Mr Rohan Dent v Halliburton Australia Pty Ltd

[2014] FWC 5692

[2014] FWC 5692

The attached document replaces the document previously issued with the above code on 26 September 2014.

1. Delete the reference “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in appearances and insert The Australian Workers’ Union.

2. Alterations made to paragraph [10], [57] and [65].

Angela Delo

Associate to Commissioner Booth

Dated: 24 October 2014.

[2014] FWC 5692

FAIR WORK COMMISSION

DECISION

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

Mr Rohan Dent
v
Halliburton Australia Pty Ltd
(U2013/2936)

COMMISSIONER BOOTH BRISBANE, 26 SEPTEMBER 2014

Application for relief from unfair dismissal - arbitration.

[1] This application for unfair dismissal remedy was brought by Mr Rohan Dent (the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (Act). On 13 July 2013, Mr Dent was dismissed from his job with Halliburton Australia Pty Ltd (Halliburton) at Roma for an incident involving breaches of the company’s driving safety standard and policy on use of mobile phones. He had worked for Halliburton for just over a year at the time of the dismissal.

[2] Mr Dent denies he was using his mobile phone at the time of the incident and says he was not driving in an unsafe way or speeding. At the time of the incident he was subject to a first and final warning for driving a Halliburton vehicle while using a mobile phone, issued on 22 May 2013.

The incident and its consequences

[3] On 13 July 2013, two Halliburton employees, Mr Blatchford and Mr Hollis, were seated in a vehicle in the wire line yard, one of Halliburton’s Roma facilities, behind a semi-trailer that obscured the view of their vehicle from the entry to the yard. As Mr Blatchford prepared to drive his vehicle forward Mr Hollis urgently called him to stop: another vehicle had entered the yard. The Halliburton employees believed the vehicle was travelling faster than the permitted 5 kph. In the employees’ minds, this presented an imminent danger of collision.

[4] Mr Blatchford says he saw the driver of the other vehicle, Mr Dent, talking on the telephone as he performed a u-turn to stop in front of a rubbish skip and put a bag in the skip. Mr Dent denies he was on the phone. Mr Blatchford and Mr Hollis both say Mr Dent was driving fast enough for his car to throw up a considerable amount of dust.

[5] Mr Blatchford drove to Mr Dent’s vehicle and had a heated exchange with him about driving unsafely. Mr Dent was asked if he had an in-vehicle monitoring system. It was a private vehicle and not so equipped. Mr Dent says the incident took place just before 8 am. The other two employees say it was about 9 am.

[6] Later that day Mr Blatchford, after speaking with his supervisor, lodged a “hazard observation card” reporting the risk rating as “high (major)” and stating the driving nearly caused a collision.

[7] The hazard observation card made its way to more senior staff who caused witness statements to be taken from Messrs Blatchford and Hollis and then for disciplinary action to commence against Mr Dent. On 5 August, Mr Dent was advised of a disciplinary hearing the next day. On 13 August, Mr Dent was advised that a decision had been made to terminate his employment.

[8] Mr Dent availed himself of Halliburton’s internal appeal system, lodging an appeal on 26 August. He also applied to the Fair Work Commission (the Commission) for unfair dismissal relief on 2 September, within the 21-day time limit allowed under the Act. Halliburton’s internal appeal was conducted on 5 September by Halliburton’s most senior officer in Roma at the time, who “found against the appeal” on 16 September.

The Applicant’s evidence and submissions

[9] The Commission received both written and oral evidence from Mr Dent and an organiser from his union, Mr Liston. Ms Woodhouse of the Australian Workers Union represented Mr Dent over two days of evidence at Roma. Ms Woodhouse and Mr Dent both made statutory declarations as to Mr Dent’s post dismissal activities and earnings.

[10] Mr Dent commenced work with Halliburton in a warehouse role at Roma on 2 July 2012. He had moved to Roma from Winton. Prior to that Mr Dent worked in Victoria where he had been employed in a number of sales roles. He was a volunteer fire fighter in Victoria from 1986 to 2001. He holds qualifications in agriculture and office administration and undertook some paramedic studies in 2001.

[11] His normal hours at Halliburton were 8 am to 5 pm, Monday to Friday. Because he lives a considerable way out of town, and because of roadworks, the trip to Roma, on his evidence, could vary between 45 minutes and 2 hours.

[12] Mr Dent says he entered the yard from Raglan St shortly before 8 am. The gates were already open and he thought people might be about. He says he noticed the other vehicle as he was proceeding to effect the u-turn, and at no time was he driving unsafely or using his mobile phone. He says he only ever used the phone while driving on a hands-free Bluetooth device, and always carried both his personal and his Halliburton phones in his top pocket. He says he deposited his rubbish and Mr Blatchford drove his vehicle up and they had a conversation, including a query from Mr Blatchford about whether the vehicle was fitted with an in-vehicle monitoring system.

[13] He denies he was driving at speed although could not estimate his speed. He says that dust is blown up by wind in the yard. Further, he submits that the vision of the other Halliburton employees would have been affected by the morning sun and obscured by the trailer, so they could not tell if he was on the phone. It was submitted the driving at no stage constituted a hazard, and in any case Mr Blatchford was the only one whose driving might cause a collision. To call the incident a near miss “is a gross exaggeration or the imaginings of someone who doesn’t understand the applicable Australian Road Rules.” 1

[14] He says there were no speed signs at the yard and that he had not seen the relevant Halliburton policies.

[15] Telephone records were produced to the Commission, but they only revealed outgoing calls, not incoming calls. One call was made from the Halliburton phone early on the morning of the incident, to Mr Dingle, a Halliburton supplier. The call records reveal it was made at 7.46 am for 14 seconds. Neither Mr Dent nor Mr Dingle (who gave oral evidence) remembered that particular call.

[16] Mr Dent submits that Halliburton had no valid reason to dismiss him and that the process used by Halliburton breached the principles of natural justice by failing to provide him adequate time to prepare for the disciplinary meeting, failing to provide documentary evidence, used an investigation process that was flawed and was not properly informed by an inspection of the yard. Further, he says, the conclusions reached were not supported by the evidence.

The Respondent’s evidence and submissions

[17] Halliburton provided witness statements from Messrs Nixon, Webster, Blatchford and Hollis and Ms Cummins. All gave oral evidence, as did Mr Dingle. Halliburton was represented at the Roma hearings by Ms Spence of Australian Mines and Metals Association.

[18] Mr Blatchford and Mr Hollis were seated in a vehicle in the yard, engine running, about to proceed out of the yard just before 9 am when Mr Hollis shouted an alarm to Mr Blatchford, fearing a vehicle that had just entered the yard would collide with them. Mr Blatchford braked, says he saw Mr Dent (who he knew from occasional interactions at the warehouse) with his left arm on the steering wheel and his head tilted to the right. He says he saw Mr Dent on the phone as he came to perform the u-turn and remarked to Mr Hollis words to the effect “Check this idiot out. He’s on the phone”.

[19] Mr Blatchford’s evidence is that Mr Dent got out of the car and put some rubbish into the skip. He drove from behind the trailer to Mr Dent’s car. He was “fuming” because he had to brake to avoid collision, and demanded to know of Mr Dent why he was in a rush. He asked if the vehicle was fitted with an in-vehicle monitoring system and was told by Mr Dent it was not. In his statement Mr Blatchford says he thought it was wrong that Mr Dent seemed to not register that he had almost been in a collision. Mr Blatchford later spoke to his supervisor and completed a hazard observation card.

[20] Mr Hollis’ evidence was largely consistent with Mr Blatchford’s. He had no previous dealings with Mr Dent, He says he saw the entering vehicle and shouted an alarm to Mr Blatchford. 2 He says Mr Dent “drove into the yard in a cloud of dust”. He thought the speed might be 15-20 kph, but in any case “a whole lot faster than 5 kph”. In his view, if he had not seen the car when he did “there would have almost certainly been a collision as Rohan Dent would not have seen us until he was right on top of us due to our position being hidden by the trailer.” He confirms Mr Blatchford’s version of the conversation, but states that he did not see Mr Dent on the phone that morning.

[21] Mr Blatchford also gave evidence that he had previously admonished Mr Dent for driving too fast although Mr Dent denies the incident and that he ever drove a car of the description given by Mr Blatchford.

[22] Both men in oral evidence gave an account of their usual morning routine to explain why the time was closer to 9 am, and not before 8 am.

[23] Mr Webster (who conducted the initial investigation), Mr Nixon (who undertook the appeal) and Ms Cummins (Human Resources Manager) each gave evidence as to the disciplinary procedure followed in this case.

[24] Mr Webster gave evidence that he placed emphasis on the previous final warning in making his decision to dismiss Mr Dent. In his view Mr Dent had been untruthful in relation to the previous disciplinary action resulting in a final warning. He says he spoke to Mr Dent a month after the first disciplinary hearing: 3

He was a clever guy. I was short-staffed. I needed him, but I also made it clear. I said, "You cannot debate or dispute or flaunt the company's health and safety rules. You have to follow them. Whether you agree with them or not, you have to follow them and if you don't, you're probably going to find yourself in disciplinary hearings again."

[25] Mr Nixon gave evidence that Mr Dent was often flustered, rushed and disorganised at work, and often appeared angry. Mr Dent in his evidence expressed surprise at this assessment. He also said he had observed Mr Dent about 6 months earlier making a call from a hand held phone while driving, but had forgotten about it until he thought it too late to report it.

Consideration

(a) Telephone

[26] The evidence presented as to telephone use by Mr Dent on the day of the incident was inconclusive. While there were no outgoing calls at the relevant times, the records do not rule out the possibility of an incoming call. Further there is evidence the vehicle was equipped with an operational hands free device and that Mr Dent used it.

[27] There is insufficient evidence to find that Mr Dent was using a mobile phone in-hand while driving in the yard.

(b) Speed

[28] Mr Dent’s evidence was that he was driving slower than the other witnesses alleged; that his driving speed was safe based on his extensive driving experience; and that dust blows up in the yard anyway. He could not estimate his speed, except to assert it was safe in the circumstances.

[29] Both Mr Blatchford and Mr Hollis gave evidence that they saw Mr Dent driving at speed in the yard as he effected his u-turn. Their evidence is based on their observations of the vehicle; their experience with vehicles proceeding at walking speed in accordance with yard rules; the amount of dust they say was thrown up by the vehicle; and the length of time dust hung in the air. Their estimates of speed were between 15 and 20 kph. The only weight I place on those estimates is to conclude that the speed was well in excess of 5 kph. Mr Dent submits that there is no proof that the speed exceeded 5 kph. However, I accept the evidence of Mr Blatchford and Mr Hollis on the question of speed. On the balance of probabilities Mr Dent was driving in the yard at a speed well in excess of 5 kph.

[30] It is harder to say the evidence shows Mr Dent’s driving presented a serious work health and safety risk. Driving hazardously is undoubtedly a more serious disciplinary breach than driving in excess of Halliburton’s speed limit but safely. Both Mr Blatchford and Mr Hollis say the speed of Mr Dent’s driving presented a serious risk of collision, avoided only by urgent action on their part. I found the evidence of both to be considered, reasonable and believable. Both witnesses appear genuinely to have thought subjectively there was a risk of collision. However the evidence does not allow a conclusion that the driving presented an objective risk of collision avoided only by urgent action.

[31] Submissions on Mr Dent’s behalf seem to suggest that no disciplinary action unless the driving put a person’s safety at risk. 4 I disagree. I am satisfied that speed alone is a serious breach of Halliburton’s site rules, and that those rules are reasonable and sensible for work health and safety reasons. Mr Dent’s speeding was a serious breach of safety rules and driving policy even if objectively it was not hazardous driving.

[32] Mr Dent submits he was not aware of the relevant policies, claiming his attempts to access them online proved futile. I do not find this claim credible, given the fact he was on a final warning and that Mr Webster had taken the trouble to counsel him on their importance. That said, for reasons that follow, I find Mr Dent would have actually known of the 5 kph speed limit regardless of any difficulty accessing the policy.

[33] The evidence as to speed signs leads me to conclude that before the incident, there were no 5 kph speed limit signs at the wire line yard. Such signs were however prominently displayed at other Roma sites, including the main depot immediately over the road from the yard. The rules as to 5 kph or ‘walking speed’ were notorious. It is reasonable to conclude: the rules applied to all Halliburton sites, including the wire line yard; and employees would have or should have known that fact. I find on the balance of probabilities that Mr Dent knew he should drive no faster than 5 kph when in the wire line yard.

(c) Time of day

[34] I prefer the evidence of Mr Blatchford and Mr Hollis as to the time of day the incident took place. Their evidence was consistent, believable and given in an honest way. Mr Dent did not provide any cogent evidence to the contrary, merely asserting the time was before 8 am. Mr Dent may have been late for work and in a hurry to drop his rubbish before proceeding across the road, parking and commencing work for the day. That possibility is consistent with his evidence that his normal 45-minute commute could take up to two hours depending on roadworks. I place no particular weight on the conclusion as to time of day other than to note it as confirmatory.

Was the dismissal unfair?

[35] The Commission must take into account the factors stated in s.387 in considering whether the dismissal was harsh, unjust or unreasonable. There is no contest that Mr Dent was protected from unfair dismissal, and that he was in fact dismissed on 13 August 2013.

(a) Valid reason

[36] The stated reason for dismissal was two-fold, encompassing both speed and phone use. Contrary to Mr Dent’s submissions that Halliburton must show both speeding and phone use, 5 either alone would be conduct that might subject him to disciplinary proceedings.6 There is insufficient evidence to conclude he was on the phone while driving. However, I am of the view that Mr Dent’s driving on that day, while subject to a final warning for his earlier driving-related misconduct, was a valid reason to dismiss him.

[37] Mr Dent drove considerably faster than permitted in the yard on the morning of the incident. I consider the speeding to be a very serious work health and safety matter and that, depending on the facts of the case, dismissal would not be disproportionate or excessive, contrary to the submissions made on Mr Dent’s behalf.

[38] I find on the evidence before me the alleged speeding misconduct actually occurred; that it was in breach of policies that Mr Dent either knew about or should have known; and because he was subject to a final warning (particularly for other driving-related misconduct), 7 I am satisfied dismissal was justified.8

(b) Notice; (c) Opportunity to respond

[39] Mr Dent was advised only the day before of the disciplinary hearing. He was not given adequate information. Halliburton delayed its hearing to suit its needs. It is a reasonable conclusion that the delay while acquiring statements from its other staff, and the haste with which the hearing was called and conducted denied Mr Dent a meaningful opportunity to respond. 9 Halliburton says he might have requested an extension, but that is not the point: he should not have to repair Halliburton’s defective process.

[40] Halliburton’s appeal process is interesting. Having decided to dismiss, and given effect to the dismissal, the company appears to open itself to a change of heart by way of an internal review of the decision. A dismissed employee who awaited the appeal before seeking a remedy in this Commission may be (and in this case would have been) outside the 21 day time limit.

[41] I make the following observation in terms of this Commission’s jurisdiction. A process that affords an employee a disciplinary hearing, with proper notice and opportunity to be heard and supported, followed by a show-cause process as to penalty, again with proper notice and opportunity to be heard and represented, may more clearly demonstrate procedural fairness, including the factors of notice and opportunity to respond, than the procedure adopted in this case by Halliburton.

[42] On these factors, Mr Dent’s dismissal was harsh, unjust or unreasonable: 10 he was not given adequate notice and did not have an adequate opportunity to respond to his possible dismissal until after the decision had already been taken.

(d) Support person

[43] Mr Dent submits that while he was told he could have a support person present at the first meeting, he was not aware he could be assisted by that person. In submissions in reply, this point was not taken. 11

[44] He was represented throughout by Mr Liston, an experienced union organiser who also appeared on his behalf at the hearing and was his support person of choice. 12 While there was some dispute as to the precise role played by Mr Liston, I am satisfied that Halliburton reasonably allowed Mr Dent to be assisted and supported by Mr Liston.13

(e) Warnings of unsatisfactory performance

[45] Mr Dent’s performance was not in issue.

(f) Size of enterprise on procedures; (g) Absence of expertise in the enterprise

[46] Halliburton is a large enterprise with dedicated human resources expertise available.

(h) Other matters

[47] Mr Dent was subject to a first and final notice for driving while speaking on a mobile phone. That final warning was given considerable weight in the decision to dismiss, and as noted above was, in my view, relevant to concluding dismissal was for a valid reason. Submissions for Mr Dent argue that the dismissal was harsh or disproportionate. 14 I do not agree, even if the implications for Mr Dent were serious15 and subjectively harsh. He was on a final warning, yet without any apparent extenuating circumstances still breached the driving policy, a serious work health and safety matter.

[48] Mr Webster’s evidence is that he had counselled Mr Dent soon after that warning was issued on the need to adhere to Halliburton policy if he wished to build a career with the company. However, it seems some considerable weight was given to certain matters without them being put to Mr Dent, including that he had lied in the earlier investigation and that he was thought to have committed other disciplinary breaches. Those propositions were not put to Mr Dent, meaning the investigation, hearing and decision-making lacked procedural fairness.

[49] I accept the submission put forward by Halliburton that its “investigation does not need to be without flaw. It does not need to be forensic in detail.” 16 In this case the procedures used were not adequate. Mr Dent was not given sufficient notice, and the opportunity to respond was inadequate, especially as the appeal was after the fact. Undue weight was given to questions of Mr Dent’s honesty and suggestions of other breaches. Those matters were not put to him.

Remedy

[50] Having concluded that the dismissal, while for a valid reasons was none-the-less harsh, unjust or unreasonable, the Commission may order reinstatement, or if reinstatement is not appropriate, compensation.

[51] Mr Dent has struggled to find suitable employment since his dismissal and seeks reinstatement. Halliburton does not suggest it cannot accommodate Mr Dent. Rather, the company submits reinstatement is not appropriate as it has lost trust and confidence in Mr Dent.

[52] Both Mr Nixon and Mr Webster gave evidence that reflected lack of trust and confidence in Mr Dent. Their perceptions that he was untruthful, disorganised and easily flustered.

[53] Mr Dent did not present as a reliable and cooperative witness, consistent with the observations of his superiors. He appeared to lack insight into his own conduct, the impact it may have on others, and his responsibilities as an employee. His evidence that he did not know Halliburton’s policies is demonstrative of a rather offhand attitude to the matter of safety of himself and others.

[54] I am satisfied on the basis of the evidence that Halliburton has lost trust and confidence in Mr Dent. He offered no evidence that he has insight into his conduct or is willing to take steps to repair trust and confidence in him. I consider reinstatement would be impracticable 17 and in all the circumstances inappropriate.

[55] I consider that compensation in lieu of reinstatement is appropriate. 18 Section 392 sets out criteria for considering the amount of consideration.

S.392(2)(a) Viability of the employer's enterprise

[56] There are no issues as to Halliburton’s viability.

S.392(2)(b) Length of service

[57] Halliburton employed Mr Dent for approximately one year before his dismissal. There was some argument about whether Mr Dent had relocated from Victoria specifically to take up his role with Halliburton. However it is clear from his own evidence that he moved to Roma after the offer from Halliburton. On that basis his short period of employment neither increases 19 nor reduces20 compensation.

S.392(2)(c) Remuneration lost; (e) Remuneration earned; (5) Cap; (6) Calculation

[58] The procedure for calculating compensation is set out in the well known Sprigg formula. 21 Compensation should be appropriate having regard to all the circumstances of the case.22 The steps are:

1. estimate the remuneration Mr Dent would have received if he had not been dismissed;

2. deduct any remuneration earned by him since dismissal until the anticipated end of his employment;

3. deduct an amount for contingencies (future economic loss);

4. consider the impact of taxation and adjust the figure accordingly;

5. assess the figure against the compensation cap.

[59] Lost remuneration is calculated by estimating how long the employee would have remained in the relevant employment but for being dismissed, that is, the anticipated period Mr Dent would have remained employed by Halliburton. While making this estimate can be difficult this has been held to be a necessary step. 23

[60] Given the history of his employment and the poor regard in which senior Halliburton staff hold him, and for reasons stated in paragraph [53] it is unlikely Mr Dent would have remained in employment for any great length of time. 24 I consider Mr Dent’s employment would have been terminated within 4 months which is some 17 weeks.

[61] Mr Dent submits his gross earnings were $5,132 from 11 September to 10 October 2013 and $1090 from 14 October to 22 October 2013. Those earnings fall within the period until the anticipated end of his employment. Compensation is reduced by $6,222 gross under s.392(c).

[62] Mr Dent has also received social security payments, for which no reduction is made. 25

[63] There is no need to provide for contingencies, as the facts are fully known for the period in question. The amount is below the compensation cap set by s.392(5) and any amount ordered will be subject to tax.

S.392(d) Mitigation

[64] Mr Dent’s evidence is that he has essentially been unemployed since the dismissal some 14 months ago. His only employment was casual labouring for some 5 weeks. 26 His curriculum vitae27 reveals him to be qualified and experienced in emergency services, office administration, sales and agriculture. He applied unsuccessfully for advertised positions: 5 in August and 1 in September, then 6 others in 2014.

[65] Mr Dent and his wife have a property in Victoria. 28 He resides in Roma with his child.29 His wife now resides in Brisbane. He appears to have mainly limited his job search around and near Roma, except for a position with a company based in regional New South Wales.

[66] I find that Mr Dent did not take sufficient steps to mitigate the loss, and in accordance with the principles set out by the Full Bench in Biviano v Suji Kim Collection 30 a reduction in the compensation of three week’s pay is warranted.

S.392(f) Earnings between order and compensation

[67] This factor is not relevant.

S.392(g) Other

[68] No other issues were raised.

S.392(3) Reduction for misconduct

[69] If the Commission finds that misconduct contributed to the dismissal, the Commission must reduce the amount of compensation by an appropriate amount.

[70] Mr Dent’s misconduct in failing on at least two occasions to drive in accordance with Halliburton’s policies resulted in his dismissal. Taking into account his lack of insight into the impact and meaning of his misconduct on one hand and the fact he was dismissed unfairly on the other, a reasonable reduction for misconduct is three weeks pay.

Orders

[71] Compensation subject to taxes is to be calculated on the basis described by s.392(6) as follows:-

Gross earnings lost	17 weeks
LESS earnings from other work	$6222
LESS amount for failure to mitigate	3 weeks
LESS amount for misconduct	3 weeks

[72] Orders will issue awarding Mr Dent compensation in lieu of reinstatement accordingly.

COMMISSIONER

Appearances:

Ms C Woodhouse from The Australian Workers’ Union on behalf of Mr Dent.

Ms C Spence from Australian Mines and Metals Association on behalf of Halliburton Australia Pty Ltd.

Hearing details:

2014.

Roma:

21 and 22 May.

Final written submissions:

Applicant, 27 June and in reply 9 July 2014;

Respondent 7 July 2014.

 1   Mr Dent’s Submissions in reply [53], although at [48] it is pointed out the incident took place on private property.

 2   Both statements identically report the alarm as “wo, wo”, an unusual rendition of “whoa”.

 3   Transcript dated 22 May 2014 at PN1606.

 4   Mr Dent’s Submissions at [27]-[28], Submissions in Reply at [8]-[9], [48].

 5   eg Mr Dent’s Submissions at [47], [53].

 6   Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 at [18]-[19].

 7   McDonald v Parnell Laboratories (Aust) (2007) 168 IR 375 at [61].

 8   Edwards v Giudice (1999) 94 FCR 561 at [6]-[7].

 9   Mahoney v Bechtel Construction (Australia) Pty Ltd[2014] FWC 2756.

 10   see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [128].

 11   at [39]

 12   Dewson v Boom Logistics Ltd[2012] FWA 9027; [2013] FWC 760 and see Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].

 13   see Dissanayake v Busways Blacktown Pty Ltd[2011] FWA 3549; appeal refused: [2011] FWAFB 6487.

 14   Mr Dent’s Submissions at [55]; Submissions in reply at [23],[26].

 15   Mr Dent lost his job and has yet to find alternative employment.

 16   Schaale v Hoechst Australia Ltd [1993] FCA 125 at [25].

 17   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (Full Court)

 18   s.390(3)(b).

 19   A short period of service ‘on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum): Davidson v Griffiths Muir’s Pty Ltd[2010] FWA 4342 at [140].

 20   Varani v Independent Advocacy in the Tropics Incorporated T/A Independent Advocacy Townsville [2011] FWA 1633 at [95].

 21   Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 (Sprigg); as refined in Ellawala v Australian Postal Corporation[2000] AIRC 1151 (Ellawala).

 22   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].

 23   Sprigg at [32]; Ellawala at [33].

 24   “The Applicant's refusal to accept his employer’s policy, in particularly stark terms, augurs very poorly for the longevity of the employment relationship”: Varani v Independent Advocacy in the Tropics Incorporated T/A Independent Advocacy Townsville [2011] FWA 1633, Richards SDP at [97].

 25   Steggels Limited v West S5876 2000 (AIRCFB).

 26 See at [61] above.

 27   filed with Mr Dent’s final statutory declaration.

 28   Transcript dated at 21 May 2014 at PN312.

 29   Statutory declaration of Mr Dent 20 August 2014.

 30   PR915963 (Full Bench)

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