Nazar Lazar v Inghams Enterprises Pty Ltd

[2013] FWC 3447

[2013] FWC 3447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nazar Lazar
v
Inghams Enterprises Pty Ltd
(U2012/1325)

COMMISSIONER ROBERTS SYDNEY, 4 JULY 2013

Application for unfair dismissal remedy - abandonment of employment.

[1] This decision concerns an application lodged on 6 June 2012 by Mr Lazar pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by Inghams Enterprises Pty Ltd (Inghams or the Company).

[2] This matter first came before Fair Work Australia (now the Fair Work Commission) for a jurisdictional/extension of time hearing on 28 September and 5 October 2012 before his Honour Vice President Watson. His Honour’s decision 1 in that matter found that an extension of time was not required as the application had been filed within time, based on his finding as to the date the employment relationship was terminated at the initiative of the employer. I will further discuss the Vice President’s findings later in this decision.

[3] His Honour then referred the matter for conciliation. Conciliation took place on 5 November 2012 but the matter remained unresolved. The matter was then set down for arbitration hearing before me in Sydney on 10 April 2013.

[4] At the hearing Mr Lazar represented himself with the assistance of an Arabic speaking interpreter and Inghams was represented by Mr D Story. Mr Lazar gave sworn evidence on his own behalf. Mr R Moody, Plant Manager at Inghams Hoxton Park Primary Processing Plant, gave sworn evidence for the Company.

Background

[5] Mr Lazar was employed by Inghams from late in November 1996 until his employment was terminated by the Company on 30 May 2012 for allegedly being absent from work without authorisation, amounting to an abandonment to employment. Mr Lazar denies abandoning his employment and claims that the termination of his employment was without a valid reason and was harsh, unjust and unreasonable. The Applicant seeks reinstatement and compensation.

Evidence

Mr Lazar

[6] Mr Lazar gave sworn evidence and submitted a witness statement 2. In his witness statement/written submissions, Mr Lazar said that in 2009 he suffered a lower back injury, a claim for which was accepted by the Company as a self-insurer and he had been on light duties after that time. In December 2011, he reported an injury to his left shoulder and neck, a claim for which was declined.

[7] Mr Lazar’s evidence went on in considerable detail concerning his dealings with medical practitioners and insisted that he had made every reasonable effort to keep Inghams informed of his medical progress but was told by his doctor that he could not be given any certificates relating to the neck and shoulder injury unless a request was made of the doctor by Inghams.

[8] Mr Lazar went on to say that during January to early April 2012, he regularly went to the Inghams site using his Access card. However, when he went to the site on 24 April 2012, his card had been deactivated and he was denied access by the Security Guard on duty. He was later called to a meeting with the Company on 30 May 2012, which included representatives from the Union, and his employment was terminated.

[9] Mr Lazar further relies upon the decision of Vice President Watson and claims that that Decision found that he did not abandon his employment and that Inghams stopped him returning to work.

[10] In cross-examination, Mr Lazar said that he believed it to be unfair for the Company to ask him to provide medical certificates “because even my doctor told me they don’t need them.” 3 Mr Lazar was then asked: “But you understood that the company was telling you that you were required?” and said: “I told the company many times that the doctor was not giving me any medical certificates.”4

[11] Mr Lazar agreed that he did not try to contact the Company between 30 April and 21 May 2012 as he was unable to gain entry to the Inghams site. 5 Mr Lazar went on to say that he believed that it was the Company’s role to contact him after he had been absent for two days.6

Mr Moody

[12] Mr Moody gave sworn evidence and submitted a witness statement 7. In summary, it was Mr Moody’s statement that he is the Plant Manager for Inghams at Hoxton Park NSW and has held that position since 2001.

[13] Mr Moody went on to say that he met with Mr Lazar and Union representatives on 19 January 2012. At that meeting, he informed the Applicant that the Company could no longer provide him with alternative duties, due to operational reasons. A letter to that effect was read to Mr Lazar. That letter 8 was as follows:

“Dear Nazar,

RE: Provision of alternate employment

We note you have been carrying out alternate duties as a result of a medical condition & that medical information from Dr Abraham indicates you are fit to perform suitable duties with restrictions including no lifting with (L) arm above shoulder level and avoid repetitive movement of (L) arm.

We regret to advice it is no longer reasonably practicable to provide you with alternative employment having regard to the operational requirements of the business.

We will notify you of any change in these circumstances & you should notify the Company should your circumstances change, however in the mean time you will be stood down from employment effective immediately.

You are required to provide medical certificates to support your continued absence from work & keep the Company informed as to the status of your condition.

If you have any queries in relation to this matter please do not hesitate to contact me on xxxx xxxx.

Yours faithfully,

Inghams Enterprises Pty Ltd

[signature]

Richard Moody

Plant Manager”

[14] Over the following months, Mr Lazar never contacted Mr Moody despite being given Mr Moody’s direct phone number. Mr Moody went on to deny that he told Mr Lazar that his compensation claim for a neck and shoulder injury had been denied and he had explained to the Applicant that he could access his available leave balance.

[15] Mr Moody went on to say that he wrote to Mr Lazar on 27 February 2012 9 in the following terms:

“IMMEDIATE CONTACT REQUIRED

We write in relation to your absence from work since 20th February 2012 without notifying the Company of your absence.

You are required to notify the company as soon as possible from the commencement of your absence from work. To date we have not received any notification of your absence, the reasons for your absence, or the expected duration of your absence.

You are now required to contact me immediately to explain the reasons for your absence and to provide reasons for your failure to notify the company.

If within seven (7) day of the date of this letter we have not received any contact from you, it will be presumed that you have abandoned your employment as from the first day of your absence.

I can be contact on the following phone numbers:

(m) xxxxxxxxxx

(d) xx xxxx xxxx”

[16] The Applicant attended the Inghams site on 7 March 2012 when he met with a Ms Marino and two AMIEU delegates. Mr Lazar was again informed that he was to regularly obtain medical certificates and fax them to Ms Marino. On 9 March 2012 a medical certificate was received from the Applicant by facsimile. That certificate did not include an end date for the absence or a review date. Another medical certificate was received on 27 April 2012 stating that the Applicant would be unfit for duties on 26 and 27 April 2012. No other medical certificate was produced until after the meeting of 30 May 2012 which resulted in the termination of Mr Lazar’s employment.

[17] Mr Moody’s statement goes on to set out the periods of long service leave and sick leave accessed by Mr Lazar during the period 23 March to 27 April 2012. “From the following working day, 30 April 2012, Nazar was absent from work without pay.” No further contact was received from the Applicant between 30 April and 21 May 2012 and there is no evidence that the Applicant attended the Inghams site during that period.

[18] On 22 May 2012, Mr Lazar attended the security guardhouse outside the Inghams site and Mr Moody then wrote to Mr Lazar on 23 May 2012in the following terms 10:

“IMMEDIATE CONTACT REQUIRED

We write in relation to your absence from work and your failure to keep the Company informed of your absence.

Since your last medical certificate, received by the Company on 9 March 201, we have not had any contact from you to explain the reasons for your continued absence or the expected duration of your absence. As that certificate did not include a review date, you were advised that you must keep in regular contact with the Company to inform this information.

Since the last medical certificate was provided, you have not been contacting the Company to advise the reason for your absence, any evidence of these reasons and the expected length of your absence.

Clause 2.5 of the Inghams Enterprises (Hoxton Park) and AMIEU enterprise Agreement 2009 states the following:

An employee who is absent from work for 3 consecutive working days without notifying the employer shall be assumed to have abandoned their employment. If within a further period of 7 days the employee has not satisfied the employer that there was a reasonable excuse for their absence then the employee shall be deemed to have abandoned their employment from the first day of absence.

If within 7 days you are unable to provide adequate reasons for your absence, adequate reasons for not keeping in contacting with the Company and evidence supporting those reasons, or if you fail to contact me at all, you will be presumed to have abandoned your employment.

I can be contacted on xx xxxx xxxx.”

[19] On 28 May 2012, a medical certificate was received from the Applicant, signed by a Dr Abraham and dated the same day. That certificate said 11:

“Mr Nazar Lazar

Is suffering from left shoulder area pain and he is under my care in this regard.

He is seeing me regularly for follow up of this shoulder area pain.

He can do light duties, avoiding excessive lifting and repetitive movements with the left arm.”

[20] The above certificate did not provide any period of incapacity or partial incapacity. In response to the medical certificate, Mr Moody contacted Mr Lazar and asked him to attend a meeting at the Inghams site on 30 May 2012. When the meeting occurred, the Applicant was supported by Ms Fernandez of the AMIEU and two Union delegates at the Inghams site.

“I asked Nazar why he had failed to keep in contact with the Company regarding his absence and fitness for work between 30 April and 21 May 2012. He could not provide an adequate explanation for his absence or for his failure to keep in contact with the Company. Other than the medical certificate of 28 May 2012, which did not include any dates for a period of incapacity, no other information was able to be provided by Nazar.”

[21] Mr Moody concluded his statement by saying that pursuant to clause 2.5 of the Agreement, the Applicant was deemed to have abandoned his employment from 30 April 2012 and in the absence of an adequate explanation, a decision was made to terminate Mr Lazar’s employment.

[22] In cross-examination, Mr Moody denied treating Mr Lazar any differently to other employees. 12 The cross-examination continued as a lengthy discussion between the Applicant and Mr Moody as to whether the Company’s actions towards Mr Lazar were reasonable. I have paid regard to that material.

Written submissions

[23] Both parties filed written arguments prior to the hearing. As Mr Lazar was self-represented, his written submissions were treated at the hearing as his witness statement. Therefore this section of my decision will only contain a summary of the written outline filed by Inghams. 13

[24] In its outline, the Company said that Mr Lazar was employed pursuant to the Inghams Enterprises (Hoxton Park) and AMIEU Enterprise Agreement 2009 (the Agreement). Clause 2.5 of that Agreement relevantly provides:

“An employee who is absent from work for 3 consecutive working days without notifying the employer shall be assumed to have abandoned their employment. If within a further period of 7 days the employee has not satisfied the employer that there was a reasonable excuse for their absence, then the employee shall be deemed to have abandoned their employment from the first day of absence.”

[25] Inghams’ outline goes on to argue that:

“The Applicant was absent from his employment without contact with the Company from 30 April 2012 to 21 May 2012 (inclusive). During this period, no medical certificates were provided to support the Applicant’s absence and no contact was received from the Applicant by the Company. In accordance with the terms of clause 2.5 of the Enterprise Agreement, the Applicant was as of 3 May 2012 assumed to have abandoned his employment, as he was absent without contact from 30 April to 2 May 2012 (inclusive). As the Applicant then failed to satisfy the Respondent by 9 May 2012 (7 days after the initial 3 day period) that there was a reasonable excuse for the absence, the Applicant was able to be deemed to have abandoned his employment as from 30 April 2012 without any further action by the Respondent.”

[26] The Company said that the Applicant’s abandonment of employment established a valid reason for the subsequent termination of his employment by the Company on 30 May 2012. The outline goes on to argue that Mr Lazar was notified of the reason for his dismissal and provided with an opportunity to respond. However, the Applicant “was unable to provide any adequate reasons for his inability to remain in contact with the Respondent or provide medical certificates to support his absence.” The outline further says that Mr Lazar was assisted by an Industrial Officer from the AMIEU and two AMIEU Site Delegates in discussions with the Company.

[27] Inghams relies on the factual matrix of Mr Lazar’s conduct to substantiate its position that the termination of employment was not harsh, unjust or unreasonable.

Oral submissions

[28] Mr Lazar did not add oral submissions to those he produced in writing, he also relied on his sworn evidence.

[29] Mr Story relied on the evidence of Mr Moody, which he said went largely unchallenged in cross-examination. Mr Story closed by summarising the Company’s argument in relation to the alleged abandonment of employment by Mr Lazar.

Conclusions and Findings

[30] Section 385 of the Act provides:

“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.

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

[31] As the Applicant’s conduct in relation to alleged unauthorised absences resulting in an abandonment of employment was the reason for the termination of his employment, I have to determine for myself whether the impugned conduct occurred and whether any such conduct amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 14:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[32] In Container Terminals Australia Limited v Toby 15, a Full Bench said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”16

[33] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 17 said:

“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[34] In Qantas Airways Ltd v Cornwall 18, the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[35] In Edwards v Justice Giudice 19, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

[36] In Miller v University of New South Wales 20, the Full Bench held:

“The entire relevant factual matrix must be considered in determining whether an employee’s termination is for a valid reason: Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413. In Izdes Beazley J said:

‘In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct.’ (61 IR 439 at 451)

In considering the validity of the reason, “it is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct”: see Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685.” 21

[37] Mr Lazar’s employment was terminated on 30 May 2012 at the initiative of Inghams and he was paid four weeks wages in lieu of notice. For the termination, the Company relied upon unauthorised absences by Mr Lazar. I have set out the factual matrix of this case earlier in this decision and will not repeat here. The factual matrix was also considered by Vice President Watson in his decision referred to earlier. In that decision, his Honour considered the operation of clause 2.5 of the Agreement and came to the conclusion that relevant case law supports the view that “when an abandonment of employment occurs, the employer has an option of accepting a repudiation and bringing the employment relationship to an end or considering the reasons for the absence and allowing the employment relationship to remain on foot.” 22

[38] Vice President Watson went on to find that although the employment relationship between Mr Lazar and Inghams was not terminated until 30 May 2012 and that the “earlier operation of the abandonment of employment clause certainly had the effect of deeming the circumstances as an abandonment of employment but it did not in itself have the effect of bringing the employment relationship to an end.”

[39] I respectfully agree with the decision of Vice President Watson as to the circumstances of this case. Mr Lazar was correctly deemed by the Company to have abandoned his employment and the meeting on 30 May 2012 was to discover if he had any good reason to have done so. The outcome of the 30 May 2012 meeting was the termination of Mr Lazar’s employment as the Company was not satisfied that he had provided any substantial reason for it not to do so. Mr Lazar does not contest the Company’s evidence and submissions that he did not make any contact with Inghams between 30 April and 21 May 2012. His reasons for not contacting the company do not impress me as entirely credible. In particular, he was in possession of Mr Moody’s direct phone number but never rang him. From my observations during proceedings, Mr Lazar possesses a level of English language ability which would not have hindered him in telephoning Mr Moody or another member of the Company’s management.

[40] Having considered all the circumstances of this case, I am satisfied that Mr Lazar, by having no contact with the Company between 30 April and 21 May 2012, abandoned his employment in the terms set out in clause 2.5 of the Agreement. I further find that the Company was entitled to reach the conclusion that Mr Lazar had no good reason for his action and that the termination of employment was therefore for a valid reason. In establishing the facts of this case, I prefer the evidence of Mr Moody to that of Mr Lazar.

[41] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[42] In Byrne v Australian Airlines 23, McHugh and Gummow JJ of the High Court said:

“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.”

[43] In Parmalat Food Products Pty Ltd v Wililo 24, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 25

[44] The question of valid reason is dealt with above.

[45] It is clear that Mr Lazar was notified of the reason for the termination of his employment by way of the meeting on 30 May 2012 and I so find. It is further clear and I find that Mr Lazar was given an opportunity to respond to the allegation against him before a decision was made to terminate his employment. Further, I am satisfied that Mr Lazar was permitted to have support persons present to assist at any discussion relating to potential dismissal. Apart from his unexplained absence between 30 April and 21 May 2012, there were no other conduct or performance issues involved in the termination of employment. The size of the employer’s enterprise is a factor which is likely to have impacted on the procedure followed in effecting the Applicant’s dismissal. On what is before me, I conclude that the size of Inghams operations and its access to professional advice led to it conducting a substantially procedurally fair process leading up to the dismissal and I so find.

[46] I have also taken into consideration a number of factors. These include Mr Lazar’s age, his medical condition, his qualifications and experience, his long period of employment with Inghams, his future employment prospects and the economic and personal effects of the termination of employment on him.

[47] It appears to me that there may have been some genuine confusion on Mr Lazar’s part as to his obligations to the Company following the meeting of 19 January 2012, particularly in regard to medical certificates. I accept that Mr Lazar believed that his claim for compensation relating to his neck and shoulder injuries had been declined. He appears to have subsequently made sporadic attempts to remain in contact with the Company and Inghams granted him several periods of leave during January 2012 and then between late March and 27 April 2012. The Company stated in Mr Moody’s evidence that Mr Lazar was “absent from work without pay” on and from 30 April 2012. 26 However, as a long term employee, it should have been apparent to Mr Lazar that to keep his job at Inghams alive, he would need to remain in some form of regular contact with his employer. Mr Lazar did not do so. It is my finding that while the Company had a valid reason to terminate Mr Lazar’s employment, it could have granted him more latitude given the long period of his employment, his obvious medical problems and his agreement to meet with Inghams on 30 May 2012. I therefore find that the termination of Mr Lazar’s employment was harsh but not unjust or unreasonable.

[48] Section 390 of the Act provides:

“390 When FWA may order remedy for unfair dismissal

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

(a) FWA 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) FWA may make the order only if the person has made an application under section 394.

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

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

(b) FWA 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.”

[49] In all the circumstances of this case, reinstatement would in my mind be impractical and would not be able to be done with a restoration of the employment relationship. I therefore find that reinstatement is not an appropriate remedy in this case. In any event, there is nothing before me to indicate that Mr Lazar is fit for normal duties.

[50] Where reinstatement is not ordered, the Commission may order the payment of monetary compensation. Subsection 392(2) of the Act sets out the criteria for deciding a suitable level of compensation:

“(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 FWA considers relevant.”

[51] In relation to subparagraph (a), I find that the effect of the order I intend to make will not have any obvious effect on the viability of the Company. In relation to subparagraph (b), I have taken into account Mr Lazar’s long period of employment with Inghams. In relation to subparagraph (c), I am satisfied that Mr Lazar’s employment prospects with the Company were poor after 19 January 2012 and that he would not have continued in the employ of Inghams for a significant period. In relation to subparagraph (d), I am satisfied that Mr Lazar has made efforts to mitigate his loss. I have also paid regard to subparagraphs (e) and (f). In relation to subparagraph (g), I have set out above other matters which I consider to be relevant earlier in this decision at paragraph 47.

[52] In the case before me, I have considered the contribution by Mr Lazar towards the Company’s decision to terminate his employment and have factored this into the quantum of compensation that I have decided to award.

[53] All in all, I find that the termination of Mr Lazar’s employment was for a valid reason and was procedurally fair. I further find that the termination of Mr Lazar’s employment was harsh, based on his length of service, medical condition, financial situation and future job prospects. An order will be issued that Inghams pay the Applicant a total of eight weeks wages (less appropriate tax according to law) to be paid at the rate the Applicant was earning as at 19 January 2012. Should there be any dispute between the parties as to the monetary amount to be paid, the matter can be referred back to me within 14 days of the date of this decision for settlement. I have arrived at the figure of eight weeks wages after applying a discount to the amount which I would have otherwise awarded had the Applicant’s conduct not led to his dismissal to such an extent. The sum awarded is to be paid within 14 days of the date of this decision.

[54] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’ in these proceedings.

[55] An order reflecting this decision is in PR537401.

COMMISSIONER

Appearances:

N Lazar, the Applicant.

D Story for Inghams Enterprises Pty Ltd.

Hearing details:

2013.

Sydney:

April 10.

 1   [2012] FWA 8815.

 2   Exhibit Lazar 1.

 3   Transcript PN377.

 4   Transcript PNs378-379.

 5   Transcript PNs382-385.

 6   Transcript PNs389 and 412.

 7   Exhibit Inghams 2.

 8   See Attachment A to Exhibit Inghams 2.

 9   See Attachment B to Exhibit Inghams 2.

 10   See Attachment F to Exhibit Inghams 2.

 11   See Attachment G to Exhibit Inghams 2.

 12   Transcript PN556.

 13   Exhibit Inghams 1.

 14   Print S4213, 17 March 2000, per Ross VP, Williams SDP and Hingley C.

 15   Print S8434, 24 July 2000, per Boulton J, Marsh SDP and Jones C.

 16   Ibid at para 15.

 17 (1995) 62 IR 371 at 373.

 18 [1998] FCA 865.

 19 [1999] FCA 1836.

 20   PR910187, 11 October 2011, per Boulton J, Drake SDP and Larkin C.

 21   Ibid at para 75.

 22   Above n 1 at para 12.

 23 (1995) 185 CLR 410.

 24   [2011] FWAFB 1166

 25   Ibid at para 24.

 26   See Exhibit Inghams 2.

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<Price code C, PR537400>