Mr Tyson David Doolan
[2010] FWA 4236
•8 JUNE 2010
[2010] FWA 4236 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Tyson David Doolan
(U2009/12672)
Mr Ian Raymond Bilston(U2009/12673
Mr Geoff James Faulkner(U2009/12674
vWinderee Investments Pty Ltd atf The Hastings Trust T/A City Toyota
COMMISSIONER THATCHER | SYDNEY, 8 JUNE 2010 |
Genuine redundancy
[1] Tyson David Doolan, Ian Raymond Bilston and Geoff James Faulkner have each made application to Fair Work Australia (FWA) for an unfair dismissal remedy on the basis that the termination of his employment with Winderee Investments Pty Ltd as trustee for The Hastings Trust trading as City Toyota, Lismore (Lismore Toyota) on 23 September 2009 was harsh, unjust or unreasonable. Given that the facts and circumstances were related, the matters were listed together.
[2] Each had been employed in the Service Department of Lismore Toyota and was terminated by receiving a letter headed ‘Redundancy Notice’ which included:
“We are now in the position that the company needs to reduce costs due to a downturn in business in the service department and we regret we now inform you of your position becoming redundant as of 4.30PM today.
We thank you for your service and we hereby afford you 2 weeks pay in lieu of notice and 4 weeks severance pay. Additionally all outstanding leave entitlements will be paid to you. …” 1
[3] The applicants submit that the redundancies were a sham. Each had been involved in incidents where damage had been done to a vehicle in the course of his employment and submits that he had been dismissed because he had failed to agree to pay Lismore Toyota the amount for the costs of repairs for the damage. Further, the financial position of the Service Department did not support redundancies.
JURISDICTIONAL OBJECTION
[4] Lismore Toyota submits that FWA does not have jurisdiction to determine the applications because each of the employees was not unfairly dismissed. This is on the grounds that s.385 of the Fair Work Act 2009 (the Act) prescribes:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.” (emphasis added)
[5] Section 389 of the Act sets out what will and what will not constitute a case of genuine redundancy. It prescribes:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[6] The applicants do not submit that either s.389(1)(b) or 389(2) are relevant to these proceedings. Therefore Lismore Toyota’s objection turns on only whether or not s.389(1)(a) applies in respect of each of the dismissals, namely whether:
“the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.”
[7] Although I heard the applications and the jurisdictional objection concurrently, because of s.396 (Initial matters to be considered before merits) of the Act, FWA must decide whether each of the dismissals were cases of genuine redundancy before considering whether the dismissals were harsh, unjust or unreasonable.
MEANING OF GENUINE REDUNDANCY
[8] In prescribed circumstances 2 consideration may be given to extrinsic material not forming part of an Act that is capable of assisting in ascertaining the meaning of a provision. The Explanatory Memorandum to the Fair Work Bill 2008, (the Explanatory Memorandum) when dealing with what was to become s.389 of the Act, stated:
“Clause 389 – Meaning of genuine redundancy
1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.
1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.
1548. The following are possible examples of a change in the operational requirements of an enterprise:
• a machine is now available to do the job performed by the employee;
• the employer‘s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or
• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person‘s job no longer exists.
1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer‘s enterprise, as this will still constitute a change to the employer’s enterprise.
….
1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.
Illustrative example
Cath is one of four chefs at Kat’s Bar and Bistro. She has been working at the restaurant for five years. Six months ago a new restaurant opened up across the road and business has been steadily declining. The manager, Kristy, has made the decision to cut the number of chefs from four to two as only two chefs are needed to manage the reduced workload. There are no redeployment opportunities for either of the chefs as Kat’s bar and bistro only employs a small number of staff and has no associated entities. Before deciding to make employees redundant, Kristy checks the award that applies to the chefs and finds that there are no obligations to consult about the redundancy. Kristy dismisses Cath and one other chef and provides them with notice of termination under the NES and pays all amounts owing on termination (e.g., untaken annual leave).
Based on these facts, Cath’s dismissal would be a case of genuine redundancy and she would not have been unfairly dismissed.
However, Kristy’s reason for selecting Cath as one of the employees to be dismissed was that she had recently complained to her union that she was not being paid the correct allowances under the award.
While this would not change a finding that it was a genuine redundancy, it may contravene the general protections as it may involve Kristy taking adverse action (being the dismissal) against Cath because she exercised a workplace right to complain to the union about not receiving her entitlements.”
[9] It is clear from the above that:
(a) A person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;
(b) An example of a change in the operational requirements of an enterprise is where the employer’s business is experiencing a downturn and therefore the employer only needs a reduced number of people to do a particular task or duty;
(c) A dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise;
(d) Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy;
(e) If the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.
[10] Section 389, and the corresponding provision in the Explanatory Memorandum, must be read in the context of the corresponding provision of the former Workplace Relations Act 1996 which, when referring to applications under s.643(1)(a) on the ground that the termination was harsh, unjust or unreasonable, stated at s.643:
“(8) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if the employee’s employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons.
(9) For the purposes of subsection (8), operational reasons are reasons of an economic, technological, structural or similar nature relating to the employer’s undertaking, establishment, service or business, or to a part of the employer’s undertaking, establishment, service or business.”
[11] In Village Cinemas Australia Pty Ltd the Full Bench’s explanation of genuine operational reasons under the Workplace Relations Act 1996 included:
“.. the operational reason relied upon by the employer need only be a ground or cause for the termination of the employment of an employee. It need not be something that demands or brings about an obligation to terminate the employment of a particular employee. The termination of employment of the particular employee does not have to be an unavoidable consequence of the operational reason for the limitation in s. 643(8) to operate. Consequently, whether the employer could have done something other than terminating the employee's employment will generally be irrelevant in deciding whether the termination was for the genuine operational reasons, or reasons that include genuine operational reasons …” 3
[12] In Boeing Australia Limited, 4 the Full Bench described the process for determining whether an employee’s employment had been terminated for genuine operational reasons as follows:
“[6] When a respondent employer moves for the dismissal of an application pursuant to s.649(1)(b)(i), s.649(2) requires the Commission to examine the operational reasons relied on by the respondent employer and to decide whether those reasons were genuine. It follows that the focus of the inquiry is two-fold. It requires the identification of the reasons relied upon by the employer and an evaluation of their genuineness. In a forensic sense reasons relied on by the employer might not be genuine because they were not real reasons for the termination or, while being genuine reasons, they may not be operational ones.
[7] In considering whether a termination was for genuine operational reasons the employer’s reasons for dismissal are the critical consideration. In Cruickshank v Priceline [FOOTNOTE [2007] AIRC FB 513, 27 June 2007] (Priceline) the Commission drew attention to the particular importance of the reasons advanced by the decision-maker. The Full Bench said:
‘[10] Speaking generally the reasons for termination of employment are the reasons of the decision-maker. In many cases the decision-maker will be easily identifiable. In other cases the situation may not be straight forward. For example the decision may have been taken by a group such as a committee. In any event the evidence of the decision-maker, or decision-makers if there are more than one, will be pivotal.’
…
[14] To ascertain the reasons for an employer’s decision to terminate an employee’s employment, it is necessary to focus on the reasons, if any, advanced by the decision-maker. It is clear that the credibility of evidence given by the decision-maker may be put in issue in some cases. If this occurs the Commission will be required to evaluate the evidence given by the decision-maker against the other evidence and the circumstances overall in the usual way.’”
[13] It is relevant in these proceedings to distinguish the provisions in the Act and the Workplace Relations Act 1996 from s.170DE of the former Industrial Relations Act 1988 which prescribed:
“170DE(1) An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
(2) A reason is not valid if, having regard to all of the circumstances of the case, including the employee’s capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid.” (Emphasis added)
[14] Under that legislation in Nettleford v Kym Smoker Pty Ltd, Lee J described the requirement that there be a valid reason based on the operational requirements of the undertaking as follows:
“Obviously … a broad term that permits consideration of many matters including past and present performance of the undertaking, the state of the market in which it operates, steps that may be taken to improve the efficiency of the undertaking by installing new processes, equipment or skills, or by arranging for labour to be used more productively, and the application of good management to the undertaking. In general terms it may be said that a termination of employment will be shown to be based on the operational requirements of an undertaking if the action of the employer is necessary to advance the undertaking and is consistent with management of the undertaking that meets the employer's obligations to employees.” 5 (emphasis added)
[15] Further, in Kerr & Another v Jaroma Pty Ltd t/a Treasury Motor Lodge, Marshall J held that:
“… a decision to terminate employment taken for operational reasons from the subjective view of the employer will not necessarily result in a termination for a valid reason. There still must be a reason for such a termination which, on independent objective analysis, is capable of being proved by the employer to be valid.” 6
[16] However unlike the situation under the Industrial Relations Act 1988, under s.389 of the Act the finding of a genuine redundancy does not require a finding that the dismissals were necessary to advance the relevant undertaking. Given the significance of such a change from the arrangements that existed under the Workplace Relations Act 1996, if that had been the Legislature’s intention, it would have been referred to in the Explanatory Memorandum.
[17] Similar to the situation that existed under the Workplace Relations Act 1996, insofar as paragraph 389(1)(a) is concerned, a person’s dismissal will be a case of genuine redundancy if the real reason for the dismissal was that the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise. This requires FWA to examine the reasons relied upon by the respondent and to decide whether those reasons were genuine. This involves a two-step process. Firstly, it requires the identification of the decision-maker, i.e., the person who made the decision to terminate the employment and the reasons relied upon by the decision-maker. Secondly, where the employer relies on the reason that it no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise, this requires FWA to evaluate the genuineness of that reason by determining whether it was the real reason for the termination.
EVIDENCE
[18] Evidence was given by the following:
On behalf of the applicants
Mr Doolan, Applicant (formerly Fourth year apprentice Motor Mechanic)
Mr Bilston, Applicant (formerly Service Technician specialising in gas conversion)
Mr Faulkner, Applicant (formerly Mechanic)
Ms Jennifer Maree Fraser, former Service Manager, Lismore Toyota (employed until she became redundant on 6 May 2009)
Ms Caroline Creighton, former Financial Controller, Lismore Toyota (resigned 26 June 2009 – previously absent on maternity leave between October 2008 and her resignation)
On behalf of Lismore Toyota
Mr Mark Pidcock, General Manager, Lismore Toyota
Mr Bob Leggo, Workshop Controller, Service Department
Ms Christine Castrikum, Financial Controller, Lismore Toyota (since 26 September 2008)
Requests – costs of damage
[19] In November 2008 Mr Pidcock circulated a document which advised that any damage caused by a staff member would be the responsibility of that staff member to reimburse Lismore Toyota – which was referred to during these proceedings as the ‘You break – you pay’ policy. 7
[20] That document had never been withdrawn and Mr Leggo had never been advised that he was not to enforce the policy. 8
[21] On 21 or 22 September 2009 Mr Leggo asked each of the applicants to sign Employee Pay Change Advice forms which would have authorised the deduction of certain over-award payments from their wages.
[22] Such deductions were for the purpose of paying by instalments (by foregoing payment of service commissions) the costs of repairs to customer’s vehicles incurred by Lismore Toyota because of damage in incidents in which each of the applicants had been involved.
[23] In the previous pay such deductions had commenced without the consent of each of the applicants. 9 Who authorised such deductions was never adequately explained during the proceedings.10 However Mr Pidcock explained that he had received advice from the Motor Traders’ Association that ‘we are not allowed to do this and accordingly no employee has been made to pay for damage repair costs.’11 Each of the Employee Pay Change Advice forms were to have been effective from the pay for the week ending 18 September 2009.12
[24] By the close of business on 22 September 2009 each of the applicants had failed to sign the appropriate form. On 22 September 2009 Mr Faulkner lodged a complaint with the Fair Work Ombudsman about the matter, 13 although there was no evidence that this had become known to either Mr Pidcock or Mr Leggo prior to Mr Faulkner’s termination.
Jobs no longer required
[25] At the time Lismore Toyota was organised into the following departments:
- New Car Sales Department (cnr of Molesworth St and Ballina Rd)
- Used Car Sales Department (premises previously rented by Duck’s Motors)
- Service Department (257-259 Keen Street)
- Parts Department (also 257-259 Keen Street)
[26] It is not contested that from 2008 Lismore Toyota experienced a downturn in its overall business.
[27] I accept the letter from Lismore Toyota’s accountants, Wappetts Chartered Accountants, which indicates a 62% reduction in net profits during the 2008/09 financial year over the previous financial year. 14 Ms Castrikum’s evidence is that the letter represents an accurate financial reflection of the downturn in business that Lismore Toyota experienced.
[28] Since 1 July 2009 Toyota downgraded the Lismore Toyota dealership from a welterweight to a bantamweight dealership. 15
[29] In response to the downturn action was taken to considerably down-size the number of positions across Lismore Toyota. 16 However the downsizing of the Service Department had been delayed.
[30] I accept Mr Pidcock’s evidence that although he had thought about making redundancies in the Service Department around the end of 2008, he put the decision off until well into 2009 because of advice from Toyota that during the economic downturn people would be preferring to maintain rather than replace their vehicles. However that did not happen. 17
[31] Ms Fraser’s position of Service Manager was not filled following her termination of employment on 6 May 2009. Mr Leggo assumed responsibility for the day to day running of the Service Department. 18 Up until the dismissals of the applicants there had been no other redundancies in that Department.
[32] On 22 September 2009 Mr Leggo advised Mr Pidcock of his attempts to have the applicants sign the Employee Pay Change Advices. In response Mr Pidcock said words to the effect:
‘You’re wasting your time Bob. It’s not going to make any difference because they’re standing around doing nothing. We’re going to have to drop more staff.’ 19
[33] Messrs Pidcock and Leggo then discussed which of the mechanics in the Service Department would be suitable for redundancy and Mr Leggo suggested each of the applicants. During the proceedings evidence was given by Messrs Pidcock and Leggo of the reasons why the applicants were selected. However for the purpose of considering the jurisdictional objection it is not necessary for me to consider the process for selecting the individual employees for redundancy or whether such reasons are valid reasons 20 for the dismissals.
IDENTIFICATION OF DECISION-MAKER
[34] Since Ms Fraser’s departure, Mr Leggo saw it as his responsibility to make decisions that reduce the costs of the Service Department, subject to Mr Pidcock’s overall authority.
[35] Although Mr Leggo may have been under the impression that he was the person who made the decision to make 3 positions redundant and that it was he who picked the applicants for redundancy 21 I prefer the evidence of Mr Pidcock that, although he discussed this with Mr Leggo, it was his decision to terminate the employment of each of the applicants.22
IDENTIFICATION OF THE EMPLOYER’S REASONS FOR TERMINATION
[36] As indicated in the letters of termination, the reason for each of the terminations was that Lismore Toyota had decided to make the positions of each of the applicants redundant because it wanted to reduce its costs in the Service Department.
WAS REDUNDANCY THE REAL REASON FOR THE TERMINATIONS
[37] None of the jobs of the applicants have subsequently been filled.
[38] A new position of Assistant Workshop Controller that was created after Christmas 2009 and a new position of First Year Trades Assistant are different jobs 23 and for the reasons referred to by the Full Bench in Ulan Coal Mines Limited v Henry Jon Howarth and others,24 are not relevant to these proceedings, even if those employees have performed some aspect of the duties previously performed by any of the applicants.
[39] Having heard the evidence of Ms Castrikum, I accept the accuracy of Lismore Toyota’s Profit and Loss Statement for the Service Department for the period July 2008 to January 2010 provided by Mr Pidcock (and prepared by Ms Castrikum 25using the Voyager accounting system) which indicates losses over many months between July 2008 and September 2009.26
[40] In doing so, I accept that in those statements the Toyota franchisee (The Hastings Trust which is trading as City Toyota 27) is entitled to pro rata the costs of its rental of premises (which Wappetts Accountants physically pays to Mr Brian Pidcock28 on a monthly basis) across its various departments.29 Further, given the evidence of Ms Castrikum,30 I accept that the proportion of the total rent that has been notionally assigned for the Service Department has not been inflated. In addition, I accept that such statements are different from those that are submitted to Toyota in accordance with its guidelines (to enable comparisons amongst dealers) and which exclude certain costs, including rental.
[41] In accepting the statements provided by Mr Peacock I drawn no adverse inference in respect of the evidence of Ms Fraser that her monthly commission was calculated without subtracting an amount for rental. Such evidence is not inconsistent with my finding. Clearly, during her period of employment Ms Fraser had no need to be aware of the payments for rent and there was no necessity for her commission in relation to the operation of the Service Department to take rent into account.
[42] Further, in accepting the statements provided by Mr Pidcock, I drawn no adverse inference in respect of the evidence of Ms Creighton given that up until the time she went on maternity leave (and prior to the introduction of the Voyager accounting system in December 2008) the internal profit and loss statements that she prepared (on excel spread sheets under the Midas system) for the various divisions did not separate out rent to the various departments. Ms Creighton was familiar with the statements required by Toyota which did not reflect the true profitability of the Service Department because a proportion of the total costs of rent and all administration costs were excluded. 31 I accept Ms Castrikum’s evidence that the Voyager accounting system allows for a more accurate analysis of the financial situation than the Midas system and is the reason for the variations in the data for ‘Remuneration Supervisors.’
[43] I accept the uncontested evidence of Mr Pidcock that before the dismissals he had become aware of the advice of Gateway Dealer Solutions, as evidenced in its letter of 9 March 2010, 32 that in the second quarter of 2009 it had observed that there was ‘overstaffing in the productive side of the Service Department leading to a massive oversupply of the capacity of the workshop.’
[44] There is no direct evidence that the employment of each of the applicants was terminated because each had failed to agree to sign the relevant Employee Pay Change Advice form that would have authorised Lismore Toyota to deduct an amount for the costs of repairs from his normal pay.
[45] Such a finding (which would be inconsistent with the direct evidence of Messrs Pidcock and Leggo) would require the drawing of an inference. The principles in relation to the drawing of inferences were considered by a Full Bench of the Commission in A Smith and others v Moore Paragon Australia Ltd. 33 In that decision, after referring to certain authorities the Full Bench stated:
“[42] The statement of principles set out above may be summarised as follows:
• an inference is assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts;
• the drawing of an inference is part of the process of fact finding;
• an inference can be drawn if it is reasonably open on the basis of agreed or proved facts;
• the question whether a particular inference can be drawn from the facts found or agreed is a question of law;
• where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference;
• the circumstances must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture;
• matters to be taken into account in drawing an inference include circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed;
• generally it is not lawful to take into account moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations;
• the degree of probability required to found the necessary inference will depend on the nature of the proceeding:
- in a criminal case the facts must be such as to exclude reasonable hypotheses consistent with innocence;
- in a civil case you need only circumstances raising a more probable inference in favour of what is alleged;
• a party's failure to give evidence on some issue in cases where it is within that party's power to provide or give evidence, may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.”
[46] Having considered all of the evidence, I find that the reason that the employment of each the applicant’s was terminated was that Mr Pidcock decided that the three positions which the applicants held within the Service Department were no longer required to be performed by anyone because of the operational requirements of that department which related to its financial viability. This is supported by:
- The evidence of the financial viability of the Service Department (allowing for the costs of rent and other shared costs on a proportionate basis);
- The evidence that the Service Department was overstaffed and had a massive oversupply of capacity;
- The jobs in which each of the applicants were employed have no longer been performed by anyone. Such an intention by Lismore Toyota is supported by its making the redundancy payments.
[47] In making that finding I have not gone to the process by which the applicants were each selected for redundancy, although I note that the decisions on how many positions would be made redundant and which employees would be selected for redundancy were interrelated and made simultaneously. However I do not consider this fatal to the jurisdictional objection because an employer might well decide to make a greater number of less efficient workers redundant than a fewer number of more efficient workers or visa versa.
[48] Whilst the timing of the decision to make the applicants redundant was triggered by their refusal to sign the Employee Pay Change Advices, I am not persuaded that there is sufficient evidence for me to make the leap of faith necessary to draw the inference that the real reason that City Toyota decided to effect each of the terminations was that each applicant failed to agree to authorise Lismore Toyota to deduct amounts from his normal pay for the costs of repairs.
[49] Even if I had found that each of the applicants was selected for redundancy because they had been involved in damage to vehicles and refused to sign the Employee Pay Change Advices (and I have not found it necessary to draw such an inference) that would not have been enough to not find that each of the terminations of employment was not a case of genuine redundancy.
CONCLUSION
[50] As I am satisfied that each of the dismissals was a case of genuine redundancy within the meaning of s.389, FWA has no jurisdiction to determine whether or not the terminations were harsh, unjust or unreasonable. The applications are dismissed and I order accordingly.
COMMISSIONER
Appearances:
Ms C Smith of counsel with Mr M Donnelly for the applicants
Mr M McCall of counsel with Mr Braid for the respondent
Hearing details:
2010
Lismore
April 13, 14
1 Exhibit S1, Annexure TD7, Exhibit S2, Annexure GF6 and Exhibit S4, Annexure IB9.
2 Refer to s.15AB(1) of the Acts Interpretation Act 1901.
3 [2007] AIRCFB 35, 15 January 2007, per Drake SDP, Kaufman SDP, Eames C, at paragraph 28.
4 [2007] AIRCFB 730, 3 September 2007, per Giudice P, Harrison SDP, Hoffman C.
5 (1996) 69 IR 370, 373.
6 (1996) 70 IR 469, 474.
7 Exhibit S6, Annexure JF1 and Exhibit M2, paragraph 22. Also evidence of Mr Leggo in transcript of proceedings on 14 April 2010 at PN1287, PN1291-PN1293 and PN1296-PN1297.
8 Evidence of Mr Leggo in transcript of proceedings on 14 April 2010 at PN1293 and PN1297.
9 Evidence of Mr Pidcock in transcript of proceedings on 13 April 2010 at PN923-PN924 and PN927. Also evidence of Ms Castrikum in transcript of proceedings on 14 April 2010 at PN1844, PN1846 and PN1847
10 Mr Leggo stated that he had spoken to payroll but at the time he had not been aware that the deductions had been made – see transcript of proceedings on 14 April 2010 at PN1272-PN1279 and PN1316.
11 Exhibit M2, para 22.
12 Exhibit M5, Annexures A, B and C.
13 Exhibit S2, paragraph 45 and Annexure GF4.
14 Exhibit M1, Annexure A.
15 Evidence of Ms Castrikum in transcript of proceedings on 14 April 2010 at PN1835-PN1841.
16 I make this finding having regard to all of the evidence and notwithstanding Mr Pidcock’s difficulty in reconciling the contents of Exhibit M1, Annexure B, which was prepared by the payroll clerk.
17 Exhibit M2, para 20 and transcript of proceedings on 13 April 2010 at PN1180.
18 Although he remained the Workshop Controller he performs certain of the duties previously performed by Ms Fraser – Evidence in transcript of proceedings on 14 April 2010 at PN1248-PN1253.
19 Exhibit M1, para 12. This is similar to Mr Leggo’s version of the conversation at Exhibit M5, para 3.
20 For the purposes of paragraph 387(a) of the Act.
21 Transcript of proceedings on 14 April 2010 at PN1456-PN1463.
22 Exhibit M2, para 23. In his closing submissions, Mr McCall, on behalf of Lismore Toyota, submitted that the corporate decision-maker was Mr Pidcock - refer to transcript of proceedings on 14 April 2010 at PN2103.
23 In respect of the Assistant Workshop Controller refer to evidence of Mr Pidcock under cross-examination - see transcript of proceedings on 13 April 2010 at PN942-PN943. Also refer to evidence of Mr Leggo under cross-examination - see transcript of proceedings on 14 April 2010 at PN1255-PN1256.
24 [2010] FWAFB 3488, 10 May 2010, per Boulton J, Drake SDP, McKenna C, at paras 17-20.
25 Exhibit M7, para 11.
26 Exhibit M1, Annexure E.
27 Evidence of Mr Pidcock in transcript of proceedings on 13 April 2010 at PN1009.
28 Exhibit M8. That exhibit also shows that Winderee Investments Pty Ltd acts as trustee for the Brian Pidcock Family Trust. Also refer to evidence of Ms Castrikum transcript of proceedings on 14 April 2010 at PN1507.
29 Exhibits S10 and S11 show that the premises in Keen Street are not owned by the franchisee and are owned by Winderee Investments Pty Ltd.
30 Refer to transcript of proceedings on 14 April 2010 at PN1746-PN1752.
31 The Profit and Loss Statements for the Service Department for the period July 2008 until Ms Creighton went on maternity leave that were tendered by Mr Pidcock were different to the spreadsheets actually prepared by Ms Creighton at the time because Ms Castrikum had retrospectively loaded information from the Midas system onto the Voyager system – evidence of Ms Castrikum in transcript of proceedings on 14 April 2010 at PN1530.
32 Exhibit M2, Annexure MP4.
33 PR915674, 21 March 2002, per Ross VP, Lacy SDP, Simmonds C.
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