Mr Peco Sirijovski v BlueScope Steel (AIS) Pty Ltd

[2013] FWC 9080

[2013] FWC 9080

The attached document replaces the document previously issued with the above code on 24 December 2013.

In paragraph [2] delete “The hearing was conducted on the 18 and 19 September 2013” and replace with “The hearing was conducted on the 25 and 26 September 2013”.

Stevie Smith

Associate to Commissioner Riordan

13 January 2013

[2013] FWC 9080 [Note: Appeals pursuant to s.604 (C2014/2644 & C2014/2658) were lodged against this decision - refer to Full Bench decision dated 23 April 2014 [[2014] FWCFB 2593] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Peco Sirijovski
v
BlueScope Steel (AIS) Pty Ltd
(U2013/1841)

COMMISSIONER RIORDAN SYDNEY, 24 DECEMBER 2013

Application for relief from unfair dismissal.

[1] This decision relates to an application lodged on 4 June 2013 by Mr Peco Sirijovski, pursuant to section 394 of the Fair Work Act (the Act) in relation to an alleged unfair termination of his employment by BlueScope Steel (AIS) Pty Ltd t/a BlueScope Steel (BlueScope). Mr Sirijovski is a member of the Australian Workers’ Union, Port Kembla Branch (AWU).

[2] The hearing was conducted on the 25 and 26 September 2013. An inspection of the relevant work site was conducted on the morning of 18 September 2013. Mr Sirijovski was represented by Mr Aron Neilson from Maurice Blackburn Lawyers. BlueScope was represented by Mr Aaron Dearden from Duncan Cotterill Lawyers.

Background

[3] Mr Sirijovski has been employed by BlueScope for 35 years, the last 27 in the Plate Mill. At the time of his termination Mr Sirijvski was a Level 4 Plate Processing and Dispatch Operator.

[4] Mr Sirijovski was involved in a serious safety incident on 14 December 2012. Following an investigation he was asked to show cause why his employment should not be terminated.

[5] In response, Mr Sirjovski committed to following all of BlueScope’s policies and procedures in the future. After considering his response, Mr Sirijovski was issued with the following First and Final Written Warning and given a 5 day suspension on 19 December 2012.

“Dear Peco,

This is to inform you that the Company has investigated an incident involving yourself that occurred on Friday, 14th December 2012 when you entered the rail exclusion zone in the Normaliser Building (Road 1A) while a shunt was occurring.

The findings of the investigation have shown that the incident occurred as a result of your gross misconduct in the form of not following a Company Safety Critical procedure. The incident could have been avoided should you have chosen to follow the safety critical operating procedure.

The Company has considered all the factors relating to this incident including your employment history and your training record. On this basis you will be issued with a first and final written warning and 5 shift unpaid suspension for unacceptable behaviour in the form of gross misconduct by not following a Company Safety Critical Procedure.

The Company requires this unacceptable safety performance be addressed urgently, and reminds you that working safely is a condition of employment.

Peco, please be aware this is a first and final written warning, any future breach of critical operating procedures, operational negligence, wilful misconduct, or behaviour of a similar kind may lead to further disciplinary action, which may include termination of your employment.
(My emphasis)

Prior to you resuming your normal duties the Company will arrange to have you complete refresher training in:

● BlueScope Steel Life Preserving Principles (Cardinal Rules)
● Rail Line Restricted Access - Critical Procedure

The Company would also like to take this opportunity to remind you that a Company sponsored Employee Assistance Programme (EAP) is available to all employees. Peco, I encourage you to take advantage of this Employee Assistance Program (EAP). Through this confidential, no-cost, service you may also be referred to community based support services where appropriate. Please call the Employee Assistance Program (EAP0 on [phone] of you wish to take advantage of this offer.

Yours faithfully,
David Otsyula” 1

[6] Mr Sirijovski returned to work on 8 January 2013 and undertook the required training.

[7] Mr Sirjijovski was the Relief Operator on night shift on 20 May 2013. He was assigned to the role of Trim Shear Operator for the shift. Mr Sirijovski was upset about being assigned to this role. This role required Mr Sirijovski to remain in a pulpitt (Control Room) for the full shift and trim the steel plates to the appropriate dimensions as per each individual order.

[8] There were a number of production issues on the shift. A number of witnesses, including his Team Leader Mr Anic, described the shift as a “difficult shift”. This included plate jams, malfunction of the sheer traverse and the quality of a number of the plates processed.

[9] From the inspection, I witnessed a near safety incident. A steel plate coiled like a spring which forced an employee to jump to safety because the straight edge had been incorrectly engaged for the current size plate.

[10] It is suggested by BlueScope that 40 plates should be processed every hour, though this is not a target. It is a role, from my observation, which requires a high level of concentration.

The Incident - Brief Summary

[11] A significant scrap jam that occurred on the trim shear syntron conveyor inside the last two hours of Mr Sirijovski’s shift at approximately 5.30am. This conveyor is one of six screen shots constantly displayed in the pulpitt on two monitors.

[12] It is common practice to only use one of the two monitors on night shift. The Shear Trim Operator is required to check the monitor on a regular basis. Mr Sirijovski claims that he did not see the scrap jam even though he checked the monitors on a regular basis.

[13] The last two hours of Mr Sirijovski’s shift were the most productive hours of the shift. He processed 67 plates in one hour and forty five minutes. There were no mistakes or issues of quality in relation to the plates that were processed and trimmed during this time, even though the cutting blades were blunt on one side and needed replacing.

[14] Mr Otsyula conducted an investigation into the incident which resulted in Mr Sirijovski being terminated on 28 May 2013. The termination letter stated;

“Dear Mr Sirijovski

Notification of Termination of Employment

This is to advise you of the termination of your employment from BlueScope Steel (AIS) Pty Ltd effective immediately from Tuesday 23 May 2013 for continued poor performance. This has resulted in operational negligence and failure to follow Company policies and procedures. The Company has determined that you are incapable of performing the role of an operator, and your ongoing employment with the Company constitutes an unacceptable risk to the business.

After carefully considering all the relevant information the Company concludes that your continuing employment is no longer tenable.

The Company will pay you 5 weeks ordinary pay in lieu of notice in accordance with your entitlements.

HR Assist, Adelaide, will be in contact with you to finalise any payroll, superannuation and other administrative arrangement.

Yours sincerely

David Otsyula” 2

[15] In considering whether the dismissal of Mr Sirijovski was harsh, unjust or unreasonable, I am required to take into account the relevant provisions of the Act.

Part 3-2 Unfair Dismissal

“381 Object of this Part

(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant,”

[16] In determining this application I have taken into account the evidence before me and the submissions of the parties.
Section 387(a) - Valid Reason

[17] By his own admission, Mr Sirijovski was a very good Operator. He is highly experienced with no previous warnings in relation to “operational negligence” in his thirty five year career.

[18] He had an “interesting but not uncommon” relationship with his Team Leader, Mr Anic. Mr Sirijovski could be regarded as a belligerent and difficult employee. He regularly questioned Mr Anic’s authority but I believe that Mr Anic continued to act in a manner to support Mr Sirijovski.

[19] Mr Sirijovski was dismissed for continued poor performance and operational negligence. However, in cross examination, Mr Otsyula attested that Mr Sirijovski was dismissed because Mr Sirijovski deliberately ignored the scrap jam. Poor performance, operational negligence or deliberate and wilful misconduct may constitute a valid reason for dismissal.

[20] In Qantas Airways Ltd v Cornwall 3, the Full Court of the Federal Court said;

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.” 4

In Edwards v Guidice 5, in a different legislative framework, Moore J made the following observation in relation to the operation of s.170CG(3) of the Workplace Relations Act;

“The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s.170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.” 6

(My emphasis)

[21] The joint judgement of McHugh and Gummow JJ, in Byrne v Australian Airlines sets the parameters for these types of determinations;

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. ...

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable...” 7

[22] Mr Sirijovski should have seen the scrap jam. I do not accept his suggestion that the monitor may have been frozen. If this was the case, than Mr Sirijovski should have noticed that the other 5 sections of the plant were stationary. I acknowledge that the monitor displaying the scrap conveyor operation is not very clear, but a cursory glance in the last hour of the shift should have raised Mr Sirijovski’s concerns. I have concluded that his failure to observe the scrap jam was a performance failure. However, there is no supporting evidence or credible motivation to support a suggestion that Mr Sirijovski’s actions were deliberate in actually ignoring the scrap jam.

[23] I find that Mr Sirijovski was guilty of operational negligence and that BlueScope had a valid reason to terminate Mr Sirijovski’s employment.

(b) Notified of the Reason

[24] Mr Sisijovski was notified of the operational negligence issue. Mr Sirijovski was notified of that reason for his dismissal both verbally and by correspondence. He was not notified of Mr Otsyula’s additional reason for termination of his employment, ie Mr Otsyula’s conclusion that the failure to deal with the scrap jam was deliberate.

[25] As stated earlier, Mr Otsyula injected an element of confusion into his evidence under cross examination by stating that the basis of Mr Sirijovski’s termination was his deliberate action in ignoring the scrap jam. Mr Sirijovski was not notified of this reason.

(c) Opportunity to Respond

[26] Mr Sirijovski was given an opportunity to respond to the allegation of operational negligence. However, the issue of deliberate and wilful misconduct was never mentioned to Mr Sirijovski. This raises real issues in relation to procedural fairness. I note that Mr Sirijovski was only interviewed on two occasions and for a combined time of approximately 35 minutes. There was no opportunity for Mr Sirijovski to respond to Mr Otsyula’s unstated conclusion that Mr Sirijovski was guilty of deliberate operational failure.

(d) Attendance of Support Person

[27] Mr Sirijovski had a support person present

(e) Previous Warnings

[28] Mr Sirijovski received a final written warning in December 2012 for breaching a Company Safety Critical Procedure. He was required to Show Cause why he shouldn’t be dismissed. Mr Otsyula accepted his undertakings and was entitled to rely upon them.

[29] The final warning “covered the field” in relation to Mr Sirijovski’s on-going performance at BlueScope and not simply in relation to his compliance with relevant safety practice and procedures. I have concluded that it is not fair that an employee with an unblemished record of over thirty five years, who makes a single mistake in relation to safety, can be subject to a stringent and onerous final warning which covers all aspects of his on-going employment. The final nature of the 2012 warning was inappropriate in all the circumstances and, in my opinion, cannot be relied on to boost the 2013 incident to one justifying termination of employment.

[30] In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport 8, the Full Bench said:

“[77] Where a termination of employment is related to unsatisfactory performance by the employee - as is the case here - the Commission must have regard to whether the employee had been warned about that unsatisfactory performance before termination (s.170CG(3)(d)).”

In Fastidia Pty Ltd v J B Goodwin 9 the Full Bench said:

“ [43] In the context of s.170CG(3)(d) we think that a warning must:

- identify the relevant aspect of the employee’s performance which is of concern to the employer; and

- make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.

[44] In relation to the latter requirement, a mere exhortation for the employee to improve his or her performance would not be sufficient. We also note that we accept that these criterion are to be applied in a practical and commonsense way taking into account the employment context.”

(It should be noted that s.170CG(3)(d) of the Workplace Relations Act is identical to s.387(e) of the Fair Work Act.)

[31] In my view the final warning failed the “fair go” test of section 381 (2) of the Act and the practical and commonsense test applied in Fastidia v Goodwin. It is not fair or practical to give someone a warning, or put them on notice in relation to aspects of their future performance, if they have not contravened any of those aspects in the past. It is as if they are being warned for a breach that they have not committed. Any warning must be appropriately and deliberately particularised. The final warning should have applied to the issue of Occupational Health and Safety and Critical Safety Procedures only.

[32] I find that Mr Sirijovski was not appropriately warned in relation to the issue of operational negligence or poor performance before he was dismissed.

(f) Size of Employer

[33] BlueScope is a large employer

(g) Human Resource Management

[34] BlueScope has a dedicated and experienced HR Department who were involved in the disciplinary process.

(h) Any Other Reason

[35] The investigation by Mr Ostyula was incomplete and disjointed. One of the key personnel to be interviewed during the investigation should have been the Trim Shear Operator who took over from Mr Sirijovski on day shift, but he was not interviewed by anyone.

[36] It was also unusual, and in my opinion unsatisfactory, that Mr Otsyula outsourced parts of the investigation to Mr Sladek and Mr Anic but didn’t ask for their input in relation to the outcome.

[37] Mr Otsyula admitted that he had never been formally trained in investigative techniques or practices. The decision to outsource parts of the investigation was a mistake. The fact that Mr Sirijovski was only interviewed for 20 minutes on the first occasion and 15 minutes in the show cause meeting caused me to consider whether the interview process was rushed or an outcome had already been determined prior to the interview.

[38] I find that the investigation did not provide the fundamental elements of procedural fairness to which Mr Sirijovski was entitled to receive.

Harsh, Unjust or Unreasonable

[39] Mr Sirijovski had not been disciplined in thirty five years of employment for any issue in relation to operational performance. He was rightfully proud of his record. For a single incident of operational negligence to now be the cause of his dismissal does not satisfy the test in Loty.

Mr Otsyula testified that:

“My decision to terminate the employment of Mr Sirijovski was based on the facts of the incident and Mr Sirijovski’s employment history (most notably his final warning) 10

[40] Mr Sladek and Mr Anic both stated that the actions of Mr Sirijovski did not warrant dismissal except for the final warning. I have already determined that the final warning was inappropriately and unfairly worded. It should have been an ordinary warning. I am persuaded by the conclusions of both Mr Anic and Mr Sladek, that the actions of Mr Siriovkski did not justify dismissal. Even Mr Otsyula could not conclusively state that without the final warning, Mr Sirijovski should be dismissed.

[41] The Plate Mill has been the subject of restructuring discussions and rumours over a lengthy period of time. Large scale redundancies were expected. Relevantly, on 17 May 2013, Bluescope announced that the Plate Mill was to be restructured and that there would be redundancies.

[42] Mr Otsyula did not know how many positions would be made redundant from the Plate Mill but suspected that it would be in the vicinity of 20-30. The restructuring is now complete and 21 positions were made redundant. Mr Sirijovski’s position was one of those 21 identified redundant positions.

[43] I am not convinced that Mr Otsyula conducted his investigation and formed his decision to terminate Mr Sirijovski based on an underhand attempt to save paying Mr Sirijovski redundancy. I find Mr Otsyula to be a person of integrity. However, the fact that Mr Sirijovski missed out on the opportunity to apply for redundancy is a factor I have taken into account in considering whether or not the decision to terminate was harsh.

Conclusions

[44] I have already found that BlueScope had a valid reason to dismiss Mr Sirijovski.

[45] He has been a difficult and belligerent employee who had difficulty with his Team Leader and would continually challenge his authority and instructions. This type of behaviour should not have been tolerated in the workplace. Bluescope has allowed this behaviour to continue and by failing to discipline Mr Sirijovski and restrain his conduct has, to some extent, condoned it. I have taken this into account.

[46] The warning process is a vital component of BlueScope’s disciplinary policy. A final warning should be the penultimate step in the policy process before dismissal. A final warning should not be lightly imposed and should never be imposed to make termination of employment more accessible or easier in the future. Warnings must be used to advise an employee of their shortcomings - where BlueScope require improvement from the employee in order to continue the employment relationship. In this regard, warnings by their very nature need to be precise so that employees can focus on the areas of their performance that need improving. This did not happen for Mr Sirijovski. His final warning letter of 19 December 2012 covered issues such as critical operating procedures, operational negligence, wilful misconduct, etc and not the critical safety procedures for which he was being disciplined.

[47] As a result, when Mr Sirijovski was operationally negligent on the morning of 21 May 2013 his employment was unfairly in jeopardy. Such an outcome does not pass the “fair go” test.

[48] For the reasons stated above, I find that the dismissal of Mr Sirijovski to be harsh, unjust or unreasonable.

Remedy

[49] Mr Sirijovski’s position has been made redundant. If Mr Sirijovski was reinstated nothing would prevent BlueScope from applying its redundancy policy to Mr Sirijovski. The primary remedy for an employee who has been unfairly dismissed is reinstatement. Alternatively, compensation can be awarded. If the employment relationship has broken down beyond repair, that is a factor that can be taken into account to decide if reinstatement is appropriate or not. I am of the view that Mr Sirijovski will be so bitter and disappointed at not being given redundancy that re-employment could be hazardous. I believe that the relationship cannot be restored to an appropriate level to allow for reinstatement.

[50] I am satisfied that Mr Sirijovski was a difficult employee. He regularly questioned the authority of his team leader, complained and refused to undertake reasonable tasks and displayed an apathetic attitude towards safety. That type of behaviour is unwarranted and cannot be condoned.
[51] However, I was greatly disturbed by the revelation that Mr Sirijovski did not have ready access to his isolation locks when Mr Anic and Mr Sirijovski attended a plate jam on 20 May 2013. The fact that they were locked in a cupboard to which he does not have access is bordering on being unbelievable.

[52] Isolation locks are the most important piece of PPE for an Operator. Whilst safety boots protect toes, gloves protect hands and safety glasses protect eyes - isolation locks protect lives. They prevent isolated equipment from being switched on whilst another employee is working on the equipment, especially if they cannot be seen. For Mr Sirijovski to not carry a lock whilst at work is of concern but to not have easy access to one displays a reckless and dismissive attitude towards safety.

[53] In determining the appropriate level of compensation, I am obligated to consider section 392 of the Act.

“392 Remedy—compensation

Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.

Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $64,650 from 1 July 2013
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[54] I am satisfied that compensation is the appropriate remedy in accordance with section 392(1) of the Act.

[55] Section 392(2)(a) the effect of the order on the viability of the employer’s enterprise

Any payment to Mr Sirijovski will not affect the on-going viability of Bluescope.

(b) the length of the person’s service with the employer

Mr Sirijovski has been employed by Bluescope for 35 years with no prior warnings in relation to his operational competency.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

Mr Sirijovski is 53 years old. He would have expected to work at Bluescope until he retired at 67, ie for another 14 years.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
Mr Sirijovski has not formally sought alternative employment but has asked family and friends in regards to available casual employment.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

Mr Sirijovski has not earned any money since he was dismissed.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

Mr Sirijovski lives in the Illawarra area where the unemployment rate is very high. He has skills which are not easily transportable outside of Bluescope.

(g) any other matter that the FWC considers relevant.

I have taken all of these matters into account including the fact that Mr Sirijovski has personal debts.

(3) Misconduct reduces amount

I have found that Mr Sirijovski was guilty of operational negligence. In my view, adopting the Bluescope disciplinary code, he should have been issued with a final warning and given a 5 day suspension. I have taken this into account when determining the appropriate level of compensation.

[56] Based on the principles in Sprigg 11which were refined in Ellawarra v Australian Postal Corporation12 an appropriate amount of compensation would be significantly higher than the 26 weeks salary allowed under the Act.

[57] Taking into account the unfairness of Mr Sirijovski’s termination of employment it seems unfair that Bluescope not pay Mr Sirijovski the previously available redundancy package. It is not in any way fair or reasonable for BlueScope to deny this long serving employee this benefit. BlueScope should not reap a financial benefit from not paying Mr Sirijovski a redundancy because of an action which I have found to be harsh, unjust or unreasonable.
[58] I accept that Bluescope is not obligated to pay the redundancy and therefore pursuant to section 392(6) of the Act, I order that Mr Sirijovski be paid 26 weeks pay, including any shift loadings, penalties or overtime pay that he worked in the 26 weeks immediately prior to his dismissal.

[59] An Order will be issued to that effect.

COMMISSIONER

 1   Exhibit PS2

 2   Exhibit PS1

 3 [1998] FCA 865

 4   [2012] FWA 8982 at para 44

 5 [1999] FCA 1836

 6 [1999] FCA 1836 at para 6 - 7

 7 (1995) 185 CLR 410 at 465 - 468

 8   S5897

 9   S9280 [2000] AIRC 223

 10   Exhibit B3 Paragraph 60

 11 (1998) 88 IR 26

 12   PRS5109

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