Ms Maricar Virata v NSW Motel Management Services Pty Ltd T/A Comfort Inn Country Plaza Halls Gap

[2015] FWC 7932

[2015] FWC 7932

FAIR WORK COMMISSION

DECISION

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

Ms Maricar Virata
v
NSW Motel Management Services Pty Ltd T/A Comfort Inn Country Plaza Halls Gap
(U2014/11506)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 24 NOVEMBER 2015

Application for relief from unfair dismissal; whether dismissal unfair; allegations of misconduct; whether allegations made out; whether valid reason; dismissal unfair; reinstatement inappropriate; compensation appropriate; financial viability impact; instalment order.

Introduction

[1] Ms Maricar Virata (Applicant) was dismissed from her employment with NSW Motel Management Pty Ltd T/A Comfort Inn Country Plaza Halls Gap (Respondent) on 3 July 2014. The Applicant had been employed by the Respondent since 9 February 2013 and worked at the Respondent’s Comfort Inn Country Plaza located in Halls Gap in Victoria (Halls Gap Hotel). The Applicant travelled from the Philippines to take up employment with the Respondent under a s.457 Visa arrangement.

[2] Following her dismissal, the Applicant made an application under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.

[3] The Respondent conceded that the Applicant’s dismissal was unfair but it maintained that there was a valid reason for the Applicant’s dismissal. 1

Background and factual findings

The employment

[4] The nature of the Applicant’s employment was, to say the least, unusual. On any view it was exploitative. The Applicant was employed by the Respondent as a Motel Manager 2 and was part of Senior Management at the Halls Gap Hotel.3 The terms of the employment included an annual remuneration, based on 40 hours per week, of $55,000.00 plus 9% superannuation.4 The Applicant’s de facto partner, Mr Rolando Gagate, also worked at the Halls Gap Hotel and the remuneration paid to the Applicant was to be split between the Applicant and Mr Gagate.5

[5] The Applicant maintained that she regularly worked between 12 and 16 hours per day including on weekends and public holidays. 6 The Respondent says that the Applicant was not required to work those hours.7 This is a dispute that I need not resolve and it will need to be resolved elsewhere.

The circumstances of the dismissal

[6] The Applicant was advised of her dismissal from employment by email on 3 July 2014. 8 The dismissal was said to have been effected on the ‘grounds of misconduct’.9 The reason underpinning the dismissal was described as follows:

‘It is unfortunate but the circumstances are such that we feel that despite a number of warnings the issues that you have created will not be rectified and will continue to cause our organisation problems.’ 10

[7] It is accepted that the Applicant was on vacation in the Philippines at the time that the dismissal, notice of which was given by email, was effected. 11

[8] The ‘issues’ to which oblique reference is made in the abovementioned email concern allegations in complaints said to have been made about the Applicant’s behaviour or conduct. 12 In summary, the decision to dismiss is said to be supported by:

• Two complaints by employees of conduct engaged in by the Applicant said to be bullying conduct;



• A complaint to the Respondent from a Halls Gap Hotel guest about the Applicant’s interaction with the guest; and



• Relationship issues between the Applicant and Mr Gagate said to have adversely impacted the workplace.

[9] I deal chronologically with each of these matters below.

Rhea Monleon complaint (Monleon complaint)

[10] The incident that was the subject of the complaint by Ms Monleon was said to have occurred on 20 March 2013. 13 The substance of the complaint was that during the period when both the Applicant and Ms Monleon were off duty, and after the two of them had apparently spoken about ‘a lot of things’, the Applicant is said to have criticised Ms Monleon and used offensive language directed at Ms Monleon.14

[11] The Applicant gave evidence that the incident did not happen and the allegation was entirely untrue. 15

[12] Ms Monleon did not give evidence in the proceedings. The Applicant alleged that the written complaint is contrived and was written well after the date of the alleged incident in order to support the decision by the Respondent to terminate the Applicant’s employment. I do not need to deal with the veracity of this allegation, nor would I be inclined to make such a finding based on a bare allegation by the Applicant, and ambiguous and unreliable emails by persons who are not called to give evidence. 16

[13] The only direct evidence that I have about the incident is the Applicant’s express denial that the incident as described in the written complaint occurred. The Respondent’s evidence, given by Mr Parkes, a Director of the Respondent and the person who made the decision to dismiss the Applicant, about the complaint and the steps that it took in relation to the complaint was as follows:

‘. . . On or about 21 March 2013, Ms Monleon approached me and asked if she could speak to me about Ms Virata. Ms Monleon then said to me that Ms Virata had been bullying her. I was concerned about these allegations, and I asked Ms Monleon to put in a formal written complaint.

. . .

After receiving the complaint I sat Ms Virata down and explained to her the need to treat staff appropriately and with respect. She denied that she had an issue with the way she interacted with her colleagues. A few days later, it became apparent to me that Ms Monleon was quite uncomfortable working in close proximity to Ms Virata. I ultimately decided that I would transfer Ms Monleon to another one of my hotels, to ensure that Ms Monleon was in a comfortable working environment, away from Ms Virata.’ 17

[14] I find this evidence less than convincing. It is more remarkable for what it does not say than as evidence of the alleged incident, the subject of the complaint.

[15] Firstly, it is odd that Mr Parkes said that Ms Monleon told him that the Applicant had been bullying her, yet the written complaint did not mention bullying and recounted only one incident which, on the face of the written complaint, did not occur at a time when either Ms Monleon or the Applicant were on duty. Secondly, although the written complaint alerted Mr Parkes to the fact that ‘Michael can attest to’ the incident, Mr Parkes did not say anything about any step that he took to speak to Michael about the incident. ‘Michael’ was not called to give evidence. Thirdly, Mr Parkes’ recounting of his conversation with the Applicant did not indicate that the conversation was about the specific complaint made by Ms Monleon, or that he told the Applicant that he had received a written complaint. Fourthly, Mr Parkes gave no satisfactory explanation for his view that Ms Monleon ‘was quite uncomfortable working in close proximity to’ the Applicant.

[16] Fifthly, there is no reliable evidence from which it can be concluded that Ms Monleon felt uncomfortable working with the Applicant or in the working environment at the Halls Gap hotel, and I do not accept that Mr Parkes made a decision to transfer Ms Monleon to another hotel for that reason. This is so, because the letter of complaint did not say anything about Ms Monleon being uncomfortable working with the Applicant or the working environment. At its highest, the letter of complaint said that Ms Monleon did not ‘like the way Ms Maricar Virata did to me [sic]’ and that she ‘was deeply hurt’ by the criticism and offensive language said to have been used by the Applicant.

[17] Sixthly, it would seem to be an extraordinary step to relocate a victim of alleged bullying yet not take any disciplinary step directed to the Applicant. There is no probative evidence of the Applicant being given a warning about the conduct that she had allegedly engaged in which was the subject of the written complaint. Mr Parkes’ witness statement filed in these proceedings, the relevant passage of which is extracted above, did not say that a warning was given to the Applicant. During his evidence before me, Mr Parkes said the following:

‘If you could have a look at paragraph 50 of that statement that you’ve still got in front of you, did you ever warn Ms Virata about her conduct or behaviour at any stage during the course of her employment?---Yes, on numerous occasions.

Can you tell his Honour or give his Honour an example of an occasion where you did provide such a warning?---There were a couple of occasions which probably spring to mind. The first one was when Ms Rhea Monleon who was working at the time at the property, came to see me about Ms Virata’s behaviour towards her. She feared for her safety and she felt that Ms Virata was unfairly targeting her, and she felt that she had to tell me because obviously the two of them were expected to work together in that scenario. Another case was in September 2013 when my wife, Rowena Parkes, she had not physically met Ms Virata up until that point. We had a function on and so that day was pretty well the first day that the two of them had met each other in person and Ms Virata had bailed Rowena up between the kitchen and the conference room, and was accusing her of not having booked a flight correctly for her. This related to flights that I had booked on her behalf going back to the Philippines because when I book the flights I actually have to put a date of return. It was me that actually did it, and I had to put the latest date which was sometime in November, and which is what I did, but she took objection to my wife on it. Berated her for having done that. My wife tried to explain to her that she had nothing to do with it, and that ultimately she, herself, could change those flights at any time. Rowena came to me quite upset about the experience that she had with her.’

[18] Three things are striking from the answer given by Mr Parkes. Firstly, it is non-responsive to the question actually asked, that is to give an example of an occasion when he gave a warning to the Applicant. That which is recounted are allegations of others about which there is no direct evidence. There is nothing in the answer given which points to a warning having been given by Mr Parkes to the Applicant at any time following the alleged incident involving Ms Monleon. No date is specified. No file note, diary entry or note on a personnel file concerning the warning is produced. Secondly, Mr Parkes gives evidence about matters that are not contained in his witness statement (which at the commencement of his evidence was adopted as being true and correct to the best of his knowledge and belief 18), nor in the written complaint. There is nothing in either the written complaint or Mr Parkes’ witness statement from which it may be discerned that Ms Monleon told Mr Parkes that she feared for her safety. Thirdly, the suggestion in the evidence extracted above that Mr Parkes gave the Applicant a warning about the alleged incident involving Ms Monleon is wholly inconsistent with the following evidence given under cross-examination:

‘MS PRESTON: Okay. So you said nothing to Ms Virata about the complaint made against her by Ms Monleon at the time you say it was made?---Directly that Ms Monleon was involved, no, I did not.

You didn’t - - -?---I didn’t raise the issue with Ms Virata naming Ms Monleon.

In fact you didn’t inform the Applicant of the details of the complaint until 24 June 2015 when she was provided with a copy of your statement?---That's correct, yes

You say you took it very seriously?---Ms Monleon’s allegations?

Yes?---Yes, because it had been repeated to me by Melinda Ryan.

It was a real threat to Ms Monleon’s health and welfare?---I believe so, at the time, yes.

But you didn’t give Ms Virata a warning in relation to that?---Having already displayed her behaviour I did not feel it was appropriate while Ms Monleon was still working there because I knew she - Ms Monleon was scared, right, and actually stayed in her room, right, because she was too worried about confronting Ms Virata.

And in any event, Ms Monleon was transferred a few months later?---That was the - -

You didn’t raise it then either, did you?---No, not directly about Ms Monleon, no.

There was no warning at that stage either, was there?---No.’ 19

[19] I find the evidence of Mr Parkes about the alleged incident involving the Applicant and Ms Monleon wholly unreliable. It stretches the bounds of credulity that an incident in which an employee is said to have expressed a fear of her safety because of the conduct of another, is relocated to another workplace because of that fear, rates not even a mention to the employee who caused the fear or that nothing would be done during the period between the incident and the much later transfer (almost 3 months after the alleged incident had occurred 20).

[20] I am not satisfied on the evidence that the alleged incident occurred. Consequently, I propose to give the Monleon complaint no weight in assessing whether the Respondent had a valid reason for dismissing the Applicant based on the Applicant’s performance or conduct.

Complaint by Halls Gap Hotel guest – Ms Tess Tepper (Tepper complaint)

[21] On 6 May 2013, Ms Tess Tepper sent an email to the Respondent in which she outlined particular conduct that she had experienced during her interaction with the Applicant whilst checking-in to the Halls Gap Hotel. 21 The Applicant gave evidence that the complaint had come as a surprise to her and that she did not recall any of the conduct that had been alleged, with the exception of the difficulty in checking Ms Tepper into a room prior to the usual check-in time.22 After receiving the complaint, the Applicant exchanged correspondence with Mr Parkes and settled on a form of apology which was ultimately sent to Ms Tepper.23

[22] Ms Tepper was not called to give evidence about her complaint. Mr Parkes gave evidence about the Tepper complaint as follows:

‘I considered this complaint to be an extremely serious matter. Customer satisfaction is critical to the continued operation of our hotels, and meeting the customer's expectation formed part of Ms Virata's position description in her contract . . .

I spoke to Ms Virata about her behaviour and told her that a complaint had been received about her attitude towards a guest. I also advised her that I was prepared to accept the guest's version of events as being true. This was based on my previous observations and dealings with Ms Virata in the course of her employment. Ms Virata denied the allegation. I told Ms Virata that she had to write an apology to Ms Tepper and that I would need to approve it. I subsequently approved Ms Virata's apology, and she sent it to Ms Tepper via email . . . I considered this discussion to be an official performance management discussion.’ 24

[23] It seems clear from Mr Parkes’ evidence that he dealt with the Tepper complaint on the basis that her account was true. He did this without asking the Applicant for her version of events, and it is apparent that whilst he considered the discussion with the Applicant as an ‘official performance management discussion’, there is no evidence that this view was communicated to the Applicant. Moreover, it is one thing to act, as a provider of services, on the basis that the customer is always right and to respond to the customer accordingly, it is quite another to accept without enquiry the customer’s version of events for the purposes of disciplining an employee or for performance management. There is little doubt that Ms Tepper was unhappy about the service that she had received during her stay at the Halls Gap Hotel. So much is evident from her complaint. However, it does not follow that the Applicant was responsible for the unhappiness, or that the Applicant engaged in the conduct as described in Ms Tepper’s email complaint. In truth, Mr Parkes did not seek out the Applicant’s version of events or take into account the Applicant’s denial, and it is apparent that he proceeded to consider that his discussion with the Applicant about the Tepper complaint was an official performance management discussion from the perspective that the events as described by Ms Tepper were true.

[24] Moreover, Mr Parkes’ explanation of the reason for adopting the view that events as described by Ms Tepper were true, was both unsound and not supported by any probative evidence. Mr Parkes said that his view was based on his previous observations and dealings with the Applicant in the course of her employment. The Tepper complaint was received approximately four months into the Applicant’s employment. The only incident set out in the Respondent’s evidence which preceded the Tepper complaint was that contained in the Monleon complaint. I have already concluded that I am not satisfied that the incident set out in the Monleon complaint occurred. In any event, the circumstances and character of the allegations made by Ms Tepper and those made by Ms Monleon are entirely different. As I have already observed, the circumstances of the Monleon complaint concerned an interaction between two employees who were both off duty at the time the incident occurred. Moreover, it seems odd that Mr Parkes would base his assumption that the Tepper complaint was true on his previous observations, since it is clear that he was not present to observe the alleged interaction between Ms Monleon and the Applicant.

[25] It is also clear from the evidence, that even assuming that the Tepper complaint had substance, there was no other incident of a customer complaint for more than 13 months following the Tepper complaint and the termination of the Applicant’s employment. Apart from concluding that Ms Tepper made a complaint, I am not satisfied on the evidence that the substance of the Tepper complaint has been made out and so, I propose to give it little weight in assessing whether the Respondent had a valid reason for dismissing the Applicant based on the Applicant’s performance or conduct.

Applicant’s relationship with Mr Gagate

[26] Mr Gagate was, at the relevant time, the Applicant’s de facto partner. He was part of the package for which the Respondent bargained in employing the Applicant. Mr Gagate worked for the Respondent as part of the remuneration paid to the Applicant as noted earlier in these reasons. The efficacy of this arrangement will doubtless be determined elsewhere.

[27] Mr Parkes articulated his concerns about the relationship between the Applicant and Mr Gagate as follows:

‘A few weeks later I made the effort to acknowledge to Ms Virata that her attitude had improved; and undoubtedly her attitude in my direct presence had most certainly improved. Unfortunately however, in other areas it did not. In particular, it was becoming very difficult to deal with Ms Virata and Mr Gagate's domestic arguments that would occur at various times in the workplace. On one occasion I observed Ms Virata giving her husband a punch under the ribs and pinching his arm to the point where I could see him flinch.

I was at a loss as to what to do, as ultimately I did not believe that it was my position to intervene in their personal relationship. However, I ultimately had cause to intervene on one on one occasion where a number of staff said to me that they had heard a lot of shouting and screaming coming from the laundry. I went to investigate and I could clearly hear Ms Virata having a very heated argument with her partner in their native language. I did not stop the argument as I do not believe that is my responsibility to be involved in what appeared to be a domestic dispute, but later that afternoon I spoke to them both to find out what happened. Both of them denied any knowledge of the incident and so once again, I advised them of the need to conduct themselves appropriately in the workplace, especially when other staff are around.

Nevertheless, the issues with Ms Virata and her husband continued. On 29th May 2014, I received a phone call from Ms Virata asking me to help her get Mr Gagate back. I didn't quite understand what she meant, so I asked her what was going on. Ms Virata said to me Mr Gagate was trying to leave Halls Gap and she said to me he was near the oval and asked me whether I could go and collect him. I went into town to find Mr Gagate, and eventually I was able to locate him in the town car park. In my view their relationship was becoming exceedingly chaotic and I had growing concerns about the effect this was having on my workplace.’ 25

[28] Mr Parkes’ evidence as set out above is vague. It consists of generalised statements without any specificity which would enable an objective assessment of the claim that the relationship between the Applicant and Mr Gagate impacted on the workplace or on the Applicant’s capacity to carry out her duties effectively. The one instance of an argument between the Applicant and Mr Gagate said to have occurred in the laundry of the Respondent’s premises set out in Mr Parkes’ evidence, was plainly allowed to continue without intervention from him. Even more curious is the fact that, having witnessed the altercation, Mr Parkes did not intervene and later took no action about the apparent untruthful response to his enquiry. As a witness to the altercation, Mr Parkes was surely in a position to challenge the denial, but there is no evidence that he did so. It is also apparent that if the relationship between the Applicant and Mr Gagate impacted on the workplace, there is no evidence of any step taken by Mr Parkes to address the issue. There is no evidence, apart from Mr Parkes’ bare assertion, that the relationship was becoming exceedingly chaotic and that it had a deleterious effect on the workplace. A bare and generalised assertion of such a state of affairs is not evidence. Mr Darren Ryan, who it was said first alerted Mr Parkes to the laundry altercation 26 was not called to give evidence nor was any other person called to give evidence to verify the allegation that the relationship between the Applicant and Mr Gagate was having a deleterious effect on the workplace.

[29] The Respondent’s reliance on the state of the relationship between the Applicant and Mr Gagate and its impact on the workplace as part of the reason for the Applicant’s dismissal struck me as a disingenuous. The straw clutching nature of this reliance is evident in the following extract from the transcript during the cross examination of Mr Gagate (with no criticism directed to counsel who I assume was acting on instructions):

‘You’ve read that? Now, your evidence was that you weren’t having any issues in your relationship with Ms Virata while you were at Halls Gap?

THE DEPUTY PRESIDENT: I think in fairness his evidence was that not anything unusual in the sense that all couples have some difficulty.

MR MINUCCI: My apologies, your Honour. Your evidence was – I’ll withdraw the question and rephrase it. Your evidence was that you weren’t having any difficulties with Ms Virata outside of the ordinary things couples might experience?---Yes.

In light of that document that you’ve seen there and the material in that document, would you like to change your answer to the question that I asked you?---No.

I understand that my friend has an objection. It may be at this point - - -

THE DEPUTY PRESIDENT: The objection is on relevance but I – just on the face of the document I understand the point you’re making. I assume Ms Preston does also.

MR MINUCCI: Mr Gagate, can you please turn to the page – the third page of that document please. There’s an entry of 1844 where it says, ‘Gagate, Bobby. Yahoo7 Mail.’ Do you see that?---Yes.

That’s your email address isn’t it?---Yes.

At 1845, the one above it, it says ‘Six unread, Gagate, Bobby. Yahoo7 Mail’?---Yes.
So you were on that computer at that point weren’t you? You were logged into that computer and using the internet weren’t you?---I’m not really sure about this but – because sometimes me and – sometimes Maricar knows even my passwords so sometimes she will the access for that. So I don’t care about it so – but this one – I’m not really sure if I’m the one who opened this or Maricar.

So you’re not sure if it was you on the computer or whether it was Ms Virata?---Yes, that’s for sure.

If you work up onto the next page there are a number of searches on a website called Zoosk, Z-o-o-s-k?---Yes.

It’s a dating website, isn’t it?---Yes.

Did you make those searches?---Yes.

So you were having problems in your relationship with Ms Virata at that time were you?---Yes, for this time. Yes, I can say that.

So your answer that you gave – I withdraw that. Did that mean you were fighting a lot?---Not a lot. I can only remember like twice.

You’ve spoken to Ms Virata about the evidence you’re going to give today?---No.

You’ve never discussed the evidence in this proceeding with her?---No.

You were in court, you heard Ms Virata’s evidence?---Yes, sorry. Yes.

So you’re wrong about – you did discuss it?---We didn’t discuss what to say or how to say it. We didn’t discuss that.

Are you saying that because you heard Ms Virata’s evidence or are you saying that because that’s your evidence?---No. No.

She told you didn’t she, to say that – I withdraw that. It’s true isn’t it that there were a number of occasions where you were fighting with Ms Virata during the course of your employment at Halls Gap, isn’t it?---No.

You never fought?---Sorry?

You never fought with Ms Virata at all during the period of time you worked at Halls Gap?---No.

You never slept out on the sofa? Is that your evidence?---There was one time.

That’s right. She kicked you out after an argument, didn’t she?---No, it was my decision.

It’s also true that there’s another occasion where you were having a fight and she pinched you, didn’t she?---That’s not true.

While you were in the restaurant?---That’s not really true.

Not really true?---That’s not true.

If the witness could be shown exhibit 5.

THE DEPUTY PRESIDENT: Before you do, what would you like done with the history?

MR MINUCCI: If your Honour pleases, I’d ask that to be tendered.

THE DEPUTY PRESIDENT: Any objection, Ms Preston?

MS PRESTON: No, your Honour.

THE DEPUTY PRESIDENT: I’ll mark the extract of an internet search history between the period 9.30 on 26 May 2014 and 8.49 on 28 May 2014 as exhibit 11.

MR MINUCCI: If the Commission pleases. If the witness can be shown exhibit 5.

You've got that in front of you, Mr Gagate?---Yes.

If you could turn three pages over and look at the text that says, ‘Did you and Bobby reconcile?’ Do you see that?---Yes.

Do you agree that that is what Noel said to Maricar on Facebook?---Honestly, I don't check other people's - - -

Look at the document?---Yes.

And you can see at the top what looks - well, it's a screenshot of a Facebook page?---Yes.

If you can have a look there at the messages, you can see a conversation between K Mikai and Noel Espejo?---Yes.

Is K Mikai Maricar Virata?---Yes.

And if you can read down that conversation - sorry, at the top of that conversation you can see that says - and you'll have to excuse my pronunciation, ‘Nag balik na mo ni Bobby?’?---Yes.

Does that translate to, ‘Did you and Bobby reconcile?’?---Yes.

So this shows that you and Ms Virata were fighting and in fact weren't together on 3 June, were you?

MS PRESTON: Your Honour, that's two questions there, fighting or not together on 3 June. Which one - - -

MR MINUCCI: I'm happy to split that up, your Honour.

This shows, doesn’t it, that you were fighting with Ms Virata on 3 June?---No.

So you weren't fighting on 3 June?---No.

You were split up on 3 June?---No.

So Noel asked Maricar, ‘Have you reconciled with Bobby?’ for no reason at all? Is that what you're saying?---No, I am just saying that how can he say that, that we didn't even broke up? How can he say that, ‘Did you and Bobby reconcile’? We didn't even broke up.

The fact is before you left for the Philippines you and Ms Virata were having some significant difficulties with your relationship, weren't you?---It's not the reason. The reason is financial.

No, no, no, I'd ask you to answer my question. You were having some significant difficulties with your relationship, weren't you?---No.

And in fact before you went to the Philippines your relationship got so bad that you ran away from the Halls Gap property, didn't you?---I ran away because of financial reason.

That's not true, is it?---It's true.

You ran away and Michael found you in the town centre, didn't he?---Yes.

And he got out of his car and he started talking to you, didn't he?---Yes.

And you said to him, ‘I'm sorry. I'm sorry, but I just can't stand her any more’?---The reason for that is - - -

No, no, no, I'd ask you to answer my question. Did you say that to Michael Parkes, yes or no?---Yes and no I must say.

Did you say it or didn't you? It's an easy question?---Yes.

And by ‘her’ you meant Ms Virata didn't you?---Sorry?

When you said, ‘I can't stand her any more’ you were talking about Ms Virata, weren't you?---Yes.

And you kept saying to Mr Parkes when he picked you up that you just can't talk to her at the moment?---Yes.

And a policeman came up to you and Michael and asked if everything was okay, didn't he?---Yes.

And Michael eventually took you back to Halls Gap and he said to you that you could have a rest in his room, didn't he?---Yes.

Because you didn't want to speak to Ms Virata at all, did you?---No.

You didn't want to see her, did you?---No.

That was because you were having a fight, weren't you?---The reason we - I was leaving because of - - -

No. Yes or no to my question. The reason you didn't want to see her is because you were having a fight?---No.

And you leaving the Halls Gap Hotel was all about Ms Virata, wasn't it?---No.

I've just noted the time, your Honour.

THE DEPUTY PRESIDENT: I'm content to continue.

MR MINUCCI: If your Honour pleases, I don't intend to be much longer.

THE DEPUTY PRESIDENT: That's fine.

MR MINUCCI: You’re just trying to be a supportive partner, aren't you Mr Gagate?---Yes.

And that's why you're here today and that's why you're giving evidence, isn't it?---Yes.

And that's why you're not telling the whole truth when you're giving your evidence, isn't it?---No.

Because the truth is that you were having significant difficulties in your relationship with Ms Virata at the time you were working at Halls Gap?---No.

And they manifested themselves into significant arguments which could be heard by everybody in the hotel?---No.

And there was one occasion where the shouting was so bad that Mr Parkes could hear it?---That's not true.

And after he heard you shouting he sat you both down and he said to you that you need to be careful about your behaviour, didn't he?---That's not true.

And you're trying to be supportive to make sure that Ms Virata gets a good outcome in these proceedings, aren't you?---That's not true.

Because you've got a vested interest in these proceedings, don't you?---That's not true.

So if Ms Virata gets money from these proceedings, she's not going to give any to you?---Can I say something?

No, I'm asking you to answer my question?---No, that's not true.
So you are going to get - you'll share the money in compensation if the Commission decides to ultimately award it?---That's not true.
So you're not going to share it?---No, I don't care about the money.

And in relation to Mr Parkes saying that you were going to return from the Philippines, that he wanted you to come back together, you never told him you were coming back, did you?---I never told them because - - -

No, no, did you tell him or didn't you?---Michael?

Yes, did you tell him you were coming back or not?---I - we were coming back, were going to come back, but I didn't have the time to tell Michael. 27

[30] It is evident from the cross examination, that no specific allegation about any disruption to the workplace, because of a particular incident, is put to Mr Gagate. The generalised proposition about significant arguments heard by everyone in the Halls Gap Hotel that were put to Mr Gagate was denied. Similar propositions that were put to the Applicant were also denied by her. 28

[31] In my view, there is simply no credible evidence from which it might be concluded that such relationship difficulties as the Applicant and Mr Gagate experienced caused any disruption at the workplace, or that any arguments that might have occurred between the Applicant and Mr Gagate were heard by anyone, let alone ‘everyone in the hotel’. In the circumstances, I do not accept that the relationship difficulties between the Applicant and Mr Gagate, whatever they might have been, can be relied upon to form part of any sound, defensible or well-founded reason for the Applicant’s dismissal.

Noel Espejo complaint (Espejo complaint)

[32] The Respondent submitted that on or about 5 June 2014, it received a written complaint from Mr Espejo about the conduct of the Applicant. 29 The Espejo complaint catalogues a number of grievances. There is one instance, on an unspecified date, of a failure by the Applicant to call Mr Espejo to perform work in the restaurant when it was busy. This is said to have been done with the purpose of showing Mr Espejo in a bad light. There is a complaint that the Applicant is ‘arrogant’ and examples of arrogance are given, each involving interactions between Mr Espejo, his wife and the Applicant that seem to have occurred outside of work, in their respective residences, involving demand for a massage and disputes over household chores. There is also a complaint about Mr Espejo being sworn at by the Applicant while on duty in the restaurant on 4 April 2014.

[33] Mr Espejo was not called to give evidence. The Applicant denied the allegations. 30 The Applicant suggested that the Espejo complaint was fabricated and made at the urging of the Respondent.31 I do not need to determine the veracity of that suggestion. Mr Parkes’ evidence was as follows:

‘The next complaint I received about Ms Virata was from a fellow employee, Mr Noel Espejo. Mr Espejo and his wife commenced employment with me in early 2014 at the Halls Gap Hotel, and worked in close proximity with Ms Virata and her husband. Mr Espejo's complaint came after Ms Virata and her husband had left for the Philippines.

The complaint was made by Mr Espejo in writing and dated 5 June 2014.’ 32

[34] Mr Parkes did not tell the Applicant that he had received the complaint. It is also apparent that he did not investigate the veracity of the matters alleged in the complaint. No explanation is given or available for the delay between the 4 April 2014 incident and the making of the Espejo complaint on 5 June 2014. Moreover, given that Mr Parkes regarded the Applicant’s conduct as serious misconduct justifying summary dismissal, 33 it is somewhat surprising that Mr Parkes waited a further month before taking the action that he did.

[35] On the basis of the evidence before me I am not satisfied that the Applicant engaged in the conduct alleged in the Espejo complaint. Moreover, even if true, much of the Espejo complaint concerns the relationship between the Applicant and Mr Espejo and his wife, outside of work.

[36] It is not in dispute that on 3 July 2014 Mr Parkes advised the Applicant by way of email of the termination of her employment.

[37] On the whole I found Mr Parkes to be an unreliable witness. In addition to the matters recounted above, Mr Parkes gave evidence that the contract of employment, which was annexed to his witness statement, 34 was signed by the Applicant, and although he was unable to produce a signed copy, he maintained that he had lodged the signed copy with the Department of Immigration and Border Protection (Department) when lodging thes.457 Visa application in relation to the Applicant.35 The Applicant gave evidence that she had not received the document.36 Ultimately, I issued an order to produce documents directed to the Secretary of the Department requiring production of the said document. It was not produced. Only a letter of offer, consistent with the Applicant’s evidence, was produced in response to the order.

[38] In addition, Mr Parkes did not provide any satisfactory explanation why the Department had recorded in documentation provided by it to the Applicant that the Respondent had advised the Department on 9 June 2014 (a date before he says he made the decision to dismiss the Applicant 37) that the Applicant had ceased employment with the Respondent effective 31 May 2014.38

[39] On the whole I found the Applicant’s evidence direct and credible.

[40] Therefore, where there was a conflict in the evidence of the Applicant and that of Mr Parkes, I have preferred the evidence of the Applicant.

Consideration and application of the statutory framework

Protection from Unfair Dismissal

[41] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.

[42] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

‘382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.’

[43] There is no dispute, and I am satisfied, that the Applicant was, on 3 July 2014, protected from unfair dismissal within the meaning of s.382.

Was the dismissal unfair?

[44] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides:

‘385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[45] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act. Though the Respondent appears to be a small business employer 39 there is no suggestion that the Respondent complied with the Small Business Fair Dismissal Code, and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.

Harsh, unjust or unreasonable

[46] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.’

[47] I am obliged to consider each of these matters in reaching my conclusion and I do so below, having regard to the factual findings earlier made. 40 

[48] The ambit of the words ‘harsh, unjust or unreasonable’ in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 41 by McHugh and Gummow JJ as follows:

‘. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’ 42 

[49] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

Valid reason – s.387(a)

[50] There must have been a valid reason for the dismissal of the Applicant related to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 43 The reason should be ‘sound, defensible or well founded’44 and should not be ‘capricious, fanciful, spiteful or prejudiced.’45 Where conduct of the Applicant is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged, occurred.46 A mere suspicion of conduct does not amount to a valid reason.47

[51] The reason for the Applicant’s dismissal related to her conduct.

[52] The factual findings that I have earlier referred to in these reasons, do not support a conclusion that the Applicant had engaged in the conduct that was the subject of the complaints relied upon by the Respondent. No other reason is advanced for the dismissal of the Applicant. It follows that I am not satisfied that there was a valid reason related to the Applicant’s capacity or conduct.

Notification of the valid reason – s.387(b)

[53] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made 48, in explicit terms,49 and in plain and clear terms.50 In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport)51, a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.’ 52

[54] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason in s.387(c), involves a consideration of whether procedural fairness was afforded to the Applicant before dismissal was effected. Satisfaction of the notification requirement will usually require a straightforward factual inquiry to be made, namely: what was the Applicant told about the reason for the dismissal, before the dismissal took place?

[55] The Applicant was not notified of the reason the Respondent relied on for the dismissal other than the oblique reference to ‘issues’ in the email of 3 July 2014. The Respondent properly conceded that it did not notify the Applicant of the reason for her dismissal. 53

Opportunity to respond – s.387(c)

[56] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. It is clear that no such opportunity was given and again, the Respondent properly conceded this point. 54

Unreasonable refusal by the employer to allow a support person – s.387(d)

[57] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the plain language of s.387(d) that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, the section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 55 It may well be appropriate in some cases to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.

[58] It seems to me in the present case, that the way in which the dismissal proceeded had the effect of denying the Applicant the opportunity to ask for a support person. This point is also properly conceded by the Respondent. 56 I cannot conclude that there was a denial because there was no request, but that the opportunity to request was removed from the Applicant by reason of the Respondent’s conduct, and this is a matter that I propose to take into account under s.387(h) of the Act.

Warnings regarding unsatisfactory performance – s.387(e)

[59] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 57 For the reasons earlier given, there is no satisfactory evidence that any warning was given or any counselling engaged in by the Respondent. To the extent that Mr Parkes asserted such warnings or counselling, for the reasons earlier given I prefer the Applicant’s express denial that any warnings were given to her by the Respondent.

Impact of the size of the Respondent on procedures followed – s.387(f)

[60] It seems to methat the Respondent is best described as a small business employer. There is no evidence that the Respondent’s size, in and of itself, affected the procedure adopted by the Respondent in effecting the dismissal. In my view, the procedure adopted by the Respondent in the lead up to the dismissal and in effecting the dismissal was inappropriate and unfair.

Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[61] Conversely,the absence of dedicated human resource management or expertise clearly had an impact on the procedures followed by the Respondent in effecting the dismissal. The Respondent did not have a dedicated human resources management specialist or expertise in its employ. 58 Even the most basic of human resources advice would, in my view, have avoided the error laden and unfair dismissal procedure adopted by Mr Parkes.

Other relevant matters – s.387(h)

[62] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. I have also taken into account the following matters:

• That the Applicant was overseas at the time the dismissal was effected;



• That the Applicant needed an employer sponsor to remain in or return to Australia under as.457 Visa arrangement; and



• That the Applicant was denied the opportunity to request a support person as discussed above.

[63] In the circumstances of this case, and taking into account the matters set out above, I am satisfied that the dismissal of the Applicant is aptly described as harsh, unjust and unreasonable. Harsh because of the potential consequences on the Applicant’s s.457 Visa status by reason of the dismissal; unjust, because the reasons relied upon by the Respondent for effecting the termination are simply not made out; and unreasonable because of the manner in which the Respondent set about effecting the dismissal and notifying the Applicant. The Applicant’s dismissal from employment by the Respondent was therefore unfair.

Remedy

[64] I turn next to consider the question of remedy.

The statutory provision

[65] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

‘390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

Note: Division 5 deals with procedural matters such as applications for remedies.’

[66] Given my earlier conclusions, the matters set out in ss.390(1) and (2) are satisfied. Therefore the jurisdictional preconditions to the order of an appropriate remedy are satisfied.

[67] The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. Neither party suggested that I exercise my discretion not to order a remedy at all if the dismissal was found to be unfair. I consider that a remedy is appropriate in all the circumstances of this case.

Reinstatement as the primary remedy for an unfair dismissal

[68] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal. The discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is inappropriate. The Applicant does not seek reinstatement and the Department has cancelled the Applicant’s s.457 Visa. In the circumstances I consider that an order for reinstatement is inappropriate.

Compensation as a remedy

[69] Section 390(3)(b) provides that I must not make an order for compensation unless I am satisfied that reinstatement is inappropriate and I consider that an order for the payment of compensation is appropriate in all the circumstances.

[70] Taking into account the findings I have earlier made, I am satisfied that an order for compensation is appropriate.

[71] Section 392 of the Act sets out the circumstances that must be taken into account when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:

‘392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $61,650 from 1 July 2012

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.’

[72] The method for calculating compensation under s.392 of the Act was dealt with by a Full Bench of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge (Bowden). 59 In that decision, the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket60 and Ellawala v Australian Postal Corporation.61 I have adopted the methodology in Bowden in determining the amount of a payment of compensation.

Remuneration that would have been received (s.392(2)(c))

[73] Although one cannot, with precision, determine over how long the Applicant would have remained employed with the Respondent and therefore the level of remuneration that would have been received, there seems be no rational reason why, having regard to my earlier findings, the employment of the Applicant would not have continued for a significant period. The Applicant’s s.457 Visa would, but for the termination of employment, have expired on 12 December 2016, and I accept the Applicant’s evidence that she had intended to return from vacation to resume work for the Respondent. 62 I consider that the employment would have continued until that date.

[74] Accordingly, I am of the view that the remuneration the Applicant would have received, or would have been likely to receive, if she had not been dismissed would have been another 29 months pay. There is significant dispute between the Applicant and the Respondent about award coverage and entitlements under the relevant award. These are matters that should be determined elsewhere and there is an insufficient evidentiary basis upon which a sound conclusion about the disputed matters could be reached. I propose to calculate compensation based on the contracted sum of $55,000.00 per annum and noting that the current contribution requirement for superannuation is 9.5 %. On this basis, the Applicant would have received the sum of $132,916.66 plus superannuation for the period identified.

Remuneration earned (s.392(2)(e))

[75] I accept the Applicant’s evidence that she has not earned any income from other employment since her dismissal. 63

Income reasonably likely to be earned (s.392(2)(f))

[76] There is no indication that the Applicant is likely to earn any income during the period between the making of a compensation order and the actual compensation. No deduction is therefore proposed.

Other matters (s.392(2)(g))

[77] I propose to make a deduction of 25% to take into account contingencies, in particular, the possibility that the Applicant might have returned to the Philippines and therefore left employment with the Respondent prior to December 2016 and the possibility that the s.457 Visa might have been cancelled prior to that date. In the result, the sum of compensation assessed is $99,687.50 plus superannuation.

[78] There are no other matters that I consider relevant to take into account in the determination of an amount of compensation in lieu of reinstatement for the Applicant, save from those in ss.392(2)(a), (b) and (d), s.392(3) and s.395(5) of the Act and addressed below. I do not accept that the Respondent’s concession that the dismissal was unfair warrants any reduction in the compensation assessed in circumstances where the issue of valid reason was hotly contested.

Viability (s.392(2)(a))

[79] I accept, on the evidence largely set out in the financial reports tendered by the Respondent and summarised in its final submissions, 64 that a large award of compensation will impact the Respondent’s profitability and that other factors set out in the evidence of Mr Parkes65 also affect the Respondent’s profitability. I accept that reduced profitability consequent on a large award of compensation in the context of a small business will likely have a negative impact on the viability of the business. Compensation orders are not intended to operate and should not operate as pecuniary penalties. The Respondent might yet face such penalties elsewhere. In the circumstances, I propose to reduce the amount calculated by a further 30% to take into account the impact on viability. I also propose later to order instalment payments of the final amount to ease the financial burden on the Respondent. Consequently, the amount after deductions for viability impact is $69,781.25 plus superannuation.

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

[80] The Applicant’s period of service with the Respondent spans less than 18 months and is not a particularly lengthy period of service, however, in the circumstances of this case, that fact alone does not seem to me to justify any discount on account of length of service.

Mitigation efforts (s.392(2)(d))

[81] I accept that the Applicant sought to mitigate her losses by looking for or seeking to obtain alternative employment and sought to secure a new s.457 Visa sponsor. 66 I do not therefore propose any reduction by reason of a failure to mitigate.

Misconduct (s.392(3))

[82] On the basis of my earlier findings it seems clear that misconduct played no part in the Respondent’s decision to dismiss the Applicant and so no reduction in compensation on that account is necessary.

Compensation cap (s.392(5))

[83] The amount of $69,781.25 gross plus superannuation is more than the compensation cap in s.392(5) of the Act in relation to the Applicant. Consequently, I apply the cap.

Total Compensation

[84] In the circumstances it is therefore appropriate that an order be made that the Respondent pay to the Applicant, compensation in the amount of $27,500.00 gross plus 9.5% superannuation. From this amount may be deducted any taxation required by law.

Instalments

[85] For the reasons earlier given I propose that compensation be paid in four equal monthly instalments of $6,875.00 plus 9.5% superannuation each (less taxation). The first instalment is to be paid on or before 18 December 2015.

Conclusion

[86] For the reasons earlier given, I am satisfied that dismissal of the Applicant by the Respondent was unfair. I am also satisfied in the circumstances that a remedy is appropriate, but that reinstatement is inappropriate. I am satisfied compensation is appropriate and I propose to order compensation in the amount of $27,500.00 gross plus 9.5% superannuation with any taxation required by law to be deducted by the Respondent and remitted to the Australian Taxation Office. The compensation ordered is to be paid to the Applicant in four equal monthly instalments of $6,857.00 plus 9.5% superannuation each (less taxation). The first instalment is to be paid on or before 18 December 2015.

[87] An order giving effect to this decision is separately issued in PR574279.

DEPUTY PRESIDENT

Appearances:

R Preston, Counsel for the Applicant.

M Minucci, Counsel for the Respondent.

Hearing details:

2015.

Melbourne.

July 23.

October 29.

Final written submissions:

Applicant’s Final Submissions, 21 August 2015.

Respondent’s Final Submissions, 11 September 2015.

Applicant’s Submissions in Reply, 18 September 2015.

<Price code C, PR574071>

 1   Outline of Submissions of the Respondent at [1] and[13].

 2   Exhibit 2; MV-1.

 3 Exhibit 12 at [13].

 4   Exhibit 2; MV-1.

 5   Transcript PN 1165.

 6 Exhibit 2 at [23].

 7   Transcript PN 1115–PN 1116.

 8   Exhibit 2 at [48]; MV–5.

 9   Exhibit 2; MV–5.

 10   Ibid.

 11 Outline of Submissions of the Respondent at [11].

 12   These allegations are set out in Exhibit 12 at [15]–[26].

 13   Exhibit 12; MP–4.

 14   Ibid.

 15 Exhibit 3 at [27].

 16   See Exhibit 16.

 17 Exhibit 12 at [17].

 18   Transcript PN 886.

 19   Transcript PN1387–PN1396.

 20 Exhibit 2 at [34].

 21   Exhibit 2; MV–2.

 22 Exhibit 2 at [28].

 23   Exhibit 2 at [30]; MV–3.

 24   Exhibit 12 at [19] – [20].

 25   Exhibit 12 at [22] – [24].

 26   Transcript PN 929.

 27   Transcript PN 763–PN 853.

 28   Transcript PN 524–PN 528.

 29   Exhibit 12; MP-5.

 30 Exhibit 3 at [33].

 31   Ibid.

 32   Exhibit 12 at [25]–[26].

 33   Transcript PN 1488–PN 1490.

 34   Exhibit 12; MP–1.

 35   Transcript PN 1378.

 36 Exhibit 3 at [3].

 37 Exhibit 12 at [27].

 38   Exhibit 3; MV–13 (letter to the Applicant from the Department of Immigration and Border Protection 21 April 2015 at p3); Transcript PN 1471–PN1488.

 39 Exhibit 12 at [5].

 40   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14].

 41 (1995) 185 CLR 410.

 42   Ibid at 465.

 43   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378.

 44   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 45   Ibid.

 46   King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213) at [23]–[26].

 47   Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 48   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 49   Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at 150–151.

 50   Previsic v Australian Quarantine Inspection Services Print Q3730.

 51 (2000) 98 IR 137.

 52   Ibid at 151.

 53   Outline of Submissions of the Respondent at [15(a)].

 54   Ibid at [15(b)].

 55   See also Fair Work Bill 2008 – Explanatory Memorandum at [1542].

 56   Outline of Submissions of the Respondent at [15(c)].

 57   Annetta v Ansett Australia (2000) 98 IR 233 at 237.

 58 Exhibit 12 at [7].

 59   [2013] FWCFB 431.

 60 (1998) 88 IR 21.

 61   Print S5109.

 62   Transcript PN 354–PN 356.

 63   Transcript PN 368–PN 373.

 64 See [105]-[108].

 65   Exhibit 12 at [37]-[45].

 66   Transcript PN 368.

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