Mr Matthew Brown v Fitzgerald Memorial Aged Care Facility Ltd T/A Fitzgerald Aged Care
[2017] FWC 6580
•14 DECEMBER 2017
| [2017] FWC 6580 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Matthew Brown
v
Fitzgerald Memorial Aged Care Facility Ltd T/A Fitzgerald Aged Care
(U2017/8492)
DEPUTY PRESIDENT BOOTH | SYDNEY, 14 DECEMBER 2017 |
Application for an unfair dismissal remedy.
[1] Mr Matthew Brown was employed by Fitzgerald Memorial Aged Care Facility T/A Fitzgerald Aged Care (Fitzgerald) as a Maintenance Manager from 12 August 2015 until his employment ceased on 21 July 2017. Fitzgerald is a small 48 bed not-for-profit aged care facility and receives funding from the Commonwealth Government and from resident fees.
[2] Mr Brown has made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act (2009) Cth (the Act) for an unfair dismissal remedy.
[3] Fitzgerald objects to this application on the grounds that Mr Brown is not protected from unfair dismissal because he resigned from his employment, that is, he was not dismissed. 1
[4] The Act provides that a person is dismissed if their employment has been terminated on the employer’s initiative or they have resigned, but they were forced to do so because of conduct or a course of conduct engaged in by their employer. 2
[5] If I am satisfied that Mr Brown was not dismissed within the meaning of the Act then I must uphold Fitzgerald’s jurisdictional objection and dismiss Mr Brown’s application.
[6] If I am satisfied that Mr Brown was dismissed within the meaning of the Act then I must consider whether his dismissal was unfair. 3
[7] The threshold issue to be determined is whether or not Mr Brown was dismissed within the meaning of the Act.
[8] The hearing was conducted on 17 November 2017. Mr Brown was represented by Mr Rochfort, Senior Workplace Relations Advisor, from Rochforts Workplace Solutions, and Fitzgerald was represented by Ms Maynard, Solicitor from Maddocks Lawyers. Given the complexity of the jurisdictional objection, both parties were granted permission to appear pursuant to s.596 of the Act.
[9] Evidence was given by Mr Brown on his own behalf. Evidence was given for Fitzgerald by Ms Anna Whitney, Facility Manager, Ms Shelley Whalan, Financial and Administration Manager, Mr Bryan Smith, Acting Chairperson of the Board of Directors, and Ms Vicki Hall who works in administration at Fitzgerald.
Was Mr Brown dismissed?
[10] Section 394(1) of the Act provides that a “person who has been dismissed” may apply to the Commission for an order granting a remedy.
[11] Section 385 of the Act states as follows:
What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code: and
(d) the dismissal was not a case of genuine redundancy.
[12] Section 386 of the Act deals with the meaning of “dismissed”, as follows:
Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(a) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
[13] Fitzgerald submits that Mr Brown was not dismissed within the meaning of s.386 of the Act. Rather, it says that Mr Brown voluntarily resigned from his employment with Fitzgerald. Fitzgerald says Mr Brown gave verbal notice of his resignation on 9 May 2017 and advised that his last day of employment would be 1 June 2017. It also submits that Mr Brown’s resignation was not given in circumstances where he had no option but to resign, therefore the cessation of employment was not at the employer’s initiative. 4
[14] Mr Brown submits that at no time did he give notice of his resignation. 5 Mr Brown says that he expected to remain employed at Fitzgerald until such time he was ready to give formal notice of resignation, which would have been around November 2017.6 Mr Brown submits that he was called into a meeting on 20 July 2017 and was demanded to tender his resignation in writing or else he would be terminated.7 As such, Mr Brown submits that his employment was terminated on the initiative of his employer and is asking the Commission to award compensation for his alleged unfair dismissal.8
Background
[15] During his employment with Fitzgerald, Mr Brown lived in Blaxlands Ridge in New South Wales. On 6 April 2017, Mr Brown agreed to purchase a property at Tomerong on the South Coast of New South Wales, some three hours away from his place of employment. 9 The settlement date for the purchase of the Tomerong property was originally set for 2 June 2017.
8 May 2017
[16] On 8 May 2017, Mr Brown and Ms Whalan had an argument regarding the refurbishment of the Fitzgerald facility. Both parties are in dispute about what exactly was said during this discussion. Ms Whalan submits that Mr Brown gave verbal notice of his resignation and said words to the effect of: “I was going to resign and give four weeks’ notice but you can have it now, I’m finished.” 10 Mr Brown denies saying this to Ms Whalan.11
[17] During the course of Mr Brown’s cross examination however he does admit that “at some stage, possibly” he told Ms Whalan that he would be leaving his employment with Fitzgerald. 12
9 May 2017
[18] On 9 May 2017, it is agreed that Mr Brown spoke with Ms Whitney about the conflict he had with Ms Whalan on the previous day. It is Ms Whitney’s evidence that Mr Brown gave notice of his resignation during this conversation and advised: “I’m leaving the Hawkesbury and my last day here will be 1 June [2017].” 13 It is alleged that Mr Brown told Ms Whitney that he had put his property on the market and believed it would be a quick sale.14 Mr Brown denies resigning from his employment during this conversation with Ms Whitney.15
[19] Ms Whitney recorded Mr Brown’s advice regarding his notice of resignation in her diary on 9 May 2017 16 and then instructed Ms Whalan to advertise Mr Brown’s position of Maintenance Manager in order to find a replacement.17
[20] Ms Whalan confirms speaking with Ms Whitney on 9 May 2017 and following Ms Whitney’s advice that Mr Brown would be resigning from 1 June 2017 18, Ms Whalan emailed Fairfax Media in order to obtain a quote for an advertisement in the Hawksbury Gazette for the position of Maintenance Officer.19
[21] It was Mr Smith’s evidence that in or around the start of May 2017, Mr Brown approached Mr Smith and said words to the effect: “I’ve had an unexpected and very high offer on my property. I have given extended notice, I am planning to leave on the 1st of June [2017].” 20
[22] Following the conversations Ms Whitney, Ms Whalan and Mr Smith said they had with Mr Brown in early May 2017, it was Fitzgerald’s understanding that Mr Brown would remain employed until such time as a replacement Maintenance Manager was found. 21
[23] Mr Brown agrees that he told his colleagues, in general conversation, 22 on or around 9 May 2017, that he was in the process of selling his property at Blaxlands Ridge and moving to Tomerong.23 However Mr Brown claims that he was reluctant to give notice of resignation at that time because he was not ready to move as he still owned the property at Blaxlands Ridge. Mr Brown’s Blaxlands Ridge property was not put on the market until 22 June 2017.24
[24] It was Mr Brown’s evidence that he did not tender his resignation, except to say that when he does resign, he was prepared to give Fitzgerald four weeks’ notice. 25 Mr Brown denies ever saying that his last day of employment at Fitzgerald would be 1 June 2017.26
[25] On 9 May 2017, Mr Brown was aware that his settlement date for the Tomerong property was due to be 2 June 2017. Therefore Fitzgerald submits that this is consistent with Mr Brown wanting to leave his employment from 1 June 2017. 27 Again Mr Brown denies this assertion.28 It is agreed however that Mr Brown had no intention of continuing to work at Fitzgerald once he moved into his new property at Tomerong.29
Prior to 1 June 2017
[26] Sometime prior to 1 June 2017, the settlement date of the Tomerong property was changed at the request of the vendors, from the original date of 2 June 2017 to 19 June 2017 and then changed again to 1 August 2017.
[27] Mr Smith and Ms Whalan both gave evidence that prior to 1 June 2017, Mr Brown spoke with them regarding the delays surrounding the purchase of his new property and advised that he did not want to finish up at Fitzgerald on 1 June 2017. 30 Mr Brown denies these conversations took place.31
[28] Ms Whalan recalls saying to Mr Brown words to the following effect:
“Don’t panic. We won’t hold you to 1 June [2017] as we haven’t employed a replacement yet and the recruitment process is ongoing.
We need to run the ad for two weeks, wait for it to close, then set up interviews. It is likely the process will go for a further month and the person that we hire might have to give notice so there’s more time. You can relax.” 32
[29] Ms Whalan gave the following further evidence in her statement:
“I did not realise we had to be more official about these things, but I believe there was a clear understanding that once we hired a replacement, the resignation would come into effect. Due to our funding, which is well known amongst staff, there is no way the Facility could afford to employ two Maintenance Officers.
We extended Matt’s [Mr Brown’s] notice period to help him due to his changed financial position. We would not have advertised and hired a new Maintenance Manager if we had agreed to Matt withdrawing his resignation.” 33
Post 1 June 2017
[30] On 13 June 2017, Mr Brown submitted a request to amend his upcoming annual leave, scheduled for the period from 18 August 2017 to 23 August 2017. This leave had previously been granted by Fitzgerald on 10 March 2017. Mr Brown requested that his annual leave dates to be changed to the period from 24 July 2017 to 23 August 2017, and subsequently made a further request for his return date to be 7 August 2017. The leave application and subsequent amendments were approved. 34
[31] Mr Brown submits that if he had tendered his resignation as Fitzgerald allege, it is illogical that they would then approve dates for annual leave for a period in the future when Mr Brown would no longer be employed. 35
[32] Fitzgerald submits that Ms Claire Moore made the amendments to Mr Brown’s leave application and to Ms Whalan’s knowledge, Ms Moore was not aware of the arrangements regarding Mr Brown’s resignation from Fitzgerald. 36
[33] As a result of the recruitment process that was instigated by Fitzgerald on 9 May 2017, Mr Paul Cini commenced as the new Maintenance Manager at the facility on 4 July 2017. 37
[34] Mr Brown says that the first time he was aware that Fitzgerald was advertising his position was when he requested an amendment to his annual leave, however he was of the understanding that this recruitment process was to cover him for his two weeks of annual leave only. 38
[35] It was Mr Brown’s evidence that he:
“…was aware there was another employee working at the Respondent’s establishment, who was basically doing the same work as I was doing. I took it that this other employee was simply any additionary [sic] resource. At no time did I effect “a hand over process” as I expected I would have had to have done had I understood the other worker was there to replace me. At no time did he or management ever tell me he was replacing me.” 39
[36] During cross examination however Mr Brown agreed that he conducted a two week orientation with Mr Cini and that he was assisting Mr Cini to understand the role of Maintenance Manager. Despite this, Mr Brown says that he understood Mr Cini had been hired to replace him for his two weeks of annual leave, not due to his alleged resignation. 40
[37] Ms Whalan gave evidence that Mr Brown had full knowledge that Mr Cini was hired as his replacement. Ms Whalan said that Mr Brown had been orientating Mr Cini to the role of Maintenance Manager, which included handing his keys over to Mr Cini. 41
[38] I note that Fitzgerald submits it received a number of complaints regarding Mr Brown’s conduct from 9 May 2017 onwards, however chose not to raise the majority of these complaints with Mr Brown as his employment would soon be coming to an end as a result of his resignation. It is not necessary to examine these complaints in detail, unless or until I find that Mr Brown was dismissed pursuant to s.386 of the Act.
20 July 2017
[39] Fitzgerald submits that Mr Brown approached Ms Whalan on the morning of 20 July 2017 and stated that he wanted to remain employed until November 2017 due to the delays with the sale of his property. Ms Whalan says Mr Brown also said words to the effect of: “Paul [Cini] is useless and an idiot. He told me that he is going to report me for bullying him. You need to get rid of him.” 42
[40] Mr Brown agrees that during this conversation he possibly said words to the effect of: “You’ve got plenty of time to find someone else, because I’m here until November.” 43 Ms Whalan advised Mr Brown that this was not the understanding they were under and suggested that Mr Brown meet with Mr Smith that morning to discuss this further.44
[41] Later that morning, on 20 July 2017, a meeting was held between Mr Brown, Mr Smith and Ms Whitney. Ms Whalan joined this meeting part way through at the request of Mr Brown. 45
[42] Mr Brown submits that he was directed to attend the meeting at short notice, without reason and without a support person. 46 Mr Brown says that the meeting commenced with Mr Smith asking him for a letter of resignation by the end of the day, otherwise his employment with Fitzgerald would be terminated.47 Mr Brown says he replied with words to the following effect:
“I am not resigning today nor have I ever resigned. I expect to be able to remain here working until my new property is settled and I move to Tomerong. I deny that I ever gave you any indication whatsoever that I was resigning. When I do, I will give you four (4) weeks notice, even though I am only required to give two (2) weeks.” 48
[43] Mr Brown submits that prior to 20 July 2017, no one from Fitzgerald had ever approached him to ask when his last day of employment would be. 49
[44] Fitzgerald’s version of this meeting differs.
[45] Fitzgerald submits that during the meeting on 20 July 2017 Mr Brown was advised that due to his resignation on 9 May 2017, a replacement Maintenance Manager had now been hired and trained. 50 Ms Whalan confirmed that Mr Brown had previously advised his last day would be 1 June 2017. Fitzgerald now needed confirmation of the date Mr Brown would be leaving the facility.51 Mr Brown denied tendering his resignation and stated that he was not going anywhere,52 he was staying until November and “you can get rid of the other guy.”53 This evidence is consistent with Mr Smith’s recollection of the meeting. 54
[46] Mr Smith denies asking Mr Brown for his resignation and further denies that Fitzgerald dismissed Mr Brown on 20 July 2017 55. Mr Smith submits that Mr Brown called him a “powerless figurehead” and that he would be taking legal action, to which Mr Smith replied words to the effect of, “your behaviour is grounds for a first and final warning in writing. However, I think that you providing a date for your departure is the best option.”56
[47] Mr Smith, Ms Whalan and Ms Whitney all agree that the meeting on 20 July 2017 got quite heated. 57 Mr Brown left the meeting prior to it concluding.
[48] Fitzgerald submits that it would have never advertised the position of Maintenance Manager if Mr Brown had not resigned. 58 As a new Maintenance Manager had been hired and trained, Ms Whitney therefore drafted a letter dated 20 July 2017 confirming Mr Brown’s resignation.
[49] On 21 July 2017, Mr Brown was handed the letter confirming his resignation, which was in the following terms:
“Dear Matt
Re: Confirmation of your resignation
We refer to our previous discussions regarding your resignation from your position with Fitzgerald Aged Care.
As you know, in late May 2017 you advised us that due to personal reasons, you wished to extend your employment with Fitzgerald Aged Care beyond 1st June, 2017, being the date that you nominated for your resignation to take effect.
In light of that request, we agreed that while your notice of resignation was not withdrawn, your employment with Fitzgerald Aged Care would continue until such time as we had hired a replacement Maintenance Officer and an orderly handover had been completed.
As you are aware, Fitzgerald Aged Care has hired a replacement Maintenance Officer and a two week handover has now been completed.
Accordingly, we do not require you to work beyond Friday, 21st July, 2017.
Your final pay, incorporating payment for all hours worked by you up to and including Friday, 21st July, 2017, together with the balance of your accrued but unused annual leave entitlements will be deposited into your bank account.
We appreciate your efforts while employed with Fitzgerald Aged Care and for the assistance that you have provided since notifying us of your resignation. We wish you well in the future.
Yours sincerely,
Anna Whitney
Facility Manager.” 59
[50] Fitzgerald submits that they did not dismiss Mr Brown but that the employment relationship ceased at the initiative of Mr Brown by way of the verbal conversations held on or around 9 May 2017 when he advised management and colleagues that he would be moving to Tomerong and leaving Fitzgerald on 1 June 2017. It submits that they could not continue to employ two Maintenance Managers and it was their understanding Mr Brown would finish up once a replacement had been trained.
[51] Mr Brown submits that the meeting on 20 July 2017 and subsequent letter confirming his alleged resignation was an objective and clear repudiation of the employment relationship and that his employment was terminated at the initiative of Fitzgerald. Mr Brown therefore submits that he was dismissed within the meaning of the Act.
Consideration
[52] The Full Court of the Federal Court in Mohazab v Dick Smith Electronics (No.2) 60 articulated an important feature of what termination at the initiative of the employer is:
“…the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.” 61
[53] A Full Bench of the Australian Industrial Relations Commission, the predecessor to this Commission, has refined the principle to “some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end”. 62 This Full Bench was guided by the Full Bench in Pawl v Advanced Precast Pty Ltd63which said that circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee must also be examined.
[54] Fundamentally, the decision rests on the finding I make about the contest between the evidence of Mr Brown and to the evidence given by Mr Smith, Ms Whalan and Ms Whitney on behalf of Fitzgerald. When I compare the evidence of Mr Brown to the evidence of Fitzgerald, I prefer Fitzgerald’s version of events. The witness evidence provided a degree of corroboration that contributes to making Fitzgerald’s version of events more persuasive.
[55] On the balance of probability I find that on or around 9 May 2017, Mr Brown did advise Fitzgerald that he would be purchasing a property at Tomerong and would therefore be resigning from his employment on 1 June 2017. I am satisfied that given the delays with Mr Brown’s purchase of his new property, Fitzgerald assisted Mr Brown by extending his employment past 1 June 2017. However it was understood that once a replacement Maintenance Manager had been hired, Mr Brown’s employment would come to an end. I find that Mr Brown’s evidence that the recruitment of the Maintenance Manager was to cover him for his two weeks of annual leave is implausible given the investment made in the recruitment and training process.
[56] The action taken that brought the employment relationship to an end or had the probable result of bringing the employment relationship to an end was taken by Mr Brown. Fitzgerald relied on Mr Brown’s verbal resignation provided on or around 9 May 2017 and took steps to hire a replacement Maintenance Manager. Mr Brown’s resignation was not a ‘direct and consequential’ result of any action by Fitzgerald.
[57] In regards to Mr Brown’s application for annual leave, I am satisfied that Mr Brown’s leave request was approved by a staff member who was not aware of his pending resignation and was therefore approved as per standard procedure. Had management been aware of Mr Brown’s amended leave application, perhaps there would have been a conversation about Mr Brown’s last date of employment earlier than 20 July 2017. The conduct of Fitzgerald, apart from this instance, is entirely consistent with their submission that they believed Mr Brown had resigned.
[58] As to what transpired at the meeting on 20 July 2017, again I prefer Fitzgerald’s version of events. I am not persuaded that Mr Brown’s employment was either terminated on the initiative of Fitzgerald at this meeting or that he was forced to resign at this meeting because of conduct or a course of conduct engaged in by Fitzgerald.
[59] I am satisfied that Mr Brown was not dismissed within the meaning of s.386 of the Act. The jurisdictional objection raised by Fitzgerald is upheld.
[60] Mr Brown’s unfair dismissal application is dismissed. An order to this effect will be issued along with this decision.
DEPUTY PRESIDENT
Appearances:
Mr P Rochfort, Senior Workplace Relations Advisor from Rochforts Workplace Solutions, on behalf of the applicant;
Ms B Maynard, solicitor from Maddocks Lawyers, on behalf of the respondent.
Hearing details:
2017.
Sydney:
November, 17.
1 Section 385 Fair Work Act 2009.
2 Section 386 Fair Work Act 2009.
3 Section 387 Fair Work Act 2009.
4 Respondent’s Outline of Argument, dated 24 October 2017 – paragraph 8.
5 Statement of Mr Matthew Brown, dated 18 October 2017 – paragraph 4.
6 Statement of Mr Matthew Brown, dated 18 October 2017 – paragraph 15; Outline of Submissions on behalf of the Applicant, dated 19 October 2017 – paragraph 16.
7 Outline of Submissions on behalf of the Applicant, dated 19 October 2017 – paragraph 14.
8 Outline of Submissions on behalf of the Applicant, dated 19 October 2017 – paragraph 19.
9 Transcript PN424
10 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 18.
11 Transcript PN413.
12 Transcript PN412.
13 Statement of Ms Anna Whitney, dated 24 October 2017 – paragraph 17.
14 Statement of Ms Anna Whitney, dated 24 October 2017 – paragraph 17.
15 Transcript PN447 - 448
16 Statement of Ms Anna Whitney, dated 24 October 2017 – paragraph 19.
17 Statement of Ms Anna Whitney, dated 24 October 2017 – paragraph 20.
18 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 32.
19 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 35.
20 Statement of Mr Bryan Smith, dated 6 November 2017 – paragraph 11.
21 Statement of Mr Bryan Smith, dated 6 November 2017 – paragraph 13.
22 Statement of Mr Matthew Brown, dated 18 October 2017 – paragraph 4.
23 Outline of Submissions on behalf of the Applicant, dated 19 October 2017 – paragraph 3.
24 Statement of Mr Matthew Brown, dated 18 October 2017 – paragraphs 14 – 16.
25 Statement of Mr Matthew Brown, dated 18 October 2017 – paragraph 17.
26 Outline of Submissions on behalf of the Applicant, dated 19 October 2017 – paragraph 4.
27 Transcript PN430 - 432.
28 Transcript PN431.
29 Transcript PN423.
30 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraphs 42 – 44.
31 Transcript PN457 and PN471.
32 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 45.
33 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraphs 46 – 47.
34 Statement of Mr Matthew Brown, dated 18 October 2017 – paragraph 6.
35 Outline of Submissions on behalf of the Applicant, dated 19 October 2017 – paragraph 9.
36 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 82.
37 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 50.
38 Transcript PN475 – 477.
39 Statement of Mr Matthew Brown, dated 18 October 2017 – paragraph 7.
40 Transcript PN484 – 488.
41 Statement of Ms Shelley Whalan, dated 31 October 2017 - paragraph 5.
42 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraphs 51 - 53.
43 Transcript PN493.
44 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraphs 53 – 56.
45 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 62.
46 Applicant’s Outline of Submissions in Opposition to the Respondent’s Jurisdictional Objection – paragraph 9.
47 Statement of Mr Matthew Brown, dated 18 October 2017 – paragraph 9.
48 Statement of Mr Matthew Brown, dated 18 October 2017 – paragraph 10.
49 Transcript PN504.
50 Statement of Ms Anna Whitney, dated 24 October 2017 – paragraph 32 – 34; Statement of Mr Bryan Smith, dated 6 November 2017 – paragraph 37.
51 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 31.
52 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 68.
53 Statement of Mr Bryan Smith, dated 6 November 2017 – paragraph 20.
54 Statement of Mr Bryan Smith, dated 6 November 2017 – paragraph 17.
55 Statement of Mr Bryan Smith, dated 6 November 2017 – paragraph 27.
56 Statement of Mr Bryan Smith, dated 6 November 2017 – paragraphs 28 – 29.
57 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 62; Statement of Ms Anna Whitney, dated 24 October 2017 – paragraph 37; Statement of Mr Bryan Smith, dated 6 November 2017 – paragraph – 24.
58 Statement of Ms Shelley Whalan, dated 24 October 2017 – paragraph 35.
59 Statement of Mr Matthew Brown, dated 18 October 2017 - annexure D.
60 (1995) 62 IR 200.
61 Ibid at 205.
62 O’Meara v Stanley Works Pty Ltd (2006) AIRC 496.
63 Print S5904.
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