Philip Moylan v Gosnells Golf Club Inc
[2020] FWC 3130
•31 JULY 2020
| [2020] FWC 3130 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Philip Moylan
v
Gosnells Golf Club Inc
(U2020/1502)
DEPUTY PRESIDENT BEAUMONT | PERTH, 31 JULY 2020 |
Application for an unfair dismissal remedy – dismissal unfair – procedural issues in dismissal – no opportunity to respond to performance concerns or performance management – no compensation ordered – limited period of further employment, mitigation of loss by applicant.
[1] This decision concerns an application made by Mr Philip Moylan under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. Mr Moylan was dismissed by Gosnells Golf Club Inc (Club) on 21 January 2020, where he had worked since 31 July 2013. He says he was initially informed it would be best if he resigned given issues with a particular green and other areas of the golf course. It was also conveyed to him that the Board of the Club, its members and Ms Guppy, the General Manager, had lost confidence in him. Mr Moylan was presented with a deed of release to facilitate his departure, but he declined to sign it. His employment was subsequently terminated with payment in lieu of notice on 22 January 2020. Mr Moylan contends his dismissal was unfair and seeks compensation.
[2] Given the length of the decision, it is timely to outline my conclusions now. I have concluded that Mr Moylan was unfairly dismissed. However, while it is the case that Mr Moylan’s dismissal was unfair, I have determined that his anticipated period of employment for the purpose of ascertaining the appropriate remedy (in this case compensation), would have been significantly limited, given the performance issues elucidated in the evidence of Ms Guppy. It therefore follows that no compensatory order has been issued, as the application of the ‘Sprigg’ formula has resulted in the compensatory payment amounting to $0.00.
Background
[3] Mr Moylan was the Course Superintendent for the Club’s 18-hole golf course. At the time of his dismissal his base salary was $103,643.68 and he had use of a mobile phone and vehicle.1 Neither party contended that Mr Moylan’s earnings excluded him from protection for unfair dismissal.
[4] An Executive Services Agreement regulated the employment relationship with the Club. It provided a job description that set out that Mr Moylan was accountable directly to the General Manager of the Club and the Chairman of the Greens, as representatives of the Board.2 Mr Moylan’s duties were at the discretion of the Club’s Board.3
[5] Under Mr Moylan was a team of seven employees, all of whom were employed to look after the course. There was a second-in-charge, third-in-charge, mechanic, three grounds persons and an apprentice.4 The team had been in place, said Mr Moylan, for a significant period and was stable.5
[6] All the greens on the course were inspected by grounds staff on a daily basis, said Mr Moylan.6 The Club had over 1000 sprinklers on its course, which, under Mr Moylan’s charge, were said to be inspected on a monthly basis to ensure they were in good working order.7
[7] Mr Moylan gave evidence that, apart from the monthly inspections, the sprinklers on the greens were effectively checked by grounds staff on a daily basis.8 He explained that this was because the areas which are watered by a sprinkler will dry out if they are not properly watered.9 The drying out will be reported by grounds staff who have done a visual inspection. An investigation into the cause of the drying out includes a test of the sprinklers serving that green, followed by remedial action.10
[8] The Club was named Metropolitan Golf Course of the Year in 2014 and 2015, and Mr Moylan said that he was awarded Course Superintendent of the Year in 2017 and in 2018.11
[9] Mr Moylan’s evidence was that when he first commenced with the Club it was in need of significant attention in various areas. He planned and supervised the restoration of the Club’s unused 19th hole into a well-conditioned and fully playable spare hole which could be put into service when required.12 In addition, he established a greens nursery.
[10] During his time at the Club, Mr Moylan stated that he undertook and supervised various improvements to its course at a significant cost saving to the Club, by undertaking some of the tasks in-house, which would normally require the engagement of external professionals.13 One of the major projects included the construction of nine new greens.14
[11] Ms Guppy gave evidence that when she was appointed in October 2018, she observed that the Club was benefitting from Mr Moylan’s considerable construction experience, which was being utilised to construct new greens as part of a Greens Reconstruction Program.15 Ms Guppy explained that Mr Moylan was tasked with managing all aspects of golf course maintenance and managing the team of seven employees.16 This included scheduling and undertaking course improvement projects, in addition to the business-as-usual maintenance.17
Reconstruction of the greens
[12] Ms Guppy stated that on Mr Moylan’s advice and recommendation, the Club undertook the reconstruction of three greens in September 2019.18 Ms Guppy stated that the reconstruction plan was accepted on the understanding that there would be no impact on the Club’s ability to deliver business-as-usual maintenance.19
[13] During a period that Ms Guppy referred to as the ‘grow-in time’, members began to complain that the condition of the course was below expected standards, and Ms Guppy said that she agreed.20 She subsequently began conducting course drive-ins with Mr Moylan in November 2019 to allow her to address concerns and ensure action was taken to rectify the same.21
[14] Apart from some issues with the green where the progress of rectification was slow, Ms Guppy had also identified that green 13A showed signs of fungal disease.22 By mid-December the fungal disease had, according to Ms Guppy, spread across the green and, whilst Mr Moylan had initially opted not to treat it, he later informed her he had sprayed fungicide one week prior, and would follow up in a week with a second application.23
[15] Before Ms Guppy took annual leave, on 16 December 2020, she emailed Mr Moylan and explained that she was concerned about the course presentation and he was not to undertake additional course works outside the business-as-usual-maintenance.24 She said her request had arisen because the Greens Committee had wanted Mr Moylan’s team to lay three cart paths on the fourth, eighth and seventeenth holes.25 Ms Guppy stated that she requested that this work be deferred until a later date to allow the team to work on problem areas and business-as-usual maintenance.26
[16] Ms Guppy stated that she returned from leave on 31 December 2019 and found that the fungal disease had spread through to most greens, and when she raised this with Mr Moylan, she was informed that a little repair work was required.27
[17] On 31 December 2019, Mr Moylan informed Ms Guppy that his team were on top of their workload and they wanted to proceed with the cart paths.
[18] Ms Guppy gave evidence that on 6 January 2020 she sent Mr Moylan an email outlining her concerns with the course presentation and maintenance in general, and outlined her disappointment that Mr Moylan had, despite her request not to, prioritised the construction of the cart paths over the business-as-usual-maintenance.28
[19] At the Greens Committee meeting in January 2020, Ms Guppy stated that Mr Moylan confirmed that the new greens were well established and on-track for opening on 16 January 2020.29 Ms Guppy noted that Mr Moylan had said that the fourth green would require future remedial works to address expected water run-off issues, and noted that some greens had suffered fungal disease damage but that they were on the road to recovery.30
Members’ dissatisfaction with the course
[20] Ms Guppy stated that around September 2019 she began receiving letters from members expressing dissatisfaction on the presentation of the course.31 Amongst other correspondence received, on 9 December 2019, Ms Guppy received a letter from a member, Mr Gavin Leong, which was co-signed by about 19 others. The letter expressed, amongst other complaints, that the Board was making excuses for Mr Moylan despite the ‘poor state of our course’.32
The fourth green
[21] Mr Moylan said that amongst the greens constructed under his charge was the fourth green.33 The green was closed and out of play for a period of four months.34 However, according to Mr Moylan it was reopened for play on Thursday, 16 January 2020, at the same time as two other greens, which had been reconstructed (fifth and eighth greens).35
[22] Mr Moylan gave evidence that there had been an incident with the fourth green on 14 January 2020 where the grounds staff had observed a slight discolouration of the green and a diagnosis of Pythium disease was made.36 Mr Moylan said that the issue was dealt with by spraying the appropriate fungicide.37
[23] Prior to the fourth green opening, Mr Moylan had personally cut the hole for the pin location on Wednesday, 15 January 2020.38 On 15 January 2020, Mr Moylan was satisfied that the green was fit for play on 16 January 2020.39
[24] Mr Moylan left the Club on 16 January 2020 at around 10:30am. The fourth was in play at that time, and Mr Moylan said that he conducted a visual inspection and he deemed it fit for play.40
[25] Sometime after 8.00pm on 16 January 2010, Mr Terry Gale, Chairman of Greens, sent Mr Moylan an email, the content of which spoke of the fourth green.41 Mr Gale’s email read, ‘I noticed a dry patch on the 4th green today. A number of members also raised this with me after the game. Can you confirm the action to rectify this please so I can inform the members. [I assume there may be some additional hand watering?]’.42
[26] Mr Moylan gave evidence that he did not see Mr Gale’s email that night as he did not have email access on his mobile phone. The next morning at approximately 4:30am, Mr Moylan read the email, and stated that he subsequently investigated the issue and determined that one of the four sprinklers on the fourth was not working.43 There was controversy concerning this evidence at hearing, as Mr Moylan conceded to he did not have access to work emails at home.
[27] Ms Guppy gave evidence that she had been copied to the email from Mr Terry Gale.44 Ms Guppy stated that on Friday, 17 January 2020, Mr Moylan sent to Mr Gale an email advising that the fourth green had dried out badly, noting a faulty sprinkler as the cause. Ms Guppy stated that Mr Moylan had written that ‘the damage was done’ and it would not recover in time for the Summer Cup.45 Ms Guppy explained that the Summer Cup was a major open event that had been scheduled to be played over the weekend ahead.46
[28] Mr Moylan stated that he arrived at the conclusion that the sprinkler had failed sometime during the Wednesday, 15 January 2020, night irrigation cycle or in the 24 hour period before that.47
[29] The 16 January 2020 was, according to Mr Moylan, a hot day, reaching temperatures of 35 degrees, which he said would have contributed to the drying out.48
[30] It was Mr Moylan’s view that the drying out affected about four square metres of the fourth green.49 However, this point was disputed at hearing, with various estimates of the area of drying out provided.
[31] Mr Moylan stated that he took remedial measures immediately after finding out about the drying out, including driving from his home to the Club.50 However, as noted at hearing, Mr Moylan conceded that he was unaware of the drying out issue until such time as he arrived at the Club the day after Mr Gale’s email was sent. Notwithstanding, Mr Moylan undertook to hand water the fourth green three times a day until the time of his dismissal.51
[32] Ms Guppy said that having inspected the fourth green, she questioned Mr Moylan further about the likelihood of additional damage, and having consulted the Captain, she decided to close the fourth green.52
[33] The impact of the fourth green incident was explained by Ms Guppy in the following terms:
The impact of this was that the Summer Cup, an Open event where members from other clubs play at our Club, had to be played as an abbreviated 34-hole event instead of the planned 36-hole event. That was a major embarrassment to the Club.53
[34] Ms Guppy continued that in other circumstances, the Club would have split the thirteenth hole into two holes. Namely, 13A and 13B, and used the Club’s spare green to play the 18 holes.54
Interactions with the General Manager and the preparation of a report
[35] Mr Moylan stated that as a result of the fourth green incident, he was asked to prepare a report for the General Manager to provide to the Board about the incident.55 Ms Guppy agreed this was the case, noting she had sent the request in an email dated 17 January 2020. Ms Guppy had asked Mr Moylan to prepare a detailed report on the condition of the fourth green to be presented to the Board at an extraordinary Board meeting scheduled for 20 January 2020.56
[36] Concerning the report, Mr Moylan stated that he was not told that the report was for the purpose of any form of disciplinary or performance related inquiry or investigation in relation to his work at the Club.57 In the report he identified three main factors regarding what had occurred with the fourth green. Those factors were:
a) notice of slight Pythium disease: Tuesday 14th;
b) sprinkler failure possibly for 48 hours prior to opening; and
c) hot conditions and player traffic causing the turf to stress.
[37] Included in the report was Mr Moylan’s concession that he should have taken a soil moisture probe reading when cutting the pin location rather than relying on his visual observation, but did not because the green, on 15 January 2020, looked okay.
[38] Mr Moylan gave evidence that Ms Guppy asked him to amend the report to include some additional information, which he did.58 Ms Guppy confirmed this was the case as all the matters she had listed in the email dated 17 January 2020, had not been covered.59
[39] Ms Guppy gave evidence that on Monday, 20 January 2020, she advised Mr Moylan of the following:
a) the Board would be meeting and that the matter was not resolved;
b) his proposed trip to the US would leave the Club exposed at the worst possible time due to the condition of the fourth green, concern over the seventh green and the remaining team members’ ability to resolve the problems; and
c) to consider postponing his trip to the US so that a detailed plan could be prepared for the Assistant Superintendent, noting the cost of flights had been covered by the Club so there would be no financial loss for him.60
[40] It was Mr Moylan’s evidence that he was never given the choice of delaying his trip to the United States (for a turf management conference) or cancelling it. He said that if he had been presented with the choice of retaining his employment and not going on the trip, he would have chosen the former.
[41] Ms Guppy said that it was clear to her at the Board meeting that the Board and members were very upset about the fourth green incident, and were concerned, not only for the long-term recovery of the fourth green, but also the position the Club was now in because the spare green and the nursery were in poor condition.61 With the exception of Mr Gale, Ms Guppy said that the majority of the Board had lost confidence in Mr Moylan, and his ability to manage and deliver the golf course to expected standards.62
[42] Ms Guppy gave evidence that on Tuesday, 21 January 2020, she advised Mr Moylan of the outcome of the Board meeting and suggested that he consider resigning from his position as it had become untenable, in her view.63
[43] According to Mr Moylan, Ms Guppy met with him at around 9:30am on 22 January 2020 and informed him that the Board had wanted him to resign from his position.64 Mr Moylan said that he refused to resign, and requested Ms Guppy contact the Board and ask for a meeting so that any problems could be worked through – positively.65 Ms Guppy replied that she would contact the Board.66
[44] Mr Moylan stated that around 11:45am on 22 January 2020, Ms Guppy called Mr Moylan and asked him to meet her.67 Mr Moylan relayed that he was informed that the Board were not interested in discussing a way forward and that his position was terminated effective immediately.68 Mr Moylan gave evidence he was given a pay-out figure by Ms Guppy for what she said were his entitlements, and was informed the he would be paid five week’s pay in lieu of notice.69
[45] Ms Guppy’s evidence was that, though Mr Moylan requested a meeting with the Board directly, she told him that he would not be meeting with the Board as decisions about staffing were hers to make.70 Ms Guppy said that she gave Mr Moylan some time to consider his position and he briefly returned to work.71 Sometime later, Ms Guppy said that she asked Mr Moylan to return to her office and when he did not indicate any willingness to resign, she informed him that his employment was terminated on the grounds of negligence.72
[46] Ms Guppy stated that she informed Mr Moylan that she wanted to manage his departure to protect everyone’s interests and advised that he would be paid his entitlements, five weeks pay in lieu of notice, and, if he was willing to sign a deed of release, an ex gratia payment of $10,000.00 would be made.73 The offer was put in writing in the form of a deed of release.
[47] A termination letter was provided to Mr Moylan on 22 January 2020,74 although it was dated 21 January 2020. Mr Moylan observed that the termination letter did not include a reason for his dismissal. Further, while the letter referred to a meeting on 21 January 2020, Mr Moylan stated he was not party to the meeting.75 Included with the termination letter was a settlement proposal and a deed of release.76
Initial matters to be considered
[48] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Moylan’s application. There is no dispute between the parties concerning these matters, and I am satisfied of the following. First, the application was made within the 21 day period required by s 394(2) of the Act. Second, Mr Moylan was a person protected from unfair dismissal, as he earned less than the high income threshold, per s 382. Third, Mr Moylan’s dismissal was not a case of genuine redundancy. Fourth, no question of compliance with the Small Business Fair Dismissal Code arose.
Unfair dismissal
[49] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable (s 385(b)).
[50] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd 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.77
[51] In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. It is convenient to use those criteria set out in s 387, to outline my consideration of the matter. However, before doing so, I note that s 387 contemplates the Commission will undertake an overall assessment as to the nature of the dismissal. In so doing, the criteria in s 387 must, where relevant, be weighed up in totality.
Valid reason for the dismissal related to capacity or conduct (including its effect on the safety and welfare of other employees)
[52] While the Commission is obliged to take into account whether there was a valid reason for dismissal, relating to the employee’s capacity or conduct,78 this provision should not be construed as requiring there to be a valid reason. Although, whether there is or not will have bearing on the decision reached.
[53] To explain further, ‘valid’ in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal.79 The provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.80
[54] On 21 January 2020, Ms Guppy informed Mr Moylan he should consider resigning because in her view: (a) confidence in his ability had been questioned by the Board and members, based on the fourth green incident and the fungal disease spread; and (b) she could not see a way for his employment to continue given his unwillingness to reschedule his trip to the United States (at the Club’s cost) so that he may resolve the problems concerning the greens.
[55] On that same day, Ms Guppy also informed Mr Moylan she considered his position untenable. Later in the day, when he declined to resign (although he was offered a departure inclusive of an ex gratia payment), Ms Guppy informed Mr Moylan that his employment was terminated on the ground of negligence. The letter of termination of 21 January 2020, did not outline the reason for dismissal.
[56] In the context of termination of employment related to the conduct of an employee, it is well established that the Commission must make a finding as to whether the conduct in question occurred. So much is clear from the decision of the Full Court of the Federal Court in Edwards v Giudice,81 and numerous subsequent decisions of the Full Bench of the Commission.82 The question is whether the conduct took place, and the Commission determines the answer based on the evidence in the proceedings before it. The test is not whether the employer reasonably believed that the conduct occurred.
[57] The Commission’s function, however, is not 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 Commission. It is for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct.83
[58] The dismissal of Mr Moylan is said to have arisen from his negligence. It seems, according to the submissions of the Club, that primarily the negligence pertains to the drying out of the fourth green subsequent to the sprinkler failure. In this respect, much time was spent in the hearing questioning Mr Moylan about sprinkler maintenance and monitoring of newly developed greens (inclusive of their moisture levels). However, the fungal disease spread also appeared to be a source of consternation for the Club.
[59] While the Club appeared to have built a case of misconduct against Mr Moylan, Ms Guppy’s evidence left an impression of general dissatisfaction with Mr Moylan’s performance. The inclusion of the member petition and member feedback about the standard of the course, and her evidence that, in the latter part of 2019, she was concerned the course was below expected standards, readily led to that conclusion.
[60] Come November 2019, Ms Guppy had started a weekly drive around with Mr Moylan to ensure issues identified were rectified.84 However, there was no evidence before me to show that Mr Moylan had been managed, in a formal sense, concerning issues with his performance, or otherwise had been warned about the same.
[61] In late November 2019, the fungal disease had made its presence known on the thirteenth green.85 Ms Guppy gave evidence that by mid-December it had spread and while Mr Moylan had not treated it initially, he advised he was now spraying the area with fungicide.
[62] Ms Guppy sent an email to Mr Moylan on 16 December 2020, in which she outlined her concerns with the course presentation and requested he, in her words, not undertake additional course works outside of business-as-usual maintenance. However, the email in question included the following observations, and instructions (amongst others):
a) 6th Tee – Can you possibly look at plugging / returfing [sic] the areas that are still struggling after the top dressing?
b) 4th Tee – The back tee is still looking pretty patchy – just thought I would mention because it probably isn’t an area on your radar at the minute :)
c) Cart Paths – I have been thinking about the schedule and wanted to let you know that there is no pressure to get the cart paths down before the summer cup, I would far prefer you and the team focus on maintenance given the run you have had with construction over the last few months. I have spoken to Terry and advised that we may consider scheduling after the Cup, which he accepts if we wish to. Have a think on it and we can chat it through when I return from hols.
[63] While Ms Guppy alerted Mr Moylan to issues with the ‘6th tee’ and the ‘4th tee’, the email did not signal, on any objective level, that Mr Moylan’s performance had been called into question. Insofar as the cart paths were concerned, Ms Guppy expressed her preference for Mr Moylan and his team to focus on maintenance, and that the paths may be scheduled after the Summer Cup. Ms Guppy concluded her email with a comment that Mr Moylan ‘think on it…’. At this stage, it was not evident that Mr Moylan had received instruction not to continue to work, or commence work, on the cart paths.
[64] Ms Guppy’s return from leave signalled an escalation in the issues concerning the course presentation. This was evident from the content of Ms Guppy’s email sent on 6 January 2020. Ms Guppy’s opening paragraph stated, ‘I was still concerned about the presentation of the course, which should be priority one before the construction of any new paths’.86 Having detailed at length multiple issues in addition to enquiring whether particular work had been actioned, Ms Guppy stated:
Phil, my absence from work on Friday and the family matter I had to attend to prevented me from seeing you to discuss all this face to face, however, you were aware of my position before I went on leave regarding the construction of the paths. While I expect that you have now set the program for tomorrow around the construction, I do want to stress that the ongoing construction can not impact our ability to present the course as members, guests and I expect – the opportunity to delay construction was provided to you on the basis that you, as the Super know what is expected. I appreciate that the items listed above may be very much on your list, but given some have been on mine for quite some time and have not been addressed, I feel it time to document them.87
[65] By 6 January 2020, the evidence shows that Ms Guppy had identified a tranche of issues with the course presentation, and yet while she expressed ‘I feel it time to document them’, no further steps were taken to formalise a performance management process or, for that matter, to unequivocally warn Mr Moylan that he was underperforming.
[66] However, Ms Guppy had clearly expressed the prioritisation of maintenance over cart path construction. During the hearing Mr Moylan was questioned whether Ms Guppy had told him that the construction was not a priority to which he responded to the effect ‘yes, that is correct’. Mr Moylan was further questioned ‘you built them anyway’ (in reference to the paths), ‘that is correct’, said Mr Moylan. When questioned that he had not followed the priorities Mr Guppy had given him, Mr Moylan again responded ‘correct’.
[67] Mr Moylan was remarkably candid in respect of this line of questioning; he did not attempt to obfuscate, and presented as a believable witness, with a clear inclination to say it as he saw it. What it is that he admitted, however, was his decision not to follow a lawful and reasonable instruction given by his employer. His resolve to complete the cart path construction was his priority. The Club, through Ms Guppy, had communicated what its priority was regarding the course maintenance and presentation, and Mr Moylan was well aware of this by at least 6 January 2020, if not earlier. In this respect, it is entirely open to find that Mr Moylan failed to follow a lawful and reasonable instruction.
[68] While the Club submitted that Mr Moylan did not complete all of the maintenance tasks that Ms Guppy had allocated to him, so much was clear from her email dated 6 January 2020, again, there was no persuasive evidence to show that Mr Moylan’s performance had been managed in this respect, or that he had been warned that his underperformance was placing his ongoing job security at risk. While Ms Guppy had initiated weekly drive arounds, and had sent the email dated 16 December 2020, outlining her concerns about certain aspects of the course, it was not apparent on the evidence before me that Mr Moylan was aware that the Club considered his performance substandard, or should have been aware that this was the case.
[69] Turning to the evidence regarding the deterioration of the fourth green, most telling was Mr Moylan’s observations about the factors leading to the incident and his concession regarding where he was at fault. The report, which had been prepared for the extraordinary Board meeting on 20 January 2020, detailed three main factors regarding what had occurred with the fourth green. Those factors were:
a) notice of slight Pythium disease: Tuesday 14th;
b) sprinkler failure possibly for 48 hours prior to opening; and
c) hot conditions and player traffic causing the turf to stress.
[70] Included in the report was Mr Moylan’s concession that he should have taken a soil moisture probe reading when cutting the pin location rather than relying on his visual observation, but did not because the green, on 15 January 2020, looked okay.
[71] The Club submitted that in January 2020, before the sprinkler on the fourth green failed, Mr Moylan knew:
a) the new greens needed adequate watering, and were susceptible to damage in hot conditions;
b) there was hot weather to which the greens were exposed in mid-January 2020;
c) some parts of the Club’s reticulation system were old;
d) sprinklers attached to that reticulation system fail from time to time;
e) the automatic monitoring system that monitored the reticulation system did not report sprinkler failures;
f) he had not tested the sprinklers around the new greens since very early in January 2020;
g) any of the new greens could be badly damaged in a matter of hours if they were not adequately watered;
h) a visual inspection of a green would not necessarily indicate whether the grass on that green had been adequately watered, nor would it necessarily indicate whether the grass was distressed;
i) he had access to moisture probes that, if he used them, would have indicated whether a green, or sections of it, had received adequate watering;
j) the greens generally, and the new greens in particular, were a critical part of the Club’s golf course;
k) it was important that the greens were in good condition generally, and it was particularly important that they were in good condition in the lead-up to, and during, important events like the Summer Cup;
l) he had not established any protocol for monitoring whether any of the new greens were adequately watered, beyond visually inspecting them; and
m) it could take weeks to restore a damaged green to the point at which the Club’s members could play on it.
[72] Mr Moylan explained that the sprinkler failure identified on the morning of 16 January 2020 (a sprinkler had not turned on the front of the green near the dried out area) could have failed over the previous 48 hours causing the area to not receive 100% uniform irrigation. Mr Moylan expressed that sprinklers do fail and ‘unfortunately in most cases the turf drying out is the first indication of failure’. He continued ‘[B]ecause only one of the four sprinklers that water the Green failed, the area was slowly starting to stress and the drying of the turf was not actually visible by eye’.
[73] While a turf expert I am not, it appears a somewhat foolhardy approach to await the visual signs of turf distress (evidently the turf drying out) and then react to the same, on a newly established green in the midst of summer (where forecasts are readily available and indicate hot weather).
[74] The establishment of a new green was understandably an investment on behalf of the Club, which necessitated due care and diligence. It would therefore be reasonable to expect, particularly in the summer months, that a pro-active approach was required to ensure such drying out was precluded. On this basis, and understood in this context, one can appreciate why Mr Moylan made the concession he did - he should have taken a soil moisture probe reading when cutting the pin location on the fourth green, rather than relying on his visual observation on 15 January 2020. As the Superintendent of the course, and having had years of experience, Mr Moylan did not, in my view, take proper care of the fourth green. He did not effectively monitor its condition and ensure that it was adequately watered. That was his job.
[75] There are two findings that have led me to the conclusion that there was a valid reason for Mr Moylan’s dismissal. First, Mr Moylan’s deliberate disregard for Ms Guppy’s direction about the priority to be placed on the maintenance of the greens over the construction of the cart path. Second, Mr Moylan’s failure to take proper care of the fourth green which resulted in a significant area of that green drying out, rendering the area unplayable. While there was dispute about the size of the dried out area on the fourth green, I am satisfied that the size of the area was significant, such that it required the area to be placed out of play and rendered the green unusable.
[76] While Ms Guppy expressed to Mr Moylan she could not see a way for his employment to continue, given his unwillingness to reschedule his trip to the United States so that he may resolve the problems concerning the greens, Mr Moylan disputes that that he was offered the opportunity to remain employed should he forgo the trip. Having considered all of the evidence presented, I am unpersuaded that Mr Moylan was placed on notice that proceeding with the United States trip would jeopardise the security of his employment.
[77] In Parmalat Food Products Pty Ltd v Wililo88 the Full Bench held that the existence of a valid reason is a very important consideration in any unfair dismissal case, the absence of which will almost invariably render the termination unfair. The Club had a valid reason for Mr Moylan’s dismissal however, let us now consider its response to all that had occurred.
Notification of the valid reason and an opportunity to respond
[78] The Commission must take into account whether notification of a valid reason for termination has been given to an employee protected from unfair dismissal before the decision is made,89 and in explicit,90 plain and clear terms. It is accepted that this is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality.91
Consideration
[79] Ms Guppy gave evidence that, on 21 January 2020, she outlined in her conversation with Mr Moylan that the Board, membership and her, had lost confidence in his ability to manage and deliver the golf course to the expected standards.92 Ms Guppy stated that she also outlined the fact that given his trip was happening two days later this was going to present a significant problem. Ms Guppy said that she suggested to Mr Moylan, that in her opinion, the best course of action would be that he consider resigning from his position.93
[80] When asked who made the decision to ask Mr Moylan to resign, Ms Guppy replied:
Who made the decision to ask him to resign?---Well, the decision for whether he resigned was down to Phil. That was my personal take on the way this was going to go and it was in consideration that I believed that it would be a means for Phil to preserve his reputation and without his job being dismissed and it was in consideration of that.94
[81] In forthright terms Ms Guppy advised Mr Moylan to consider resigning. While Ms Guppy requested and elicited from Mr Moylan a report for the purpose of the Board meeting on 20 January 2020, it would be disingenuous to frame this as the notification of a valid reason or an opportunity for Mr Moylan to respond to the notification. The Club conceded it did not squarely put each of its concerns to Mr Moylan to seek his response to each one.
[82] The Club submitted that, ultimately, the absence of an opportunity to respond to its issue, that it had lost confidence in Mr Moylan, made no difference to the outcome. There was no explanation that Mr Moylan could truthfully have given that would have caused the Club not to lose confidence, or to restore the Club’s confidence in him, said the Club. If there was ever a case where the outcome had been pre-determined absent the response of the employee – this is one.
[83] Based on the evidence before me, I consider it an indubitable fact that the decision to dismiss Mr Moylan had been made prior to Mr Moylan being provided with an opportunity to respond. In fact, he was never given any opportunity to respond, even when he asked for a meeting with the Board. Generally, a failure to provide an opportunity to respond weighs in favour of a finding that the dismissal was unfair.
An unreasonable refusal by the respondent to allow a support person
[84] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.
Consideration
[85] It was Mr Moylan’s position that he was never given an opportunity to respond to any alleged reasons for his termination and therefore the opportunity to have a support person never even arose. I would agree with Mr Moylan.
Dismissal is related to unsatisfactory performance
[86] It is apparent that the Club held a level of dissatisfaction concerning Mr Moylan’s performance. This point has been traversed when considering whether there was a valid reason for his dismissal. However, ultimately, Mr Moylan had not been warned about unsatisfactory performance and, as purported by the Club, Mr Moylan’s dismissal arose through his negligent care of the fourth green.
Impact of the size of the respondent on procedures followed and absence of dedicated human resources management specialist/expertise on procedures followed
[87] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (a) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (b) 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.
Consideration
[88] It was evident that the Club did not have its own internal human resource capability. However, Ms Guppy gave evidence that she received advice from ‘a resource in our President, who is also a lawyer, and we also have a resource in Clubs New South Wales which is a body corporate that we have access to for advice’.95 It is observed that the President of the Club is a workplace relations lawyer and he represented the Club in his capacity as the President, at the hearing. It follows that, whilst not a large employer, the Club had available to it resources to advise it on the procedures followed, and this factor has been considered.
Other relevant matters
[89] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.
[90] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation,96 the Full Bench stated that:
That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable.97
[91] Mr Moylan had worked for the Club for some six and a half years. Whilst provided with a warning letter by the Club back in early part of 2015, there had been no warning that his employment was at risk prior to his dismissal.
[92] During the almost five years from the letter of warning, Mr Moylan was never issued a warning letter or put on a performance management plan, but had received various accolades, including from the Club’s Board, its members, visitors to the respondent’s golf club and the Perth golf fraternity for his work on, upkeep and maintenance of the respondent’s golf course.98
[93] Mr Terry Gale, who had been on the Club’s Board as Chairman of Greens since 2005 and in that position was responsible for the condition of the course, held the view that Mr Moylan ought to not have been dismissed. Mr Moylan submitted that the Chairman of Greens is one of the two persons (the other being the General Manager) that the applicant was accountable to directly, pursuant to the applicant’s contract of employment.99
[94] I consider that the gravity of Mr Moylan’s conduct in failing to comply with Ms Guppy’s direction concerning the prioritisation of work and his failure to take proper care of the fourth green, which resulted in a significant area of that green drying out, rendering the area unplayable, constituted a valid reason for dismissal.
[95] However, taking into account all of the circumstances and the considerations in s 387, I can only conclude that Mr Moylan’s dismissal was unfair.
[96] Section 387 (b) and (c) are not a ‘criterion’. It is, for example, not the case that a person must be provided with an opportunity to respond to any reason related to conduct or performance. Rather, ss 387(b) and 387(c) are considerations to which the Commission must have regard in its analysis of whether a termination is harsh, unjust or unreasonable.
[97] Mr Moylan was denied the opportunity to be notified precisely of the misconduct he had engaged in. Instead, that nebulous term was conveyed– ‘there was a loss of confidence’. Of course, it was not said isolation. Ms Guppy added that the loss of confidence was ‘in his ability to manage and deliver the golf course to the expected standards’. Yet, such information provides no tangible example for Mr Moylan of the misconduct he had engaged in, and the evidence supports the finding that Ms Guppy had pre-determined the outcome without permitting Mr Moylan to respond.
[98] While evidence was given that Ms Guppy assumed responsibility for the management of all staff, including deciding whether to dismiss or not dismiss the Club’s employees, Mr Moylan’s employment contract stated that Mr Moylan was accountable directly to Ms Guppy and the Chairman of Greens who represent the ‘Board of Management’. Mr Gale’s view concerning the disciplinary action taken was divergent to that of Ms Guppy’s view. Further, while the Board had indicated to Ms Guppy that they had lost confidence in Mr Moylan, they arrived at the view based on Ms Guppy’s provision of information, and a report prepared for a purpose other than a disciplinary one. There was no opportunity to provide Ms Guppy with a response that may have altered the position of the Board, or, for that matter, her. At stake was Mr Moylan’s job, a job he had held for over six years. Yet, he was denied any opportunity to advance a case why he might keep his job – by responding to the reason(s) for his dismissal. In such circumstances Mr Moylan’s dismissal was harsh.
[99] While the Club submitted that the absence of an opportunity to respond to the Club’s loss of confidence made no difference to the outcome, I am unmoved by such submission. The way the dismissal was effected was attenuated with procedural unfairness such that it rendered the dismissal unfair.
Conclusion on nature of dismissal
[100] Whilst there was a valid reason for Mr Moylan’s dismissal there was a fundamental failure to accord him procedural fairness, as understood by reference to ss 387(b) and (c) of the Act. The procedural flaw was unacceptable, given the Club’s access to both a workplace relations lawyer and Clubs New South Wales. I consider that in all the circumstances the procedural deficits gave rise to unfairness in the particular circumstances of this case. The dismissal was therefore unfair within the meaning of the Act.
Remedy
[101] Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is not appropriate, and that it considers an order for the payment of compensation to be appropriate in all the circumstances of the case.
[102] Regarding the first of these issues, I do not consider reinstatement appropriate in light of the Club’s purported loss of confidence in Mr Moylan which appears soundly and rationally based (given the evidence of Ms Guppy). I have also considered Mr Moylan’s submissions regarding the remedy he seeks. While reinstatement is the ‘presumptive’ remedy, I do not consider it appropriate in all the circumstances to order it,100 and am reassured that there is no right to reinstatement consequent upon a finding that a person has been unfairly dismissed.101 The Commission has discretion as to whether any remedy will be awarded, and reinstatement will be ordered only if the Commission is satisfied that it is appropriate to do so.102
[103] With respect to the second issue, concerning whether an order for compensation is appropriate, I note that compensation is intended to provide a person who has been unfairly dismissed with reparation for losses reasonably attributable to the unfair dismissal. It is not intended to be punitive.103 The amount of compensation ordered by the Commission must not include a component for shock, distress or humiliation, or other analogous hurt, caused to the person by the dismissal.104
[104] In determining the amount, all the circumstances are to be taken into account, including those prescribed by s 392(2) of the Act. The ‘Sprigg’ formula is to be applied to arrive at an appropriate amount.105 The method for calculating compensation under s 392 is also informed by the decision of the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc,106 in relation to the order in which the considerations in s 392 and other factors should be applied.
[105] In my assessment, this is a case in which an order for compensation is appropriate, however, for the reasons outlined below, compensation would amount to $0.00 due to the application of the ‘Sprigg’ Formula.
[106] In Haigh v Bradken Resources,107 the Full Bench reaffirmed the principles set out within Sprigg, and in particular the steps needed to be taken in assessing compensation. The first of those steps is to estimate the amount the employee would have received, or would have been likely to receive if the employment had not been terminated; the second step being to deduct moneys earned since termination; the third being to make deductions for contingencies; fourth, to calculate any impact of taxation; and fifth, to apply the legislative cap.108
[107] The Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries109 stated:
The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic’110. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.
[108] The notion of ‘taking into account’ a matter (such as those described in s 392 of the Act) connotes a genuine consideration of the relevant provision and the apportionment of the appropriate weight in the circumstances.111 In Construction, Forestry, Mining and Energy Union v Hamberger and Another,112 Katzmann J pointed out that ‘[t]o take a matter into account means to evaluate it and give it due weight’113 and that ‘mere advertence will not be enough.’114
Remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[109] It was said that Mr Moylan’s base salary at the time of his dismissal was $103,643.68 amounting to $113,489.82 (gross, inclusive of superannuation).115 There is no evidence before me to dispute that this is not the case, and for the purpose of determining a compensatory amount, I have proceeded on the basis that Mr Moylan’s weekly gross income was $2182.50 (gross).
[110] The question of the anticipated period of employment is a particularly difficult issue in this matter. The purported reason for dismissal was misconduct in the form of negligence. However, my observations at paragraphs [59] to [65], are pertinent here. I have spoken of Ms Guppy leaving an indubitable impression of dissatisfaction with Mr Moylan’s performance, notwithstanding her torpor regarding performance management.
[111] I have had regard to all of the evidence, and I am satisfied that had Mr Moylan not been dismissed for misconduct, there was sufficient information before me to show that Mr Moylan’s performance would have required ongoing management to allay concerns about the course presentation, lack of maintenance planning and his inadequate deference to management direction to prioritise particular tasks.
[112] Given the disgruntled patronage/members, the lack of support emanating from the Board and the preceding factors, I can only conclude the projected period of employment would have been short lived. In my view, it is reasonable to estimate that Mr Moylan would have continued in his employment at the Club for a period of two months, a hypothesised period in which performance management may have taken place to address the Club’s concerns.
The effect of the order on the viability of the employer’s enterprise
[113] The effect of the order on the viability of the Club’s enterprise is unable to be assessed because no evidence has been given regarding this factor.
Length of the person’s service with the employer
[114] Mr Moylan had been in the employment for the period of 31 July 2013 until 21 January 2020, some six and a half years. This is a length of service that lends support to the making of an order for compensation.
The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[115] Mr Moylan gave evidence that he had applied for several jobs with some success. There is no reason to disbelieve him and his evidence in this respect is uncontested.
The amount of remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[116] The Club submitted that Mr Moylan’s pay in lieu of notice effectively paid him until 25 February 2020.
[117] However, there were approximately 21 weeks and two days between the date of dismissal and the hearing on 19 June 2020.
[118] Mr Moylan tendered into evidence two payslips from two different employers. The first was from Clublinks Management Pty Ltd and amounted to $849.12 (gross). The second from FT Workforce Pty Ltd amounted to $3,744.00 (gross) for that particular payslip, but year to date earnings referenced a gross amount of $7,020.00 (gross).116 While, it cannot be discerned from the payslip (aside from the $3,744.00) when the remainder of monies were earned, Mr Moylan gave evidence that he worked for FT Workforce Pty Ltd for 11 days. It is therefore safe to presume that the earnings of $7,070.00 (gross) fell within the relevant period.
[119] Mr Moylan also noted that he had obtained employment with Eastern Guruma and was on his second swing having done 40 days’ work with them.117 Mr Moylan stated that he was paid $51.00 per hour on a roster that required him to work 20, 10.5 hours days in a 28 day cycle. On that basis, it can be deduced that Mr Moylan had worked 20 days in the first cycle, and 20 days in the second cycle, which equates to 420 hours (40 days x 10.5 hours). At $51.00 per hour, this amounts to $23,454.90 (gross and inclusive of superannuation).
Any amount of income reasonably likely to be earned during the period between the making of the order and the actual compensation
[120] I am satisfied that between the making of the order and the actual compensation, Mr Moylan is reasonably likely to have earned $3,748.50 (gross) – based on seven days being the requisite period.
Misconduct and shock, distress or humiliation
[121] I do not consider there has been any misconduct which would require me to reduce the amount of compensation. I do not include any component by way of compensation for shock, distress or humiliation caused by the manner of the dismissal.
Compensatory cap
[122] The amount of compensation the Commission may order is capped. If the appropriate quantum of compensation initially assessed exceeds that cap, then the Commission must reduce the amount to the amount of the cap.
[123] The Act stipulates that the compensation cap is the lesser of:
the amount of remuneration received by the person, or that he or she was entitled to receive (whichever is higher) in the 26 weeks before dismissal; or
half the amount of the high income threshold immediately before dismissal.118
[124] The high income threshold is defined in s 333 of the Act as an amount prescribed by, or worked out in the manner prescribed by, the Regulations. Regulation 2.13 sets out the manner in which the high income threshold is to be worked out. The steps in Regulation 2.13(3), particularly Step 1 and Step 2, refer to ‘ordinary time earnings’. The Act defines ‘earnings’ such that they exclude contributions to superannuation fund.119
[125] Under s 392(5) of the Act, I am obliged to determine the amount worked out under s 392(6) of the Act. The amount is calculated by reference to the ‘total amount of remuneration’ received by the person or to which the person was entitled (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before dismissal. ‘Remuneration’ is not defined in the Act.
[126] Both ss 392(6) and 392(2) of the Act refer to ‘remuneration’ under Part 3-2.
[127] The meaning of ‘remuneration’ has been considered in various iterations of what is now the Act and with regard to differing legislative provisions. What appears clear from the decisions is that the term ‘remuneration’ has adopted a consistent meaning whereby superannuation is included.
[128] For the purpose of s 392(5) of the Act, I am satisfied the amount is $56,745.00. I have considered that under the Applicant’s employment contract he was entitled to superannuation contributions at 9.5%.
Any other matter that the Commission considers relevant
[129] I have considered the circumstances of the case and there are no further matters that I consider relevant when arriving at the compensatory amount.
CONCLUSION AND ORDERS
[130] After consideration of the foregoing issues, I find that Mr Moylan was dismissed and that it was unfair within the meaning of the Act.
[131] Reinstatement is not an appropriate remedy in this case and therefore I find that compensation is appropriate. The calculation for compensation is set out in the following table.
Compensation | Calculation | Gross | Total Gross Amount (inclusive 9.5% superannuation where necessary) |
Anticipated employment period | 8 weeks at $2,182.50 gross per week, inclusive of superannuation. | $17,460.00 | $17,460.00 |
Deduct payment in lieu of notice | Less $9,965.74 120 - equivalent to 5 weeks pay | $9,965.74 | $9,965.74 |
Deduct monies for misconduct | $0.00 | $0.00 | $0.00 |
Deduct monies earned since termination | Clublinks Management Pty Ltd: $3,800.16 + $361.02 in superannuation 121 | $3,800.16 | $4,161.18 |
FT Workforce Pty Ltd: $7,020.00 + $666.90 in superannuation 122 | $7020.00 | $7,686.90 | |
Eastern Guruma: 40 days x 10.5 hours/day x $51/hour = $21,420.00, plus 9.5% superannuation ($23,454.90) 123 | $21,420.00 | $23,454.90 | |
Deduction for contingencies | 0% as no significant element of future economic loss (no basis for any deduction for contingencies) | $0 | $0 |
Calculate any impact of taxation | To be taxed according to law | $0 | $0 |
Apply the compensation cap | Last six months remuneration received by Mr Moylan = $56,745.00 or Half the amount of the high income threshold = $74,350.00 | Cap applied | |
TOTAL | $0.00 |
[132] For the reasons I have given earlier, and on the basis of the calculations completed, I observe that the Club is not required to make any compensatory payment to Mr Moylan. In determining the amount for the purpose of the order, I have taken into account all of the circumstances of the case including the criteria set out in s 392(2) of the Act.
DEPUTY PRESIDENT
Appearances:
D Singh, of Friedman Lurie Singh & D’Angelo for the Applicant.
S Heathcote, President of the Respondent.
Hearing details:
2020:
Perth (by video);
June 19.
Final written submissions:
30 June 2020.
Printed by authority of the Commonwealth Government Printer
<PR720215>
1 Witness Statement of Philip Moylan (Moylan Statement) [6].
2 Ibid [11].
3 Ibid [8].
4 Ibid [19].
5 Ibid [19].
6 Ibid [46].
7 Ibid [46].
8 Ibid [46].
9 Ibid [46].
10 Ibid [46].
11 Ibid [22].
12 Ibid [17].
13 Ibid [24].
14 Ibid [27].
15 Witness Statement of Lucy Guppy (Guppy Statement) [9].
16 Ibid [10].
17 Ibid [11].
18 Ibid [21].
19 Ibid [21].
20 Ibid [25].
21 Ibid [25].
22 Ibid [28].
23 Ibid [30].
24 Ibid [31].
25 Ibid [31].
26 Ibid [31].
27 Ibid [32].
28 Ibid [34].
29 Ibid [34].
30 Ibid [35].
31 Ibid [14].
32 Ibid [17] Annexure LG4.
33 Moylan Statement [29].
34 Ibid [30].
35 Ibid [31].
36 Ibid [33].
37 Ibid [33].
38 Ibid [32].
39 Ibid [34].
40 Ibid [37].
41 Ibid [39].
42 Gale Statement, Annexure TG-1.
43 Moylan Statement [42].
44 Guppy Statement [39].
45 Ibid [39].
46 Ibid [40].
47 Moylan Statement [43].
48 Ibid [44].
49 Ibid [48].
50 Ibid [48].
51 Ibid [48].
52 Guppy Statement [42].
53 Ibid [43].
54 Ibid [44].
55 Moylan Statement [52].
56 Guppy Statement [46].
57 Moylan Statement [53].
58 Ibid [55].
59 Guppy Statement [47].
60 Ibid [50].
61 Ibid [56].
62 Ibid [57].
63 Ibid [60].
64 Moylan Statement [57].
65 Ibid [59].
66 Ibid [59].
67 Ibid [60].
68 Ibid [60].
69 Ibid [61].
70 Guppy Statement [61].
71 Ibid [62].
72 Ibid [62].
73 Ibid [63].
74 Ibid [64].
75 Moylan Statement [63].
76 Guppy Statement [64].
77 (1995) 185 CLR 411, 463.
78 Fair Work Act 2009 (Cth) s387(a).
79 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
80 Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17, [36].
81 (1999) 169 ALR 89, 92.
82 King v Freshmore (Vic) Pty Ltd, Print S4213, per Ross VP, Williams SDP, Hingley C
83 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
84 Guppy Statement [25].
85 Ibid [28].
86 Guppy Statement, Attachment LG7.
87 Ibid, Attachment LG7.
88 (2011) 207 IR 243, [24].
89 Trimatic Management Services Pty Ltd v Daniel Bowley[2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
90 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Previsic v Australian Quarantine Inspection Services Print Q3730.
91 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15.
92 Transcript PN 452.
93 Transcript PN 452.
94 Transcript PN 536.
95 Transcript PN 525.
96 (2013) 238 IR 1.
97 (2013) 238 IR 1, 41.
98 Transcript PN 509, PN 510, PN 515, PN773, PN1148, PN1160 Exhibit A3 item no 8 – letter from Terry Gale to “To whom it may concern”; Exhibit A3 item no 2,
99 Exhibit A3, Schedule to item no 1.
100 Hatwell v Esso Australia Pty Ltd[2019] FWC 931, [28].
101 Nguyen and Le v Vietnamese Community in Australia[2014] FWCFB 7198.
102 [2014] FWCFB 7198, [35].
103 Kable v Matilda Greenbank[2015] FWCFB 3512, [17].
104 Fair Work Act 2009 (Cth) s 394(4).
105 See Ellawala v Australian Postal Corporation (AIRCFB, Print S5109, 17 April 2000), [33]; and see Bowden v Ottrey Homes Cobram and District Retirement Villages Inc.[2013] FWCFB 431.
106 Ibid.
107 [2014] FWCFB 236.
108 Ibid [10].
109 [2016] FWCFB 7206, [17].
110 Smith, Arthur and Kimball, Brett v Moore Paragon Australia Ltd PR942856, [32].
111 Lewis v Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg [2014] FWC 1086.
112 (2011) 195 FCR 74.
113 Ibid [103].
114 Ibid.
115 Form F3 Employer response to unfair dismissal application; Moylan Statement [6]
116 Court Book p 63.
117 Transcript PN 333 and 335.
118 Fair Work Act 2009 (Cth) sub-s 392(5) and (6).
119 Fair Work Act 2009 (Cth) sub-s 332(2)(c) and (4); Craig Ablett v Gemco Rail Pty Ltd [2010] FWA 8124.
120 Exhibit A3, Attachment 9 – Mr Moylan’s final payslip; Guppy Statement, Annexure LG11.
121 Moylan Statement [71]; Exhibit A3, Attachment 12.
122 Moylan Statement [74]; Exhibit A3, Attachment 13. Note: in cross examination (Transcript PN 321 – PN 331), Mr Moylan stated that he had performed 12 days of work at 12 hours a day and $52 per hour, with FT Workforce Pty Ltd, however, a conservative approach has been adopted and the payslip that shows the year to date earnings has been used.
123 Transcript PN 333 – PN 341.
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