Phillip Seitz v Iron Bay Pty Ltd T/A City Beach IGA

[2018] FWC 2031

[2018] FWC 2031

The attached document replaces the document previously issued with the above code on 10 April 2018.

The decision is altered by removing footnotes 25 and 26.

Associate to Commissioner Wilson

Dated 10 April 2018

[2018] FWC 2031

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip Seitz
v
Iron Bay PTY LTD T/A City Beach IGA
(U2017/5151)

COMMISSIONER WILSON MELBOURNE, 10 APRIL 2018

Application for an unfair dismissal remedy.

[1] This decision deals with the question of the remedy, if any, to be awarded to Phillip Seitz in respect of his dismissal Iron Bay Pty Ltd trading as City Beach IGA (City Beach IGA). Mr Seitz worked as a Manager/Butcher at City Beach IGA, which operates a supermarket in suburban Perth, Western Australia.

[2] The question of remedy arises because of the decision of the Full Bench to uphold an appeal by Mr Seitz at least in respect of the matter of remedy and to then remit the matter to me for determination of the matter (the Appeal Decision). 1 Notwithstanding the decision to allow the appeal in respect of remedy, the underlying decision of first instance determining that Mr Seitz’s dismissal was an unfair dismissal within the meaning of the Fair Work Act 2009 (the Act) was not disturbed in the Appeal Decision.

[3] After the Appeal Decision was published, the matter was relisted for determination of remedy with directions being issued to both parties for the filing of further material as they wished to the Commission to take into account. Mr Seitz provided, through his representative, Ms Tanya Seitz, a short submission consisting of some unsworn assertions regarding his efforts to obtain further employment and attaching payslips for the employment he was successful in obtaining from 18 July 2017 to 10 December 2017. 2 The Respondent provided no further documentary material. Both parties attended and provided submissions to reconvened proceedings (the Remedy Proceedings) on Thursday, 5 April 2018. Mr Seitz was represented by Ms Seitz and the City Beach IGA was represented by its lawyer, Mr David Vilensky, having been granted permission by me pursuant to s.596(2) of the Act.

[4] In the course of the Remedy Proceedings I indicated to the parties that I intended to proceed on the basis of the material that each had provided, as well as the matters set out in the original evidence and submissions before Deputy President Binet (referred to in this decision as the Merits Proceedings), to the extent that those matters were not subject to contrary findings in the Appeal Decision. It is also appropriate in assessing an appropriate remedy to refer to the findings made by the Deputy President in her decision, 3 (referred to in this decision as the Merits Decision), again to the extent that those matters were not subject to contrary findings in the Appeal Decision.

[5] The relevant background to the matter is summarised by the Full Bench in the Appeal Decision as follows;

“[2] Mr Seitz was employed as a full-time butcher by City Beach IGA, a franchised supermarket, on 1 December 2014. Mr Yuhai (Jack) Cao was the owner-manager of the business. On 24 January 2017 he was involved in a verbal altercation with a recently-dismissed employee of City Beach IGA. Mr Seitz was unhappy with the way in which Mr Cao dealt with this incident and consequently tendered a written resignation on 25 January 2017. Notwithstanding this, the employment continued, and the Deputy President found that the conduct of the parties was consistent with the resignation having been withdrawn or revoked. 4 On 17 April 2017 Mr Seitz went off work because of illness. On Friday 5 May 2017 Mr Seitz sent a text message to Mr Cao indicating that he would be fit to return to work on Monday 8 May 2017. Later that day and on the following Saturday and Sunday there were a number of text messages exchanged between Mr Seitz and Mr Cao. In Mr Seitz’s part, he indicated several times that he would be happy for Mr Cao to terminate his employment and pay him what he was owed, but in subsequent messages denied that this constituted a resignation and stated his willingness to attend work. Mr Cao directed Mr Seitz to attend the workplace at 11.00am on 5 May 2017 for a meeting, but following a large number of further texts from Mr Cao (the Deputy President’s findings concerning which are discussed below), Mr Seitz formed the view that he was not comfortable attending the meeting and asked Mr Cao to raise anything he wished to discuss in an email. Mr Cao then purported, by text, to accept Mr Seitz’s resignation. In subsequent text exchanges, Mr Seitz denied that he had resigned and stated that he regarded himself as having been dismissed. The employment did not continue beyond that point.

[3] Mr Seitz filed his unfair dismissal application on 15 May 2017. He returned to the workplace to retrieve his belongings on 26 May 2017. The evidence he gave about this in his witness statement dated 14 September 2017, which was received into evidence by the Deputy President, was as follows:

“I didn’t get my belongings till the 26th May due to Jack being difficult between the 8th and the 26th of May. When I did he placed them all over the floor in the shopping centre so I had to pick up he also made me sign what looked like a spare piece of paper with a list of my belongings on them (PS-10). The whole time he stood watched and laughed while I picked them up. He sent a picture of my things on the floor and when I asked for them to be put in a trolley he responded telling me trolleys were for customers only.”

[4] City Beach IGA initially filed a response to Mr Seitz’s application on 6 June 2017. In this response, which was signed by Mr Cao, it was alleged that Mr Seitz was not dismissed but resigned. It was further contended that Mr Cao had not permitted Mr Seitz to retract his resignation because he had (prior to the resignation) viewed CCTV footage showing “over 90 individual counts of theft”, and that because Mr Seitz “had exhibited violence in the workplace towards other staff members”, failed to follow instructions on a regular basis, spent excessive amounts of time daily doing nothing, and was argumentative. However in an amended employer response filed on 18 July 2017 by City Beach IGA’s lawyer, these further contentions were no longer advanced and sole reliance was placed on the proposition that Mr Seitz had resigned and was not dismissed.” 5

[6] The appeal advanced by Mr Seitz turned on the question of whether it was appropriate in all the circumstances for reinstatement to have been the remedy to have been awarded to him. It is relevant to the matters to be determined in this decision to note that in the Appeal Decision the Full Bench:

•  Noted findings by Deputy President Binet at first instance which;

“… included that City Beach IGA was a small business with only about 10 employees and had no internal human resources expertise, that Mr Seitz had been off work for some weeks prior to his dismissal because of an illness which he attributed to stress caused by Mr Cao’s behaviour, that immediately before the dismissal Mr Cao had harassed Mr Seitz with a series of text messages which were at best a nuisance and at worst might be perceived as containing an implied threat, and that it was not unreasonable for Mr Seitz to refuse to attend a face-to-face meeting with Mr Cao.” 6

•  Found, in relation to the circumstances of the matter that;

“[20] The implication of this finding is clear: that Mr Cao did not actually believe the allegation of theft he advanced against Mr Seitz in the proceedings. That was a matter of clear relevance to whether Mr Seitz could have sufficient trust and confidence in Mr Cao such as to permit the restoration of a viable working relationship, but was not taken into account by the Deputy President in her assessment of the appropriateness of reinstatement.” 7

•  The combination of Mr Cao’s apparent conditioning of Mr Seitz’s return to work on him returning stolen property in circumstances where nothing had been stolen; 8 the fact of City Beach IGA’s behaviour towards Mr Seitz meant that there was no reasonable possibility that they could work productively together again in the future;9 and that by the time of the Merits Proceedings Mr Seitz had found alternative employment, lead to the conclusion that reinstatement in this case was inappropriate10.

REMEDY

[7] The section of the Act dealing generally with remedy once a finding of unfair dismissal has been made is as follows:

“390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

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

[8] While reinstatement may be described as the “primary remedy”, such is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. 11 No party argued in the Remedy Proceedings for the reinstatement of Mr Seitz. Relying upon the findings of the Full Bench with respect to the “complete breakdown in the personal relationship” between Mr Seitz and Mr Cao12 I find that reinstatement is not an appropriate remedy in all the circumstances and that instead it is appropriate I give consideration to an order of payment of compensation.

[9] The determination of compensation is dealt by s.392 of the Act, which is in the following terms;

“392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

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

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

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

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

(d) 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

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

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

Misconduct reduces amount

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

Shock, distress etc. disregarded

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

Compensation cap

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

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

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

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

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

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

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

[10] The Act requires that consideration be given to all of the criteria within s.392(2) of the Act.

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

[11] City Beach IGA provided no submissions on the effect of an order for compensation on the viability of its enterprise. Accordingly, this criterion is a neutral consideration in my decision about compensation.

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

[12] Mr Seitz worked for City Beach IGA for around 2 ½ years, between 1 December 2014 and 8 May 2017. This period of service with City Beach IGA does not require an adjustment to the compensation that would otherwise be ordered.

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

[13] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters;

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

". . . we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law."

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. ...”  13 (endnotes omitted)

[14] At least the following matters are relevant to determination of the question of the anticipated period of employment;

•  City Beach IGA was a small business with only about 10 employees and no internal human resource expertise;

•  Mr Seitz had tendered his resignation from City Beach IGA on 25 January 2017, following a verbal altercation between Mr Seitz and another employee. 14 Notwithstanding the resignation being offered, the employment relationship continued until 18 April 2017 when Mr Seitz commenced on sick leave.

•  Mr Seitz had been absent from work on sick leave, supported by medical certificates from 18 April 2017 until 5 May 2017 inclusive, because of an illness which he attributed to stress caused by Mr Cao’s behaviour. The Merits Decision noted that it was Mr Seitz’s assertion that this came about “as a consequence of stress arising from unreasonable work demands imposed on him by Mr Cao”. 15

•  The question of Mr Seitz’s work environment being stressful to him and being a factor in his absence from 17 April 2017 was raised on several occasions at least in the course of a string of text messages from that date. For example;

“Ill let u know tomorrow when ill b fit to come back to work after i go to drs. The stress of working in your shop has got to me. You blame me all the time. The state manager picked on me last week u stuck up for him. Im a good person im tired of u blaming me all the time. Ill see if my wife can drop key to shop.”

•  In the same string of text messages Mr Seitz made multiple requests for payslips and leave and superannuation details “as I want fair work to check”;

•  Even at that point the relationship between the two was clearly becoming strained. For example, after about 41 text messages from Mr Seitz to Mr Cao and 19 in return, Mr Cao texted the following on 19 April 2017;

“Well Phil if working for me does not suit then i suggest you find employment elsewhere if you decide that you want to stay then conform to my policies dont text me again regarding this matter as its pretty clear from my end.”

•  Immediately before his dismissal there were numerous further text messages between 4:27 PM on Friday, 5 May 2017 and 11:33 AM on Sunday, 7 May 2017. Mr Seitz asked Mr Cao on multiple occasions to stop texting him, without immediate success. 16

•  When Mr Cao directed Mr Seitz to attend the workplace at 11:00 AM on 5 May 2017 for a meeting, Mr Seitz chose not to attend because he had formed the view that he was not comfortable attending the meeting and asked Mr Cao to raise anything he wished to discuss in an email. 17 That request led to Mr Cao’s purported acceptance by text of Mr Seitz’s resignation. Mr Seitz denied in subsequent text messages that he had resigned and stated that he regarded himself as having been dismissed.

[15] The foregoing factors lead to the conclusion that the overall employment relationship was not, in late April and early May 2017 an especially healthy one. While it was not open for Mr Cao to form the view that Mr Seitz had resigned, for the reasons articulated both within the Merits Decision and the Appeal Decision, with his subsequent actions amounting to an unfair dismissal, the relationship by early May 2017 was plainly strained to the point that the parties had reached an impasse. The two would either have to sort out their differences, and somewhat quickly, in order for there to be a productive future, or there would simply not be a future. Three months earlier Mr Seitz had said he was resigning; and three weeks prior Mr Seitz had absented himself for reasons of illness which he attributed to the conduct of Mr Cao.

[16] The fact that there had been a resignation proffered but not accepted in January 2017 gives some hope, but not much, to the possibility that the two would have been able to find a mutual accommodation for ongoing employment had they met on 8 May 2017 instead of moving into a string of text messages about assumed resignation or dismissal. On the other hand, the fact that there had been so many text messages from Mr Cao to Mr Seitz in the few days prior to 8 May 2017, some with an increasingly strained tone counts against the proposition that a mutual accommodation for ongoing employment could be reached.

[17] On balance, it is difficult to see how in the context of the overall relationship between the two that employment would have continued for more than four weeks from 8 May 2017. Mr Seitz may have reacted to the lack of positive engagement with the matters raised in his text messages by resigning. Mr Cao may have believed that Mr Seitz was insufficiently prepared to engage with his concerns and that such justified dismissal in accordance with the Small Business Fair Dismissal Code. Despite these likelihoods and the prognosis flowing from them, with the provision of calm advice to either protagonist, it could be anticipated that the anticipated period of employment would in fact be at least four weeks.

[18] As a result, I set the anticipated period of employment at four weeks.

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

[19] In the submissions filed on behalf of Mr Seitz for the Remedy Proceedings it was put forward that some efforts had been made by Mr Seitz in obtaining employment after he was dismissed on 8 May 2017. The submissions suggest that he made contact with six butcher shops or supermarkets for prospective employment and a carer’s position through Identity WA, but without success. The submissions also attach payslips received by Mr Seitz from his new employer with whom he commenced on or around about 18 July 2017.

[20] While City Beach IGA does not contest that Mr Seitz was employed on or after 18 July 2017 it puts forward that the Commission is unable to rely upon the information provided on behalf of Mr Seitz in respect of the period between 8 May and on or around about 18 July 2017 for the purposes of assessing his mitigation efforts. City Beach IGA put forward that the material is unsworn and that it is not be to be relied upon since Mr Seitz was not personally in attendance at the Remedy Proceedings and the material provided on his behalf was not in the form of a statutory declaration or affidavit.

[21] The matter of efforts taken by Mr Seitz to obtain alternative employment after he left City Beach IGA is dealt with in the material provided to the Merits Proceedings, which proceeded by way of a determinative conference with both Mr Seitz and Mr Cao being sworn and affirmed at the commencement of proceedings. Relevantly the following evidence was given on the subject of mitigation efforts;

“THE DEPUTY PRESIDENT: Mr Seitz, what efforts have you made to gain alternative employment?

MR SEITZ: I'm currently working 32 hours a week for the last three months with Princi Food Services over in Fremantle.

THE DEPUTY PRESIDENT: And is that role of an equivalent rate of pay?

MR SEITZ: No, it's less than. I'm only getting paid casual because I wasn't able to get a full time position.

THE DEPUTY PRESIDENT: So how much income have you earned since your dismissal, since your separation?

MR SEITZ: I was out of work for 10 weeks looking for work and then I've been working for Princi now for 11 weeks.

THE DEPUTY PRESIDENT: I thought I read somewhere that you'd been out of work four weeks? So on what date did you commence employment with Princi?

MR SEITZ: On the 18th of the 7th.

THE DEPUTY PRESIDENT: And do you have pay slips for your employment there?

MR SEITZ: Yes.” 18

[22] The foregoing would suggest that prior to obtaining employment in July 2017 Mr Seitz had been out of work but was looking for work, with his reply to the Deputy President in the active voice. That evidence being presented in the active voice is consistent with the unsworn material provided by Mr Seitz to the Remedy Proceedings.

[23] Despite City Beach IGA’s objection that the material provided by Mr Seitz in the Remedy Proceedings was unsworn and untested, his oral evidence on the subject during the Merits hearing which was sworn evidence does not appear to be inconsistent with this later information. It is also to be noted that while the legislation requires the Commission, when assessing the question of compensation to take into account the mitigation efforts of an Applicant, the obligation does not extend to some principle that the absence of such evidence on the subject would mean that compensation is reduced substantially or to zero.

[24] The overall context of the matter, including the material provided by Mr Seitz to the Remedy Proceedings, supports a finding that he made appropriate efforts to mitigate his loss as a result of having been dismissed by City Beach IGA.

(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

[25] Since leaving City Beach IGA’s employment in May 2017 Mr Seitz has been employed elsewhere, starting on or around about 18 July 2017. The payslips provided to the Commission indicate that his earnings with his new employer are somewhat lower than with City Beach IGA. Mr Seitz puts forward that whereas his earnings with his former employer were $2,600 per fortnight, he is now earning a considerably lower amount with his weekly payslips showing gross earnings ranging between $553.33 and $1,125.23. The payslips provided by Mr Seitz record earnings between the start of employment with his new employer and 10 December 2017 of $18,795.62. It is unclear what earnings there have been after the later date.

[26] In considering the amount of the remuneration earned by Mr Seitz after his dismissal, it is noted that in determining an amount of compensation the Commission does not make a deduction for monies earned after the end of the anticipated period of employment since the calculation of compensation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment. 19

(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

[27] There is no direct evidence before me in this regard. In any event, and for the same reason referred to above, a deduction in relation to such earnings would be unnecessary since the referent period, being the time between the making of this order and the actual compensation being provided, is well beyond the anticipated period of employment.

[28] Accordingly, I find the compensation I propose does not need to be adjusted to take account of income Mr Seitz might receive between the making of the order for compensation and the actual compensation.

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

[29] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

[30] Section 392(3) of the Act requires that if the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the FWC must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[31] Although Mr Cao put forward in the Merits Proceeding that there had been misconduct on the part of Mr Seitz in respect of various allegations of theft, the Appeal Decision found that Mr Cao did not actually believe those allegations. 20 No further material has been provided to me on the subject in the Remedy Proceedings. As a result I am not satisfied in all circumstances that that there was any misconduct on the part of Mr Seitz and accordingly I do not discount the amount of compensation for that factor.

CONCLUSION AND ORDERS

[32] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

[33] I find that reinstatement is not an appropriate remedy in this case and I find that compensation is appropriate.

[34] The approach by the Fair Work Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5). 21

[35] Since all of the anticipated period of employment has passed I do not consider it appropriate to make any adjustment for contingencies. 22

[36] The material provided by the employer in its Employer Response Form and confirmed subsequently at the Merits Proceeding shows the Applicant to have been paid an amount of $2,400 per fortnight and that he was entitled to a further payment in the form of the bonus of $200 per fortnight; that is, a total payment of $1,300 per week. 23

[37] Mr Seitz’s employment also entitled him to a payment of superannuation in addition to these amounts. There is no direct evidence before the Commission either as to the percentage due to the Applicant for superannuation or as to whether the bonus was included in the calculation of the superannuation benefit. At least in this regard, given that City Beach IGA is an employer in the retail industry and Mr Seitz’s position as a butcher falls within classifications provided for in the General Retail Industry Award 2010 24(the Retail Award)the Commission notes the provisions of the Retail Award which requires an employer to make superannuation contributions of at least the Superannuation Guarantee Charge, which is presently an obligation to make a superannuation contribution of not less than 9.5% of an employee’s ordinary time earnings. In the circumstances I consider it appropriate to require an amount of 9.5% to be paid on b
[38] oth the fortnightly payments and the bonus payment, since both appear to relate to ordinary time earnings and the bonus does not appear to be contingent upon any particular performance or event.

[39] My calculation of the amount payable to Mr Seitz is set out in the following table;

1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,	4 weeks projected lost income at the rate of $1,300 per week	$5,200
9.5% Employer superannuation contribution on above	+ $494
Deduction for misconduct	$0
2. Deduct monies earned since termination,	$0
3. Deductions for contingencies,	$0
TOTAL	$5,694
4. Calculate any impact of taxation,	To be taxed according to law
5. Apply the legislative cap.”	Does not exceed the compensation cap.

[40] The total amount of $5,694 does not exceed the compensation cap applying at the time of dismissal.

[41] In accordance with this decision, $5,200, less taxation, is to be paid directly to Mr Seitz, and $494 is to be paid to his superannuation account. The order will require the payments to be made within 14 days of the date of this decision.

COMMISSIONER

Appearances:

Ms T. Seitz support person for the Applicant

Mr D. Vilensky for the Respondent

Hearing details:

2018.

Melbourne:

5 April.

Printed by authority of the Commonwealth Government Printer

<PR601843>

 1   [2018] FWCFB 1341 (Appeal Decision).

 2   Exhibit A3, Applicant’s Submissions on Remedy

 3   [2017] FWC 6926 (Merits Decision).

 4   Ibid,

 5   Appeal Decision, Ibid, [33].

 6   Ibid, [18].

 7   Ibid.

 8   Ibid, [21]

 9   Ibid, [23]

 10   Ibid, [24].

 11   Ibid, [15], with reference to Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [10].

 12   Ibid, [18].

 13   Ellawala v Australian Postal Corporation (unreported, AIRCFB, 2000) Print S5109, [33] – [34].

 14   Merits Decision, [2017] FWC 6926, [29] – [34].

 15   Ibid, [35].

 16   Appeal Decision [2018] FWCFB 1341, [5].

 17   Ibid, [2].

 18   Merits Proceedings Transcript, PN 350- 359.

 19   Ellawala v Australian Postal Corporation (unreported, AIRCFB, 2000) Print S5109, [35].

 20   [2018] FWCFB 1341, [20].

 21   See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32; Ellawala v Australian Postal Corporation (unreported, AIRCFB, 2000) Print S5109, [33]; confirmed in Haigh v Bradken Resources Pty Ltd [2014] FWCFB 236, [10] – 12].

 22 Ibid, at [54].

 23   Transcript, Merits Proceeding, PN 388

 24   MA000004.