Mr Precious Ohazurume v Mackillop Family Services
[2020] FWC 5679
•29 OCTOBER 2020
| [2020] FWC 5679 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Precious Ohazurume
v
Mackillop Family Services
(U2019/14680)
COMMISSIONER LEE | MELBOURNE, 29 OCTOBER 2020 |
Application for an unfair dismissal remedy. Valid reason for dismissal. Process to effect dismissal not consistent with Respondent’s policy. Taking all factors into consideration, dismissal not harsh, unjust or unreasonable. Application dismissed.
[1] On 26 December 2019, Mr Precious Ohazurume (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Mackillop Family Services (the Respondent).
When can the Commission order a remedy for unfair dismissal?
[2] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Has the Applicant been dismissed?
[6] A threshold issue to determine is whether the Applicant has been dismissed from their employment.
[7] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[8] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[9] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent. I am therefore satisfied that the Applicant has been dismissed within the meaning of s.386 of the FW Act.
Initial matters
[10] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[11] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
[12] It is not in dispute and I find that the Applicant was dismissed from his employment on 24 December 2019 and made the application on 26 December 2020. I am therefore satisfied that the application was made within the period required in s.394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
[13] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[14] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
[15] It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent on 18 February 2019 and was dismissed on 24 December 2019, a period in excess of 6 months. The Applicant was employed as a casual and engaged on a regular and systematic basis during his period of employment and had a reasonable expectation of ongoing employment on a regular and systematic basis.
[16] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Application of an enterprise agreement
[17] It was not in dispute, and I find that, at the time of dismissal, the MacKillop Family Service Enterprise Agreement 2016 (the Enterprise Agreement) applied to the Applicant’s employment.
[18] As the Applicant has completed the minimum employment period and an enterprise agreement applied to the Applicant in relation to the employment at the time of dismissal, I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[19] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).
[20] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
[21] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[22] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
The hearing
[23] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
[24] After taking into account the views of the Applicant and the Respondent, I determined that it was appropriate to hold a hearing for the matter (s.399 of the FW Act). 1 The Hearing was conducted via Microsoft Teams on 17 June 2020, 9 July 2020 and 20 August 2020.
[25] Permission was granted to both the Applicant and the Respondent to be represented by a lawyer.
Witnesses
[26] The Applicant gave evidence on his own behalf.
[27] The following witnesses gave evidence on behalf of the Respondent:
• Ms Natalia Elise Ellaway – HR Business Partner, MacKillop Family Services
• Ms Caitlin Aigner – House Supervisor - East Division, MacKillop Family Services
• Ms Shelby Usini – Business Services Manager, Essential Personnel Services
• Ms Jennifer Elama – Residential Care Worker, Essential Personnel Services
• Ms Ronella Maria Vetan – Residential Support Worker, MacKillop Family Services
• Ms Tracey Jane Waugh – Youth Worker, Transitions Community Care
The Evidence
Background
[28] The Applicant, a casual residential care worker, was employed by the Respondent on a casual basis on the night “stand up” shift at the Respondent’s House in the South East Suburbs of Melbourne, Victoria (the House). It is referred to as the “stand up” shift as the Applicant was required to be awake and active throughout the shift. This is in contrast to a “sleep over” shift where the employee is generally entitled to, subject to some limitations, sleep. The distinction is important given the nature of one of the allegations of misconduct.
[29] The Applicant was employed with the Respondent for a little over 10 months, over a series of casual shifts between February and December 2019. From April 2019 onwards, he worked shifts at the House. There was only one client of the Respondent residing at the House.
[30] Confidentiality orders have been made to protect the identity of that client, who is a vulnerable young person (a minor) who resided at the House. The young person is known in these proceedings as “YP”. The Applicant always worked the same shift, which commenced at 10:00 pm and concluded at 7:00 am the following day.
[31] It is common ground that the YP, the person in the care of the Applicant, could be difficult to work with, would sometimes engage in high risk behaviours (including absconding from care) and needed to be regularly checked and supervised by the care workers at the House. 2 The Applicant acknowledged this was the case when it was put to him.3
The misconduct allegations
[32] It is alleged that the Applicant engaged in various forms of misconduct as follows: 4
• Deliberately deleting important records in order to conceal his misconduct of being excessively late and causing distress to a young resident in his care.
• Falling asleep on the stand up shift, when he was meant to remain awake to perform welfare checks on the resident who was at risk of engaging in dangerous behaviours including self-harm and absconding.
• Repeated lateness in arriving to commence his shift.
• The effect of the preceding conduct upon the resident and upon other staff with whom he worked.
• Engaging in dangerous and risky conduct in working a day or afternoon shift at Anglicare, and then, without any or any sufficient rest, commencing and undertaking his night shift at MacKillop.
[33] The Applicant denies all of the allegations of misconduct. The Applicant was dismissed at a meeting between him, his support person, Ms Ellaway and Mr O’Kelly (Acting Director) on 24 December 2019. 5
The Submissions and Evidence
The lateness to shifts allegation
[34] The Respondent maintains that the Applicant was almost always late turning up for his shifts. That sometimes it was 10 or 15 minutes after the 10:00 pm start time, but there were times when it was 35 minutes or 55 minutes after the start time, and on one occasion, he did not turn up at all.
[35] The Respondent submits that the Applicant would sometimes make up excuses for his regular tardiness, and that often the real reason he was late was that he had been working a day or afternoon shift at Anglicare and had to travel from that shift to the House to commence the night shift. 6
[36] The Applicant’s own evidence on cross examination confirmed that he was late on multiple occasions:
“Sometimes it can be five minutes, sometimes it can be 10 minutes but not like 30 or 20. It's just on a rare occasion that I come in like 20 or one hour, because of the circumstance beyond my control.” 7
…
“…where I was coming from then it was far from where I used to live before. It was very far and sometimes there would be road block or accidents that can take some minutes before I get to work. I used to call them and let them know.” 8
[37] These admissions are inconsistent with the claims of the Applicant in his submissions responding to the evidence of Ms Aigner that “…I am not always late like the way she is presenting it”, 9 and that the evidence from Ms Waugh that he was regularly late was not true.10 This is just one example of numerous inconsistencies in the Applicant’s evidence. I will return to the issue of the credibility of the Applicant shortly.
[38] The evidence that the Applicant was repeatedly late for his shift was provided by witnesses for the Respondent. For example, email exchanges between Ms Aigner to the Applicant on 4 September 2019 and 11 November 2019 both raise the Applicant’s lateness to his shifts. 11 Ms Vetan also gave evidence that the Applicant was late for most of his shifts and was consistently late since March 2019. Ms Vetan also gave evidence that his lateness had an impact on the YP.12
[39] There is also evidence that the Applicant would fail to proactively notify other care workers that he was running late. An example is when the Applicant received the following text message at 10:21 pm after failing to notify the carer that he was running late to his 10:00 pm shift on 17 October 2019: 13
“You need to let us know if you intend to work at [the House] tonight. I am about to call after hours to fill your shift.” 14
Despite this evidence, the Applicant denies that on occasion he turned up to his shift without notifying anyone that he was running late. 15
[40] The evidence that the Applicant was frequently late for his shifts during his 10 months or so of employment with the Respondent is clear and cogent evidence. The Applicant’s own evidence on the point is inconsistent and not credible. Indeed, the Applicant’s evidence was not credible not only in respect to the lateness issue, but in respect to most issues in contest. It is appropriate at this point to deal with the credibility of the witnesses before making a finding on the issue of repeated lateness.
[41] The Respondent submits, and I agree, that the Applicant was an unsatisfactory witness for a number of reasons. They included his giving of inconsistent evidence, one example of which is mentioned above in respect to the lateness issue. A further example is where he conceded he was late on 28 November, 16 however, then later claimed that he was not late.17
[42] The Respondent also submits that the Applicant’s witness statement dated 12 June 2020 is replete with scandalous assertions and exaggerations, such that he cannot be seen to be a reliable, or credible witness. 18 Indeed the Applicant’s witness statement in reply that was provided outside of the directions and very close to the hearing, does contain claims that include: that there is a conspiracy against him;19 that comments from Ms Waugh were “born out of hatred” for him;20 and that her entire statement amounts to hatred and racism and a conspiracy.21
[43] While the Applicant is at liberty to make such claims, there is nothing in the evidence that lends any support whatsoever to there being a conspiracy or hatred or racism from his co-workers. Indeed, the objective evidence shows, if anything, that the Applicant’s co-workers were rather tolerant for a significant period of his lateness and sleeping on shift. This further undermines the credibility of the Applicant.
[44] The Respondent’s witnesses, in contrast, gave clear and cogent evidence which was largely not shaken on cross examination. This evidence must be compared to the inconsistent and exaggerated claims of the Applicant.
[45] It is for these reasons that I prefer the evidence of the Respondent’s witnesses on matters where there is a contest on the evidence.
[46] Returning to the claim of the Respondent that the Applicant was frequently late for his shifts, including the 28 November 2019 shift, having regard to the evidence set out above, I am satisfied, on the balance of probabilities, that the Applicant was frequently late arriving for his shifts.
Sleeping while at work
[47] It is alleged that the Applicant would sleep while on his shift looking after the YP. The Applicant denies that he was asleep during work hours.
[48] There was consistent evidence given by the Respondent’s witnesses that the Applicant was sleeping when he should have been awake and caring for the YP. This included the Respondent witnesses recounting that the YP had told them that the Applicant had been asleep or “nearly asleep” when at work on a number of occasions. 22
[49] There was also direct evidence from Ms Waugh that she found the Applicant asleep when she was working a sleep over shift and the Applicant was working the “stand up” shift and should not have been asleep. 23 Ms Waugh was hardly challenged on this point.24 Furthermore, there was evidence in which the Applicant claimed that the toilets had never been locked which conflicts with the evidence from Ms Waugh indicating that the toilet was locked and she had to use the YP’s toilet.25 It also conflicts with the evidence of Ms Aigner.26 I prefer the evidence of Ms Waugh and Ms Aigner to that of the Applicant.
[50] The Applicant denies that he slept while on shift. In response to the allegations by Ms Vetan he says that she has no proof and is making up lies. 27 In response to the allegation by Ms Aigner, the Applicant says:
“Saying that I was sleeping on shift is not true, that a carer tried to wake me up and I could not wake up. This is just ridiculous, even if I am a fool, who will be at work, sleeping and refuses to wake up when someone tries to wake him or her. I did not remember sleeping on shift that a carer tried to wake me up and I did not wake up.” 28
…
“Saying that a staff saw me sleeping in the morning was a big lie. It did not happen, and she never told me about it.” 29
[51] I do not accept the Applicant’s denial because he was not a credible or reliable witness. In contrast, Ms Waugh was a credible and reliable witness and I prefer her evidence to that of the Applicant. Further, the Applicant’s denial of being asleep is inconsistent with the documentary evidence in the form of the file note made by Ms Aigner on 26 November 2019 where she recorded:
“I also discussed with Precious that I had been informed that he had fallen asleep on shift one morning and that a staff member was locked out and left knocking on the door. The staff member had to find their own way into the house. Precious explained that he had returned from leave sleep deprived and was finding it difficult at the time. Precious stated that he was working out at the gym and has found this to help.” 30
[52] This file note of Ms Aigner evidences that when complaints of the Applicant sleeping on shift were put to him at the time, he sought to excuse his behaviour, rather than deny it.
[53] The Applicant agreed that if he was sleeping on his shifts at the House at night time, that would be a serious breach of his duties to supervise the YP because the YP had to be supervised regularly and if he was asleep he would be failing in that supervision role. 31
[54] I am satisfied on the evidence that the Applicant was asleep at work on a number of occasions. Further, I am satisfied that in doing so, he was in serious breach of his duties to his employer. I am also satisfied that in falling asleep on his shifts, the Applicant put the YP in his care at serious risk of harm. The evidence is clear that the YP needed regular monitoring and was at risk of absconding and self-harm. In these circumstances, the Applicant falling asleep while on his stand up shift put the YP at risk of serious harm.
Deletion of care notes
[55] Earlier in the decision I dealt with the evidence as to the Applicant being late to work on 28 November 2019. It is clear on the evidence that he was late for that 28 November shift despite his denials. Ms Elama was working the shift prior to the night time stand up shift that the Applicant was late for, and was waiting for the Applicant to arrive.
[56] The lateness of the Applicant on that particular occasion is relevant because Ms Elama gave evidence that she recorded her care notes as to the events that occurred on that evening on the House phone. It is not in dispute that it is standard and required practice for the carers to take care notes of events relating to the client. They make up part of a client’s legal care record required by the Department of Health and Human Services (DHHS). 32 The Applicant agrees there is a responsibility to take notes and that they are important and required by the DHHS.33
[57] The notes that Ms Elama recorded are in the evidence, 34 and they include a reference to the Applicant’s lateness and how that was distressing for the YP. Ms Elama’s evidence is that she was concerned about how much to write as she knew that the Applicant would read the notes on the next shift. Ms Elama asked the Applicant during the handover to enter her care notes into the “EDDI system”, the Respondent’s electronic database. Ms Elama as an agency worker did not have access to the EDDI system.35
[58] Ms Elama also gave evidence that:
“The next morning, on 29 November 2019, Ms Vetan contacted me to ask whether I had recorded any notes for my 28 November shift. I explained that I had written my notes in the house mobile phone. Ms Vetan informed me that the notes in the phone had been deleted, and she suspected that they had been deleted by Mr Ohazurume. Ms Vetan also informed me that there were no text messages on the phone. As explained above, Mr Ohazurume had sent a text to the house phone during my shift to tell me that he would be late. I believe that Mr Ohazurume must have deleted those messages off the phone so that there was no record of him being late.” 36
[59] Ms Elama’s evidence is that she took a copy of the notes she put into the phone as she had been warned by Ms Vetan that notes had previously been deleted from the phone. Also, that she was aware of how important it was to keep detailed notes of each shift. 37 Ms Elama would write notes in the phone on occasion rather than the communications book because it was often not possible to leave YP to write notes in the office given the care needs of YP.38
[60] Ms Vetan was rostered on the next morning (29 November 2019) to take over from the
Applicant. Her evidence was that:
“On 29 November 2019, I arrived for the morning shift at 7am. Mr Ohazurume was working the night shift and Ms Elama had worked the afternoon shift the day before. Mr Ohazurume and I did a handover, then he left the house. A few minutes later, he returned to the house and said words to the effect of "I left something on the phone". I observed him doing something on the house mobile phone for a few minutes but could not see what he was doing. I thought it was strange, but I did not question him.
After Mr Ohazurume left [the House] that morning, I looked at Eddie, MacKillop's electronic database, to see the care notes for the past few shifts. All workers are required to keep detailed notes throughout their shift. I saw that Ms Elama's notes had not been uploaded to Eddie yet, so I knew that they must still be on the house mobile phone. Ms Elama often wrote care notes in the "Notes" application on this work phone when YP was being demanding and she could not leave YP to go into the office and write in the Communications Book. At the time, agency workers did not have access to Eddie, but their notes were still required to be uploaded to Eddie to ensure the care record was complete. As such, I often entered Ms Elama's care notes on Eddie for her during my morning shift if the nightshift worker had not already done so.
When I checked the house phone, I discovered that there were no case notes recorded on the house phone by Ms Elama for the Thursday afternoon shift. There weren’t any recent text messages on the house phone either, which I found odd because I knew that Mr Ohazurume sometimes sent text messages to that phone to inform carers that he would be late.
I called Ms Elama to enquire about the location of her notes as I thought it was very strange for her not to have recorded any. Ms Elama informed me that she had written notes on the phone in relation to her afternoon shift the previous day (28 November 2019). She also informed me that she had recorded in her notes that Mr Ohazurume had arrived late and that YP had told her that they felt unsettled and upset that Mr Ohazurume was late. I assumed that when Mr Ohazurume had returned to the house to do something on the house phone, he must have deleted the notes recorded by Ms Elama, as well as text messages on the phone that recorded that he was late for his shift. I assumed this because I could think of no other likely explanation for the missing notes.
As a precaution, Ms Elama had sent a copy of her notes from the work phone to her personal phone. I had previously warned her that I had suspicions that sometimes text messages or notes got deleted off the phone without explanation. I asked Ms Elama to send me the copy of the notes from the Thursday afternoon shift which were on her personal phone.” 39
[61] Ms Vetan was extensively cross examined on the issue of the deleted notes. She was unshaken in her evidence and clear as to why she concluded that the Applicant had deleted the notes. While Ms Vetan did not see the Applicant delete the notes, she saw him return to the House and do something on the phone. I am satisfied on the evidence that Ms Elama made the notes on the phone. The evidence of Ms. Vetan on the point is compelling. 40 Ms Vetan reported her concerns about the deletion of the notes to Ms Aigner on 30 November in an email.41
[62] The Applicant denies that he deleted the notes and states that the allegation is part of the conspiracy against him. 42 Also, that he did not see any case notes on the phone and that agency staff record notes in the communication book as they don’t have access to EDDI.43 The Applicant strenuously denies that he returned to the House at all as attested to by Ms Vetan and denies deleting the notes.44
[63] Having considered the evidence in this matter, I am satisfied on the balance of probabilities that the Applicant deleted the notes from the phone. It is clear that Ms Elama made the notes as there is a clear record of them. She was surprised to learn, having made the notes on the phone at the House, that they had not been entered into EDDI as she asked the Applicant to do. The Applicant had a motive to delete the notes as he knew that there was a record of his lateness and the view of Ms Elama that this had caused the YP to become unsettled and that this may have had repercussions for this employment. Ms Vetan was clear in her evidence that she saw the Applicant return to the House and use the phone. Ms Vetan was a more credible witness than the Applicant. I am satisfied on the balance of probabilities that the Applicant returned to the House on 29 November 2019 and deleted the notes, as well as the SMS that indicated that he was late. He was motivated to do so as it had been raised with him that his continual lateness was a concern and he sought to essentially cover up the evidence of further lateness and the consequent impact that was having on the YP. His actions in doing so is a further act of misconduct.
Was the Applicant working two jobs making him fatigued?
[64] It is apparent that the Applicant was also working at another job on at least some occasions. 45 However, as to whether those shifts were frequent enough to be causing him to be fatigued at work, there is simply insufficient evidence to support that conclusion.
Effect of the lateness on the YP
[65] The evidence is clear that there was a significant effect on the YP as a result of the Applicant’s repeated lateness and sleeping at work. It was conceded by Ms Vetan that the YP yells and is upset with staff other than the Applicant. However, Ms Vetan was clear in her evidence that the Applicant’s lateness was a significant contributing factor to the breakdown in the relationship between the Applicant and YP to the extent that YP did not want the Applicant at the house any longer. 46. Further, the claim of the Applicant to the effect that his relationship with the YP deteriorated because he was stopped from giving food to the YP at certain times is not accepted. Ms Vetan was clear in her cross examination as to why in her view that this claim of the Applicant is not true and her evidence was compelling on the point and I accept it.47 On the balance of probabilities, the actions of the Applicant in continually arriving late for the shift had a detrimental effect on the YP and consequently on the relationship between the Applicant and the YP.
The process followed to effect the dismissal
[66] There are a number of concerns as to the process to effect the dismissal. The Applicant submits that the dismissal was harsh because of these failures. 48 The Respondent concedes that the Applicant was notified at the meeting on 24 December 2019 that he was being terminated, and not before that meeting.49
[67] The Respondent submits, and I agree, that the evidence shows that the Applicant was notified that his lateness for work, falling asleep on shift and record keeping failures constituted unacceptable conduct. This includes Ms Aigner emailing the Applicant on 4 September 2019 saying that she was concerned that the Applicant’s lateness was becoming a recurring situation and her concern about the impact on the House. 50 Ms Aigner invited the Applicant to a supervision meeting to discuss the matter of his lateness, however, her evidence, which I accept, is that the Applicant failed to respond.51 An email was also sent to the Applicant by Ms Aigner on 11 November 2019 raising concerns about his lateness.52 However, according to Ms Aigner, the Applicant simply said that he was only nine minutes late and not twenty minutes late, and did not respond to the concerns set out in the email as to the effect of his lateness on the YP.53 Ms Aigner states that then, on 26 November 2019:
“I had a supervision meeting with Mr Ohazurume during which I again raised my concerns about him frequently arriving late to work and the impact this was having on our YP and other staff. I also told Mr Ohazurume that I was aware of recent incidents where he had fallen asleep on the "stand up" shift. I explained to Mr Ohazurume the seriousness of this and the safety risks to the YP. I reiterated that regular welfare checks are mandatory.” 54
[68] The notes of the supervision meeting are consistent with the evidence of Ms Aigner. While the Applicant variously denies that he was spoken to about his behaviours regarding lateness and sleeping, it is apparent from this documentary evidence that he was advised of the Respondent’s concerns about these matters on at least those occasions documented. The Applicant’s claim that there was no meeting on 26 November 2019 where Ms Aigner raised his lateness and the impact on the YP and staff of his lateness is not accepted. 55 It is inconsistent with the fact that there are notes of the meeting. Further, the Applicant claims he was not spoken to by Ms Waugh about his lateness.56 I prefer the evidence of Ms Waugh that she did speak to the Applicant about her concerns with his persistent lateness as set out earlier in the decision. I note that the Applicant does concede that he was spoken to about his lateness on one occasion.57 However the evidence is clear that he was spoken to on a number of occasions.
[69] Ms Waugh also stated that:
“I also spoke with Mr Ohazurume directly about these issues. I remember asking Mr Ohazurume, "How would you feel, if nobody arrived to relieve you at the end of your shift and you had heard nothing?", or words to that effect. I think this conversation occurred around November 2019. Mr Ohazurume did not seem to understand the impact or care. I also expressed my concerns to Mr Ohazurume about him not cleaning, not doing allocated jobs, sleeping on the job and not correctly documenting the YP's welfare checks. I would get no response. Mr Ohazurume was completely unemotional and took no responsibility.” 58
[70] However, it is not apparent that the serious allegation of the deleting of the care notes was ever put to the Applicant prior to his termination. Ms Aigner conceded that she failed to do so. 59
[71] Ms Ellaway commenced as the HR Business Partner for the Respondent on 18 November 2019. Ms Jolly was at the time the incumbent HR Business Partner, but she was about to commence parental leave. Ms Ellaway’s evidence is that she first became aware of issues with the Applicant’s conduct and performance in late November or early December 2019 during the handover period when she was copied into a several emails by Rebecca Baker, the Residential Coordinator.
[72] Ms Ellaway gave evidence that she was informed by Ms Jolly that while the Applicant had not been formally performance managed for issues in relation to his employment, he had been informally managed by his supervisor and Ms Baker, and that pursuant to clause 47 of the Enterprise Agreement, she understood that the Respondent was not required to comply with the formal processes for "growth and change" in relation to the conduct of casual employees. As the Applicant was a casual employee and had been with the Respondent for less than a year, his performance and conduct had been managed informally. 60
[73] Ms Baker forwarded a complaint from Ms Usini, Business Services Manager at Essential Personnel Services, to Ms Ellaway on 6 December 2019. Essential Personnel Services (EPS) is a labour hire agency that provides residential care workers to the Respondent. Ms Usini described a number of issues with the Applicant’s conduct that had been reported to her by an EPS worker. Namely, the concerns of the EPS worker were that:
a) the YP's behaviour became heightened on learning that Mr Ohazurume was rostered on shift;
b) the YP reported to her that Mr Ohazurume was always late for his shifts and was lazy;
c) the YP was distressed by the handover at the end of her shift between her and Mr Ohazurume;
d) Mr Ohazurume had deleted care notes that she had recorded about her shift on the house mobile phone; and
e) Mr Ohazurume did not enter the required notes about her shift (including interactions with the YP) into the Eddi system. 61
[74] Ms Baker sent a further email to Ms Ellaway on 10 December 2019, raising further serious concerns about the suitability for the Applicant to be working shifts at the House. In her email, Ms Baker informed Ms Ellaway that the YP:
a) does not feel comfortable have Mr Ohazurume in the house;
b) is "triggered by Precious and that it's all about his trauma history of being raped"…;
c) is going to send a written letter of complaint about Mr Ohazurume; and
d) doesn’t like that Mr Ohazurume "is lazy and doesn't do anything apart from clean the floor and bins and [is] always late". 62
[75] Ms Baker also reported to Ms Ellaway that she had also received a complaint about the Applicant directly from an EPS worker. That the EPS worker had reported that the YP had informed her that the Applicant made the YP feel uncomfortable in the House. Ms Baker stated that it had been decided that the Applicant would need to be redeployed as he could not continue to work at the House, both for YP's safety and his own. 63
[76] Ms Ellaway states that she then sought further information from Ms Baker, who provided Ms Ellaway with emails recording her concerns with the Applicant arriving late and falling asleep on shift. 64
[77] Based on this information, Ms Ellaway’s evidence is that, in summary, the key concerns were that the Applicant:
a) continued to arrive late for shifts, despite being spoken to by the House Supervisor and Ms Baker;
b) deleted care notes recorded by an agency worker at [the House] and failed to record detailed and accurate care notes for his shifts;
c) fell asleep during his nightshift on more than one occasion (putting the YP's safety in jeopardy); and
d) frequently refused to assist other employees with house duties while on shift. 65
[78] Taking into account the information set out above, Ms Ellaway determined that the Applicant was in serious breach of his obligations to the Respondent and had likely engaged in misconduct or serious misconduct. 66
[79] In early December 2019, Ms Ellaway decided that the Respondent would stop offering shifts to the Applicant while the Respondent “considered how the matter would be resolved.” 67 Ms Ellaway says that this approach was consistent with the relevant clause in the Enterprise Agreement,68 because the Applicant was a casual and that clause expressly does not apply to casuals. While that is true, the same cannot be said of the Respondent’s own Managing Misconduct and Serious Misconduct (Misconduct Policy).69 The Misconduct Policy applies to all employees. It is accurate that the Misconduct Policy allows for casual employees to be not offered shifts when it is alleged they have engaged in misconduct. However, the policy also provides, amongst other things that “at a minimum” the employee is informed of the allegations against them; the employee is given an opportunity to respond; details of the allegations to be formally communicated to the employee; steps to be taken in the investigatory process; where allegations have been founded, a detailed letter is to be prepared setting out in detail the findings and requesting an employee to attend a meeting to respond to the findings; in the event there is a recommendation to terminate the employee this is to be put to the employee; and a subsequent meeting is to take place for allow the employee to provide additional information. Frankly, on the evidence, the Respondent has largely ignored its own Misconduct Policy, other than relying on segments of it here and there to support its actions.
[80] The Applicant having suddenly not been offered any shifts, began to call the workforce engagement team and Ms Baker demanding to know when he would get a shift. This is hardly surprising in the circumstances, nor was the email from the Applicant alleging that he had been subject to unfair treatment that he sent on 18 December 2019. Ms Ellaway described the constant calls from the Applicant as bordering on harassment, however, again, it is not clear that she told him why he was not being offered shifts.
[81] Ms Ellaway relies on the fact that the Applicant was a casual and was not guaranteed further shifts as part of his contract of employment. 70 While that is true, he has been regularly engaged up until that time, and deserved to be told why he was no longer being offered shifts. Ms Ellaway called the Applicant to ask him to stop repeatedly calling the Respondent’s employees and asked him to “please refer all communications to me going forward.”71 However, it remains unclear whether she informed him why he was not being offered shifts. Her evidence was that she raised concerns with him but her evidence on the point was vague.72
[82] Ms Ellaway sets out that on 18 December 2019, she consulted Amanda Jakovac, HR Manager Industrial Relations, as to whether to recommend to the CEO and the Area Manager to terminate the Applicant’s employment. They determined that:
“In considering the totality of the information, Ms Jakovac and I formed the view that Mr Ohazurume's performance and conduct had fallen short of MacKillop's expectations over an extended period of time despite being repeatedly reminded of his obligations.
Considering the information provided to us, we determined that Mr Ohazurume's conduct equated to misconduct or serious misconduct, resulting is a loss of trust and confidence in Mr Ohazurume. This was particularly so in relation to the deletion of care notes off the house phone. Care notes make up a client's legal care record required by the Department of Health and Human Services. We also found it very serious that Mr Ohazurume had repeatedly fallen asleep on shift, despite this issue being raised with him. The YP required welfare checks at 30-minute intervals to ensure that they had not self-harmed or absconded. Mr Ohazurume's conduct could have resulted in the safety of the YP being seriously compromised
On or around 18 December 2019, Ms Jakovac and I provided our recommendation to Mr O'Kelly and Ms Miller for their consideration and instruction. Both Mr O'Kelly and Ms Miller determined that Mr Ohazurume's conduct likely amounted to serious misconduct. As such, it was determined that MacKillop would proceed to terminate Mr Ohazurume's employment.” 73
[83] On or around 22 December 2019, the Applicant was invited to a meeting on 24 December 2019 by Ms Ellaway. There is no evidence the Applicant was told what the meeting was about. He was invited to, and did, bring a support person to that meeting. I note that the Applicant’s representative pointed out during the hearing that while originally the evidence of Ms Ellaway was that the meeting took place on 23 December, that was wrong. The meeting clearly took place on 24 December 2019 and that is now not in contest. 74
[84] There is a record of what happened at the meeting by way of minutes which read as follows:
“Michael thanked Precious Ohazurume (PO) for attending the meeting. PO immediately voiced his concerns regarding the recent shift cancellations and that he was not earning an income which was causing him much concern particularly at this time of the year. Michael and Natalia both acknowledged this concern. PO stated that he had no idea why this was the case and the last communication he had with his Manager before being removed from shift was that he would be moving to another home. PO acknowledge that he had called the Resi Employment and his Manager several times and then HR had to intervene and ask him to stop call the program.
PO continued to discuss his concerns but never acknowledge that he had been spoken in the past about ongoing performance concerns. PO felt this was about the YP not liking him and nothing to do with his performance.
Michael allowed PO to vent before stepping in. Michael explained that over the past many months there had been some serious concerns in relation to his performance and as a result his employment would be terminated. PO probed for more specific information however Michael didn’t elaborate only stating the concerns related to:
• sleeping on shift
• turning up for shift late on a regular basis
• failing to comply with requires around documentation more specifically handover notes.
Michael wished PO at the best and terminated the meeting at that point of time without further comment.” 75
[85] While the Applicant gave evidence that there was no discussion at all, 76 I do not accept that is the case and accept that the minutes record essentially how the meeting was conducted. However, what the minutes show is that there was very little discussion, and it is apparent on the Respondent’s own evidence that the decision to terminate had already been made. The Applicant asked for details of the allegations and no detail was given.
[86] In summary the process of effecting the dismissal did not accord with the Respondent’s own Misconduct Policy in virtually any respect, and the process was largely devoid of procedural fairness.
Was the dismissal harsh, unjust or unreasonable?
[87] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[88] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 77 I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[89] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 78 and should not be “capricious, fanciful, spiteful or prejudiced.”79 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.80
[90] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.81 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 82
[91] As set out above I am satisfied on the evidence that the Applicant engaged in a series of acts of misconduct. The Applicant deliberately deleted the care records made by Ms Elama on the Respondent’s phone on 29 November 2019. These care records were important and required to kept by the DHHS. Deleting them was a serious matter. The Applicant was sleeping on his shift on a number of occasions. His position required him to be awake to take care of the YP. The YP was at risk of absconding and self-harm. His falling asleep placed the YP in danger and most certainly was conduct that causes serious and imminent risk to the health and safety of a person, in this case the YP. The Applicant’s sleeping on shift was a serious breach of his duties as an employee and an act of serious misconduct. The Applicant was late on numerous occasions, which led to pressures on fellow employees who had to wait for him to arrive, accompanied by the associated increased anxiety of YP that was “heightened” when the Applicant was late. The Applicant’s repeated lateness was a further act of misconduct.
[92] The Applicant was required, in accordance with his contract of employment and position description, 83 which he had signed, to provide a sense of safety, structure, acceptance and security at all times for children, young people and staff, ensure the children and young people’s rights and interests are protected at all times and act as an effective role model. He was also required to, among other things, provide high quality physical and emotional care for children/young persons in residential care, ensuring their safety and wellbeing. Through his conduct of continual lateness and falling asleep on the shift, the Applicant was in breach of these requirements.
[93] The Applicant was also responsible for the clear record and communication of all relevant information about the children/young persons to the appropriate people or teams including the DHHS. In deleting the care records, he was in breach of this requirement.
[94] These are sound, defensible and well-founded reasons for dismissal. They are valid reasons for dismissal. Consideration of this factor weighs against a finding the dismissal was unfair.
Was the Applicant notified of the valid reason?
[95] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 84 and in explicit85 and plain and clear terms.86
[96] It is conceded by the Respondent that the Applicant was not notified of the reason for the dismissal before the decision was made to terminate his employment. Consideration of this factor weighs in favour of a finding the dismissal was unfair.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[97] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 87
[98] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 88 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.89
[99] The Applicant was notified during his employment that his lateness for work and falling asleep on shift was unacceptable conduct. However, I am not satisfied that the allegation of the deletion of the notes raised with him prior to the day he was terminated.
[100] In all the circumstances, I find that the Applicant was not given an opportunity to respond to the reason for his dismissal prior to the decision to terminate his employment. Consideration of this factor weighs in favour of finding that the dismissal was unfair.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[101] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[102] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”90
[103] The Respondent did not refuse a support person and a support person accompanied the Applicant to the meeting on 24 December 2019.
[104] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. Consideration of this factor is neutral in the circumstances of this matter.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[105] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[106] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. The Respondent had a HR professional working for them. These are neutral consideration in the circumstances.
What other matters are relevant?
[107] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Other relevant matters – s.387(h)
[108] The Applicant claims that he suffered financial hardship and trauma as a result of the dismissal but there is no evidence of this. 91 I am not satisfied that this weighs in favour of a finding of unfairness.
[109] Since his termination, the Applicant has been looking for work. He is no longer receiving ‘random on call shifts’ from the other company that employed him. The Applicant states that he is yet to secure other regular employment, 92 but at the time of the hearing he had relocated to Bendigo and was engaged in an induction process for a new job there.93 I have considered these circumstances and consider them neutral.
[110] The evident lack of procedural fairness is a factor that weighs towards a finding of unfairness. The Fair Work Commission unfair dismissals benchbook sets out some of the relevant considerations as follows:
“Procedural fairness is concerned with the decision making process followed or steps taken by a decision maker rather than the actual decision itself.
Procedural fairness is one of the factors that the Commission will take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. Procedural fairness can take many forms, such as:
• whether an employer has followed their own procedures in dismissing an employee 94
• whether the employee had an opportunity to explain their side of whatever happened, 95 or
• being able to seek advice or have a support person available at a meeting.
The terms ‘procedural fairness’ and ‘natural justice’ have similar meaning and can be used interchangeably. 96
Procedural fairness is one aspect of the rules of natural justice. 97
Procedural fairness requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. 98
The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise. 99
What is fair will depend on the particular statutory framework within which the decision is taken. 100
Ordinarily, procedural fairness would require that an allegation be put to a person and they be given an opportunity to answer it before a decision was made. 101”
[111] Having regard to those principles as well as my consideration of the procedure followed by the Respondent above, it is apparent the process to effect the dismissal failed to follow the Respondent’s own Misconduct Policy and failed to comply with most of the basic elements of what is required to effect procedural fairness. This is a factor that weighs in favour of a finding that the dismissal was unfair.
[112] The Respondent submits that the Commission should have regard to the following relevant matters: 102
• The Applicant’s period of service was very short, which weighs against a conclusion the dismissal was unfair.
• The serious misconduct caused an elevated and unacceptable risk to the YP and the YP’s health and safety.
• The serious misconduct was dishonest in nature, such that it struck at the heart of the employment relationship and destroyed trust and confidence.
[113] I generally agree with these submissions of the Respondent. I do not consider in all the circumstances the dismissal to be disproportionate, taking into account the gravity of the misconduct. Consideration of these matters weigh against a finding of unfairness.
[114] The Respondent also submits that the Applicant had and has no insight into the nature of his misconduct. 103 Indeed, the Applicant continues to deny virtually all allegations made against him and prefers to engage in spurious claims that the Respondent’s witnesses are engaged in a conspiracy and are telling lies. I agree that the Applicant has demonstrated no insight into his misconduct. This also weighs against a finding of unfairness.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[115] I have made findings in relation to each matter specified in s.387 of the FW Act as relevant.
[116] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 104
[117] Having considered each of the matters specified in s.387 of the FW Act, it is apparent that there are valid reasons for the dismissal and this weighs against a finding of unfairness. The Applicant has wilfully engaged in misconduct over most of the short period of his employment. Further, the gravity of the misconduct is at the high end of the scale and includes serious misconduct. This weighs significantly against a finding that the dismissal was unfair. The Applicant was not notified of the reasons for dismissal and was not given an opportunity to respond to the reasons. These factors weigh towards a finding that the dismissal was unfair. There was no refusal to allow a support person and this is neutral in the circumstances. The dismissal related to conduct, not performance and so s.387(e) is not relevant. The factors in ss.387 (g) and (h) are neutral in the circumstances of this case. Taking into account the matters considered in s.387(h), the process followed to effect the dismissal weighs in favour of a finding the dismissal was unfair. However, the gravity of the misconduct, the lack of insight of the Applicant and short period of employment weigh against a finding of unfairness.
[118] Having taken into account all of the factors, I am not satisfied that the dismissal was unfair. The gravity of the misconduct and the complete lack of insight from the Applicant has to be weighed against the obvious procedural failings of the Respondent along with the other factors under s.387 of the FW Act. Having considered all of the matters to which I am to have regard, I am not satisfied that the dismissal is was harsh, unjust or unreasonable.
Conclusion
[119] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act. The Applicant’s application is therefore dismissed.
COMMISSIONER
Appearances:
Ms G Ozougwu on behalf of the Applicant
Mr J Tracey on behalf of the Respondent
Hearing details:
2020
Melbourne (via Microsoft Teams)
17 June, 9 July, 20 August
Printed by authority of the Commonwealth Government Printer
<PR723830>
1 Transcript at PN26
2 Respondent’s Outline of Closing Submissions dated 10 August 2020, at paragraph 10
3 Transcript at PN261, PN263‐PN265
4 Respondent’s Outline of Submissions dated 27 May 2020, at paragraph 3
5 Transcript at PN476, PN485
6 Respondent’s Outline of Submissions dated 27 May 2020, at paragraph 5
7 Transcript at PN289
8 Transcript at PN315
9 Applicant’s response to Respondent’s Submissions dated 12 June 2020, at paragraph 12
10 Ibid at paragraph 38
11 Attachments CA-5 and CA-8
12 Transcript at PN1478-PN1480, PN1486
13 Transcript at PN328-PN331
14 Attachment CA-6
15 Transcript at PN317
16 Transcript at PN404-PN407
17 Transcript at PN418, PN429
18 Respondent’s Outline of Closing Submissions dated 10 August 2020, at paragraph 8
19 Applicant’s Response to Respondent’s Submissions dated 12 June 2020, at paragraph 3
20 Ibid at paragraph 42
21 Ibid at paragraph 44
22 Witness Statement of Ms Vetan dated 25 May 2020 at paragraph 12; Witness Statement of Ms Aigner dated 26 May 2020 at paragraph 29 and Attachment RV-2; Witness Statement of Ms Waugh dated 24 May 2020 at paragraph 28 and Attachment TW-1; Transcript at PN863
23 Witness Statement of Ms Waugh dated 24 May 2020, at paragraphs 18-19
24 Transcript at PN1783, PN1800
25 Transcript at PN1813
26 Transcript at PN974
27 Applicant’s Response to Respondent’s Submissions dated 12 June 2020, at paragraph 8
28 Ibid at paragraph 10
29 Ibid at paragraph 24
30 Attachment CA-11
31 Transcript at PN300-PN302
32 Witness Statement of Ms Ellaway dated 26 May 2020, at paragraph 29
33 Transcript at PN377-PN381
34 Attachment JE-2
35 Transcript at PN384
36 Witness Statement of Ms Elama dated 25 May 2020, at paragraph 21
37 Ibid at paragraph 22
38 Ibid at paragraph 6
39 Witness Statement of Ms Vetan dated 25 May 2020, at paragraphs 13-17
40 Transcript at PN1516-PN1542
41 Attachment RV-1
42 Applicant’s Response to Respondent’s Submissions dated 12 June 2020, at paragraph 3
43 Ibid at paragraph 30
44 Transcript at PN442-PN444
45 Applicant’s Response to Respondent’s Submissions dated 12 June 2020, at paragraph 69
46 Transcript at PN1577-PN1580
47 Transcript at PN1589-PN1591
48 Applicant’s Final Submissions dated 22 July 2020, at paragraph 55
49 Respondent’s Outline of Closing Submissions dated 10August 2020, at paragraph 22
50 Attachment CA-5
51 Witness Statement of Ms Aigner dated 26 May 2020, at paragraph 23
52 Attachment CA-8
53 Witness Statement of Ms Aigner dated 26 May 2020, at paragraph 27
54 Ibid at paragraph 31
55 Transcript at PN352-PN359
56 Transcript at PN466-PN467
57 Transcript at PN355
58 Witness Statement of Ms Waugh dated 24 May 2020, at paragraph 23
59 Transcript at PN1108
60 Witness Statement of Ms Ellaway dated 26 May 2020, at paragraph 9
61 Ibid at paragraph 10
62 Ibid at paragraph 12
63 Ibid at paragraph 13
64 Ibid at paragraph 16; Attachments NE-4 and NE-6
65 Witness Statement of Ms Ellaway dated 26 May 2020, at paragraph 14
66 Ibid at paragraph 21
67 Ibid at paragraph 22
68 MacKillop Family Service Enterprise Agreement 2016, at clause 43
69 Attachment NE-9
70 Witness Statement of Ms Ellaway dated 26 May 2020, at paragraph 24
71 Ibid
72 Transcript at PN733
73 Witness Statement of Ms Ellaway dated 26 May 2020, at paragraphs 28-29
74 Transcript at PN808-PN809
75 Attachment NE-12
76 Transcript at PN489, PN477-PN494
77 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
78 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
79 Ibid.
80 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
81 Edwards v Justice Giudice [1999] FCA 1836, [7].
82 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
83 Attachment NE-8
84 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
85 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
86 Ibid.
87 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
88 RMIT v Asher (2010) 194 IR 1, 14-15.
89 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
90 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
91 Applicant’s Response to Respondent’s Submissions dated 12 June 2020, at paragraph 76
92 Ibid at paragraph 69
93 Ibid at paragraph 71
94 See for example Odgers v Central Queensland Services Pty Ltd [2019] FWC 7150 (Hunt C, 15 October 2019) at paras 220–240.
95 See for example Naoum v ISS Security Pty Ltd ABN: 14 001 375 186 [2019] FWC 6421 (Cambridge C, 27 September 2019) at paras 49–52
96 Butterworths Australian Legal Dictionary, 1997, at p. 928.
97 McIntosh v Australian Federal Police [2014] FWCFB 6662 (Acton SDP, Smith DP, Lewin C, 8 October 2014) at para 64; citing Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (14 March 2002) at para. 40 (per Gaudron and Gummow JJ).
98 Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (14 March 2002) at para. 40 (per Gaudron and Gummow JJ).
99 Kioa v West [1985] HCA 81 (18 December 1985) at para. 11 (per Gibbs CJ), [(1985) 159 CLR 550].
100 Kioa v West [1985] HCA 81 (18 December 1985) at para. 21 (per Wilson J), [(1985) 159 CLR 550]; citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 (15 October 1963) at para. 13 (Kitto J), [(1963) 113 CLR 475].
101 Kioa v West [1985] HCA 81 (18 December 1985) at para. 22 (per Wilson J), [(1985) 159 CLR 550].
102 Respondent’s Outline of Submissions dated 27 May, at paragraph 20
103 Respondent’s Outline of Closing Submissions dated 10 August 2020, at paragraph 27
104 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
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