
[9] DCB (n 3) 10; 2202.
[10] Ibid 2078.
[11] Ibid 10; 2202.
[12] Ibid 2203 - 2255.
[13] Ibid 10; 2202.
[14] Ibid 519-521.
[15] Ibid 11.
[16] Ibid 338.
[17] Ibid 11.
[18] Ibid 11.
[19] Ibid.
[20] Ibid.
[21] Ibid 11; 266.
[22] Ibid 12.
[23] Ibid.
[24] Ibid 341-342.
[25] Ibid 13.
[26] Ibid 344.
[27] Ibid 13; 266.
[28] Ibid 13.
[29] Ibid 13; 528-529; 266.
[30] Applicant’s Closing Submissions filed on 23 February 2023, at [b.1] (Applicant's Closing Submissions).
[31] DCB (n 3) 13; 266.
[32] Ibid 14; 525, 521; 528.
[33] Ibid 14; 267.
[34] Ibid 15; 2269-2271.
[35] Ibid 15; 2183-2184.
[36] Ibid 532.
[37] Ibid 324.
[38] Ibid 268.
[39] Ibid 533; 15; 14.
[40] Ibid 15.
[41] Ibid 2256; 15; 533.
[42] Applicant’s Closing Submissions filed on 23 February 2023 at [c.1].
[43] DCB (n 3) 325-326.
[44] Ibid 334-335.
[45] Ibid 15; 2092; 2185; 336
[46] Ibid 336.
[47] Applicant’s Closing Submissions (n 31) at [d.2].
[48] DCB (n 3) 15.
[49] Jeb Hendricks v Catholic Education Western Australia[2022] FWC 2702.
[50] Ibid, 31, [229].
[51] DCB (n 3) 269.
[52] Ibid 2042-2043.
[53] Ibid 573, [19].
[54] Ibid.
[55] Ibid 2075-2076.
[56] Ibid 15; 2043-2044.
[57] Ibid 2057.
[58] Ibid 2044.
[59] Ibid 2044-2045.
[60] Ibid 2049.
[61] Ibid.
[62] Ibid 2050.
[63] Ibid 2045.
[64] Ibid 2046; 2051.
[65] Ibid 2046; 2052.
[66] Ibid 2046.
[67] Ibid 2053; 2054.
[68] Ibid 2047; 2055.
[69] Ibid 2047; 2056.
[70] Ibid 2058; 2095.
[71] Ibid 2096; 2134.
[72] Ibid 16.,
[73] Ibid 2096.
[74] Ibid 2058; 2096; 2134.
[75] Ibid 2059; 2134.
[76] Ibid.
[77] Ibid.
[78] Ibid 2059; 2134.
[79] Ibid 16; 2097; 2135.
[80] Ibid 2097; 2138 -2140.
[81] Ibid 15; 2098.
[82] Ibid 16; 2057-2058; 2142-2144.
[83] Ibid 2144.
[84] Ibid 2098.
[85] Ibid 2147.
[86] Ibid 16; 2075-2078.
[87] Ibid 2075-2076.
[88] Ibid 2078.
[89] Ibid 2100; 2153-2154.
[90] Ibid 218; 270.
[91] Ibid 560.
[92] Ibid 565.
[93] Ibid 2155.
[94] Ibid 2079-2087.
[95] Ibid.
[96] Ibid.
[97] Ibid 16; 2062; 2100.
[98] Ibid 2174-2175.
[99] Ibid 16; 2062; 2100.
[100] Ibid 16; 2088-2091.
[101] Ibid 2089.
[102] Ibid 16; 1855–1982.
[103] Ibid 16; 22; 2062–2063.
[104] Ibid.
[105] Ibid 2186.
[106] Ibid 2063; 2093.
[107] Ibid 2064.
[108] Ibid 66.
[109] Ibid 2103; 2188 –2199.
[110] Fair Work Act 2009 (Cth) s 383.
[111] DCB (n 8) 2304; Applicant’s Closing Submissions (n 31) at [4].
[112] Ibid 10.
[113] Ibid 16
[114] Ibid 499; CEWA Group Enterprise Agreement 2019.
[115] Ibid 2034, Applicant’s Closing Submissions (n 31) at [4].
[116] Ibid.
[117] Ibid.
[118] Ibid 16.
[119] Ibid 10.
[120] (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).
[121] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), (Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[122] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[123] Ibid.
[124] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[125] Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243.
[126] Edwards v Justice Giudice (1999) 94 FCR 561, 565 [7] (Moore J).
[127] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23] – [24].
[128] DCB (n 3) 15; 2043–2044.
[129] Ibid 2050.
[130] Ibid.
[131] Applicant’s Closing Submissions (n 31) at [h.1-i.1]
[132] DCB (n 3) 2075–2076.
[133] Ibid.
[134] Ibid 2050.
[135] Ibid 2075–2076.
[136] Ibid.
[137] Ibid 15, 2043–2044.
[138] Ibid 2050.
[139] Ibid 15; 2043–2044.
[140] Ibid 2047; 2055.
[141] Ibid 2046; 2049; 2051–2052.
[142] Ibid 2075–2076.
[143] Mr Hendricks Closing Submissions (n 31) at [9.a.1].
[144] DCB (n 3) 2050.
[145] Ibid 15; 2043–2044.
[146] Ibid 2046; 2051–2052.
[147] Ibid 2054–2053; 2047; 2056.
[148] Ibid 16.
[149] Ibid 2096.
[150] Ibid 2058; 2096; 2134.
[151] Ibid 2058; 2096; 2134.
[152] See for example Ibid 2059; 2134.
[153] Ibid 16; 2097; 2135.
[154] Ibid 2144.
[155] Ibid 2155.
[156] Ibid 560.
[157] Ibid 565.
[158] Ibid 560.
[159] Ibid 565.
[160] Ibid 2022.
[161] Ibid 2105.
[162] Ibid.
[163] Ibid 2109.
[164] Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd[2009] AIRC 893 at [39];
8 B, C and D v Australian Postal Corporation [2013] FWCFB 6191; (2013) 238 IR 1 at [36].
[165] [2022] WADC 35.
[166] Applicant’s Closing Submissions (n 31) at [i.6].
[167] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73] .
[168] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[169] Ibid.
[170] DCB (n 3) 16.
[171] Ibid 100–101.
[172] Ibid 16.
[173] Ibid 16; 2062; 2100.
[174] Ibid 16; 22; 2062–2063.
[175] Crozier (n 168), 151 [75].
[176] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
[177] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
[178] DCB (n 3) 2096; 2134; 16.
[179] Ibid 16; 2075–2078.
[180] Ibid 2079–2087.
[181] Ibid 16; 2062; 2100.
[182] Ibid.
[183] Ibid 16; 2088–2091.
[184] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[185] DCB (n 3) 2154; Applicant’s Closing Submissions (n 31) at [iii3].
[186] See, eg, DCB (n 3) 24; Applicant’s Closing Submissions (n 31) at 18, [20].
[187] Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21–22 [68].
[188] DCB (n 3) 2039.
[189] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
[190] DCB (n 3) 2039.
[191] PR763646.
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