Mr Robert Shaw v Downer EDI Mining Pty Ltd

[2014] FWC 3382

[2014] FWC 3382

FAIR WORK COMMISSION

DECISION

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

Mr Justin Fisher; Mr James Davis; Mr Robert Shaw
v
Downer EDI Mining Pty Ltd
(U2013/1781, U2013/1787, U2013/1788)

COMMISSIONER CAMBRIDGE SYDNEY, 23 MAY 2014

Unfair dismissal - cases of non-genuine redundancy found - further consideration of criteria for harshness etc - operational based dismissals - s. 387 elements primarily directed to conduct and performance based dismissals - dismissals unfair - particular circumstances involving loss of employment - reinstatements Ordered.

[1] This Decision involves three applications for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The applications were made by the Construction, Forestry, Mining & Energy Union (CFMEU) on behalf of, respectively, Justin Fisher, James Davis and Robert Shaw (the applicants). The applicants were the subject of an earlier Jurisdictional Decision [2013 FWC 8020] (the Jurisdictional Decision), which held that each of the dismissals of the applicants was not a case of genuine redundancy. The respondent employer is Downer EDI Mining (Downer Mining or the employer).

[2] On 1 April 2014, the Fair Work Commission (the Commission) issued a further Decision [2014 FWC 2159] (the Representational Decision), which granted permission for the employer to be represented by a lawyer or paid agent. The Hearing of the substantive aspects of the applications was conducted in Sydney over three days, 14, 15 and 16 April 2014.

[3] At the substantive Hearing, Mr K Endacott, from the CFMEU continued his appearance for the applicants. Mr Endacott called each of the applicants as witnesses who provided evidence in support of their respective claims. The employer was represented byMr R Warren, counsel, who called a total of five witnesses who provided evidence on behalf of the employer.

Factual Background

[4] The circumstances surrounding the dismissals of the applicants on 17 May 2013 are set out in the Jurisdictional Decision. In relevant summary, the employer dismissed each of the applicants as part of the retrenchment of 106 employees.

[5] The employer is part of a large Corporation which employs more than 20,000 people in Australia, New Zealand and the Asia Pacific region.

[6] The dismissals of the applicants were for operational reasons which were created by a decision to decrease production at the Boggabri Coal Mine (the Mine). Two months after the retrenchments, a decision was made to increase production at the Mine. The employer then commenced to employ persons in the roles that the applicants had previously performed.

[7] Evidence that was provided during the substantive Hearing has established that each of the applicants has, to varying degrees, applied for vacancies that have arisen at the Mine since the decision to increase production was made. The applicants have not been successful in obtaining employment back at the Mine, although other individuals, who were made redundant at the same time as the applicants, have been “re-hired” by the employer.

[8] Since their retrenchments in May 2013, each of the applicants have pursued alternative employment opportunities. None of the applicants have secured alternative full-time permanent employment and each seeks to be reinstated to work for the employer at the Mine.

The Case for the Applicant

[9] Mr Endacott from the CFMEU made verbal submissions in addition to documentary material that had been filed earlier. Mr Endacott submitted that the evidence ultimately revealed that the decision to retrench a number of employees including the applicants, represented poor management of the Mine operation. Mr Endacott referred to the Jurisdictional Decision and stated that much of the material produced on behalf of the employer at the substantive Hearing sought to revisit the redeployment question which had been determined in the Jurisdictional Decision.

[10] Mr Endacott made submissions which addressed the criteria contained within section 387 of the Act. In this regard it was submitted that there was not a valid reason for the termination of the applicants’ employment and it would have been reasonable for each of the individuals to have remained in employment, either at the Mine or at some other enterprise of an entity associated with the employer. These were the circumstances which, according toMr Endacott, provided basis for finding that the dismissals were unfair and that reinstatement was an appropriate remedy.

[11] In dealing with the other factors contained within section 387 of the Act, Mr Endacott submitted that the applicants had not been notified of the basis upon which they had been selected for redundancy nor had they been given an opportunity to respond to or comment upon any aspect of the selection process. Further,Mr Endacott acknowledged that the applicants had not been refused a support person and as the dismissals did not relate to unsatisfactory performance, the question of any warning was irrelevant.

[12] Further,Mr Endacott submitted that the employer was a large Corporation that had a very sophisticated industrial relations team and there was no absence of human resources personnel. According to the submissions made byMr Endacott,the employer should have known of the requirements of the Act, and should not be afforded any accommodation or sympathy that might apply for small enterprises.

[13] Mr Endacott made further submissions which concentrated upon subsection 387 (h) of the Act. Mr Endacott submitted that the Commission should have regard for the employment circumstances at the Mine which have arisen since the redundancy of the applicants. Mr Endacott said that the employer had been short of labour virtually ever since the redundancies occurred and that it had been advertising for both production and maintenance employees on a regular basis. According to Mr Endacott, each of the applicants were appropriately skilled and or qualified to have filled any of the various positions which had been advertised since the applicants were made redundant. Mr Endacottsaid that it was unfair for the applicants to have been made redundant in circumstances that were established to have been not a genuine redundancy and then to subsequently reject their applications for employment.

[14] It was also submitted that the Commission should have regard for the evidence about the particular hardship which had been experienced by each of the applicants as a consequence of their dismissals. Further,Mr Endacottsaid that there was clear evidence that each of the applicants had made attempts to find alternative employment and had, to varying degrees, mitigated the loss associated with the dismissals.

[15] Mr Endacott summarised his submissions by concluding that the dismissals of each of the applicants was unfair, because there was no valid reason for the terminations and that there was a deficient process adopted by the employer, which was recognised by the determination made in the Jurisdictional Decision. Mr Endacott stressed that each of the applicants should have continued in employment albeit in a redeployed position, and as there were no issues regarding trust or confidence of the individuals, reinstatement was the appropriate remedy. Mr Endacott urged that the applicants be reinstated to their former positions with no loss of continuity and no loss of pay.

The Case for the Employer

[16] The employer was represented by Mr Warren of counsel, who submitted that the dismissals of the applicants were not unfair. Mr Warren made submissions which elaborated upon documentary material that had been filed on behalf of the employer.

[17] Mr Warren commenced his submissions by referring to the Jurisdictional Decision. Mr Warren noted that the dismissals of the applicants occurred as a result of operational changes and in compliance with the relevant consultation requirements. Consequently, according to the submissions made by Mr Warren, the central plank of the applicants’ case upon which the question of genuine redundancy was not established, involved the proposition that the three applicants would have been prepared to have been redeployed anywhere. However, according to Mr Warren, the evidence that had been produced during the substantive Hearing demonstrated that the applicants in fact would not go anywhere for work and had not made applications for work beyond the local Gunnedah region.

[18] According to the submissions made by Mr Warren, it was hollow for the applicants to suggest that the employer had treated them harshly or unfairly because it did not redeploy them when the evidence has established that they had no particular interest in work outside of the local region. Mr Warren submitted that the evidence that had been provided during the substantive Hearing regarding the applicants’ failure to seek employment outside of the local region, was a matter that should be appropriately considered in any assessment as to whether the dismissals could be found to have been unfair.

[19] Mr Warren referred to the various factors contained within section 387 of the Act and their relevance or otherwise in circumstances where a dismissal was found to have been not a case of genuine redundancy. In this regard Mr Warren referred to the Full Bench Decision in the case of UES (Int’l) Pty Ltd v Leevan Harvey 1 (UES).

[20] It was submitted that the UES Decision established that subsection 387 (a) of the Act has no application in circumstances where the operational basis for the redundancy has been confirmed. Further, it was submitted that each of the applicants had been notified of the reason for their termination and therefore subsection 387 (b) if it had application, had been satisfied by the employer. It was also submitted that subsection 387 (c) had no application because the dismissals of the applicants were not for any reason related to their capacity or conduct. There was no dispute that each of the applicants was afforded an opportunity to have a support person in attendance and further, it was submitted that subsections 387 (e), 387 (f) and 387 (g) have no relevance to the consideration required in these proceedings.

[21] Mr Warren submitted that the Commission’s consideration regarding harshness would broadly be confined to other matters that may be relevant under subsection 387 (h) of the Act. In this regard it was submitted that the evidence of any of the applicants seeking work outside of the local area was an important consideration. Mr Warren acknowledged that there was no suggestion that each one of the applicants was not a good worker and the basis of the selection of the individuals was undertaken via an assessment process which had been discussed and agreed to by the CFMEU. Consequently, it was submitted that the dismissals of the applicants could not be considered harsh in circumstances where the applicants chose not to pursue opportunity for employment outside of the local area.

[22] Mr Warren made an alternative further submission in the event that the Commission established that there was some unfairness associated with the dismissals of the applicants. In this alternative submission Mr Warren urged against any remedy involving reinstatement and he referred to evidence that there were no current positions that were vacant and suitable for any of the applicants. Therefore, Mr Warren submitted that it would be inappropriate to make Orders for reinstatement of the applicants and that if any compensation was to be awarded, it would be minimal, taking into account the various components of section 392 of the Act.

[23] In summary, Mr Warren submitted that there was no basis to find that the applicants had been unfairly dismissed. Mr Warren urged that the Commission should find against the applicants. In the alternative, as reinstatement would not be appropriate, any compensation which may be provided to the applicants should be minimal.

Consideration

[24] Section 385 of the Act establishes that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are identified by the following terms of s.385:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[25] There was no dispute that the applicants had been dismissed and that the Small Business Fair Dismissal Code had no application. However, there was considerable dispute as to whether the dismissals of the applicants were cases of genuine redundancy. The earlier Jurisdictional Decision established that the dismissals of the applicants were not cases of genuine redundancy. Consequently, the further Hearing of the applications has been directed to a determination of that element contained in subsection 385 (b) of the Act, specifically, whether the dismissals of the applicants were harsh, unjust or unreasonable.

[26] Section 387 of the Act contains criteria or factors that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These factors are:

(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.

[27] In this instance, the dismissals of the applicants were for operational reasons and did not involve any reason related to the capacity or conduct of the applicants. The provisions of subsections 387 (a), (b), (c) and (e) contain factors which are directed at dismissals which occur for reason related to the capacity, conduct and/or performance of the dismissed employee. Consequently, these are factors which would not normally be relevant to any assessment of the fairness or otherwise of a dismissal which was made for operational reasons, provided that the asserted operational reason(s) had been verified.

387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[28] In the Jurisdictional Decision, 2 the reason for the dismissals of the applicants was established to have been that the employer no longer required that their jobs be performed by anyone because of changes in the operational requirements of the employer's enterprise. Consequently, the subsection 387 (a) factor, and other factors related to capacity, conduct and/or performance, are not relevant to the consideration of the particular circumstances of the dismissals of the applicants. This conclusion is consistent with the approach adopted in the Full Bench Decision in UES and which has more recently been followed by another Full Bench in the case of Ventyx Pty Ltd v Mr Paul Murray (Ventyx)3.

387 (b) - Notification of Reason for Dismissal

[29] The notification mentioned in subsection 387 (b) specifically refers to “that reason” which is the reason contemplated by subsection 387 (a). Therefore the question of any notification of the reason for dismissal which was for verified operational reason(s) would not arise as a matter for consideration under this subsection.

[30] In any event, the applicants were provided with written notification of their respective dismissals.

387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[31] As mentioned above, the dismissals of the applicants were not for any reason related to capacity, conduct or performance and therefore this factor is not relevant for consideration regarding fairness or otherwise of the dismissal.

387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[32] There was no evidence that the applicants were at any time refused permission to have a support person assist them during any discussions connected with the termination of their employment.

387 (e) - Warning about Unsatisfactory Performance

[33] This factor has no relevance in this instance.

387 (f) - Size of Enterprise Likely to Impact on Procedures

[34] The size of the employer’s operation would not have impacted detrimentally on the standard of procedure to have been followed. In the case of a large operation with a significant level of labour turnover, there would usually be anticipated compliance with any legislatively mandated procedural requirements in respect of either dismissal for cause or for operational reason(s). This issue is the subject of further consideration as another relevant matter under subsection 387 (h).

387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[35] There was no absence of dedicated human resource management specialists or expertise in the enterprise. The employer did have dedicated employee relations management specialists who had considerable involvement in the procedures which led to the dismissals of the applicants, which resulted in cases that were not genuine redundancies. This issue is further considered as another relevant matter under subsection 387 (h).

387 (h) - Other Relevant Matters

[36] There was a degree of acceptance by both parties that the assessment as to any unfairness of the dismissals of the applicants would be largely contemplated by reference to other relevant matters arising under subsection 387 (h) of the Act. There are a number of relevant issues that should be traversed.

[37] There was a considerable amount of evidence provided during the substantive Hearing which appeared to involve a revisiting of the question of the reasonableness or otherwise of any redeployment of the applicants. Indeed, the thrust of paragraphs 17 and 18 of the written submissions filed by the employer appeared to suggest that, notwithstanding that the Jurisdictional Decision found that it would have been reasonable for the applicants to have been redeployed, the approach to redeployment by both the employer and the applicants did not result in dismissals which were harsh, unjust or unreasonable. The further examination of the circumstances surrounding the issue of redeployment is understandable and a natural consequence of the existence of two different tests which are to be applied. One test, which is established by section 389 as to genuine redundancy or not, and the other test as to unfairness via section 387.

[38] It is of course conceivable that a dismissal which has been found to not be a case of genuine redundancy (a non-genuine redundancy) may, despite that finding, not be an unfair dismissal. As was mentioned by the Full Bench in the case of Ulan Coal Mines Limited v A. Honeysett and Ors (Ulan) 4 a finding of genuine redundancy operates as a complete defence to an unfair dismissal application. It does not follow that a finding that a dismissal was a non-genuine redundancy imports an immediate unfairness into the dismissal. The particular circumstances upon which the finding that a dismissal was a case of non-genuine redundancy requires further examination along with any other factors which may be relevant to an assessment as to whether the non-genuine redundancy was unfair.

[39] At the substantive Hearing the applicants provided evidence which sought to establish that their non-genuine redundancies were also unfair. The unfairness was primarily attributed to the factors which gave rise to the finding that their dismissals were non-genuine redundancies.

[40] Although it was not stated on behalf of the applicants in such terms, it appeared to be inferred that because non-genuineness had been established under subsection 389 (2) whereby the unchallenged finding was made that it would have been reasonable in all the circumstances for the applicants to have been redeployed, it should be found that it was an unreasonable act to dismiss. It would seem that there is some fundamental strength to this proposition.

[41] Unless there was evidence that some other factor(s) operated so as to render the employer's failure to redeploy as a reasonable action, the dismissal would be both a case of non-genuine redundancy and a dismissal that was unreasonable. Just why any evidence of such reasonable action on the part of the employer would not have been introduced at the jurisdictional proceedings represents a conundrum which is unnecessary to answer.

[42] Consequently, it would appear that an unchallenged finding of a case of non-genuine redundancy made under subsection 389 (2) of the Act might, because of the finding as to the reasonableness of redeployment, also establish as a corollary, a finding that the dismissal was an action that was unreasonable. The prospect that a dismissal would be found to be unreasonable as a corollary of any finding of a case of non-genuine redundancy, would not apply if the non-genuine redundancy was established under subsection 389 (1) and not 389 (2) of the Act.

[43] There was further evidence provided by the applicants about the employment opportunities which had arisen at the Mine since their dismissals. The employer had been instructed to increase Mine production and it had advertised for both operator and maintenance positions. The applicants had responded to the job advertisements but were unsuccessful. These circumstances were somewhat unusual in that within a matter of about two months after the retrenchments, the operational requirements that gave rise to the dismissals of the applicants were essentially reversed.

[44] However, the Commission is required to determine whether the dismissals were unfair at the time that they occurred. Unless subsequent events could introduce some mala fide or otherwise disturb the primary finding regarding the operational reason for dismissal, the changed employment circumstances at the Mine following the retrenchments of May 2013 would be a matter more appropriate for consideration regarding any remedy as opposed to unfairness.

[45] The applicants also provided evidence of the particular hardship that each suffered as a consequence of their dismissals. Evidence was provided by each applicant of the quantum of lost remuneration since dismissal.

[46] The evidence provided by the employer upon which it asserted that the Commission should find that the dismissals of the applicants were not harsh, unjust or unreasonable included that the applicants had not actively pursued employment with either the employer or other employers, outside of the local Gunnedah region. The proposition which emerged from this evidence was to the effect that, post-dismissal, the applicants had not pursued employment opportunities outside of the local area and therefore, although it may have been unreasonable not to have redeployed the applicants at the time of their retrenchments, they had not subsequently taken action consistent with one particular aspect upon which it was established that redeployment would have been reasonable in the circumstances.

[47] Unfortunately this proposition failed to distinguish between redeployment as an alternative to the dismissal on 17 May 2013, and the pursuit of alternative employment after the dismissal. It is particularly relevant that the prospects for employment at the Mine have been buoyant since the decision was taken to increase production. In such circumstances it would be understandable that the applicants, amongst many others, would be keen to secure employment at the Mine in preference to engagement at some distant location.

[48] The employer also contended that evidence regarding the autonomy for the operation of the various divisions of the employer was a matter that should operate against any finding that the dismissals of the applicants were unfair. This evidence was provided by Mr Fryer who was the Executive General Manager - Human Resources and Corporate Affairs for the employer's parent company, Downer EDI Limited (Downer EDI).

[49] The evidence provided by Mr Fryer confirmed that the protocols and procedures adopted by the employer as a division of Downer EDI, did not include any measure to promote the prospect of redeployment within the enterprise of an associated entity of the employer. I reject the somewhat specious suggestion that to implement some basic form of communication between the human resources departments of the respective divisions of Downer EDI would involve prohibitive expenditure.

[50] The further evidence of the conscious decision for the divisions of Downer EDI to operate with a level of autonomy which severely restricts any prospect for redeployment across the divisions, has operated to confirm and reinforce the Jurisdictional Decision.

[51] Further, in circumstances where qualified, skilled individuals are being made redundant in one division and redeployment into another division is not contemplated or promoted in any meaningful way, there would be strong prospect that the various divisions are likely to implement dismissals that will be found to be cases of non-genuine redundancy. Although each case must be assessed on its own particular facts and circumstances, it would seem that the employer and the other divisions of Downer EDI, are likely to offend the general legislative intent of subsection 389 (2) of the Act, as reflected by the following extracts of the Full Bench in the Ulan Decision which are repeated as abbreviated extracts from the Jurisdictional Decision:

“Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy.”

and

“...subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.”

[52] It is relevant to note that many large Australian Corporations adopt redeployment processes and protocols across enterprises of associated entities without significant cost and not necessarily as a legislative compliance measure but instead, as a good management practice which fosters the inherent value and worth that the Corporation places upon its employees.

Conclusion

[53] The dismissal of each of the applicants occurred in circumstances that can be described as a non-genuine redundancy. Such circumstances do not automatically represent unfair dismissals. Consequently, the dismissals require analysis as to whether either the non-genuine redundancy aspect of the termination and/or other factors, render the dismissals to be harsh, unjust or unreasonable.

[54] It is important that in this instance, the basis upon which the dismissals were found to be cases of non-genuine redundancy involved the failure of the employer to reasonably redeploy each of the applicants. The corollary that emerges from this particular situation is that the employment of each of the applicants should not have ended at all.

[55] The applicants’ circumstances can be contrasted with a non-genuine redundancy which is found to have occurred upon one of the other elements contained in section 389 of the Act. For instance, a clear distinction can be made between a non-genuine redundancy arising from a failure to reasonably redeploy, and circumstances where a failure to comply with relevant consultation obligations may have created the non-genuine redundancy circumstance. In the latter case, the failure to comply with the relevant consultation obligations may have been unlikely to have disturbed the ultimate outcome but perhaps may have predictably delayed the inevitable dismissal. That position can be dramatically contrasted with the non-genuine redundancy found upon the basis that it would have been reasonable in all circumstances for redeployment, and therefore the employment would not have ended at all.

[56] Following a careful analysis of the competing considerations, the particular circumstances which involved the dismissals of the applicants when it would have been reasonable for each of them to have been redeployed, has established proper foundation to render the dismissals of each of the applicants as unreasonable and harsh. Consequently each of the applicants was unfairly dismissed.

Remedy

[57] The applicants have sought reinstatement as remedy for their unfair dismissals.

[58] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss.390 - 393) of the Act. Section 390 is immediately relevant to consideration in this instance and is in the following terms:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[59] I have carefully considered whether it would be appropriate to make Orders for the reinstatement of the applicants. Reinstatement is the primary remedy for unfair dismissal. Evidence was provided during the substantive Hearing that there were no vacant positions at the Mine for which the applicants would have been suitable candidates. However, this evidence represented no more than the situation at the Mine in a snapshot of time taken immediately before the substantive Hearing. This and other evidence provided during the Hearings, does not establish that it would be inappropriate to reinstate the applicants.

[60] I have decided that reinstatement of the applicants would be appropriate, and that consequential Orders for maintenance of continuity of employment and restoration of lost pay should also be made.

[61] Consequently, for the reasons stated above, I find that the dismissals of the applicants were unfair. Orders for the reinstatements of the applicants together with continuity of employment and lost remuneration are provided.

[62] The quantum of lost pay Ordered for each of the applicants has been determined by reference to the respective weekly loss that can be extracted from the figures contained in, Exhibit 12, paragraph 32 (a loss of $60,221 in 38 weeks); Exhibit 15, paragraph 27 (a loss of $40,437 in 22 weeks); and Exhibit 18, paragraph 10 (a loss of $86,170 in 38 weeks).

[63] These weekly loss figures have been applied for the period between dismissal and the Order for reinstatement and the actual reinstatement in accordance with subsections 391 (4) (a) and (b) of the Act. The Orders also require a reduction from the amounts calculated to represent lost pay of any amount paid to the applicants as a redundancy entitlement.

COMMISSIONER

Appearances:

Mr K Endacott from the CFMEU, appeared on behalf of the applicants;

Mr R Warren, counsel, together with Ms K Eather, solicitor from FCB Workplace Law, on behalf of the employer.

Hearing details:

2014.

Sydney:

April, 14, 15, 16.

 1   UES (Int’l) Pty Ltd v Leevan Harvey [2012] FWAFB 5241.

 2 See paragraph [56].

 3   Ventyx Pty Ltd v Mr Paul Murray [2014] FWCFB 2143.

 4   Ulan Coal Mines Limited v A. Honeysett and Ors and R. Murray and Ors v Ulan Coal Mines Limited [2010] FWAFB 7578.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550867>