Mr Michael Hecht v NCI Australia Pty Ltd and Alison Mason and Kazan Hadden
[2024] FWC 1124
•30 APRIL 2024
| [2024] FWC 1124 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Michael Hecht
v
NCI Australia Pty Ltd
and
Alison Mason
and
Kazan Hadden
(C2024/203)
| DEPUTY PRESIDENT O'KEEFFE | PERTH, 30 APRIL 2024 |
Jurisdictional objection employee not dismissed within the meaning of the Fair Work Act – objection upheld – application dismissed.
On 11 January 2024, Michael Hecht (the Applicant) made an application to the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been dismissed from his employment with NCI Australia Pty Ltd (NCI) in breach of the General Protections provisions of the FW Act. The Applicant also named Ms Alison Mason and Mr Kazan Hadden as respondents in his application. In this decision, I will refer to NCI Australia Pty Ltd, Ms Mason and Mr Hadden collectively as “the Respondents”.
The Applicant initially named Nickaz Spark Pty Ltd as a further respondent but withdrew his application against that organisation on the basis that there was no dispute between the parties that the Applicant’s employer was NCI.
Background
The Applicant commenced his employment with NCI on 12 September 2023 in the role of Project Manager. On 5 December 2023 the Applicant sent an email to the Respondents querying certain aspects of his employment arrangements. As a result of this email a meeting was arranged between the Applicant and the Respondents. The parties are in dispute over what transpired at that meeting, however, the outcome of the meeting was that the Applicant tendered his resignation.
Permission to appear
Both the Applicant and the Respondents sought to be represented before the Commission by a lawyer.
In addressing s596(2)(a) the Applicant noted in his submissions that the matter involved complexity such that the FWC would be assisted by the presence of counsel. Specifically, the Applicant noted that:
(a) “the application alleges adverse action by multiple entities including the knowing involvement of individuals in adverse action engaged in by a body corporate;
(b) there are key factual matters in dispute between the parties including, in particular, the terms of the Applicant’s employment and whether he was constructively dismissed; and
(c) the Respondents have raised a jurisdictional objection.”
In addressing s596(2)(a) the Respondent also submitted that the complexity of the matter was a relevant consideration, and noted in part as follows:
“The Commission would be assisted in hearing and determining the matter in circumstances where legal representatives for each party are well placed to accurately and efficiently identify and address the real issues in dispute and, as legal practitioners, have a duty to assist the Commission.
An element of complexity that arises in this Application, which would be addressed in a more efficient manner by permitting legal representation, is that there is a factual dispute as to what occurred in the meeting of 21 December 2023 which lead to Mr Hecht's cessation of employment. It is Mr Hecht's position that he did not resign but was forced to do so. The Respondents each say that Mr Hecht resigned of his own initiative and was not forced to do so by any of the Respondents, either individually or collectively, because of conduct or a course of conduct engaged in by any of the Respondents.
It is critical to the matter's efficient determination that the merits of the Application are not ventilated until such time as the threshold question of jurisdiction has been resolved. The Respondents respectfully submit that being permitted to be represented will enable the issues in dispute to be appropriately confined to those relating only to jurisdiction.”
Both parties made relevant submissions with respect to 596(2)(b) and the Applicant made relevant submissions with respect to 596(c). However, as I only need to find one of the circumstances in s596(2) to be applicable, I was persuaded that the complexity of the matter was such that the efficient conduct of the hearing would be best served by both parties being granted permission to be represented pursuant to s596(2)(a).
Witnesses
The following witnesses gave evidence on behalf of the Respondents:
· Mr Dominic Conway, Head of Construction at NCI; and
· Ms Alison Mason, the second respondent; and
· Mr Kazan Hadden, the third respondent.
The Applicant gave evidence on his own behalf.
Has the Applicant been dismissed?
While it is not disputed that the Applicant tendered his resignation on 21 December 2023, the Applicant claims that his resignation was forced by the actions of the Respondents and as such ought to be regarded as a termination at the initiative of the employer. The Respondents claim that the Applicant resigned of his own free will.
Submissions and Evidence
The Respondents submit that the Applicant’s resignation was voluntary and unilateral. They submit that the meeting held on 21 December 2023 was to discuss issues with the Applicant and that the Respondents had no pre-conceived plan to force a resignation from the Applicant. While the Respondents concede that during the meeting Mr Hadden asked a number of questions of the Applicant regarding his performance, it was submitted that this was done in a calm and professional manner, and that merely being asked questions about work-related matters did not give grounds for an employee to resign. The Respondents further submitted that there had been no mention of disciplinary action and no ultimatum given to the Applicant regarding his employment.
The Respondents directed my attention to the findings of the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa) where the Full Bench explained as follows:
“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”[1]
The Respondents also noted case precedent suggesting that the FWC needs to objectively assess the circumstances surrounding termination, as per the observations of Rares J in Koutalis v Pollett (2015) 235 FCR 370 as cited in Bupa, as follows:
“The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances.”
The Respondents submitted that there was no evidence that the Applicant had been in a state of mental confusion when he resigned, or of him attempting to rescind the resignation. As a consequence, the claim regarding termination at the initiative of the employer was premised solely on section 386(1)(b) of the FW Act, being conduct by the employer. Given that the actions of the Respondents could not have been construed as to be such that the Applicant had no choice but to resign and given that there were many other options open to the Applicant, the Respondents submitted that the Applicant’s resignation was not at their initiative and as such there was no dismissal within the meaning of the FW Act.
In his evidence, Mr Dominic Conway states that he had needed to speak with the Applicant on three occasions prior to November 2023 about the way the Applicant was performing his duties. On 9 November 2023 Mr Conway states that he had another conversation by telephone with the Applicant regarding an error the Applicant had made on a job. Mr Conway’s evidence is that the conversation became somewhat heated but that he and the Applicant had subsequently apologised to each other and repaired their relationship.
Mr Conway’s further evidence is that he received an email from the Applicant on 5 December 2023 which outlined the Applicant’s concerns about his hours of work. Mr Conway states that he was surprised by this as it was the first time the Applicant had raised this matter with him and his evidence is that if he had been aware that the Applicant was working excessive hours, he would have arranged additional labour resources, albeit that he noted that the Applicant also had the authority to engage more labour. Notwithstanding this, Mr Conway’s evidence was that he had never directed then Applicant to work overtime.
With respect to the meeting held on 21 December 2023, Mr Conway in his evidence confirms that he took part in that meeting but that there had been no prior discussion between the Respondents as to what would be discussed in that meeting or how it would be conducted. In terms of the conduct of the meeting, Mr Conway’s evidence is that it began with Mr Hadden inviting the Applicant to raise his issues. Mr Conway described what happened next as follows:
“(the Applicant) went through each of his issues uninterrupted. (Mr Hadden), (Ms Mason) and myself just sat and listened for about 15 to 20 minutes while “(the Applicant) told us the issues he had been having. The concerns “(the Applicant) raised included that he did not understand his job role or job description and wasn't given enough training to work on NCI's systems. Further, “(the Applicant) said that he thought I was "micromanaging him" and he wanted to be paid for the "extra" hours he worked.”[2]
Mr Conway states that Mr Hadden then began to discuss these issues with the Applicant and asked the Applicant some questions about various aspects of his work. In Mr Conway’s evidence, Mr Hadden was professional in his conduct and did not seek to interrogate the Applicant. Mr Conway’s further evidence is that Ms Mason did not speak during the meeting. Mr Conway recalled that that towards the end of the meeting the Applicant:
“…became a little defensive. My observation was also that his answers to (Mr Hadden’s) questions were a little vague. Then, out of nowhere, (the Applicant) mentioned resignation. He said something to the gist of “I resign”. I was surprised. (Mr Hadden) hadn’t put any sort of ultimatum to (the Applicant) or even suggested that disciplinary action, let alone termination, was even on the table. Rather, Mike seemed to decide that things weren’t working from his perspective, and that he wanted to resign. I recall that Kazan indicated he accepted Mike’s resignation.”[3]
Mr Conway states that the meeting was direct but not aggressive and he felt that it had been relaxed and conversational. He states that the Applicant did not appear to show any signs of stress and appeared calm throughout the meeting.
In reply evidence, Mr Conway refuted that he had little interest in the Applicant’s issues, and rejected the Applicant’s evidence that the Applicant had said his position was untenable and that Hr Hadden has said “we agree”. Mr Conway also stated that the meeting was not tense and serious, and that Mr Hadden did not interrogate the Applicant.
Under cross-examination Mr Conway said he could not recall any discussions between himself, Ms Mason and Mr Hadden regarding the proposed process for conducting the meeting held on 21 December 2023 even when directed to Mr Hadden’s witness evidence to the effect that there had been such a discussion. Mr Conway conceded that there had been some discussions between himself and Mr Hadden about the Applicant’s concerns as raised in his email of 5 December 2023 and also about certain concerns that Mr Hadden had with the Applicant.
When asked about the concerns with the Applicant that had been raised with the Applicant on 21 December 2023, Mr Conway conceded that Hr Hadden had raised the instruction to an apprentice to change his timesheets and the Applicant’s work at the New Forrest site. Mr Conway’s evidence was that while the first issue had not previously been raised with the Applicant, he had personally raised the second issue with the Applicant on previous occasions. Mr Conway also conceded that he had considered the issues arising from the New Forest site as resolved but his evidence was that he was not surprised that Mr Hadden had raised the issue in the meeting on 21 December 2023.
Mr Conway also conceded that an issue regarding an apprentice being left unsupervised by the Applicant had been raised on 21 December 2023 but that he had not raised this issue previously with the Applicant and did not know if any other person had done so. Mr Conway further conceded that an issue regarding the Applicant being seen sitting in his car for a lengthy period of time was raised on 21 December 2023 but that he had not raised this issue with the Applicant previously and from his answers it appeared that no-one else had raised this with the Applicant prior to 21 December 2023. Mr Conway was also asked about concerns the Respondents had with the Applicant’s use of its estimating tool and conceded that this issue was raised on 21 December 2023 but had been previously raised with the Applicant by himself. Mr Conway stated that he did not consider the concerns resolved but had he had decided not to push the issue.
In terms of the response of Mr Hadden to the Applicant’s resignation, Mr Conway’s evidence was that Mr Hadden seemed surprised. Mr Conway also confirmed his evidence regarding his comment to the Applicant as the Applicant was leaving on 21 December 2023 regarding the apprentice Noah Hadden, who is the son of Mr Hadden. That comment was to the effect that the problematic relationship between the Applicant and Noah Hadden may have made it difficult for the Applicant to continue in his employment.
In response to my question, Mr Conway stated that despite a number of serious allegations being made against the Applicant, the atmosphere in the meeting did not change as a result of these allegations. Mr Conway also confirmed that the meeting proceeded by way of the Applicant raising his concerns followed by Mr Hadden raising a number of concerns but there had been no discussion about how to resolve the issues prior to the Applicant tendering his resignation.
In her evidence, Ms Alison Mason provided her recollection of the meeting held on 21 December 2023. She confirmed that there had been no discussion between the Respondents prior to the meeting about the Applicant’s employment ending. Ms Mason describes her role in the meeting as being that of note-taker rather than active participant. Her evidence describes the Applicant as appearing calm and speaking first, taking some twenty minutes to outline his concerns, during which time he was allowed to speak uninterrupted. After this time, Ms Mason states that some issues of concern were raised with the Applicant, such as his time recording on Teams. It was Ms Mason’s evidence that the questions asked of the Applicant were not accusatory or persistent and that the meeting maintained a conversational tone. With respect to the Applicant’s resignation, Ms Mason’s evidence was as follows:
“Kazan then raised that someone had seen the Applicant sitting in his ute for several hours when the Applicant had said he had gone to another site. The Applicant had apparently told people on site that it had taken him hours to get there. When asked what had happened, the Applicant raised his hands in the air, said it was not true and denied that this ever occurred.
It was at about this point in the meeting that the Applicant, out of nowhere, said that he was resigning. I didn't expect this. I can't remember if there were other things discussed between the equipment issue and his resignation but I recall very clearly that the Applicant resigned and this was quite unexpected to me.”[4]
In summarising the meeting, Ms Mason states that the Applicant appeared calm, did not raise his voice or appear aggressive and there was no visual or verbal sign that made it seem that he felt forced to resign.
In reply evidence, Ms Mason stated that the atmosphere in the room during the meeting on 21 December 2024 was calm and professional and not tense and serious as alleged by the Applicant. She refuted the Applicant’s claim that the Respondents had no interest in his concerns and refuted the Applicant claim that Mr Hadden had in effect told the Applicant he was bad at his job. Ms Mason further refuted that the Applicant had said the position was untenable or that Mr Hadden had responded by saying “we agree”.
Under cross-examination Ms Mason conceded that the Applicant had approached her “a handful of times” about being provided with a formal employment contract but that she had not progressed further than setting up a template for such a contract. Ms Mason’s evidence was that she had been focused on a number of other administrative matters with the establishment of the Nickaz Spark Pty Ltd entity, which was intended to be the entity that would ultimately employ the Applicant. Ms Mason also confirmed that she was not aware of the overtime issue prior to the meeting on 21 December 2023, albeit that she was aware that there was some issue with the Applicant’s hours.
In response to my question regarding the atmosphere in the room towards the end of the meeting on 21 December 2023, Ms Mason denied that the tone had been aggressive or accusatory but conceded that there had been in increase in tension and that some of the responses from the Applicant had become quite short. With respect to the issue of overtime, Ms Mason’s evidence was that the issue had been canvassed but not resolved, as the intention had been to get all of the issues from both parties out on the table first before turning to possible resolutions for those issues.
In his evidence, Mr Kazan Hadden states that he was aware that Mr Conway had experienced some issue with the Applicant but understood that Mr Conway was dealing with those issues. Mr Hadden states that he believed the meeting on 21 December 2023 was to discuss the Applicant’s working hours, albeit that he did not understand why it would be the case that the Applicant would require such payment as he was on a salary, had access to a labour hire firm for additional labour if required and had not been requested to work overtime or had overtime hours approved. It was Mr Hadden’s evidence that there had been a short conversation between the Respondents about how the meeting was to be run but it was limited to who would run the meeting.
Mr Hadden’s evidence of the meeting on 21 December 2023 is that he invited the Applicant to raise his concerns and the Applicant then spoke for fifteen to twenty minutes without interruption. His recollection of the tone of the meeting is as follows:
“The discussion was measured and unemotional from my perspective. Rather, it was more like a fact-finding mission from both sides, where I was hearing his concerns, and he was hearing ours. I did not raise my voice during the meeting, and nor did Dominic or Alison. Mike did not raise his voice or become heated at any time during the meeting, but I would describe him as calm and confident going into the meeting. Had Mike become heated during the meeting, I would have ended it and had a further meeting on another day.”[5]
Mr Hadden’s further evidence is that he then put to the Applicant a number of concerns regarding the Applicant’s activities while at work and the Applicant denied that he had engaged in any of the alleged activities. Despite the fact that some of the issues raised were quite serious, Mr Hadden’s evidence is that the Applicant did not appear to be stressed or feeling under pressure. Nevertheless, Mr Hadden states that:
“Towards the end of the meeting, Mike appeared defensive and asked the following question:
(the Applicant): Is this a conversation about addressing my issues or a conversation about the end?
I was surprised by his question because I had not come to the meeting thinking that it would be “the end”. Nor did our conversation during the meeting indicate to me that it would be “the end”. I hadn’t even mentioned disciplinary action at all, let alone ending his employment. Up until this point in the meeting, all I was thinking about was understanding the facts. Once he asked this question, my thought was to find out what he wanted.
I then asked what Mike wanted to do and he said words to the effect of "Well I resign".
We then had a discussion about whether Mike needed to work out his notice period and there appeared to be an agreement from us that he did not. We also had a discussion about Mike's entitlements. We confirmed that he would be paid what he was entitled to.After Mike resigned, he did not appear stressed or under pressure and his body language did not change throughout the meeting. My view was that if he wanted to resign, that was his entitlement to do so. He could do so at any time, and if he wasn’t satisfied, he could make that decision.”[6]
Mr Hadden states that in his view, the Applicant had a number of options open to him in lieu of resigning, including asking for more assistance, which would have been provided given that the Respondents had entered the meeting with a view to resolving issues that the Applicant had.
In reply evidence, Mr Hadden denied that he had agreed to or indeed discussed with the Applicant the payment of overtime for work in excess of 40 hours per week. Mr Hadden’s evidence was that an hourly rate of $64.90 was provided to the Applicant because the Applicant had requested his hourly rate based on his annual salary. Mr Hadden states that the text message referred to by the Applicant and entered into evidence confirmed the salary and indicated there was still some issues to be negotiated regarding the vehicle allowance.
In further reply evidence, Mr Hadden stated again that the atmosphere in the room during the meeting on 21 December 2023 was not tense and serious. He further stated that he understood the purpose of the meeting was to discuss concerns held by the Applicant and that the meeting had no ulterior purpose. Mr Hadden denied that the Respondents had little interest in the Applicant’s concerns and denied that the Respondents were trying to get rid of the Applicant. Mr Hadden, referring to his first witness statement, denied that the Applicant had said that the position was untenable or that he had replied by saying “we agree”.
Under cross examination, Mr Hadden conceded that during the initial employment discussions between himself and the Applicant, the Applicant had raised that he wanted to be paid for hours worked in excess of forty per week. Mr Hadden’s evidence was that he had not agreed to this, albeit that he conceded that the agreed salary terms were $135,000 per annum for a forty hour week. Mr Hadden’s position was that the issue of hours in excess forty per week was subject to ongoing discussions. Mr Hadden also conceded that the letter of offer did contain an hourly rate, being a rate derived by dividing the annual salary by fifty two and then dividing by forty, and that this hourly rate was at the insistence of the Applicant. However, he claimed that he did not know why the Applicant wanted the hourly rate included.
With respect to the meeting on 21 December 2023, Mr Hadden conceded that by virtue of the email received on 5 December 2023 he was aware that the Applicant wished to discuss, amongst other things, being provided with a full written contract of employment, his hours of work and payment for overtime. Mr Hadden expressed a view in response to questioning that the fact that the Applicant would not be paid for overtime had been advised to the Applicant verbally and he further proposed that the Applicant had accepted this arrangement by virtue of acceptance of his salary into his bank account.
In response to my question, Mr Hadden stated that the reason the Applicant had not been provided with a full contract was that his employer was going to be Nickaz Spark Pty Ltd, but that entity was in the process of being established and so could not pay the Applicant. As the Applicant was not going to be an employee of the Respondent Company, Mr Hadden had not thought it proper to issue a contract in that company’s name. I put to Mr Hadden that he could have provided the Applicant with a draft contract, and he conceded that this may have been a sensible course of action. Mr Hadden in initial response to the Applicant’s questions rebutted the notion that while he knew the Applicant wanted to discuss his contract at the 21 December meeting, he had taken no steps to provide such a contract, however, he also conceded that no contract had been drafted and he had given no instruction to draft such a contract.
With respect to the meeting on 21 December 2023 Mr Hadden conceded that he had raised a number of concerns with the Applicant once the Applicant had raised his own concerns with the Respondents. Mr Hadden rejected the notion that these concerns were about conduct, stating that he thought the term “conduct” was too harsh and that he had merely raised some concerns. Mr Hadden also stated that the concerns he raised were not allegations per se but merely “discussions”. Mr Hadden confirmed that with respect to each of these concerns, it was the first time he personally had raised them with the Applicant.
In response to my question, Mr Hadden conceded that Applicant had never specifically and directly conceded that he accepted there would be no overtime payable. However, Mr Hadden’s evidence was that he thought the Applicant had acknowledged that the Respondents’ preferred method of dealing with excessive working hours, being the taking of time off in lieu, was what would apply. I asked Mr Hadden a further question about the overtime issue by referring him to his own statement, in a message to the Applicant about vehicle subsidy, where Mr Hadden stated that there was a “capacity in the hourly rate instead of salary”. Mr Hadden replied that he had accepted the idea of an hourly rate but he did not know what he meant by “capacity in the hourly rate”. He further explained that an overtime arrangement such as that proposed by the Applicant was not usual practice for the Respondents so he was perhaps imprecise in his language.
With respect to the meeting on 21 December 2023, I pointed out to Mr Hadden that his evidence was consistently to the effect that the meeting was called to try to resolve the Applicant’s problems. In light of this, I queried why the meeting had turned to the Respondents’ concerns about a number of things done or not done by the Applicant. Mr Hadden said that he thought it would be a good opportunity to discuss a number of issues that in his view needed to be addressed. I also put to Mr Hadden that some of the issues raised with the Applicant, for example the length of one particular lunch break, were somewhat trivial matters and queried why he thought those issues should be raised at the meeting on 21 December 2023. Mr Hadden responded that he had some concerns about an apprentice being his own son, being left unsupervised and so he raised a number of issues that to him had some work health and safety implications.
I also questioned Mr Hadden about the outcome of the discussion on 21 December 2023 about the Applicant’s overtime and his response was that there had not been an outcome because he had thought that the best way to deal with the meeting was to allow both parties to raise all of their concerns first and then move to discussing ways to resolve those issues. However, as the Applicant had resigned, there had been no opportunity to have discussions about resolution.
In his submissions, the Applicant denied that he had voluntarily resigned, claiming instead that the conduct of the Respondents left him with no option. In particular, he drew attention to the Respondents failing to provide him with a written contract of employment and failing to make payment for time worked in excess of forty hours per week, which he submitted was a contractual entitlement. The Applicant also relied on the findings in Bupa, claiming that he had been dismissed both within the meaning of s.386(1)(a) and also s.386(1)(b). He submitted that the Respondents engaged in conduct with the intention of bringing the employment relationship to an end and which was also conduct that left him no real or effective choice other than to resign.
The Applicant submitted that although the Respondents had intended to procure his resignation, it was not necessary for him to establish this given the finding in Whittaker v Unisys Australia Pty Ltd[7] that constructive dismissal can be established without an actual intention to repudiate the employment contract, by reference to the effect that circumstances would have on a reasonable person. The Applicant further submitted that I should be mindful of the findings of the Full Court of the New South Wales Industrial Commission in Allison v Bega Valley Council where the Full Court said:
“Although the term “constructive dismissal” is quite commonly used as it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation? …
In order to undertake the necessary analysis, it is necessary to look carefully at all relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change.”[8]
The Applicant also directed my attention to the findings of Deputy President Colman in Michael White v Superior Facilities Pty Ltd where the Deputy President said:
“A persistent and unjustified failure by an employer to pay salary is a repudiation of the contract of employment. Such a repudiation can amount to termination ‘on the employer’s initiative’ for the purpose of s 386(1)(a). A termination of employment will be ‘on the employer’s initiative’ if an ‘act of the employer results directly or consequentially in the termination’ (see Khayam v Navitas English Pty Ltd [2017] FWCFB 4082 at [37]), or the employer’s actions are the ‘principal contributing factor’ which lead to the termination of the employment relationship (see Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200 at 205).”[9]
In summary, the Applicant submitted that the conduct of the Respondents in harassing and belittling him at the meeting on 21 December 2023 and also failing to address his issues regarding a written contract of employment and payment of wages gave the Applicant no choice but to resign. The Applicant dismissed the suggestions of the Respondents that there were other courses of action open to him and concluded by submitting that the failure to pay his wages for hours worked in excess of forty per week represented a fundamental breach of the employment contract such that it ought be regarded as a repudiation that the Applicant accepted in circumstances where he had no other choice.
In his evidence, the Applicant stated that when he first met with Mr Hadden to discuss potential employment, he told Mr Hadden that he would accept a salary of $135,000 per annum on the basis that he would work forty hours per week and that any hours in excess of this would be paid as overtime. The Applicant’s further evidence is that Mr Hadden accepted these terms and further, that Mr Hadden confirmed these arrangements in a meeting some two days later with the Applicant and Ms Mason at which Ms Mason made notes. The Applicant states that he was further reassured that Mr Hadden had understood the arrangements when Mr Hadden stated in a text message, a copy of which was appended to the Applicants witness statement, as follows:
“Need to discuss how vehicle subsidy works now that there is capacity in the hourly rate instead of salary.”
The Applicant states that at the beginning of December 2023, he determined that the amount of work he was performing was unsustainable, there appeared to be no monitoring of his hours by the Respondents and he was not being paid for his additional hours. Given that he had not received his written contract, he determined that it would be prudent to raise both his hours of work and the contract with the Respondents. A meeting to discuss these issues was subsequently arranged for 21 December 2023.
The Applicant’s evidence with respect to that meeting is that when he arrived, he observed through the glass windows that Mr Hadden and Mr Conway were already in the meeting room with solemn looks on their faces and having what he perceived to be a serious conversation. The Applicant states that when the meeting commenced, the atmosphere in the room was very tense and serious. His evidence is that it was clear that none of the participants had brought an employment contract with them. He states that Mr Hadden asked him to raise his concerns which he did. As part of this the Applicant’s evidence is that he asked Mr Conway and Ms Mason if there were any problems with his work and they indicated that there were not. The Applicant states that after this discussion, Mr Hadden started to ask him questions about certain behaviours in which he claimed the Applicant had engaged. The Applicant denied each of the allegations. The Applicant’s evidence with respect to the meeting at that point is as follows:
“It was at this point that I felt that (Mr Hadden), (Mr Conway) and (Ms Mason) had little to no interest in my responses to these allegations and that my concerns about my contract was not the true purpose of this meeting. Instead, I felt attacked, blindsided and belittled. I felt that Kazan was basically telling me that I was bad at my job and there was nothing that I could say or do that would be good enough for the Respondents or that would change their mind about me. A number of the allegations that had been raised also gave me the impression that I had been monitored or watched while I was working, which told me that there were workers who were more focused on me and my movements rather than the task at hand. It was also apparent to me that most of the allegations had come directly from Kazan’s son, Noah. It was at this point that I felt that the only way this meeting was going to end was in the termination of my employment.”[10]
The Applicant’s evidence is that at this point, he stated that he thought he position was untenable and that Mr Hadden agreed with him. The Applicant states that there was a period of fifteen seconds of silence during which the Respondents sat looking at him. He states that he felt he had no other choice at that point other than to resign, given the way Mr Hadden was humiliating and belittling him. As such, his evidence is that he then offered his resignation which was accepted immediately by Mr Hadden.
In response to the evidence of Mr Hadden, the Applicant did not accept that he had been calm and not stressed during the meeting on 21 December 2023. The Applicant’s evidence is that he was stressed and anxious because Mr Hadden was belittling him and making baseless allegations against him. While the Applicant accepted that he was given an opportunity to raise his concerns, his evidence is that it was clear to him that the Respondents had no intention of addressing his concerns and that the purpose of the meeting was to end his employment.
In response to the evidence of Ms Mason, the Applicant again rejected the notion that he was calm during the meeting on 21 December 2023 and again stated that he was stressed and anxious as a result of Mr Hadden’s questions. The Applicant further rejected Ms Mason’s assertion that his resignation came out of nowhere and stated that he had genuinely believed that if he had not resigned, he would have been terminated.
In response to the evidence of Mr Conway, the Applicant’s evidence was that he refuted the performance concerns raised in Mr Conway’s witness statement.
Under cross examination, the Applicant accepted that the letter of offer dated 6 September 2023, which was in evidence, made no mention whatsoever of the Applicant being entitled to the payment of overtime and further, that this letter set out his conditions of employment. The Applicant also accepted that some of the calculations in his timesheets, which were in evidence, were inaccurate and inflated the number of hours worked. The Applicant was also questioned about his email dated 5 December 2023, which was in evidence. That email outlined some significant additional hours that the Applicant believed he would be working. The Respondents proposed that if the Applicant thought he was entitled to overtime he would have made it clear in that email, but the Applicant rejected this notion. The Respondents also questioned the Applicant about his claim that the email dated 5 December 2023 was primarily about his mental health and the Applicant conceded that the email did not mention mental health, nor did he raise this issue in the meeting on 21 December 2023.
With respect to the documents produced pursuant to the FWC’s order, the Applicant confirmed that nowhere in those documents was there a suggestion that the meeting of 21 December 2023 was designed to procure his resignation. With respect to the evidence regarding that meeting and the period immediately before it, the Applicant did not concede that he had mischaracterised in his evidence the facial expressions he observed on Mr Hadden and Mr Conway when he arrived for the meeting. The Applicant’s further evidence in response to questioning was that he understood the meeting to be about his concerns and he was not aware that there were any concerns regarding his behaviour that would be raised.
The Applicant was questioned about his statement that he had been surprised to find when he arrived for the 21 December 2023 meeting that there was no employment contract for him to review, and as a result he began to suspect the Respondents had an ulterior motive. He was asked if he assumed that ulterior motive was the ending of his employment but did not concede that this was the case. The Applicant conceded that he had been given the first opportunity to speak and had been allowed to speak without interruption for approximately fifteen minutes but further conceded that his witness statement did not itemise the concerns that he had raised, and that the discussion was more detailed than suggested in that witness statement.
The Applicant was also taken to a statement in his evidence where he claimed to have never received negative feedback and it was suggested that he had indeed had some negative feedback. The Applicant did not concede this point. However, he did concede that he had had heated discussions with Mr Conway but not related to his electrical work.
The Applicant was also challenged on his assertion that he had been belittled by Mr Hadden in the 21 December meeting but maintained that he had indeed been belittled, and further rejected the assertion that he did not like being monitored because he was trying to create a fiefdom. While the Applicant stated that the line of questioning about his activities was made belittling because it came from Mr Hadden’s son, he rejected the suggestion that he held any animosity towards Noah Hadden.
In response to further cross-examination, the Applicant conceded that certain questions from Mr Hadden had been phrased as “someone had told Mr Hadden”, rather than direct accusations and also that he had been given a chance to respond to those issues raised by Mr Hadden. Further, the Applicant conceded that Mr Hadden had not said that he did not accept the Applicant’s responses. The Applicant also agreed that, with respect to the questions asked about the changing of Noah Hadden’s timesheet, that this was an appropriate question to ask.
As part of its ongoing cross-examination, the Respondents again took the Applicant to the issue of the conduct of the meeting on 21 December 2023. The Respondents proposed that it was wrong to say that the Applicant had been attacked in the meeting, as Mr Hadden had simply asked about a number of concerns and sought a response, and never said the Applicant was not believed or would be disciplined. Nevertheless, the Applicant maintained that he had been attacked and belittled. He further maintained that there was no other possible outcome of the meeting on 21 December 2023 other than his termination, and refuted the notion that there were other options, on the basis that the employment relationship was, to use his term, “severed”.
The Respondents also took the Applicant to his email dated 28 December 2023 wherein he confirmed his resignation. The Respondents proposed that the Applicant had no constraints on him when writing that email and the Applicant agreed. He also agreed that he did not make any allegations of forced resignation, make any suggestion he had no option but to resign, or make any attempt to withdraw his resignation. The Respondents proposed that the contents of that email are a more accurate reflection of the truth of what occurred on 21 December 2023 than the subsequent witness statements tendered to the FWC. The Applicant denied this.
The Respondents also took the Applicant to the reason for his resignation. The Respondents proposed that the non-payment of overtime was a major factor and after some discussion the Applicant conceded that it was a factor, albeit that he did not concede it was a major factor. The Applicant also refused to concede that the challenging of his work performance was part of his thinking, nor was his relationship with Mr Conway.
Finally, the Respondents queried the Applicant about his belief, held at the beginning of the meeting on 21 December 2023, that there was a scheme afoot to dismiss him. The Applicant confirmed this belief but conceded that he had not said anything to that effect during the meeting. The Respondent put it to the Applicant that if he had held that view he would have raised it as an allegation in the meeting and the Applicant conceded this was so, but still maintained that there was such a scheme in place.
In closing submissions, the Respondents referenced my previous decision in Tanaya Kar v Action Drill and Blast Pty Ltd [2023] FWC 1961 (Kar) and the authorities set out in paragraphs 15 to 17 as authority for the proposition that employee cannot resign during a disciplinary process and then claim the resignation was forced by virtue of the disciplinary process itself or the employee’s anticipated outcome of the process. It was submitted that the present case involved a process that was not concluded and, in any case, far removed from a disciplinary process that had the potential to lead to termination. The Respondents also drew my attention to the decision of Deputy President Roberts in Irene Tomaras v Echlan Bakery Pty Ltd and Ors [2024] FWC 696. The Respondents submitted that this decision involved more serious accusations from an applicant and a more clearly articulated reference to termination by the respondent, but the termination was nonetheless found to be a genuine resignation.
The Respondents also submitted that the Applicant’s subjective perceptions of reality did not align with the objective truth of what was occurring, and that the Applicant had also demonstrated through the cross-examination process that the FWC should have concerns about his credibility. In terms of the cross-examination process the Respondents submitted that the Applicant had displayed a misplaced sense of outrage and entitlement, had difficulty accepting criticism, made long-winded and irrelevant speeches when answering questions, made allegations that were unsupported by evidence, provided answers to questions that were not asked and was generally argumentative. In support of its contentions about the quality of the Applicant’s evidence, the Respondents highlighted three particular exchanges during cross-examination where the Applicant had been unwilling to concede clear errors or inconsistencies in his own evidence.
The Respondents also addressed the meeting of 21 December 2023 and submitted that as witnesses for the Respondents were more credible, their evidence that there was no intent to force a resignation from the Applicant, and their surprise at his resignation, ought be accepted. The Respondents also addressed the issue of why the meeting on 21 December 2023 involved raising concerns about the Applicant. The Respondents submitted that the evidence of its witness Ms Mason provided insight into the thinking of the Respondents. Ms Mason’s evidence was that her experience was that in resolving disputes, it was helpful to get all of the issues out in the open and then once everything was “on the table” begin a discussion about resolving all of the issues.
The Respondents further submitted that the facts pointed to the meeting being more about resolution that termination. It was submitted that if termination was the intent, then the Respondents would have conducted two separate meetings to address the issues in a more discrete fashion, rather than taking on all of the parties’ issues in one meeting. Further, the Respondents needed the Applicant’s electrical licence to allow the Nickaz Spark business to operate.
With respect to the claim from the Applicant, the Respondents noted the findings in Bupa with respect to the different types of dismissals contemplated by the Act. The Respondents submitted that they were uncertain as to whether the Applicant was claiming a “heat of the moment” resignation but if this was indeed the case, that I should be guided by the findings of the Full bench of the Australian Industrial Relations Commission in Ngo v Link Printing Pty Ltd U No. 20732 of 1998 regarding the need to check with a resigning employee whether the resignation was the true intent. The Respondents submitted that the Applicant had all of his faculties about him during the meeting on 21 December 2023, and was an experienced worker who had confidence in his abilities and performance. As such, there were no special circumstances that gave rise to a need for the Respondent to confirm the Applicant’s intentions. Even if there had been such circumstances, the Applicant himself had not sought to withdraw the resignation and in fact confirmed the resignation via email one week later. In summary, the Respondents submit that the Applicant provided a clear and unequivocal resignation, which the Respondents were entitled to accept at the time it was proffered.
With respect to the issue of alleged non-payment of overtime, the Respondents submitted that this dispute was a contractual dispute, meaning the Applicant would have to prove the term and its significance to the contract. The Respondents proffered the view that this would present the Applicant some significant difficulties, given that the overtime issue would be at best an intermediary term. As such, even if the term could be found to be implied, a breach of it may not represent repudiation such that the Applicant was entitled to resign and claim forced resignation.
In closing submissions, the Applicant submitted that there were two bases on which the FWC could be satisfied that the Applicant’s resignation had been forced and only one or other of the two need be found for the FWC to find for the Applicant. The two bases were firstly that the conduct of the Respondents in the meeting of 21 December 2023 was such that it forced the Applicant to resign, and secondly, the failure to pay lawful entitlements to overtime was a fundamental and repudiatory breach of the Applicant’s contract. The Applicant submitted that the FWC could be satisfied that there was an agreement to pay overtime, based on the consistent evidence of Mr Hecht and the varying and contradictory evidence of Mr Hadden. The Applicant further noted that there was no cross examination of the Applicant with respect to the contractual overtime issue. The Applicant further submitted that the letter of offer was consistent with the Applicant’s version of the overtime agreement, in that it provided for an hourly rate of pay and, by implication, payment for all hours worked. The Applicant submitted that Mr Hadden’s statement that the Applicant had accepted that there was no overtime payable by accepting the salary paid into his nominated bank account was not logical and could not be relied upon to indicate acceptance, particularly in light of the Applicant continuing to raise the issue of overtime.
The Applicant further submitted that the Respondents’ conduct of the meeting on 21 December 2023 had been poor in that a number of issues were raised with the Applicant that had not been raised previously or had been raised and could have been regarded as resolved. The Applicant described some of those issues as not serious and noted others that did appear to be serious were such that they should have been raised at an earlier time. It was further submitted that if the Respondents were minded to resolve issues, a more appropriate way to conduct the meeting would have been to address the Applicant’s concerns before moving on to table its own concerns. In summary, the Applicant took the view that the actions of the Respondents were consistent with not being focused on resolving the Applicant’s issues, but rather on pushing him out of his employment. Even if the FWC were not persuaded of this intent, the Applicant submitted that a reasonable person would have adopted the same course of action as the Applicant. With respect to the decision in Kar, the Applicant drew a distinction between the circumstances of that case and the present matter in terms of the process used.
The Applicant referred me to the findings in Gelagotis v Esso Australia [2018] FWCFB 6092 at [119] in support of the proposition that repudiation can be found where a reasonable person would perceive renunciation of the contract as a whole or some fundamental part of it, and the decision of the High Court in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 at [44] which deals with repudiation being determined by the actions of a party. The Applicant also cited the decision of Commissioner Wilson in John Simon v NGS Group Pty Ltd [2019] FWC 3442 at [53-71] (NGS) where the Commissioner found that the question of repudiation is assessed objectively, and there is no need to demonstrate a subjective intention to repudiate. In that decision, the Commissioner also found that silence does not equal acceptance, and neither does continuing to perform duties of itself indicate acceptance but rather, such continuation requires further consideration.
The Applicant submitted that the non-payment of overtime could be likened to a reduction in wages, akin to the situation in NGS. There was no argument that the Applicant had been paid his salary, but it was submitted that the overtime component was a fundamental part of the contract and as such non-payment of it was a serious repudiatory breach. The Applicant also drew my attention to the finding in Michael White v Superior Facilities Pty Ltd [2020] FWC 3035 at [16] where Deputy President Colman found that a persistent and unjustified failure to pay salary is a repudiation of the contract of employment by the employer and that the employee in that case had accepted that repudiation in circumstances where he had not expressly cited any reason for his resignation, as had also been the case with the Applicant in the present matter.
In their reply to the Applicant’s closing submissions, the Respondents noted the finding of the High Court in cases such as WorkPac v Rossato [2021] HCA 23 and submitted that the principle of looking to the agreed contractual arrangements was appropriate and in the present matter, the letter of offer to the Applicant was the final stage in the process of negotiations for the Applicant’s terms of employment. Looking to that document made it clear that there was no mention of payment for overtime. The Respondents submitted further that there was no need to imply any such provision to give efficacy to the employment arrangements. In addition, the Respondents cited authority for the proposition that where there is an argument over contractual entitlements, a mistaken understanding of those rights by one party will not allow it to treat the contract as repudiated. The Respondents submitted that, at best, there was a dispute over the terms of the contract and there was as such no capacity to find that by failing to pay overtime there was a repudiatory breach that struck at the fundamental heart of the contract.
With respect to the conduct of the meeting on 21 December 2023, the Respondents submitted that while the Applicant may have been surprised by any issues being raised with his conduct or performance, this does not equate to conduct by the Respondents that forced the Applicant to resign.
Consideration
In the first instance, it is appropriate that I deal with the nature of the claim by the Applicant. In submissions, Applicant the relied on the findings in Bupa, to claim that he had been dismissed both within the meaning of s.386(1)(a) and also s.386(1)(b). I do not agree. In circumstances of a clear resignation, a dismissal under s.386(1)(a) will only be found where there has been a “heat of the moment” resignation or a resignation where the employee was in a compromised mental state. I find that neither of those situations was applicable. The Applicant confirmed his resignation in writing some seven days after providing it verbally and at no time attempted to withdraw the resignation. While he may have felt pressured during the meeting of 21 December 2023, I do not find that he was in such a mental state as to in any way impair his judgment. As such, I find that if a dismissal occurred, it was under the auspices of s.386(1)(b).
It is also appropriate that I comment on the evidence provided by the witnesses. In general, the witnesses for the Respondents were straightforward and answered questions directly. Although there were some occasions where their answers were somewhat inconsistent, that is not particularly unusual where people are called upon to recall events of some months prior. Apart from two issues upon which I will comment below, I was generally comfortable with the answers provided by these witnesses. The Applicant, on the other hand, was a difficult witness who was prone to not answering questions put to him and also refusing to concede points where to concede would put him in a negative light. This led some of his responses to appear illogical, which creates issues with credibility. An example of this was when the Respondents took the Applicant through his email dated 28 December 2023 where he very politely and without any apparent rancour confirmed his resignation. It was put to the Applicant that the claims he was making in his application were far removed from what was in his email, where there was no mention of forced resignation, and he conceded this was the case. However, he would not concede that the email was in any way inaccurate. I formed the view that the Applicant was a proud man who did not take kindly to any suggestion of criticism of his work methods or conduct at work and this manifested itself in a tendency to be obdurate and defensive on the witness stand.
The Applicant contends that there are effectively two limbs to his claim of forced resignation and that either limb on its own would lead to a finding that his termination was at the initiative of the employer. In the first instance, I will turn to the claim about non-payment of overtime. From the evidence, I accept that the Applicant had a desire to be paid for his overtime and had expressed this to the Respondents. I also find that there had been discussions regarding whether this would be agreed and there was substantial examination at hearing on this issue. Further, there is some ambiguity in the wording used by Mr Hadden in his text message to the Applicant, where he speaks of “capacity in the hourly rate” – a phrase he could not explain at hearing. I also note the somewhat atypical use of an hourly rate for an employee engaged pursuant to an annual salary as opposed to an award or agreement and suggest that this is of itself somewhat supportive of the Applicant’s claim that he intended to be paid for hours in excess of 40 per week.
On the other hand, such an arrangement was not recorded in the letter of offer, being the final in a series of communications dealing with the Applicant’s terms of employment. This suggests to me that the Respondents had not agreed to the payment of overtime at the point at which the letter was provided to the Applicant. I also note the consistent view from the Respondents’ witnesses that the payment of overtime had not been agreed, albeit that I do not accept Mr Hadden’s suggestion that the acceptance of payment of his salary by the Applicant was an indicator of his acceptance of the Respondent’s version of the arrangements. I am also not persuaded that there is any implication that can be drawn from the wording used by the Respondent in the letter of offer that could be taken to mean that overtime was payable. As such, and consistent with the submissions of the Respondents, I find that, at its highest, the issue of overtime was unresolved. Although the Respondents may have preferred that the Applicant simply accept their “time in lieu” approach to extra hours, I find that they were aware, from at least 5 December 2023, that the Applicant was disputing this part of his remuneration. However, I find that this is the extent of the issue: that it was a matter in dispute. As such, I do not find that it was a firm term of the contractual arrangements and accordingly the failure to pay overtime cannot be found to be a repudiatory breach of the Applicant’s employment contract.
I then turn to the conduct of the Respondents at the meeting on 21 December 2023. The Respondents’ witnesses Mr Hadden and Ms Mason gave evidence that they thought the process of listening to the Applicant’s concerns and then, without addressing those concerns, raising their own concerns was the best way to handle the situation. I note that the Respondents’ submitted that Ms Mason’s experience in Human Resources ought to be acknowledged and to provide some support for the merit of this process. However, the evidence of the Respondents was to the effect that they did not discuss a plan for the meeting, and Ms Mason was a passive note-taker during the meeting. As such, I find that her observations were not in the nature of explaining the rationale but rather of endorsing the process after the fact. Further, I am not persuaded to agree with that rationale.
It appears to me that the Applicant, who was clearly invested in his issues, was presented with the following: two weeks after he raises his concerns, he is granted a meeting, at which the Respondents sit and listen to those concerns and then, rather than addressing them, tell him all of the problems they have with him. These problems included some that had been dealt with previously and some that were of sufficient seriousness that they should have been dealt with previously. I do not accept that the best way to resolve issues is to respond to the other party’s concerns by saying, effectively, “well let me tell you about the problems I have with you”. I am also of the view that by not addressing the issue of providing a contract of employment, the Respondent has been unwise. I put it to Mr Hadden in the hearing that they could have provided a draft contract and he agreed that this was perhaps what should have been done.
However, while I have some concerns about the wisdom of the methods adopted by the Respondents, the question goes to whether or not they involved conduct such that it entitled the Applicant to regard himself as having no choice other than to resign. I do not believe this to be the case. While I note that the process used was perhaps less than ideal, there does not appear to be any evidence that the Respondent was conveying an intention to discipline the Applicant much less terminate him based on the allegations it was making about his conduct. As such, I do not accept that he was being “backed into a corner”, or at the very least not intentionally. I find that the meeting was not conducted in such a way as to be menacing or hostile towards the Applicant and, albeit that it may have become somewhat tense towards the end, proceeded in a calm and professional manner. I also accept that the witnesses for the Respondents were truthful when they expressed some surprise at the Applicant’s resignation during the meeting.
The Applicant claims he was belittled and humiliated by virtue of the issues raised with him about his own performance, and that those issues indicated that he was being watched closely while at work. I have expressed some level of concern over the raising of those issues and the nature of them, but I do not find that the raising of those issues in the circumstances was such that it was humiliating and belittling to the point that it would have caused a reasonable person to conclude they had no option other than to resign. It may have been somewhat embarrassing to a reasonable person, and may have been a surprise to the Applicant, but this does not equate to behaviour that forces resignation. In summary, I do not find that the conduct of the meeting was such that it entitled the Applicant to rely on it to claim termination at the initiative of the Respondent.
I now turn to the question of whether or not there were practical and reasonable alternatives available to the Applicant. In doing so, I note that the Applicant is an experienced person, who has for many years run his own business. At the hearing he displayed faith in his abilities and competence. While at the meeting he was facing the ultimate decision makers in the Respondents’ business, I find, based on his performance on the witness stand, that he was well and truly capable of standing up for himself. As such, I am not inclined to the view that he is a person easily cowed and I find he could have represented himself effectively in the meeting on 21 December 2023. This is important with respect to what practical options he had open.
I find that the Applicant did have options available to him in lieu of resignation. He had the option of seeking to return the discussion to his concerns to determine what action – if any – the Respondent was intending to take with respect to, for example, his overtime. It may well be that he did not get the response he wanted, but it was open for him to further explore that issue and propose alternative solutions. If he was concerned about the allegations against him, he could have asked to have them provided in writing with an opportunity to respond, or he could have asked the Respondent what actions – again if any - they intended to take over those issues based on his answers provided at the meeting. Put simply, I do not accept that a reasonable person could have thought that his employment was at risk, that he had been belittled and humiliated, and that his only option was resignation.
As such, I find that the Applicant’s resignation was not forced by the actions of the Respondent. As there has been no termination at the initiative of the Respondent, the FWC does not have jurisdiction to deal with the matter and the application will be dismissed.
DEPUTY PRESIDENT
Appearances:
N Roberts of McCullough Robertson for the Applicant.
S McIntosh of Counsel for the Respondent.
Hearing details:
2024.
Perth (via Microsoft Teams):
March 19.
April 5.
[1] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245 at [47].
[2] Witness statement of Dominic Conway at paragraph 39.
[3] Ibid, 46.
[4] Witness statement of Alison Mason at paragraphs 41-42.
[5] Witness statement of Kazan Hadden at paragraph 37.
[6] Witness statement of Kazan Hadden at paragraphs 49 – 51.
[7] Whittaker v Unisys Australia Pty Ltd [2010] VSC 9 (Ross J) at [33].
[8] Allison v Bega Valley Council (1995) 63 IR 68 at [72 – 73].
[9] Michael White v Superior Facilities Pty Ltd [2020] FWC 3035 at [16].
[10] Witness statement of Michael Hecht at paragraph 45.
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