Mr Theo Tsourdalakis v Emerson Process Management

Case

[2022] FWC 1715

26 august 2022


[2022] FWC 1715

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Theo Tsourdalakis
v

Emerson Process Management

(U2022/2323)

COMMISSIONER LEE

MELBOURNE, 26 august 2022

Application for an unfair dismissal remedy – government directions – employer required to comply with directions and not allow applicant to attend the workplace – applicant unable to perform primary role as no evidence of vaccination or valid exemption – valid reason for dismissal – dismissal was procedurally fair –– dismissal not unfair taking into account all the circumstances – application dismissed.

Introduction

  1. This decision concerns an application for an unfair dismissal remedy made by Mr Theo Tsourdalakis (Applicant) on 23 February 2022 under s.394 of the Fair Work Act 2009 (FW Act). Mr Tsourdalakis claims that he was unfairly dismissed from his employment with Emerson Process Management (Emerson). Mr Tsourdalakis worked as an Engineering Trainer from 27 October 2007 until 9 February 2022, when the dismissal took effect. Mr Tsourdalakis was dismissed on the grounds that he failed to provide evidence of vaccination against COVID-19, nor a valid exemption from the requirement to do so resulting in him being unable to work, as required, from the office or perform duties outside the office which were inherent requirements of his position. He was provided payment in lieu of notice.[1]

  1. Section 396 requires that I decide four matters before considering the merits of Mr Tsourdalakis’ application. I am satisfied of the following. First the application was made within the 21-day period required by s.394(2). Secondly, Mr Tsourdalakis was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, Emerson is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.

Background

  1. The Workers and Workplace Directions (Directions) which applied at the time permitted Mr Tsourdalakis to return to work as an Authorised Worker. However they required Emerson, if Mr Tsourdalakis was to return to face to face work, to collect information from him confirming that he was or was in the process of becoming fully vaccinated (at that time, two doses) against COVID-19 by 26 November 2021. The combined effect of the Directions was that Mr Tsourdalakis could not be permitted to return to work face to face if

a.he was not in fact vaccinated, or going to be vaccinated, by 26 November 2021; and

b.Emerson did not hold evidence confirming this.

  1. Vaccination against COVID-19 was also at the time a requirement for entry into many states.

  1. Mr Tsourdalakis failed to provide evidence to Emerson of either a COVID-19 vaccination or a medical exemption in line with the Directions. Therefore, in order to comply with the Directions, Emerson could not allow Mr Tsourdalakis to return to the workplace from 22 October 2021 as it required. Mr Tsourdalakis contends that the requirement to be vaccinated was against his religious beliefs, his bodily integrity and was “an unsafe activity.”[2] He therefore feels his dismissal is unreasonable and he seeks re-instatement or compensation.[3]

The Submissions and Evidence

  1. Mr Tsourdalakis gave evidence on his own behalf. Mr Meehan and Mr Corrigan gave evidence on behalf of Emerson.

Mr Tsourdalakis commenced employment with Emerson on 27 October 2007.[4] As a result of the Covid-19 Pandemic and the associated lockdowns in 2020 and 2021, Emerson transitioned to providing online training to clients, allowing Mr Tsourdalakis to work from home.

  1. In mid-September 2021, Emerson determined that Mr Tsourdalakis’ role could no longer be reasonably practicably performed at home, and that face-to-face training activities needed to resume.[5] Emerson also formed the view that Mr Tsourdalakis was an Authorised Worker under the Directions and could therefore resume face to face work with a permit.[6] During this time, Mr Tsourdalakis sent a series of emails raising concerns about COVID-19 vaccines.[7]

  1. On 6 October 2021, the Applicant was issued with an Authorised Worker Permit.[8]

  1. On 7 October 2021, the Directions came into effect and Emerson considered Mr Tsourdalakis to be a utility and urban worker. Accordingly, in order for the Applicant to attend the workplace, Emerson determined that it was required to “collect ‘vaccination information’ demonstrating that he is or is in the process of becoming fully vaccinated against COVID-19 by 26 November2021”.

  1. In November 2021, Emerson became aware that Mr Tsourdalakis had not provided evidence of his vaccination and understood that he “did not intend to become vaccinated”.[9] At this time, Mr Corrigan became concerned that the Applicant would not be able to perform the inherent requirements of his role such as visiting utilities client sites and travelling interstate.

  1. On 17 November 2021, Mr Nick Meehan (Lifecycle Services Manager) sent a letter to Mr Tsourdalakis. The letter detailed the mandatory vaccination requirements made in accordance with the Directions. It informed Mr Tsourdalakis that he was required to work onsite by Monday 29 November 2021 and that he needed to make arrangements to receive his first dose of the vaccine and book his second dose before that date.[10]

  1. On 18 November 2021, Mr Tsourdalakis responded to the letter from Mr Meehan expressing his intention to not receive the vaccine unless Emerson could provide credible answers to the raft of concerns that he had raised as well as a letter stating that they will be liable for any adverse reactions to the vaccine.

  1. The concerns raised in the Applicant’s 18 November 2021 correspondence included, amongst other things, assertions that:

·   he was being directed to violate his bodily integrity by injecting chemicals into his body he does not want;

·   COVID-19 vaccines are experimental;

·   the Direction violates the provisions of the Bio-Security Act 2015;

·   he was being directed to do something that is not safe;  

·   the Direction is a violation of his religious convictions as a “Committed Christian” and the directive is completely unjustified on Health or Scientific Grounds; and

·   Emerson conduct a job safety analysis of taking the vaccine.

  1. Mr Tsourdalakis concluded his letter with proposed “win-win solutions” which were one of three options. Namely, that he continued to be allowed to work from home, that he be provided with 3 months leave by which time the “tyrannical mandates” would be lifted, or that he be made redundant.[11]

  1. The evidence of Mr Meehan was that around this time, service to one of their customers was disrupted because of the unvaccinated status of the Applicant:

“On 17 November 2021, I emailed a customer, Santos, because I was required to delay training which Theo was supposed to run in South Australia. At the time, Theo was not eligible to enter South Australia because he was unvaccinated. I was planning on substituting Theo with our Brisbane based trainer, who could enter South Australia due to being vaccinated, however that trainer was completely assigned for the rest of the calendar year. The only reason this training needed to be delayed, which inconvenienced the customer, was because Theo was not able to travel and so could not perform his primary function.”[12]

  1. Mr. Meehan gave evidence that throughout November 2021 it continued to experience disruption to its business due to Mr Tsourdalakis’ inability to attend on site and travel interstate.[13]

  1. On 15 December 2021, Mr Meehan wrote to Mr Tsourdalakis asking him to respond to the allegation that he has engaged in serious misconduct by not complying with the direction.[14]

  1. On 17 December 2021, Mr Tsourdalakis, Mr Meehan and Mr Bhura met on MicrosoftTeams in order to discuss the allegations. During this meeting, Mr Tsourdalakis restated his concerns about the safety of COVID-19 vaccines and the other matters raised consistent with his 18 November 2021 letter. He confirmed that he will not provide vaccination information or become vaccinated.[15] He requested that Emerson undertake a job safety analysis of the vaccines because of his health concerns. Mr Bhura stated he would take Mr Tsourdalakis’ concerns into consideration in making a decision around the allegations. He also informed Mr Tsourdalakis that the outcome may include disciplinary action up to and including termination of his employment.[16]

  1. On 20 December 2021, Mr Meehan sent a letter to Mr Tsourdalakis with a final warning. It also reiterated the direction to provide evidence that he has become vaccinated against COVID-19. It extended the time to comply to 14 January 2022, and confirmed the determination that Mr Tsourdalakis’ inaction constituted serious misconduct. Mr Tsourdalakis was given a final warning and given until 14 January 2022 to provide proof of vaccination or a medical certificate.[17]

  1. On 14 January 2022, Mr Tsourdalakis sent a letter to Emerson restating most of the issues he raised in his 18 November 2021 correspondence, but also included references to research he had conducted. This included a book that allegedly “contains very disturbing but credible allegations that Dr. Fauci and big pharma are controlling the covid narrative for their benefit and against the public good” as well as a Joe Rogan interview of Dr Robert Malone and a “report from the Canadian Covid Care Alliance”.[18] In that letter, he states that the mandate of potentially harmful vaccines is an act of treason by the Government. He refers to unanswered correspondence to Federal and State Health officials and complains that their alleged non engagement reminds him of “totalitarian states like USSR and Nazi Germany.” [19]

  1. On 28 January 2022, Mr Meehan sent a letter to Mr Tsourdalakis providing him an opportunity to show cause as to why his employment should not be terminated for failure to follow a lawful and reasonable direction and because he was unable to perform the inherent requirements of his role as he was not vaccinated and cannot travel for work. The letter also confirmed a final meeting would be held on 31 January 2022 to determine whether or not Mr Tsourdalakis’ employment will be terminated.[20] The Applicant responded in writing essentially restating concerns already raised and suggesting that he be allowed to continue working from home, that he be allowed to take long service leave or that he transition to “contractor status”.[21]

  1. The show cause meeting foreshadowed was held on 31 January 2022. As agreed, after the meeting Mr Tsourdalakis sent an email providing his feedback. That email stated that his response was covered in the 3 previous letters sent and restates his view that COVID-19 vaccines are not safe and that Emerson forcing him to inject them is into his body is against Emerson Safety Policies and violates his bodily integrity.[22]

  1. On 9 February 2022, Mr Bhura sent a letter to Mr Tsourdalakis informing him that following on from their meeting on 31 January 202, his failure to comply with the Directions resulted in termination of his employment. Mr Bhura stated this was because Mr Tsourdalakis was unable to work outside his ordinary place of residence and unable to complete the inherent requirements of his job and that he had failed to follow a lawful and reasonable direction. Consequentially his employment was terminated as of 9 February 2022, and he was provided pay in lieu of notice.

  1. Mr Tsourdalakis believes that the dismissal is unfair because:

“• I was completely willing to injected with the experimental vaccine as soon as Emerson satisfied my credible and compelling safety concerns.

·   Emerson completely ignored my safety concerns and bullied me into a medical procedure I had credible medical advice would harm my immune system. With the benefit of hindsight, my safety concerns have been empirically confirmed and documented (See Exhibit 1 & 2).

·   Emerson failed to provide a Job Safety Analysis – which I requested and is MANDATED by Emersons own safety procedures.

·   I was fired for holding firm on Emersons safety procedures and refusing to participate in what was clearly an unsafe action.

·   Being fired for not participating in an unsafe practice is clearly Unreasonable.

·   I gave Emerson win-win solutions which they chose to ignore.”[23]

  1. The Applicant was adamant that Emerson failed to undertake a JSA in respect to the vaccines and their safety and that they were compelled to do so.[24] Mr Corrigan’s evidence was that he believed that full consideration was given to the Applicants concerns about vaccine safety.[25]

  1. The Applicant was strongly of the view that he should be able to continue to perform the training at home and that the Respondent was overstating the significance, relevance and necessity of face to face training. This was central to his argument.[26] Prior to the COVID-19 pandemic, the Applicant delivered training face to face. After the introductions of lockdowns in Victoria, the Applicant transitioned to virtual learning. The Applicant cites the benefits of this approach as including reduced costs and greater flexibility.[27] He also stated that he received strong positive feedback as to the quality of his online training.[28] The Applicant was of the view that he should be allowed to continue delivering training from home.

  1. However, Mr Meehan’s evidence was that virtual training had an impact on their customer training. His evidence was:

“This had an impact on Emerson’s customer training. On a number of occasions, I had to postpone and/or delay training courses because the online offering does not cover our full training portfolio and it was seen as a reaction to not being able to deliver face-to-face training, rather than as a beneficial or real alternative for our customers. An example of when this occurred in the context of Theo’s role is set out at paragraph 13 below. This meant that there became a backlog in demand for hardware training. Further, I did not consider virtual training to be particularly effective because customer interaction is an important part of the training, and a face to face learning environment was of significantly greater benefit for customers, including because it allowed students to directly interact with the DeltaV hardware. Ultimately, the virtual training was a secondary option, implemented because Emerson had no available alternative. It was not a tenable permanent solution.

With the above in mind, in or around September 2021, I agreed with, and was involved in, the decision that training should resume face to face where possible, subject to the requirements of the public health orders in force in Victoria at the time and travel/border restrictions. This meant that Theo’s role then needed to be performed outside of home at Emerson’s office and customer sites, and further that he needed to provide evidence of vaccination as an ‘authorised worker’ in accordance with the public health orders in force at the time.”[29]

  1. During the hearing there was an exchange as to what courses could or could not be delivered virtually.[30] It was clear from that evidence that there is at least one course that cannot be delivered virtually. However, the key issue is that the employer has a preference to deliver the courses face to face, driven by customer preference.[31] Furthermore, face to face training is now the majority of the offering from the company.[32] The Applicant responded to this evidence by stating that:

“We manage customer expectations all the time. Often times, customers want various things (indistinct) and we say, well, we can't do that.”[33]

  1. The Applicant provided a witness statement of Mr Peter Angelopoulos.[34] Mr. Angelopolous states that he is a clinical perfusionist. The statement includes some random statistics including COVID-19 infection fatality rates and vaccine efficacy rates. It also includes references to statements made by various politicians as to vaccine mandates and concludes with an indication that he supports the Applicant’s submission. I have considered this witness statement. It is of no probative value whatsoever and does not assist the Applicants case.

Consideration

  1. For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s.385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s.387.

  1. The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s.387(a)). It is a well-established principle that the reason for dismissing the applicant must be sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason.[35]

  1. The Directions meant there was a regulatory requirement that Mr Tsourdalakis was required to meet in order to continue to perform his role. He elected not to meet the requirement. He could have done so, but it is apparent he decided he would not.

  1. The Applicant has made a number of submissions and provided evidence to the effect that he should not have to be vaccinated in order to remain employed. I have considered those matters below.

  1. I have considered the Applicants submission that the Respondent should have undertaken a JSA in respect to the safety of the COVID-19 vaccines, along with the claims that the vaccines are “experimental”. There was no need for the Respondent to undertake a JSA. I agree with the submissions of the Respondent to the effect that the need for an assessment to see whether vaccination is reasonably necessary in the circumstances falls away when the government has mandated that the employer take a particular action. [36] Moreover, I strongly agree with the following submission made on the point:

“What Emerson was never going to do, and what it can't be criticised for, is performing an independent job safety analysis on the COVID 19 vaccines, themselves.  This appears to be what Mr Tsourdalakis actually wanted to happen.  It is just not a realistic proposition in circumstances where, how could it?  It's an engineering services company that produces, frankly, an incomprehensible range of products, but not itself, medical engineering and in any event, the government said this is what has to happen for it to comply (indistinct) penalty.”[37]

  1. Furthermore, the following observations made by Deputy President Colman in Isabella Stevens v Epworth Foundation (Stevens) with which I agree are also relevant to this matter:

“…the relevant COVID-19 vaccines have been approved for use in Australia by the national regulator, the Therapeutic Goods Administration (TGA), which is an expert body. The TGA’s approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.”[38]

  1. To the extent that the Applicant contends that the Directions are not legally valid, I am not satisfied that is the case. Firstly, the Applicant references s.10 of the Human Rights and Responsibilities Act 2006 which reads as follows:

“Section 10: Protection from torture and cruel, inhuman or degrading treatment A person must not be— (a) subjected to torture; or (b) treated or punished in a cruel, inhuman or degrading way; or (c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.”

  1. The Applicant was not being subjected to medical or scientific experimentation or treatment without his consent. Firstly, COVID-19 vaccines are not an experiment. The TGA has approved them for use as mentioned above. Secondly, the Applicant is free to decline to receive the vaccine. There is a consequence for the Applicant’s employment for not consenting, but that does not render the Directions legally invalid. Further, the comparisons that the Applicant makes to the USSR and Nazi Germany are absurd.

  1. In respect to the Applicant’s contentions that the Directions are inconsistent with the Biosecurity Act 2015, I agree with the determination of the Full Bench in Barbara Roman v Mercy Hospitals Victoria Ltd that this is not the case.[39] 

  1. In any event, the Directions have not been declared invalid by a Court and the Commission, as an administrative tribunal, must carry out its functions according to law.[40]

  1. I have considered that Mr Tsourdalakis had sought long service leave in order to wait for the “tyrannical mandates to be lifted”.[41] I have considered this factor and agree with an earlier decision of the Commission where an employee who did not comply with the Directions had requested to take long service leave.[42] In that matter it was held to be reasonable to take into account that the Victorian Government had announced that vaccination requirements would be in place for a considerable period of time, and therefore employers are not required to hold the employment of unvaccinated employees open indefinitely. In any event, the evidence is that Respondent had a back log of training, [43] and they needed the applicant at work. The Respondent was not under an obligation to accede to the Applicant’s leave request.

  1. I have also considered the Applicant’s claim to the effect that it was reasonable that he continue to be able to work from home. However, the evidence is clear that, while most of the courses the Applicant’s conducts training in can be done virtually, the Respondent has a clear preference, based on customer preference, to deliver courses face to face. This was the delivery method prior to the lockdowns and the Respondent was entitled to return to that mode of delivery. Emerson is not under an obligation to deliver the training in a particular way to satisfy the preference of Mr Tsourdalakis so that he could remain unvaccinated. Mr Meehans evidence is that the Applicant’s unvaccinated status had already caused problems for the Respondent in terms of service delivery. Consideration of this factor does not affect the soundness and defensibility of the reason to dismiss the Applicant.

  1. The Applicants cites a religious objection to vaccination as a committed Christian. There is no basis for the Applicant to be exempted from the Directions by virtue of a religious objection. The Directions still applied to him.

  1. I consider that Emerson had a valid reason to dismiss Mr Tsourdalakis. Mr Tsourdalakis was a worker covered by the Directions and was required to be vaccinated and provide evidence of such, or alternatively, provide evidence of an exemption. in order to work outside of his home/attend the workplace. He did neither. The position he held as a Training Engineer required him to attend the workplace and to travel interstate. If Emerson allowed him to attend the workplace from 26 November 2021, it would have been in breach of the law and exposed itself to penalties.[44] Mr Tsourdalakis was therefore unable to perform the inherent requirements of his role.

  1. In summary, the Respondent was compelled to implement the Directions and they have done exactly that in respect to Mr Tsourdalakis. By virtue of the Directions, they could not allow Mr Tsourdalakis to attend the workplace because of his decision not to vaccinate against COVID-19. Mr Tsourdalakis did not provide a valid exemption from the requirement to do so. It was reasonable for the Respondent to expect the Applicant to attend the workplace. There was a sound and defensible, and thus valid reason to dismiss Mr Tsourdalakis. He was unable to perform the inherent requirements of his role.

  1. There is a further valid reason for the dismissal in that it is clear from the evidence and the consideration above that the Applicant failed to follow a lawful and reasonable direction to provide evidence of vaccination or an exemption from the requirement to do so.

  1. I am satisfied that there are valid reasons for the Applicants dismissal. Consideration of this factor weighs against a finding the dismissal was unfair.

  1. In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss.387(b) and (c)).

  1. The evidence set out earlier shows that Mr Tsourdalakis was clearly put on notice as to the reason for dismissal and given a number of opportunities to respond which he exercised. Mr Tsourdalakis did not take issue with the procedure followed by the Respondent.[45]

  1. The extensive procedural fairness afforded to Mr Tsourdalakis weighs against a finding the dismissal was unfair.

  1. With respect to s.387(d), there is no evidence that there was an unreasonable refusal by Emerson to allow Mr Tsourdalakis to have a support person present to assist at any discussions relating to dismissal. This is a neutral consideration.

  1. If a dismissal relates to unsatisfactory performance, s.387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However, Mr Tsourdalakis’ employment was not terminated for unsatisfactory performance, but for issues relating to his capacity.

  1. The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss.387(f), (g)). There was no procedural deficiency in the manner of effecting the dismissal such that these provisions are relevant. Sections 387(f) and (g) are neutral considerations.

  1. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s.387(h)). Mr Tsourdalakis worked for Emerson for approximately 15 years. This is a reasonable period of time and is a period I consider to be of reasonably long service. However, I agree with the submissions of the Respondent there is no evidence that the difficulties occasioned by the dismissal are any more significant in this matter as with any dismissal. It is also relevant that the dismissal was an inevitable result of a choice that the Applicant made. He was free to make that choice. A consequence of the choice was that it brought to an end a long period of successful employment. In all the circumstances the Applicant’s long period of employment does not weigh in favour of a finding of unfairness. 

  1. The Applicant was paid the notice period to which he was entitled in lieu of notice. No unfairness arises from this matter. 

  1. Having taken into account all of matters above, I am not satisfied that that the dismissal was unfair.

  1. I have had regard to all of the factors under s.387 of the FW Act. There are two valid reasons for Mr Tsourdalakis’ dismissal, and this is a factor that weighs against Mr Tsourdalakis. In respect to the procedural fairness to effect the dismissal considered under s.387(b) and (c), this also weighs against Mr Tsourdalakis. All other factors are neutral. There are no factors that weigh in favour of a finding the dismissal was unfair. Taking into account all of the factors to which I am to have regard, I am not satisfied that the dismissal is harsh, unjust or unreasonable.

  1. Having regard to s.387 of the FW Act, I consider that Mr Tsourdalakis’ dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed. An order to that effect will be separately issued.

COMMISSIONER

Appearances:

T. Tsourdalakis – Applicant
L. Saunders – Counsel

Hearing details:

10:00 AM AEST Friday, 1 July 2022

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<PR743329>


[1] Termination of Employment Letter, Digital Court Book (DCB) p. 159.

[2] Form F2: Unfair dismissal Application, DCB p. 8.

[3] Ibid p. 7.

[4] Respondent’s Chronology, p. 1.

[5] Meehan, [12]-[13], DCB p. 169.

[6] Corrigan, [9]-[13], DCB p. 193.

[7] Corrigan, SC-4, DCB p. 257.

[8] Corrigan, SC-1, DCB p. 197.

[9] Corrigan, [13]-[15], DCB p. 193.

[10] Corrigan, SC-5, DCB p.263.

[11] Applicant’s letter dated 18 November 2022, DCB p. 120.

[12] Meehan, [15], DCBp. 170.

[13] Meehan, [15], DCB p. 175;  NM-2, DCB p. 176.

[14] Annexure TT1 - Letter of Allegations from Emerson, DCB p. 96;Corrigan, SC-6, DCB p.266.

[15] Meehan, NM-3, DCB p.185.

[16] Annexure TT3 – Record of Discussion, DCB p. 98-100.

[17] Annexure TT4 - Your Employment with Emerson Automation Solutions, DCB p. 102.

[18] DCB p. 129.

[19] Attachment 4- Response Letter, DCB p. 28.

[20] Attachment 5- Response Letter, DCB p. 30.

[21] DCB p. 132-133.

[22]  DCB p. 188.

[23] Applicant’s Outline of Arguments: merits, DCB p. 78.

[24] DCB p. 85.

[25] DCB p. 195[30].)

[26] PN288.

[27] DCB p. 83[7].

[28]  DCB p. 83[6].

[29] DCB p. 169.

[30] PN210-212.

[31] PN214

[32] PN220.

[33] PN288.

[34] DCB p. 86.

[35] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.

[36] PN271-272.

[37] PN273.

[38] Isabella Stevens v Epworth Foundation [2022] FWC 593 at [19].

[39] [2022] FWCFB 112.

[40] Ms Kathryn Marguerite Roy-Chowdhury v Ivanhoe Girls' Grammar School T/A The Ivanhoe Girls’ Grammar School[2022] FWCFB 101 at [16].

[41] DCB p. 17.

[42] Mr Ross Barry Edwards v Regal Cream Products Pty Ltd [2022] FWC 257 at [28].

[43] DCB p. 169[12].

[44] DCB p. 162[6].

[45] PN146.

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