Qin Kang (Peter) She v Safeguard Home Improvements Pty Ltd
[2017] FWC 1113
•20 APRIL 2017
| [2017] FWC 1113 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Qin Kang (Peter) She
v
Safeguard Home Improvements Pty Ltd
(U2016/12119)
COMMISSIONER JOHNS | SYDNEY, 20 APRIL 2017 |
Application for relief from unfair dismissal – harsh, unjust and unreasonable – dismissal found to be fair – application dismissed.
[1] On 11 October 2016 Qin Kang (Peter) She (Applicant/Mr She) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by Safeguard Home Improvements Pty Ltd (Employer/Respondent).
[2] On 18 October 2016 the Employer filed a response to the unfair dismissal application.
[3] Conciliation was attempted, but the matter remained unresolved. Consequently the matter was listed for a determinative conference across two days, being 23 January 2017 and 20 February 2017.
Conference or Hearing
[4] On 22 November 2016 the Commission sought submissions from the parties about whether the Commission should conduct either a conference (section 398) or a hearing (section 399) in relation to the matter.
[5] Taking account:
a) any differences in the circumstances; and
b) the wishes;
of the parties to the matter, and considering whether a hearing would be the most effective and efficient way to resolve to the matter, I decided to conduct a determinative conference.
[6] At the determinative conference Mr She appeared on his own behalf. Mr Bruce Turner, Managing Director appeared for the Respondent. Ms Kerry Shen, Accountant, and Mr Todd Poynter, Production Manager, all gave evidence for the Respondent.
[7] In addition to the evidence received and submissions made at the determinative conference the parties had, prior to the hearing, filed the following material which the Commission, as presently constituted, has had regard to the:
● Affidavit of Mr She (Exhibit A1);
● Supplementary Witness Statement of Mr She (Exhibit A2);
● Respondent’s Submissions (Exhibit R1);
● Witness statement of Ms Kerry Shen (Exhibit R8);
● Witness Statement of Todd Poynter (Exhibit R9); and
● Supplementary Witness Statement of Todd Poynter (Exhibit R10).
Facts leading up to and relating to the dismissal
[8] The following matters are either agreed or otherwise not substantially contested:
a) on 3 April 2006 the Applicant commenced employment with the Respondent; 1
b) the Applicant was employed on a permanent basis as a factory hand making doors; 2
c) the Applicant was covered by the Manufacturing and Associated Occupations Industry Award 2010; 3
d) the Applicant held three positions during his period of employment with the Respondent; 4
e) the Applicant was approached by production managers multiple times between January 2016 and his dismissal regarding his poor performance; 5
f) on 22 July 2016 the Applicant received the first warning letter raising issue with his productivity (First Warning Letter);
g) on 12 September 2016 the Applicant received a final warning letter which stated his performance had not improved since 22 July 2016 (Final Warning Letter);
h) the Applicant’s employment was terminated on 16 September 2016; 6 and
i) the Applicant was paid five weeks pay in lieu of notice. 7
[9] The Applicant submitted that he was unfairly dismissed and seeks an Order that he be reinstated, or alternatively, that he be compensated for a period of six months.
Protection from Unfair Dismissal
[10] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
[11] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal. In the present matter the Respondent concedes that the Applicant was employed for a period longer than the minimum employment period, and that his annual rate of earnings was less than the higher income threshold. In short, the Respondent concedes that the Applicant was protected from unfair dismissal. 8
[12] There being no dispute about the matter, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.
[13] I will now consider if the dismissal of Mr She by the Respondent was unfair within the meaning of the FW Act.
Was the dismissal unfair?
[14] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Was the Applicant dismissed?
[15] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. Section 386 of the FW Act provides a definition of the meaning of “dismissed”.
[16] In the present matter the Respondent concedes that it terminated the employment of the Applicant. 9 Consequently, the Commission, as presently constituted, finds that the Applicant was terminated at the initiative of the Employer within the meaning of s.386 of FW Act.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[17] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (Code). In the present matter the Respondent conceded it was not a small business. It does not seek to rely upon the Code. 10
Was the dismissal a genuine redundancy?
[18] The Respondent does not submit that I should dismiss the application because the dismissal was a case of genuine redundancy. 11 Consequently, s.389 of the FW Act is not relevant for present purposes.
Harsh, unjust or unreasonable
[19] Having been satisfied of each of ss.385(a),(c), and(d) of the FW Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[20] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[1995] HCA 24; (1995) 185 CLR 410 at 465 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.
[21] I am under a duty to consider each of these criteria in reaching my conclusion. 12
Applicant’s Case
[22] The Applicant submitted the dismissal was harsh, unjust or unreasonable because:
a) the Respondent’s reason for terminating his employment was that the Applicant was underperforming, and that he was not reaching the required target of production. The required target was a “wage recovery system” which meant that he had to produce enough doors on a daily basis, to at the very least, recover the Respondent’s cost of paying his wages for the day. The Applicant says he was not informed of this; 13
b) the figures provided by the Respondent in the “subcontractor factory rates” (Excel sheet specifying the amount which is awarded as cost recovered for each item produced by an employee) were incorrect, and also, that different employees were awarded different amounts for the same items. He alleged that the rates provided are based from 10 years ago; 14
c) the Employer failed to properly consider his medical condition. The Applicant submitted that at the time he was dismissed he was suffering from “tennis/golfer’s elbow”. Mr She said, despite informing the Respondent of his condition, they failed to consider this when making the decision to terminate his employment; 15
d) the Respondent failed to provide him with proper notice regarding their concerns with his performance. The Applicant submitted that the Respondent should have raised their concerns with him at an earlier time; and 16
e) the Respondent had provided false evidence, figures and facts. (However on each occasion the Applicant could not substantiate any of his claims. In most cases, each of the Applicant’s accusations against the Respondent were followed by a statement that he had no evidence to prove what he was claiming; 17 he required video recordings to back up his claims;18 or hearsay evidence.19)
Respondent’s Case
[23] The Respondent submitted the dismissal was not harsh, unjust or unreasonable because:
a) from the beginning of 2016 the Applicant’s performance was under review because figures, which were produced by Mr Poynter, reflected that the Applicant had constantly failed to meet the required production standard. The production standard was that each employee must produce enough items to recover their daily wage. The Respondent submitted that the Applicant was made aware of this; and
b) the Respondent conducted weekly verbal counselling sessions with the Applicant regarding his performance; it issued two formal warning letters to the Applicant advising him that his performance must improve otherwise his employment would be terminated.
[24] In deciding whether or not the dismissal was unfair I am required to consider the following:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid reason - s.387(a)
[25] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 20 The reasons should be “sound, defensible and well founded”21 and should not be “capricious, fanciful, spiteful or prejudiced.”22
[26] The letter of termination provided to the Applicant stated that the reason for termination was that:
“We consider that your performance is still unsatisfactory and have decided to terminate your employment for the following reasons:
● Failure to follow lawful and reasonable direction
● Underperformance”
[27] Mr She submitted that the reason provided by the Respondent (underperformance) for dismissing him was not valid because the Respondent failed to properly inform him of the units in which his performance was being measured. Further, Mr She submitted that the targets expected of him were not properly communicated to him at any point before his dismissal. He noted that both warning letters and the termination letter failed to specify the quantifiable improvement the Respondent expected in his production.
[28] At the determinative conference Mr She’s oral evidence was that:
a) the last position he held before his dismissal was in the metal doors section. He held this position for 2 years; 23
b) on 24 June 2016 he was diagnosed with “tennis/golfer’s elbow”. He complained to Mr Poynter about the pain he was suffering in July; 24
c) he requested a transfer to another department. He was then told by management that a transfer would be arranged, however no further action was taken; 25
d) on 12 September 2016 a meeting was conducted between management and the Applicant regarding the Respondent’s concerns with the Applicant’s productivity. The Applicant submitted that at this meeting he was told that his numbers were not satisfactory, however he was not told what the target numbers were, and there was no discussion regarding his request to be transferred to another department; 26
e) the Final Warning stated that his performance had not improved since July, and that if his performance did not improve by 16 September 2016 his employment would be terminated. However, it did not specify how he failed to meet the targets expected of him; 27
f) he was aware that the Respondent was not satisfied with his production levels. He conceded that on several occasions he was approached by Mr Poynter with a copy of his weekly worksheets to explain to him that he had not met his targets. 28 However, the Applicant submitted that he was not properly informed of what was expected from him;
g) at no stage was he informed that he must, at the very least, produce enough product to recover his wages; 29
h) he attended three work health and safety sessions on 3 May 2016, 14 June 2016 and 8 August 2016. 30 The Applicant submitted that the sessions were conducted only in English and he did not understand the content of these sessions due to language barriers.31The Applicant accepted that at the end of each session he signed a declaration confirming he had read the training module, understood his responsibilities and had no concerns with what was discussed;32
i) on or about 24 June 2016 he provided a copy of the medical certificate to his Team Leader – Peter Fawcett; 33
j) at around the same time management discussed their concerns with his production levels in July, he told them he had pain in his elbows and was told by Kerry Shen “don’t make a fuss”; 34
k) he “felt” that management would always expect more from him regardless of the numbers he was producing; 35 and
l) on or around mid-August 2016 he told Mr Poynter that he was unable to do the work expected of him and he wrote on a daily workload sheet that he is “not fit to do this work”. Mr She gave evidence that he told Mr Poynter this three times, however Mr Poynter did not take notice of his complaints, and that is why he decided to write it on the weekly worksheet. 36
[29] The Respondent submitted that the reason for the Applicant’s dismissal was valid, fair and reasonable. The Respondent submitted that the Applicant was regularly informed in both formal and informal meetings about his declining performance and that if his performance did not improve his employment would be terminated. Further, the Respondent said that in a number of informal and formal meetings the Applicant was advised of the required production targets (recovery of wages) but, despite this, the Applicant’s performance continued to decline.
[30] With respect to the Applicant’s contention that he raised his health issues with the production manager, the Respondent submitted that throughout each counselling meeting held to discuss his performance, the Applicant never brought it to the Respondent’s attention that he was suffering from any kind of injury. The Applicant conceded that he did not, at any of the meetings, bring it to the Respondent’s attention. 37
Mr Poynter’s Evidence
[31] In his statement, Mr Poynter submitted the timeline below which reflected dates of the formal counselling meetings conducted with the Applicant regarding his performance:
DATE | TYPE | COMMENTS |
01/01/2016 – 01/07/2016 | Verbal counselling | Weekly informal catch-ups with Peter to discuss his need to improve performance to meet the minimum expectations of wage recovery. |
15/02/2016 | Formal warning | Warning issued in relation to inappropriate language in the workplace. |
14/07/2016 | Verbal counselling | Counselling held to communicate performance expectations and address inappropriate language in the workplace. |
22/07/2016 | Formal warning | Warning issued as a result of continued poor performance. |
29/07/2016 | Verbal counselling | Counselling held to communicate performance expectations |
04/08/2016 | Verbal counselling | Counselling held to communicate performance expectations |
11/08/2016 | Verbal counselling | Counselling held to communicate performance expectations |
23/08/2016 | Discussion/Verbal counselling | Meeting held to discuss ‘Not Fit for this role’ comments that were placed on Peter’s daily factory sheets. Peter wanted to go back to old role. |
06/09/2016 | Discussion/ Verbal counselling | Counselling held to communicate performance expectations. Peter was offered alternate role. Peter refused as it wasn’t the role he wanted. |
12/09/2016 | Final warning | Warning issued for not meeting performance expectations. |
16/09/2016 | Termination | Peter terminated for not meeting performance expectations. |
[32] Mr Poynter’s evidence was that weekly wage recovery summaries (Summaries) 38 were provided to the Applicant at the end of each week. The Summaries reflected his performance trend by outlining the value of the products he produced and whether or not he had recovered his wages. He stated that Mr She was regularly provided with the Summaries from mid-May until his termination.
Mr Poynter stated that the Applicant must have been aware of the wage recovery system because the Applicant would comment that extra value should be placed on the items which he produced because of their complexity. Mr Poynter said the only reason the Applicant would make this request was because he was aware he had to cover his wages. 39 Further, in response to Mr She’s allegation that the value allocated to each item produced was incorrect, Mr Poynter explained that the values allocated to each item produced took into account the complexity of making an item and all employees were allocated the same values for all items.40
Mr Poynter’s evidence was that when attempting to discuss the Summaries with the Applicant, the Applicant was hostile towards him and on occasion told him that he was “stupid” and to “fuck off”. Mr She disputed those facts, however accepted that on one occasion when Mr Poynter approached him about the Summaries he said “this is bullshit”. 41 Mr Poynter says that the Applicant did use the word “bullshit”, however this was at a later date. Mr Poynter maintained that the Applicant used the words “stupid” and “fuck off” at another point in time.42 I accept Mr Poynter’s evidence on this matter.
Further Mr Poynter stated that the Applicant must have understood that he was required to produce enough items each day to recover his own wages because the Summaries provided to the Applicant for the week ending 24 August 2016 were translated to Chinese to help the Applicant understand the content of the Summaries. Mr She conceded he understood the purpose of the Summary on this occasion. 43
Mr Poynter accepted that his interpretation of the Applicant’s hand written note “not fit to do this work” was wrong. He says he held the belief that it was simply the Applicant advising him that he did not want to work. 44
Ms Shen’s Evidence
[33] Ms Shen’s oral evidence confirmed that from 22 July 2016 (First Warning Letter) she was involved in meetings conducted by Mr Poynter with the Applicant. The meetings were held to discuss the Applicant’s poor performance, and at the meetings she translated what was said, and the Applicant was provided with the Summaries which reflected the decline in his performance. 45
Consideration
[34] Further to the evidence outlined above, I have had regard to the following:
a) the Applicant accepted he was provided with English classes and had a basic understanding of the English language; 46
b) when the Applicant saw a doctor in June regarding his elbow, he did not ask for a medical certificate, nor did he produce one at the time to his Employer; 47
c) the Applicant accepts he was provided with the Summaries in July and August; 48
d) the Applicant did not keep the Summaries provided to him by Mr Poynter because he believed what they were requesting was unreasonable; 49
e) the Applicant was not interested in discussing the Summaries with the Respondent and claimed “this is bullshit”; 50and
f) Mr She’s statements were at times contradictory, 51 or simply could not be corroborated by any form of evidence.
[35] As a question of fact the Commission, as presently constituted, finds that the conduct complained of (poor performance) occurred, and the Applicant was well aware of the Respondent’s requirement that he cover the cost of his wage in his daily production. Further, the Applicant’s hostile reaction to Mr Poynter attempting to explain the Summaries to him is unacceptable. These actions founded a valid reason for termination.
[36] The Commission, as presently constituted, finds that the Applicant’s poor performance provided the Respondent with a valid reason for the termination of the Applicant’s employment and the decision was sound, defensible and well-founded.
Notification of the valid reason - s.387(b)
[37] The Applicant accepted that he was notified of the reason for his dismissal on 16 September 2016. 52
[38] Consequently, this consideration weighs in favour of finding that the termination of the Applicant’s employment was not harsh unjust or unreasonable.
Opportunity to respond - s.387(c)
[39] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and not be burdened with formality. 53
[40] The Applicant submitted that he was not given an opportunity to respond to the reasons for his dismissal.
[41] On 16 September 2016 Mr She attended a meeting with Mr Poynter, Ms Shen and Ms Ushakov (Human Resources) (Final Meeting). It was Mr Poynter’s evidence that at the Final Meeting the Applicant was informed that there had been no improvement in his performance since the Final Warning. Mr Poynter said that at the Final Meeting the Applicant was reminded that on previous occasions it was agreed that if his performance did not improve his employment would be terminated. Mr Poynter informed the Applicant that because of the lack of improvement in his performance the Applicant’s employment was terminated. The Applicant was offered the assistance of a support person. However, nothing in Mr Poynter’s statement suggested that the Applicant was afforded an opportunity to respond. By the time of the Final Meeting the decision to dismiss the Applicant had been made.
[42] It was Ms Shen’s evidence that she attended the Final Meeting in the capacity of an interpreter. Ms Shen’s evidence was that the Applicant was informed that his performance had not improved and as a result his employment was terminated. Nothing in Ms Shen’s evidence suggested that the Applicant was afforded an opportunity to respond.
[43] The termination letter handed to the Applicant at the Final Meeting stated that the dismissal was effective immediately. On that basis it is clear that the Applicant was not provided with an opportunity to respond.
[44] I find that the Applicant was not provided with a proper opportunity to respond to the reasons for termination provided at the Final Meeting. Consequently, this consideration weighs in favour of finding that the termination of the Applicant’s employment was harsh unjust or unreasonable.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[45] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. In the present matter the Applicant accepts that the Respondent at no time stopped him from having a support person present and that he chose not to have a support person present at any time. 54
[46] Further, I note that the Respondent made Ms Shen available to assist the Applicant to understand what was said during performance meetings. I have treated s.387(d) as a neutral consideration in this matter.
Warnings regarding unsatisfactory performance - s.387(e)
[47] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 55
[48] I am satisfied that the Applicant was warned by the Respondent of his unsatisfactory performance from at least January 2016 up until his dismissal in September. The Applicant on many occasions accepted he was informed of this issue.
[49] The Commission, as presently constituted, finds that the Respondent did warn the Applicant about his unsatisfactory performance before the dismissal. This consideration weighs in favour of finding that the termination of the Applicant’s employment was not harsh unjust or unreasonable.
Impact of the size of the Respondent on procedures followed - s.387(f)
[50] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
[51] The Commission, as presently constituted, finds the size of the Employer’s enterprise did not impact on the procedures followed in effecting the dismissal. This was also accepted by the Respondent. 56
This is a neutral consideration in determining whether the termination of the Applicant’s employment was harsh unjust or unreasonable.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[52] The absence of dedicated human resource management or expertise in an employer’s enterprise may have impacted on the procedures followed by the employer in effecting the dismissal. In the present matter the Respondent did have a human resources team made up of three people. Further the Respondent accepted, considering it had a dedicated human resources team, there was no adverse impact upon its ability to deal with the Applicant’s dismissal. 57
This is a neutral consideration in determining whether the termination of the Applicant’s employment was harsh unjust or unreasonable.
Other relevant matters - s.387(h)
[53] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. The Applicant was asked whether there were any other relevant matters the Commission should consider in determining his application. He answered no. However, during the hearing the Applicant made much of his injury and because of the medical evidence provided I accept there was an injury. However, other than a note left on a weekly worksheet, there is no evidence that Mr She brought this to the attention of the Employer and no evidence about how the injury impacted upon his work performance.
[54] This is a neutral consideration in determining whether the termination of the Applicant’s employment was harsh unjust or unreasonable.
Conclusion
[55] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied the dismissal of the Applicant not harsh, unjust or unreasonable.
[56] Accordingly, the Commission, as presently constituted, finds that the Applicant’s dismissal was fair and orders that the Applicant’s application be dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr Q.K (Peter) She appeared for himself
Mr B Turner appeared for the Respondent
Hearing details:
Sydney,
2017
January 23, February 20
1 Transcript PN110
2 Transcript PN117
3 Transcript PN193
4 Transcript PN299
5 Transcript PN311
6 Transcript PN121 - 125
7 Transcript PN172 - 173
8 Transcript PN180
9 Transcript PN194
10 Transcript PN196
11 Transcript PN199
12 Sayer v Melsteel[2011] FWAFB 7498.
13 Transcript PN321
14 Transcript PN613
15 Transcript PN252 & Transcript PN272
16 Transcript PN1062
17 Transcript PN881
18 Transcript PN555, PN667, PN672, PN1011
19 Transcript PN1043
20 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
21 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
22 Id.
23 Transcript PN392
24 Transcript PN272
25 Transcript PN1091
26 Applicant’s Submissions dated 12 December 2016 at Paragraph 6 (c)
27 Ibid
28 Transcript PN315
29 Transcript PN877
30 Transcript PN330
31 Transcript PN331
32 Transcript PN359-361
33 Transcript PN253
34 Transcript PN274
35 Applicant’s Submissions dated 12 December 2016 at Paragraph 6 (a)
36 Transcript PN266
37 Transcript PN327
38 Exhibit R6
39 Transcript PN942, PN998
40 Transcript PN947
41 Transcript PN702
42 Transcript PN1001
43 Transcript PN611
44 Transcript PN967
45 Transcript PN869-873
46 Transcript PN340-341
47 Transcipt PN536
48 Transcript PN579, PN611
49 Transcript PN651, PN665
50 Transcript PN702-706
51 Transcript PN766-774
52 Transcript PN210
53 RMIT v Asher (2010) 194 IR 1, 14-15.
54 Transcript PN220
55 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
56 Transcript PN230
57 Ibid.
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