Rebecca Hyde v Collings Airlines Staff Pty Ltd

[2020] FWC 153

[2020] FWC 153

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Hyde
v
Collings Airlines Staff Pty Ltd
(U2019/9405)

COMMISSIONER WILSON MELBOURNE, 3 MARCH 2020

Application for an unfair dismissal remedy.

[1] Ms Rebecca Hyde has made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Collings Airlines Staff Pty Ltd and referred to in this decision as the Respondent. The application was lodged with the Fair Work Commission (the Commission) on 22 August 2019.

[2] For the purposes of context the Respondent is part of a group of entities, business names or trusts operating Skytrans, a Far North Queensland airline servicing numerous regional communities from Townsville and Cairns. Ms Hyde’s application for unfair dismissal remedy claims her dismissal was unfair since her employment ended because she was required to relocate from Melbourne to Cairns or resign her position. Ms Hyde alleges she had an ongoing arrangement with the Respondent which allowed her to work in Cairns and FNQ communities for two weeks and to work from home for two weeks each month. 1

[3] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in subsection 394(2); whether the person was protected from unfair dismissal; whether the dismissal was consistent with the Small Business Fair Dismissal Code; and whether the dismissal was a case of genuine redundancy. Whereas those matters are not the subject of objection by the Respondent, it is argued that at the time employment ended, on 22 August 2019, Ms Hyde was not employed by the Respondent and was not dismissed by it.

[4] Relevant to those last-mentioned matters, the Respondent has put forward three objections requiring consideration before the merits of Ms Hyde’s application are determined. First, it is contended that Ms Hyde was not dismissed, and that as a result her application is unable to proceed. The Respondent then contends that since the grant of permission for representation by a paid agent was sought by Ms Hyde after her application was made and material had been filed on her behalf that such documents may not be relied upon by the Commission. The consequence of such situation, if accepted by the Commission, is to mean both that there is no application validly before the Commission and no documentary evidence filed on her behalf. Finally, the Respondent argues that the Applicant has identified the incorrect employing entity in her application and as such there is no valid action before the Commission by her against her former employer.

[5] This decision considers and determines these objections as follows, in the indicated order:

•  In respect of permission for representation by a paid agent and its consequences; I dismiss the objection and find both that there is a valid application before me and that the documents filed on behalf of Ms Hyde are also properly before the Commission;

•  In respect of the identity of the employing entity, I find Ms Hyde’s application correctly identifies her employer as Collings Airlines Staff Pty Ltd, the Respondent;

•  I find that Ms Hyde resigned and was not dismissed within the meaning of the Act and that accordingly the Commission does not have jurisdiction to determine the merits of her application.

[6] Prior to the commencement of proceedings, I sought the views of the parties regarding the form which the proceedings should take (s.399). Both parties indicated their preference to proceed by way of hearing. After taking into account the views of the parties on the subject, and having formed the view that a hearing would be the most efficient and effective way to resolve the matter, I advised each party that the matter would proceed by way of a hearing.

PERMISSION FOR REPRESENTATION BY A PAID AGENT/CONSEQUENCES OF APPLICATION AND FILINGS BY A PAID AGENT

[7] Ms Hyde was represented in the proceedings by Mr Garry Dircks, a paid agent, having been granted permission for such appearance by me pursuant to the provisions of s.596(2)(a) of the Act. The Respondent was represented by a Director, Mr Jason Elks who objected to Ms Hyde being given permission to be represented by a paid agent, notwithstanding that I had granted permission to the Applicant on 10 January 2020. Connected with this objection, the Respondent raised its concerns regarding the Applicant’s representation in objections it had filed on 10 January 2020 before the grant of permission by me.

[8] Until that time, the following steps had been taken by Mr Dircks and his firm on behalf of the Applicant:

•  22 August 2019 – the originating application was lodged; Mr Dircks and his firm, Just Relations were identified as the Applicant’s representative and the requisite application fee was paid by Mr Dircks.

•  26 August 2019 – a telephone conciliation was held before a staff conciliator, and Mr Dirck’s attended on behalf of the Applicant; the conciliation did not resolve the matter.

•  21 October 2019 – hearing Directions and a Notice of Listing were issued by the Commission, with a copy provided by the Commission both to the Applicant and Mr Dircks, as well as to Mr Elks, acting for the Respondent.

•  11 November 2019 – the Applicant’s material was filed by Mr Dircks, with a copy provided to Mr Elks.

•  29 November 2019 – Mr Dircks filed a Form F53A (Notice that a person will seek permission for a lawyer or paid agent to participate in a conference or hearing) advising that he would seek permission to represent the Applicant in all future conferences and hearings in the matter.

•  2 December 2019 – the Respondent’s material was filed by Mr Elks, with a copy being provided to Mr Dircks. No objection was raised in the submissions to Mr Dircks acting for the Applicant.

•  8 January 2020 – a further conciliation was convened before Commissioner Bissett, at which Mr Dircks appeared as representative for the Applicant and Mr Elks for the Respondent. As the conciliation was unsuccessful the matter was remitted to me for hearing.

•  9 January 2020 – Mr Dircks contacted my Chambers and enquired whether I required written submissions on the matter of the Applicant’s representative. That enquiry led to the provisions from Mr Dircks of written submissions (also on 9 January 2020) and then a request from my Chambers seeking the Respondent’s views on the subject.

•  10 January 2020 – the Respondent advised it objected to a grant of permission in favour of Mr Dircks.

[9] On 10 January 2020, having considered the material provided by each regarding the application for permission for legal representation, I advised the parties that I would grant the application pursuant to s.596(2)(a) and that reasons for doing so would be provided in due course in the Commission’s decision on jurisdiction. Those submissions not only objected to a grant of permission in favour of Mr Dircks, but also questioned whether a “lawful” application had been made to the Commission, taking into account the provisions of s.596 and Fair Work Commission Rules r.11 – 12A, and for the same reason whether the Commission had been provided with a “lawful witness statement, attachments and outline of submissions”.

[10] Section 596 of the Act, which regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employersthat is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[11] Mr Elks refers to Rules 11, 12 and 12A, which make these provisions:

“11 Notice—acting, or ceasing to act, for a person in relation to matters before Commission

(1) Each lawyer or paid agent acting for a person in relation to a matter before the Commission must lodge a notice with the Commission informing the Commission that the lawyer or paid agent acts for the person in the matter.

Note: The notice must be in the approved form—see subrule 8(2).

(2) Each lawyer or paid agent who ceases to act for a person in relation to a matter before the Commission must lodge a notice with the Commission informing the Commission that the lawyer or paid agent has ceased acting for the person in relation to the matter.

Note: The notice must be in the approved form—see subrule 8(2).

(3) Subrules (1) and (2) do not apply

(a) a lawyer or paid agent of a person if the person is taken not to be represented by the lawyer or paid agent because of subsection 596(4) of the Act; or

(b) a lawyer who provides legal assistance to a person through the Workplace Advice Service.

12 Representation by lawyers and paid agents

(1) For the purposes of subsection 596(1) of the Act and subject to rule 11, in any matter before the Commission, a person:

(a) must not, without the permission of the Commission, be represented in the matter by a lawyer or paid agent participating in a conference or hearing relating to the matter; but

(b) may otherwise, without the permission of the Commission, be represented by a lawyer or paid agent in the matter.

Note: See subsection 596(4) of the Act for when a person is taken not to be represented by a lawyer or paid agent for the purposes of that section.

(2) Despite paragraph (1)(a), a person may, without the permission of the Commission, be represented in a matter by a lawyer or paid agent:

(a) participating in a conference or hearing in relation to the following:

(i) a matter arising under Part 2‑3 of the Act (modern awards);

(ii) a matter arising under Part 2‑5 of the Act (workplace determinations);

(iii) a matter arising under Part 2‑6 of the Act (minimum wages);

(iv) a matter arising under section 510 or 512 of the Act (entry permits); and

(b) participating in a conference conducted by a member of the staff of the Commission, whether or not under delegation, in relation to the following:

(i) an application under section 394 of the Act for an unfair dismissal remedy;

(ii) an application under section 789FC of the Act for an order under section 789FF of the Act to stop bullying.

(3) Despite anything in this rule, the Commission may, in relation to a matter before the Commission, direct that a person is not to be represented in the matter by a lawyer or paid agent except with the permission of the Commission.

(4) To avoid doubt, nothing in paragraph (2)(b) is to be taken as permitting a person to be represented in a matter by a lawyer or paid agent participating in a conference before a Commission Member in relation to an application under section 394 or 789FC of the Act without the permission of the Commission.

12A Notice—proposed representation in a conference or hearing

(1) If:

(a) a person proposes to be represented in a matter before the Commission by a lawyer or paid agent participating in a conference or hearing relating to the matter; and

(b) the participation requires permission under rule 12;

the person must lodge a notice with the Commission informing the Commission that the person will seek the Commission’s permission for a lawyer or paid agent to participate in the conference or hearing.

Note 1: The notice must be in the approved form—see subrule 8(2).

Note 2: See subsection 596(4) of the Act for when a person is taken not to be represented by a lawyer or paid agent for the purposes of that section.

(2) The Commission may permit a person to be represented by a lawyer or paid agent in a matter before the Commission even if the person fails to comply with subrule (1).”

[12] Section 596(1) of the Act requires that a person may be represented by a lawyer or paid agent in a matter before the Commission only with permission, except as provided for by s.596(3) or the Rules. Subsection 596(3) allows such representation in matters brought under Parts 2 – 3 and 2 – 6 (modern awards and minimum wages) and so is not relevant to consideration in this matter. Subsection 596(4) also classifies certain types of representative who are not caught by the obligation for permission in s.596(1); again, the subsection is not relevant to consideration. These further provisions to s.596 illustrate the point that the Act itself contemplates the making of exceptions to the general requirement that a person seeking to be represented in a matter before the Commission by a lawyer or paid agent must first seek the permission of the Commission; some provided for within s.596 and some under the Rules, made in accordance with s.609(2). 2

[13] What may be drawn from this consideration is that s.596(1) explicitly allows the Rules to provide for circumstances in which permission is not required, although, of course, it is to be noted that s.596 is concerned with more than just advocacy at a hearing, and the phrase “in a matter” refers to a wider context than merely a hearing, with it being the case that “in a legal context usually describes the whole of a justiciable controversy that is brought before a court or tribunal for adjudication”. 3 The Fair Work Commission Rules are made by the President under s.609, which allows for the procedural rules to provide for “the circumstances in which a lawyer or paid agent may make an application or submission to the FWC on behalf of a person who is entitled to make the application or submission” (s.609(2)(b)). The current r.11 – 12A were made in 2019, after Fitzgerald and Stringfellow were decided.

[14] It is evident from r.12(1) that it is drawn in such a way as to specify the circumstances in which a lawyer or paid agent may make an application or submission. The thing for which permission must be sought and obtained from the Commission in a matter is “participating in a conference or hearing relating to the matter”. The “matter” is plainly the “whole of the justiciable controversy”, whereas permission is required only for limited events “relating to the matter”. The terms “conference” and “hearing” are not defined generally by the Act or the Rules, however a distinction is drawn between the two terms in the Act in Part 3 – 2, dealing with unfair dismissal matters, with the Presiding Member being required to select between the two, but before doing so being required to consult with the parties over the determinative procedure to be adopted (ss.397 – 398). Rule 12(1)(b) explicitly countenances things being done by lawyers and paid agents associated with a “matter” and which are not a “conference” or “hearing”. Permission is not required for those activities.

[15] Mr Dircks was entitled by reason of Ms Hyde’s instructions to commence her action and respond to the Commission’s filing Directions. Her application, outline of submissions, witness statement and filed supporting documents are validly before the Commission.

[16] In her application for permission to be represented by a paid agent, Ms Hyde relied upon each of the elements of s.596 for a grant of permission to be issued. When I granted permission, on 10 January 2020, my Chambers advised the parties that the decision was that I considered only s.596(2)(a) of the Act to have been enlivened, on the basis of efficiency to the Commission, taking into account the complexity of the matter and that the reasons for doing so would be addressed in the Commission’s “merits decision” once issued.

[17] The proper interpretation of s.596, was considered by Flick J of the Federal Court in Warrell v Walton 4:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.” 5

[18] It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission. 6 The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.7

[19] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused. 8 Sheer volume of documents or the existence of extraneous issues does not equate to complexity, with the Commission routinely being required to deal with such factors.9 While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.10

[20] In granting Ms Hyde’s application for permission to be represented, I took into account that the Commission not only potentially needed to determine the merits of her application, but several jurisdictional questions as well. My consideration was that the relevant complexity flowed from the question of whether there was a dismissal, and associated matters, and that representation of the Applicant may assist to ensure that issue is swiftly dealt with. I considered that no complexity beyond the usual flowed from the evidence.

RESPONDENT’S IDENTITY

[21] It is also argued by the Respondent that Ms Hyde has commenced her application for unfair dismissal remedy against the incorrect entity. Mr Elks argued:

•  “the employing entity of the Applicant, is that of The Trustee for Collings Airlines Staff Trust being A.B.N. 45 107 379 761”;

whereas

•  in the originating application, the Form F2, “the employer has been named as Collings Airlines Staff Pty Ltd with an A.C.N. 606 020 777” 11

[22] It is further argued that this error should have been known to Ms Hyde, with both the Employment Separation Certificate and payslips issued to Ms Hyde identifying the issuing entity as the Collings Airline Staff Trust, each with the ABN indicated above. It is submitted that the import of this is that the application as made is “incorrect and void” 12 with the error, if that is what it is, being incapable of remedy through a correction issued by the Commission under s.586.13

[23] Somewhat interestingly there is a plethora of identities before the Commission, but no agreement between the parties as to which, if any, should be the Respondent in these proceedings:

•  “Collings Airlines Staff Pty Ltd” or “Collings Airlines Staff Pty Ltd ATF Collings Airlines Staff Trust ACN 606 020 777”:

•  is used on the Employment Agreement, the “Cessation of Employment Letter” and the Form F2 Unfair Dismissal Application;

•  the Employment Agreement identifies that this entity is “the Employer” of “the Employee”, Ms Hyde;

•  is indicated on letterhead as having the ABN 84 100 751 139.

•  “Collings Airlines Staff Trust Pty Ltd” or “The Trustee For Collings Airlines Staff Trust” is used on the Form F3 Response to Unfair Dismissal Application and the payslips and is indicated by those documents as having the ABN 45 107 379 761. The Form F3, the Employer Response Form was filed by an entity with the “Legal name of employer” identified as “Collings Airlines Staff Trust Pty Ltd”, but the “trading name or registered business name” is identified as “Skytrans Pty Ltd”. The contact person for both entities is Mr Elks, and the ABN for both is asserted to be 45 107 379 761.

•  “Collings Employee Trust”:

•  Is identified by the Managing Director, Mr Peter Collings as the entity he heads:

“3. I am the Managing Director of Collings Employee Trust ("the Company") since March 2015 when I acquired the company of Skytrans and formed the trust as an employee trust to provide services to the Airline Business of Skytrans Pty Ltd.

4. The Company provides services on behalf of Skytrans Pty Ltd by way of airline services in Far North Queensland. The majority of the work undertaken by the Company is Regional Passenger Transport into regional and remote regions of Queensland's Cape and Torres Strait Island communities.” 14

•  is referred to by Ms Naomi Shiels, General Manager Corporate Services, as the entity by which she is employed. 15

•  “Skytrans”:

•  is the name appearing on the Position Description, Manager Community Relations;

•  is the business from whom applications for an “internal vacancy” were called following Ms Hyde’s departure, for the position of Manager Community Relations with a closing date of 23 August 2019; 16

•  is the name appearing within email domain names and signature blocks of numerous people indicating in documents filed by the Respondent (howsoever identified) and relied upon in its/their case;

•  Mr Michael Thinee, the former Chief Executive Officer, refers to making a statement “with regard to Rebecca Hyde, Manager Community Relations, Skytrans”.

[24] All this analysis really shows is that Skytrans is a group of entities, trusts and business names with different designations being employed when convenient to the overall business, no doubt for a myriad of commercial, taxation and liability reasons. If I accept the Respondent’s submissions, at the time Ms Shiels was discussing with Ms Hyde her future employment, Ms Shiels was speaking as an employee of something called the “Collings Employee Trust” and was speaking with someone said to be employed by another, altogether different, entity, “The Trustee for Collings Airlines Staff Trust being A.B.N. 45 107 379 761” and purporting to exercise authority in respect of that latter entity with no evidence at all to the Commission about how she had that authority. If that is the case, then Ms Shiels’ evidence is abundantly incomplete and unsatisfactorily so given she is a legal practitioner.

[25] The Respondent’s case is that at some time over the last 2 years of employment since the employment agreement was signed Ms Hyde ceased to be employed by “Collings Airlines Staff Pty Ltd (ACN 606 020 777)” and became employed – without her realising it – by The Trustee for Collings Airlines Staff Trust being A.B.N. 45 107 379 761”. I doubt that such is really the case. Instead, it would appear most likely from the overall evidence that the employment agreement signed by Ms Hyde is incomplete in its written terms. Instead of the employment agreement providing openly and specifically that Ms Hyde – and no doubt most, if not all, other employees within the Skytrans group – would perform work across the group and perhaps be paid by components of its web, the agreement purports to establish what is demonstrably a fiction – the employment and all the duties to be performed and instructions to be followed would be entirely within the entity described as “Collings Airlines Staff Pty Ltd (ACN 606 020 777)”.

[26] The evidence supports Ms Hyde was employed by Collings Airlines Staff Pty Ltd (ACN 606 020 777) and there is no evidence that she ceased to be an employee of that entity before 22 August 2019. While there is evidence, certainly, that another entity paid Ms Hyde and purported to end her employment there is incomplete evidence before the Commission on the origins and import of those matters. Because of my findings below regarding whether there has been a dismissal within the meaning of the Act, it is unnecessary to finally precisely determine the overall company structure and how it operated in respect of Ms Hyde.

[27] In relation to this application, I am satisfied that Ms Hyde was an employee of Collings Airlines Staff Pty Ltd (ACN 606 020 777) at 22 August 2019 and that she was a person protected from unfair dismissal at that date. Collings Airlines Staff is referred to in this decision as the Respondent.

BACKGROUND

[28] Ms Rebecca Hyde was employed by the Respondent from on or around 12 October 2015 until mid-August 2019. When she was first employed, she was a customer services officer based in Cairns; however, by mid-2017 she was promoted to the position of Manager Community Relations. A contract relating to that position was signed by Ms Hyde dated 20 November 2017 with the terms and conditions of the agreement for the position stated as coming into force on 3 July 2017.

[29] Ms Hyde alleges she was unfairly dismissed when she was required to either relocate from Melbourne to Cairns or resign her position. She submits that until that point there was an arrangement in place which enabled her to work in Cairns and the Far North Queensland communities for two weeks each month and from her home for two weeks each month. 17

[30] In contrast, the Respondent submits that the business determined that the position held by Ms Hyde of Manager Community Relations had to be based in Cairns in order for Ms Hyde to meet the inherent requirements of the position. 18

[31] Ms Hyde performed the role of Manager Community Relations and resided in Cairns from 12 October 2015 until November 2018. On 24 September 2018, Ms Hyde stated she intended to resign from the business with four weeks’ notice, 19 however the indicated resignation did not finally take place and it was subsequently either rescinded or not accepted by the business.20 Ms Hyde’s employment with the business continued, however at or around the same time in November 2018 she relocated her living arrangements to Melbourne, but before doing so negotiated a flexible working arrangement with the former CEO of the Respondent, Mr Michael Thinee and its Managing Director, Mr Peter Collings. The terms of that arrangement are disputed by the parties.

[32] For her part, Ms Hyde’s evidence, supported by Mr Thinee, includes the following elements:

•  The arrangement came out of a conversation in September 2018 with both Mr Thinee and Mr Collings in which she connected her intention to resign with her desire to move back to Victoria for family reasons. Ms Hyde’s recollection is that:

“They said they understood why I wanted to move but they said they wanted to keep me because of my good connections with the communities. They proposed a fly in fly out arrangement on a trial basis where I could live in Melbourne and come up to work in the area.” 21

•  Mr Thinee’s recollection is broadly consistent with Ms Hyde, with his evidence including:

“It was mid 2018 when Rebecca first mentioned the possibility of her having to relocate to Melbourne for family reasons. By September 2018, Rebecca confirmed that she needed to relocate and offered her resignation.

Rebecca was very well regarded by her peers and particular the key stakeholders in the indigenous communities of Cape York and Torres Strait. I raised the matter with the company owner at the time and we both were concerned of the void her departure would be to the company and discussed offering Rebecca a six-month trial to extend her employment to a fly in/Fly out arrangement (FIFO). Her remuneration was reduced to reflect only working two weeks of approximately in community/Cairns per month rather that full time and transfers would be provided by the company.

I do not have the email trail as this was on the company email system however will be available (late September 2018). The trial would in effect convert to a permanent arrangement during March 2019 if it proved itself.

Essentially the FIFO concept was agreed with the Managing director and a budget was forwarded for his approval prior to passing this through to HR to affect the revised arrangements.” 22

•  The budget referred to in the above passage included an allowance for flights.

•  Later in 2018, Ms Hyde’s salary was changed back from a part-time arrangement and her duties changed slightly, with Mr Thinee’s evidence on the subjects including:

“After approximately 8 weeks, Rebecca spoke with me about sustainability as her living costs were exceeding her revised income and it was difficult to find a role in Melbourne that complimented her time in the commute role.

I again raised this with the Managing Director who agreed to reinstate her former salary of $72000 per annum and full duties from a Melbourne base. As far as I am aware this occurred in early January 2019, the actual date can be determined through the payroll.

To support the return to full remuneration Rebecca was tasked to take on the additional responsibility of the key account manager of the Qantas Business Travel account; this customer is based in Melbourne and accounted for a very significant proportion of the airlines Torres Strait revenue.

Occasionally the perception of the role was misconstrued by some of her peers as having only to work two weeks per month. Those familiar with the role were aware it was full time and the communities were well aware that Rebecca was readily available even after hours, weekends etc.

The communities are very small in some cases less than 100 people, the two weeks adequately catered for the “in community” visits and the balance of the role could be handled easily from Melbourne, particularly with a major account being based in the city.

In terms of staff on FIFO basis, the company had these arrangements in place for all staff based in the Torres Strait which was up to thirteen pilots, two engineers, two pilots and two ground staff along with the Manager.” 23

•  Both Ms Hyde and Mr Thinee contend that the fly in/fly out arrangement was to be the subject of a trial and that the trial was deemed successful by Mr Thinee and Mr Collings with the arrangement being seen as “working well” and thereby “over” in early 2019 after 6 months of operation. 24 Ms Hyde accepts that the successful completion of the trial was not documented to her, but took the view that in the absence of contrary information, it was over after 6 months.25 Mr Thinee’s primary position was that if it proved itself the trial would convert to a permanent arrangement during March 2019.26

[33] The Respondent accepts there was a trial, but with Mr Collings being firm in his witness statement that the arrangement “was to be trialled and it was not a permanent arrangement, as I had reservations that this may not delivered on our commitments to the North Queensland communities and executed the core requirements of the role”. 27 Mr Collings’ oral evidence in cross-examination put forward that there was no hard conclusion to the trial, but rather that the arrangement could be withdrawn at any time:

(Mr Dircks, for the Applicant) “And it was the company that came up with the idea to keep her to have her base herself in Melbourne and come up for two weeks every month. Is that correct? --- That is correct, and we were to review it on an ongoing basis to see whether it was working.

Yes. There was a six month trial discussed, wasn't there? --- No, there was definitely no six months trial; it was an ongoing review.

Are you saying it was an indefinite trial period?---Yes, look I was struggling to see how it would work, on the fly in/fly out basis, but I did value Rebecca's work in the communities, so it was worth trialling it, worth trying it.” 28

[34] Despite that evidence, Mr Collings accepted that he did not directly discuss the fly in/fly out arrangement with Ms Hyde and that he left it to Mr Thinee. 29

[35] The nature of Ms Hyde’s employment after July 2017 required her to perform tasks set out in the position description. An objective for the position is set out in the following terms as are the position’s key duties:

•  Objective/Purpose

“This position is responsible for providing tailored aviation solutions to current and prospective clients. This includes proactively identifying and developing new business opportunities, whilst maintaining and providing exemplary customer service to existing clients. In addition to this, the position will be responsible for creating and implementing marketing strategies and promotional activities.”

•  Key Duties

“•  Provide a high level of support to the Commercial Manager in all aspects of their role

•  Actively seek new business opportunities across all aspects of the business in the Cairns and surrounding areas to travel to the Cape York and Torres Strait region using the Company’s services

•  Build and maintain strong relationships with key stakeholders and current and prospective clients

•  Cultivate all sales activities within the prospective and existing customer base

•  Provide a point of contact for, and respond in a timely manner to, all clients and prospective client’s queries

•  Liaise with appropriate staff members to facilitate business opportunities

•  Plan, coordinate and communicate business development activities and events to staff and clients

•  Maintain up to date files on all clients and potential clients

•  Provide the Commercial Manager with regular feedback and reports on sales activity

•  Assist in the development of marketing strategies to promote the Company’s presence in the local communities

•  Liaison and management of corporate accounts

•  Actively develop an events calendar, ensuring that the events are planned and executed in a timely manner” 30

[36] In the hearing though Ms Hyde identified her role of Manager Community Relations as having a particular focus on building business in the Torres Strait and Cape York communities. In particular, her evidence was that she would:

“… be the first point of call to these people in remote Aboriginal communities and the councils, CEOs, mayors. I would take care of the sponsorships, I would be present a couple of days a week out in remote communities, flying the Skytrans banner, helping the disadvantaged youth and people of Aboriginal communities.” 31

[37] Ms Shiels agreed that the position was a fundamental role for the business:

“It's a critical role for the organisation. The majority of the regular passenger transport services that we provide are for the indigenous populations and the indigenous communities in the Cape York and the Torres Strait regions. Having a person out there active in the community is essential to our business because it is those relationships that are built and maintained that continue to secure the revenue streams and also the relationships for the airline. Being a small regional airline and with a limited amount of people and limited amount of businesses that use the service, it is incredibly critical that we maintain and develop those relationships and make sure that all the communities are treated exactly the same as how we would treat our normal corporate clients. It is a very unique position in regional aviation where those particular communities do have to be treated as corporate clients, so hence why having a manager community relations is a critical role within the organisation. Yes, it is incredibly critical.” 32

[38] Key to the decisions made by it about Ms Hyde’s employment, the Respondent submits that upon review of the fly in/fly out arrangement it was determined that in order to meet the inherent requirements of the role, the role was required to be Cairns based. Their evidence to support this submission is that the role required community engagement and the fostering of relationships at a grassroots level with relationships best cultivated in a face-to-face environment. Having the role based in a location other than Cairns limited this face-to-face interaction and restricts communications to telephone and email, which they submit is not as successful as being in the communities. 33

[39] By mid-2019, the businesses’ operations were beginning to change as a result of review of the company’s performance. The performance had been conducted by a new Director, Mr Jason Elks, who also acted as the Respondent’s representative in these proceedings. The Managing Director, Mr Collings provided this insight as to some of the changes:

“12. In January 2019, I engaged a Consultant to review the company's performance. This led to significant organisational changes with top down restructures and alignment of our business to ensure we could deliver on our strategy.

13. In March 2019, I along with the new Director, Jason Elks, advised the former CEO that no further recruitment activities would occur, and all positions were up for review due to the over all operating concerns of the business.

14. This resulted in the hiring of Ms Naomi Shiels on the 24 June 2019, into the role of General Manager Corporate Services. In this role she was responsible for Community Relations, among other core functions.” 34

[40] Other changes included the departure of the Chief Executive Officer, Mr Thinee in August 2019. When Ms Shiels commenced as General Manager Corporate Services in June 2019, she undertook a review of the positions reporting to her which included that held by Ms Hyde. Ms Shiels formed the view that Ms Hyde was not delivering the key duties set out within her position description and “that lack of oversight of the role was inhibiting the company’s ability to develop plans for community engagement”. 35 The key duties to which Ms Shiels refers are set out in the position description referred to above.

[41] At the time she formed the view that Ms Hyde was not delivering the key duties of her position she raised the matter with Mr Thinee in an email on 5 July 2019, along with a question about another employee, and received this response pertinent to Ms Hyde:

“Rebecca essentially deals with community related matters, 50% of the time CNS/Community balance in Victoria. We fund her travel and expenses.

Initially we negotiated permanent part time, however this did not work for her and I consulted Peter and he agreed to the current arrangement with a proviso that the effectiveness of the arrangement was subject to periodic review.

If under the revised structure etc she no longer fits; the role could be made redundant.” 36

[42] Part of Ms Shiels’ evidence is also that she formed the view that the position had and always was intended to be based in Cairns with her contending that:

“An inherent requirements of the role is for it to be Cairns based, to service the region in which we operate and deliver the key duties of the position description.” 37

[43] On 15 August 2019, Ms Naomi Shiels sent email correspondence to Ms Hyde notifying that she wished to speak with her about departmental changes and requesting she telephone her to discuss. When Ms Hyde contacted Ms Shiels she was advised of her “view that the trial was unsuccessful and as such the role was required to be Cairns based to meet the inherent requirements of the role”. She requested Ms Hyde consider that requirement, with Ms Hyde responding that she was unwilling to relocate back to Cairns as her motivation for moving to Melbourne was for family reasons. Ms Hyde was provided with time in which to consider the request for relocation to Cairns. 38

[44] On 16 August 2019, Ms Hyde contacted Ms Shiels and advised she still wished to remain in Melbourne and, according to Ms Shiels, asked that her employment be terminated. 39 Ms Hyde has the view that Ms Shiels suggested in the conversation that it would be better for her to resign, raising that in an email to Ms Shiels on 19 August 2019.40

[45] Ms Shiels denies urging Ms Hyde to resign:

(Mr Dircks) “The applicant has taken you up on the fact that RH4, your 16 August, doesn't include the fact that you urged her to resign, and you did, didn't you, you urged her to resign rather than be terminated?---No, I didn't urge her to resign. I said to Rebecca that the decision was entirely up to Rebecca whether she would choose to resign, as some people like to do in these circumstances, or she could - we could terminate her. The inherent requirement from what we had established for the position needed to be in Cairns and when Rebecca said that she would not return to Cairns, that was when I said to her, "Look, there's a couple of options we have here but it's entirely up to you."

So the options were she could resign or you could terminate her; is that correct?---There's only two options in that particular circumstance if somebody cannot return to Cairns: resign, if she wanted to, or the other option was to terminate her.”

And she rang you back on the 16th and said, "I'm not going to resign, you can terminate me." Is that correct? --- No, that's incorrect. Her exact words were, "You can terminate me."

Thank you.

THE COMMISSIONER: So are you saying that the totality of the phone call was that? --- Sorry, the second phone call?

Well, you said that - you denied what it was that Mr Dircks had put to you and you said, "No, her exact words were, 'You can terminate me.'" That is a somewhat unusual conversation. What I am asking you is whether or not that is the totality of the phone call? --- No, that was not the totality of the phone call.

All right? --- The phone call continued to talk about the fact that she didn't want to do her four weeks' notice as well, which I understood. On 15 August, we had had a discussion about what could potentially occur if she didn't decide to come back to Cairns, that we would have to have somebody else to take on her role as an interim measure because it is such a critical role, and I discussed with Rebecca, "Well, look, if that's the case, then what we'll probably do during that notice period is we would have you go out to the community with the particular person that we would be nominating or putting forward to carry on your role as an interim measure until we can get someone into the position." So the phone call on the 16th indicated that she wouldn't be serving out that notice period as well.  41

[46] Following the conversation between the two, Ms Shiels sent a letter to Ms Hyde confirming the matters which had been discussed: 42

“Dear Rebecca,

RE: Notification of Cessation of Employment

Further to our phone conversation earlier today, I write to confirm the requirement for the Manager Community Relations role to be based permanently in Cairns.

Rebecca, as you are aware, the role was previously based permanently in Cairns, however, when you advised of your relocation to Victoria, the former Chief Executive Officer agreed to trial the role on a two weeks in Cairns, two weeks in Victoria basis. This arrangement came into effect in November 2018 and was put in to place with the provision that the effectiveness of the arrangement was subject to periodic review.

As you are aware, we have been considering all the roles and responsibilities of each role within the organisation and the role of Community Relations Officer is deemed as one very central to the strategic objectives of the company. As such, it has been determined that the role needs to be permanently based in Cairns in order to meet the requirements of the company and the communities we serve.

During our conversation today I made you aware of this determination and asked that you consider relocating to Cairns in order to continue in your current role. You indicated straight away that you would not do that due to your family circumstances and not wanting to move again, a position we understand wholeheartedly. I offered you time to consider it further but you indicated that your decision. would not change.

Unfortunately, there are currently no vacancies within the Company that can be performed remotely from Victoria. As such, I write to confirm the cessation of your employment as Manager Community Relations and write to provide you with 4 weeks' notice as per your Employment Agreement. Rebecca, we would like to provide you with the option to either work your 4 week notice period or alternatively pay you in lieu of working the notice period. If you choose to work your notice period, your employment will formally cease on the 13th September 2019 and your final pay will be processed on the next pay run, 19th September 2019. If you prefer to be paid in lieu of your notice period, your final pay will be processed on the 22nd August 2019. Please can you advise me of your decision by close of business Monday 19"" August 2019.

I understand your disappointment with our decision; however, the role is unable to continue under the current arrangement.

Rebecca, we would sincerely like to thank you for your valuable contribution during your employment with us. We wish you every success with your future endeavours.

Should you require a Statement of Service for any prospective future employer or a Separation Certificate, please do not hesitate to contact me.

Yours Sincerely,

Naomi Shiels

General Manager - Corporate Services.” 43

[47] The response was provided shortly after that communication by Ms Hyde setting out the following in which she claimed that Ms Shiels had been the one to suggest it would be better for her to resign and specifically requested the payment of four weeks’ pay in lieu of notice:

“Good afternoon Naomi,

For completeness confirm the following points:

1. After we discussed my role 1510 August 2019 my email account was blocked rendering it not possible to carry out my duties.

2. Your letter forwarded the 1610 August 2019 omitted to affirm your suggestion that it would be better for me to resign so as to assist with preserving my future ability to obtain work.

3. You have not raised any issues of my conduct or performance or behaviour as an employee. I have many very happy customers that have offered to act as referees for me.

4. The commute and remuneration conditions of my current role were negotiated through the HR department endorsed by the CEO and approved by the Managing Director. The fact that they have been modified to reflect full time status f rom what was initially permanent part time suggests that the company were supportive of the arrangements.

5. As my position had gone beyond the six month trial and my terms and conditions had been reinstated to full time employment I entered into a property lease and established a permanent home.

Under the circumstances, in particular the email situation per point 1, it seems to me t hat to return to Cairns would be untenable; so please provide the four weeks in lieu offered along with any leave reserves and outstanding expense claims into my usual bank account.

All future correspondence will need to be by email to my personal address.

Thanks Rebecca.” 44

[48] Ms Shiels responded to this communication by confirming the businesses’ acceptance of Ms Hyde’s decision to be provided with a payment in lieu of working out the notice period. 45 An employment separation certificate was later forwarded to Ms Hyde dated 8 October 2019 indicating that employment had ceased on 13 September 2019 with the “reason for separation” indicated as being “required to return to her principle (sic) place of work FT & declined request Employee request to be terminated”.46

[49] Ms Hyde commenced her application for unfair dismissal remedy in the Fair Work Commission on 22 August 2019.

CONSIDERATION – DISMISSAL

[50] A person may only contend that they have been unfairly dismissed if the Commission is satisfied that they have been dismissed (s.385), with the Act defining the term “dismissed” in this way, so far as is relevant in s.386(1);

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.” [(2) and (3) omitted]

[51] The definition within s.386 provides two relevant limbs for consideration. Firstly, whether Ms Hyde’s employment has been terminated on the employer’s initiative and secondly whether, if she resigned, it was because she was forced to do so because of conduct, or a course of conduct engaged in by her employer.

[52] In terms of whether Ms Hyde’s employment was terminated on the employer’s initiative, there is insufficient evidence before me that would allow such a finding to be made. The relevant conversations between Ms Hyde and Ms Shiels on 15 and 16 August 2019 reveal only that Ms Shiels had formed the view that the working arrangement then in place of Ms Hyde splitting her time between Victoria and Cairns was not working for the Respondent and that the business wanted to revert to an arrangement in which Ms Hyde worked entirely from Cairns.

[53] I do not accept the contention advanced by Ms Hyde that Ms Shiels suggested it would be better for her to resign. That contention would not be consistent with the context of the wider conversation, which is not especially disagreed between the two – Ms Shiels disclosed her view that the position had to be Cairns based, with that being an inherent requirement of the job; Ms Hyde disagreed; they agreed to end the call and Ms Hyde would consider her position. When she called back the next day, Ms Hyde asked for her employment to be terminated. I accept the evidence given by Ms Shiels that when she mentioned resignation, it was in the context of an alternative that some people like to do in these circumstances. Such does not translate into conduct or a course of conduct by an employer to procure an end to employment.

[54] I take into account as well the argument put forward by the Respondent both to Ms Hyde and to the Commission that the requirement to perform the job only in Cairns was an “inherent requirement” for the job. That may have been the Respondent’s belief, but such has not been established as a sound or accurate feature of Ms Hyde’s employment. The Respondent’s belief that a Cairns location was an “inherent requirement” of her job was plainly a driver in its decision making, but an inaccurate one. It was put that way by Ms Shiels to Ms Hyde in their conversations, ultimately with Ms Shiels saying to Ms Hyde that arising from that belief, there were a couple of options, including resign or be terminated. 47 Ms Hyde believed the arrangement was working well and that its continuation had been sanctioned by the CEO and Managing Director. She was aware of other employees of the airline who lived in locations other than Cairns. Despite that, she was well aware that the view had been formed that the job should be done from Cairns.

[55] The starting point for a consideration of whether a Cairns location was an inherent requirement is to consider whether Ms Hyde was, at the time her employment ended, able to perform those things that were essential to her position. The Full Bench has held that such analysis pertains to the substantive position of the employee rather than modified or restricted duties or those of a temporary alternative position. 48 Determination of the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position.49 The expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question”. Such assessment involves asking whether the position would be essentially the same if that requirement were dispensed with.50

[56] In Boag and Son v Button, the Full Bench elaborated on the necessary analysis in the following way, first making reference to the High Court’s judgment in Qantas Airways Ltd v Christie;” 51

“[28] McHugh J endorsed the proposition that “whether a requirement was an inherent requirement of a particular employment was a matter which should be determined according to the dictates of common sense and as a matter of objective fact rather than as a matter of mere speculation or impression.”

[29] It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.

[30] In the present case, it is clear that both Mr Button’s position and his job had important features that he could not perform because of his lifting restriction. Mr Button had an incapacity to perform the all of the inherent requirements of his job and, on balance, this constituted a valid reason for his dismissal.” 52 (references omitted)

[57] In this case, Ms Hyde’s contentions are that she was capable of performing her assigned duties working in accordance with her fly in/fly out arrangement. Beyond her assertions, she has not put much forward that would support the subject. For its part the Respondent’s evidence that this was not working for it is equally thin. It has not offered cogent evidence, beyond its assertions that the need to work from Cairns was actually an essential feature or defining characteristic of the position in question, formed and identified at the time the employment contract was formed. Rather than a Cairns location being an inherent requirement of Ms Hyde’s job, it is more likely that the Respondent formed the view that its performance metrics for her job, or the group generally, were not going to be met with her splitting her time between cities. That may be a legitimate business need, but it is not an inherent requirement.

[58] The contention put forward by Ms Shiels and others associated with the Respondent that there was an inherent requirement of the job for Ms Hyde to work entirely Cairns based is ultimately a distraction in the context of the decision which needs to be made by me. I doubt, on the evidence before me at least that it could be said that there in fact was inherent requirement of the job to be entirely Cairns based, however that contention does not need to be resolved because there was always the capacity to say what was said to Ms Hyde, namely that the Respondent wanted her to change her arrangements and cease the fly in/fly out arrangement and that such was justified because of the prevailing business circumstances in which the airline found itself. Such indication was an entirely proper one to be put to Ms Hyde, whether or not it was founded on the view that the inherent requirement of her role required that such to be the case or whether it was simply a business determination that was in the airlines interest for her to work entirely from Cairns.

[59] In any event, immediately following the indication from Ms Shiels that she wanted to have the discussion with Ms Hyde about where she based herself Ms Hyde made it very clear that she was not about to change her working arrangements. After Ms Hyde had the opportunity to consider her position, she called Ms Shiels back, the day after the first conversation, and asked for her employment to be terminated. Ms Shiels agreed and confirmed the conversation in writing. That confirmation was responded to by Ms Hyde later the same day. Even though she pointedly draws Ms Shiels attention to it being her suggestion that it might be better for Ms Hyde to resign, in the same correspondence Ms Hyde ultimately maintains her position which is unambiguously to resign with it being her view that:

“Under the circumstances, in particular the email situation per point 1, it seems to me that to return to Cairns would be untenable; so please provide the four weeks in lieu offered along with any leave reserves and outstanding expense claims into my usual bank account.” 53

[60] Such indication on the part of Ms Hyde is not consistent with what would be expected to be the view of a person who was being terminated at the initiative of the employer.

[61] The reference in the above passage to “the email situation” is that Ms Hyde’s Skytrans email account access had been ended on around 15 August 2019. Ms Shiels explained this as a commercial decision made by Mr Collings “to block her email after he had received a text message from Mike Thinee where there was a potential threat about going direct”. 54 The text message is consistent, in a manner, with other evidence before the Commission of there being a broader relationship between Ms Hyde, Mr Thinee and Mr Collings than may normally be the case in employment matters. While what Ms Shiels communicated to Ms Hyde on 15 and 16 August 2019 could have been the product of that relationship, the things communicated were in any event then played through the relationship, externally to the things said between Ms Hyde and Ms Shiels. Mr Thinee sent Mr Collings an undated text message about Ms Hyde’s situation, with the context of the message indicating it was sent before the end of Ms Hyde’s employment. The message suggested a payment be made to Ms Hyde to mutually agree to end her employment and avoid a problem:

“Pete text as follows out of concern for the business, Bec called earlier to say Naomi sacked her.

Her arrangements with FIFO were a challenge for the business however as you know she is well connected. She is angry and capable of a level of retribution (going to the councils, REX etc) I advised her to not act on emotion and talked her through feasibility of the role long term FIFO etc. I think it would be wise to buy 3-6 months and pay her to keep confidential and out of the market as she won't leave gracefully.

I have not mentioned this to her just thought about what I would do in the circumstances as can see both sides. Timing could have been more strategic as well.

FYI only mate cheers” 55

[62] I accept that the matters indicated in the text reveal a possibility of action against the business and that it was prudent for Mr Collings to instruct Ms Hyde’s email access to end. Prior to the text message it was already reasonably clear from what had been communicated to Ms Shiels by Ms Hyde that a parting of ways was likely and that agreement would not be reached for Ms Hyde to work entirely from Cairns. I do not see the ending of email access as conduct designed to procure a resignation, and the elements in s.386(2)(b) are not enlivened by this action. The resignation, freely given, was not engineered by the business and is therefore not a dismissal.

[63] Ms Shiels then put in place a process to conclude the arrangement between the business and Ms Hyde. Her final communication subject was on 20 August 2019. Two days later, on 22 August 2019 Ms Hyde commenced an unfair dismissal application against her former employer. The application argues that Ms Hyde was required to resign that “[t]he respondent required the applicant to relocate from Melbourne to Cairns or resign”. There is no evidence before the Commission that at any point prior to the commencement of the unfair dismissal action that Ms Hyde had taken any steps to contest the fact of the resignation or that it was anything other than freely given. Even if I accept the contention in Ms Hyde’s 19 August 2019 correspondence that Ms Shiels had suggested it was better for her to resign, I do not accept that as being conduct, or part of a course of conduct by the employer to force Ms Hyde to resign.

[64] I am not satisfied, on the basis of all of the evidence before the Commission, that Ms Hyde has been dismissed within the meaning of s.386. As a result of this finding I must now dismiss Ms Hyde’s application and an order to that effect is published at the same time as this decision.

COMMISSIONER

Appearances:

Mr Garry Dircks Representative for the Applicant.

Mr Jason Elks on behalf of the Respondent.

Hearing details:

2019.

Melbourne (video conferencing to Cairns);

13 January.

Final written submissions:

Wednesday 5 February (Applicant’s Closing Submissions)

Wednesday 19 February 2020 (Respondent’s Closing Submissions)

Monday 24 February 2020 (Applicant’s Reply Submissions).

Printed by authority of the Commonwealth Government Printer

<PR715859>

 1   Form F2, Unfair Dismissal Application, 22 August 2019.

 2   Stringfellow v Commonwealth Scientific and Industrial Research Organisation[2018] FWC 1136, [35].

 3   Fitzgerald v Woolworths Limited[2017] FWCFB 2797, [34] – [37].

 4 [2013] FCA 291.

 5   Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

 6   Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869 [5].

 7   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 [19].

 8   King v Patrick Projects Pty Ltd[2015] FWCFB 2679 [15].

 9 Ibid [17].

 10   Singh v Metro Trains Melbourne[2015] FWCFB 3502 [16].

 11   Respondent’s Final Submissions, 19 February 2020, [42].

 12   Ibid, [45].

 13   Ibid, [47] – [53]; with reference to and distinguishing the facts from Keyes v Gnadbro Pastoral[2019] FWC 3675 or Leung

v Rejoice Chinese Christian Communication Centre [2019] FWC 3402 (and on appeal at [2019] FWCFB 8514).

 14   Exhibit R3, Witness Statement of Peter Collings.

 15   Exhibit R4, Witness Statement of Naomi Shiels, [2].

 16   Exhibit A1, Witness Statement of Rebecca Hyde, Attachment RH 7.

 17   Form F2, Unfair Dismissal Application, 22 August 2019.

 18   Form F3, Employer’s Response to Unfair Dismissal Application, 2 September 2019.

 19   Exhibit R5, Respondent’s Document Bundle, Attachment C, Transcript, PN 156 – 157.

 20   Exhibit R5, Attachment D; Transcript, PN 642; 720.

 21 Exhibit A1, [8] – [9].

 22   Exhibit A2, Witness Statement of Michael Thinee.

 23   Ibid.

 24   Exhibit A1, [17].

 25   Transcript, PN 400 – 407; 495 – 497.

 26   Exhibit A2.

 27   Exhibit R3, [10].

 28   Transcript, PN 1063 – 1065.

 29   Transcript, PN 1078.

 30   Exhibit R5, Attachment B.

 31   Transcript, PN 335.

 32   Transcript, PN 1176.

 33   Form F3, Employer’s Response to Unfair Dismissal Application, item 3.1, pp.6 – 7.

 34   Exhibit R3.

 35   Exhibit R4, [9].

 36   Exhibit R5, Attachment I.

 37   Exhibit R4, [11].

 38   Ibid, [12].

 39   Ibid.

 40   Exhibit A1, Attachment RH 4.

 41   Transcript, PN 1265 – 1272.

 42   Exhibit A1, Attachment RH 4.

 43   Exhibit A1, Attachment RH 5.

 44   Ibid, Attachment RH 5.

 45   Ibid, Attachment RH 6.

 46   Ibid, Attachment RH 8.

 47   Transcript, PN 1265 – 1266.

 48   J Boag and Son Brewing Pty Ltd v Button[2010] FWAFB 4022, at [21]–[26]; with reference to X v Commonwealth (1999) 200 CLR 177, at [102].

 49   Hail Creek Coal Pty Ltd v CFMEU (2004) 143 IR 354, at [124]; with reference to Qantas Airways Ltd v Christie (1998) 193 CLR 280, p.295, per Gaudron J.

 50   Qantas Airways Ltd v Christie (1998) 193 CLR 280, [33] – [34], per Gaudron J.

 51 [1998] HCA 18, 193 CLR 280.

 52   [2010] FWAFB 4022, at [28] – [30].

 53   Exhibit A1, Attachment RH 5.

 54   Transcript, PN 1262.

 55   Exhibit R5, Attachment J.