Robert Ewen v EnergyAustralia Yallourn Pty Ltd

[2021] FWC 697

[2021] FWC 697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Ewen
v
EnergyAustralia Yallourn Pty Ltd
(U2020/8705)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 FEBRUARY 2021

Application for an unfair dismissal remedy – valid reason for dismissal but failure to provide a reasonable opportunity to respond and s.387(h) considerations rendered dismissal unfair – compensation awarded.

[1] Mr Robert Ewen has applied to the Commission under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, having been dismissed from his employment with EnergyAustralia Yallourn Pty Ltd (EnergyAustralia) on 12 June 2020. Mr Ewen seeks reinstatement and, in the alternative, compensation.

[2] The hearing of this matter was initially listed for 23 September 2020, however due to illness of a proposed EnergyAustralia witness, Mr Paul Koopmans, the hearing was adjourned to 29 October 2020. Ultimately, evidence for Mr Ewen came from himself and Mr Geoffrey Dyke, the CFMMEU District Secretary for the Victorian Branch of the CFMMEU’s Mining & Energy Division. For EnergyAustralia, evidence was given by Ms Bethany Howard (People Lead), Mr Justin Felsbourg (Operations Team Leader) and Dr Majid Rahgozar. EnergyAustralia also sought to have an affidavit from Mr Koopmans admitted into evidence but having considered the submissions of the parties, I have determined not to admit it because his evidence was not be able to be tested and it appeared to me that both Ms Howard and Mr Felsbourg were in a position to address the matters in the proposed testimony that are relevant to the issues I am required to determine.

[3] The hearing on 29 October 2020 was conducted via Microsoft Teams. Mr Alister Kentish appeared on behalf of Mr Ewen. EnergyAustralia sought and was granted permission to be represented by Mr Andrew Pollock of Counsel. I heard closing submissions from the parties on 18 November 2020.

Factual Background

[4] Mr Ewen commenced working at the Yallourn Power Station with the State Electricity Commission of Victoria on 11 April 1978. At the time of his dismissal, he was employed by EnergyAustralia as an Assistant Unit Controller 2 and was covered by the EnergyAustralia Yallourn Enterprise Agreement 2020 (the Yallourn Enterprise Agreement). Mr Ewen’s service is recognised by EnergyAustralia as dating back to 11 April 1978.

[5] As a result of ill health unrelated to his work, Mr Ewen was unable to perform his role as an Assistant Unit Controller from 4 December 2018. Initially, he took paid personal leave due to a torn ligament in the shoulder, relying upon medical certificates and a statutory declaration to evidence his reason for absence. From 4 to 24 March 2019, he was absent on annual leave, which had been pre-booked and was unrelated to his personal leave.

[6] Following his annual leave, Mr Ewen sought medical assistance due to feeling ill and was again absent on personal leave. It was during this time that he became aware of a cardiac problem and provided EnergyAustralia with medical certificates in support of his absence. Mr Ewen suffered from vasodepressor syncope with concurrent hypertension. Vasodepressor syncope is a condition involving temporary loss of consciousness, which Mr Ewen experienced in the form of sudden loss of blood pressure during periods of physical activity, resulting in him collapsing or fainting.

[7] Mr Ewen was on paid personal leave from the period commencing 25 March 2019 until he exhausted his entitlements on or around 22 December 2019. From 23 December 2019, Mr Ewen appears to have used “public holiday credits” to cover his absence. He explained these as being credits EnergyAustralia provides to shift employees who, because of their roster, are not scheduled to work on a public holiday. The credits result in the shift workers still obtaining the benefit of a public holiday by receiving a credit of eight hours that can be used to later take a paid shift off. From 3 February 2020 to 16 April 2020, Mr Ewen says he then used paid annual leave to cover his absence and from 17 April 2020 to 3 May 2020, he used his newly credited paid personal leave, lodging medical certificates as required. In his final period of employment from 4 May 2020 to the day he was dismissed on 12 June 2020, Mr Ewen says he was again using his public holiday credits.

[8] Ms Howard gave evidence that in early-September 2019, she was asked by Mr Koopmans to obtain further information about Mr Ewen’s capacity and his prospects of returning to work. In order to ascertain further information about Mr Ewen’s prospects for returning to work from his treating doctors, EnergyAustralia sent Dr Jerome Klein, Mr Ewen’s general practitioner, a questionnaire to consider as part of the assessment he was to conduct on or about 19 November 2019.Dr Klein prepared a report and amongst other things, his assessment was:

•  “Due to the risk of syncopal events and previous syncopal events during work it is not recommended to perform work duties under the current outlined capacity.”

•  “Any physical work (i.e. operating valves/plant) are not recommended as this may trigger syncopal events.”

•  “Avoidance of hot work environments.” 1

[9] Further, Dr Klein’s assessment was that to provide an estimated timeframe for Mr Ewen’s capacity to return to his role “was difficult at this stage” and dependent on his response to treatment. He recommended a change of role and duties for Mr Ewen. 2 EnergyAustralia did not go back to Dr Klein with follow up questions. It, however, determined that further information would be required to provide some certainty and guidance about Mr Ewen’s prospects for a successful return to work. Mr Ewen was therefore then assessed by his treating cardiologist, Dr Jithin Sajeev, on or about 7 January 2020. Relevantly, Dr Sajeev stated in his subsequent report:

•  That the Assistant Unit Controller role “may not be appropriate” for Mr Ewen due to his risk of syncopal episodes;

•  That his medical condition “can be triggered/exacerbated by prolonged standing, hot environments, sustained squatting posture”;

•  “job modification that will reduce triggers and avoids high risk situations such as climbing should be avoided”; and

•  “It is possible with escalating therapy he may obtain sufficient control however the likelihood is 50% as an approximate. Escalation of therapy will occur over 6 months.” 3

[10] On 5 February 2020, Mr Ewen emailed Ms Howard to advise her that he wished to apply for Income Maintenance Insurance, an employment entitlement referred to in the Yallourn Enterprise Agreement that is subject to the operation of the Income Maintenance Insurance policy. Mr Ewen appears to have completed an Application form on 10 February 2020. Ms Howard emailed Mr Ewen on 20 February 2020, stating:

“I confirm I’ve received your application for Income Maintenance under EnergyAustralia’s Income Maintenance Policy (Policy). Given the conflicting nature of the medical reports we have received to date from your treating practitioners, I will need you attend an Independent Medical Examination (consistent with clause 4 of the Policy) before I am able to determine if you are eligible to Income Maintenance under the Yallourn EBA.”

[11] Therefore, Mr Ewen attended the Independent Medical Examination (IME) with Dr Majid Rahgozar, Consultant Occupational Physician, on 24 April 2020. The IME was arranged through EnergyAustralia’s external provider, Injurynet, and the report prepared by Dr Rahgozar was provided to Mr Todd Laing (EnergyAustralia’s Injury Management Specialist) on or around 27 April 2020. 4

[12] In preparing the IME report and coming to his conclusions, Dr Rahgozar gave evidence that he had regard to the referral and accompanying documentation, the clinical interview and his examination of Mr Ewen. Dr Rahgozar also said that while he had discussions with treating general practitioner of Mr Ewen, Dr Samantha Freeman, 5 he did not speak to Mr Ewen’s treating cardiologist because he formed the view that Mr Ewen had already had an appropriate cardiology assessment.6

[13] Dr Rahgozar said that from a clinical point of view, Mr Ewen’s symptoms came under pre-syncopal episodes, blackouts or sudden loss of consciousness and on that basis, he concluded that Mr Ewen could also benefit from undergoing further investigations with a neurologist. 7 He indicated at the hearing that for the assessment of a longer-term prognosis, a neurologist’s report and a MRI or EEG would have been helpful.8

[14] Dr Rahgozar summarised his observations from his assessment of Mr Ewen on 24 April 2020 as follows:

“(a) he is not fit to perform the Assistant Unit Controller role due to the safety sensitive nature of the work and his risk of falls;

(b) Mr Ewen is not fit to perform duties that involve working at heights, near moving machinery or frequent climbing up and down stairs and ladders;

(c) Mr Ewen only has capacity for office and administration duties where there is no safety sensitive nature; and

(d) the likelihood of Mr Ewen being able to return to normal work in the next three to six months it not high.” 9

[15] Ms Howard thought that Dr Rahgozar’s IME report was unclear in relation to both Mr Ewen’s likelihood of returning to normal work during the ensuing 3-6 months and whether he had the capacity to perform his duties in the unit control room. She said she also thought the statements appeared contradictory compared with the reports from Mr Ewen’s treating practitioners. It also appears Ms Howard considered that clarification for paragraph 9 of the Income Maintenance Policy was required. This paragraph relevantly states:

“9. Cessation of Benefit

An employee will cease “Income Maintenance” as soon as the following occurs:…

•  Medical information/documentation supports the view that there is little prospect of the employee returning to his/her substantive role or any other suitable role if available;…” 10

[16] Accordingly, Dr Rahgozar received an email from Ms Tina Kanesoulis, Program Administrator at Injurynet on 6 May 2020 requesting clarification of his responses to the following two questions of EnergyAustralia:

(a) his opinion on an expected timeframe for Mr Ewen to be considered fit for a return to his role as an Assistant Unit Controller; and

(b) his opinion on any applicable restrictions or job modifications that would assist Mr Ewen in a return to work. 11

[17] In response, Dr Rahgozar stated as follows:

“The likelihood of Mr Ewen being able to return to normal duties in the next 3-6 months is almost 0%. This is due to the fact that he requires further assessment and implementation of a management plan and review again to assess the outcome of such management plan before any decision could be made re his fitness for work.

Considering complexities of his presentation, such management plan is very hard to be completed in less than 3-6 months, and given current COVID 19 restrictions, less than 6-12 months.

Theoretically and subject a firm diagnosis, implementation of an effective management plan and significant improvement of his condition, the likelihood of Mr Ewen being able to return to full Inherent requirements of his role in 12 months is no more than 50%.” 12

[18] Further, in relation to whether any applicable restrictions could assist Mr Ewen, Dr Rahgozar stated:

“Given the safety sensitive nature of the role, in particular, operations control activities, observing and reacting to change on the visual display units and the like to ensure safety and efficiency of the power plant operations, he is not fit for this role.” 13

[19] In coming to the conclusion as to the timeframe for Mr Ewen’s return to normal duties, Dr Rahgozar said he had taken into account the practicalities of Mr Ewen obtaining further assessment during a time when there were cancellations of elective and non-urgent procedures, closure of medical clinics and suspension or reduction of face-to-face examinations because Melbourne was experiencing Stage 3 COVID-19 restrictions. Dr Rahgozar gave further evidence at the hearing, as follows:

“I see. And, doctor, those delays are why – you clarified the words 'not high' in your report, to be almost zero per cent for the chances of Mr Ewen returning within three to six months; is that right?

That's right, partly due to the lack of high chance of obtaining those investigations. But more importantly, to make a diagnosis, and then implement a treatment, you need to have at least two to three months before assessing the effectiveness of treatment and stabilisation of the condition.” 14

[20] Ms Howard said she had a series of discussions with Mr Koopmans, Mr Laing and Mr Evan Henley, Employee & Industrial Relations Lead, following receipt of the IME report and they considered alternative roles that may be available for Mr Ewen within his restrictions. She said it was determined that based on the medical evidence provided about his condition and the risks of performing safety sensitive work, Mr Ewen did not have capacity for other operator roles at Yallourn. Furthermore, it was determined that any basic operational work that involved any physical work or duties, such as walking around the plant, was outside his restrictions.

[21] Ms Howard said consideration was also given to whether there were any administrative roles Mr Ewen could perform at Yallourn, based on Dr Rahgozar’s assessment that he only had capacity for office and administration duties. It was determined, however, that there were none available. Furthermore, Ms Howard said that even if such a role was available, there would still be risks to Mr Ewen’s safety working onsite at Yallourn in any capacity because it is a high risk site and all employees, including those in administrative roles, are required to be physically fit enough to get around the site safely and meet the site evacuation procedures.

[22] Ms Howard said she met with Mr Koopmans and Ms Bawden on 4 May 2020 to discuss the next steps in relation to Mr Ewen’s employment. She said they discussed the findings of the IME report of Dr Rahgozar, the medical reports from Dr Klein and Dr Sajeev and whether there were any suitable alternative roles for Mr Ewen, regarding which she says none were identified. The outcome of this discussion was that a preliminary view was formed that the appropriate course of action was to terminate Mr Ewen’s employment due to his inability to fulfil the inherent requirements of his role. 15 Ms Howard conceded that although the decision to seek further clarification was made before the meeting on 4 May 2020, this preliminary view was formed without the benefit of Dr Rahgozar’s clarification of his IME report, which was provided on 6 May 2020.16

[23] Ms Howard said she commenced the process of obtaining approval for Mr Koopmans’ recommendation to terminate Mr Ewen’s employment following that meeting, by obtaining approval from EnergyAustralia’s Delegations of Authorities: Ms Jodie Haydon, Head of People and Culture, Ms Elizabeth Westcott, Executive-Energy and Mr Mark Pearson, Head of Yallourn. 17

[24] On 9 June 2020, Mr Ewen received a letter from Mr Koopmans stating as follows:

“Dear Rob

FORMAL REQUEST TO ATTEND A MEETING

I am writing in response your application on 10 February 2020 for Income Maintenance in accordance with clause 22.5 of the EnergyAustralia Yallourn Enterprise Agreement 2017 (now replaced by clause 23.5 of the EnergyAustralia Yallourn Enterprise Agreement 2020). We have now received the medical reports from the Independent Medical Examination (IME) which you attended on 24 April 2020, and I regret to inform you that EnergyAustralia Yallourn is declining your application. this is due to you being unable to meet the eligibility requirements of the EnergyAustralia Income Maintenance Policy, specifically s.9 ‘Cessation of Benefit’:

“Medical information/documentation supports the view that there is little prospect of the employee returning to his/her substantive role or any other suitable role if available;”

The IME has indicated that that it is highly unlikely that you will be able to return to your substantive role as Assistant Unit Controller within the next 6-12 months. We have also been unable to identify any other suitable role for you which you would be able to safely perform at EnergyAustralia.

Consequently, it is with great regret that we must inform you that EnergyAustralia Yallourn is now seriously considering terminating your employment on the basis that you cannot perform the inherent requirements of your role as Assistant Unit Controller, and will not be able to do so for the foreseeable future.

Before a final decision is made on whether to terminate your employment, we invite you attend a meeting where you will be given a final opportunity to provide any further information to support your ongoing employment that would like EnergyAustralia to consider.

Date: 12 June 2020
Time: 12pm midday
Location: Strzelecki Room, Yallourn Training Centre

Given your current health, we are happy to meet at either Yallourn or an alternative location that may better suit you. if the location above is not suitable please can you provide an alternative by close of business on 11 June 2020.

You are welcome and encouraged to bring a support person to the meeting. Please can you ensure you provide me with the details of the support person prior to the meeting no later than close of business on 11 June 2020.”

[25] Mr Ewen was not provided with either a copy of the IME report or the clarification addendum until he saw his general practitioner on the morning of 11 June 2020. 18 He attended the meeting on 12 June 2020 with Mr Dyke as his support person. Mr Koopmans and Ms Howard attended for EnergyAustralia. Ms Howard said that Mr Koopmans led the meeting and told Mr Ewen that EnergyAustralia had considered all the medical evidence and his prospects for returning to work and was considering terminating his employment.

[26] Mr Dyke said it was put to Mr Koopmans and Ms Howard that clause 17.2(f) of the Yallourn Enterprise Agreement gave Mr Ewen an entitlement to access his annual leave and long service leave in the circumstances where he was ill and his personal leave had been exhausted; or alternatively, he could access Income Maintenance Insurance and so to deny him of these entitlements would constitute a breach of the Agreement. 19 Ms Howard gave evidence that Mr Ewen had an accrued long service leave balance of 177.44 hours and an accrued annual leave balance of 517 hours. Mr Dyke’s further recollection is that Ms Howard responded that Mr Ewen was unable to perform the inherent requirements of his role as an AUC, to which he said he stated words to the effect “your statement applies to every employee who is off work for medical reasons. The reason for being able to access annual and long service leave after personal leave is exhausted; or alternatively, Income Maintenance Insurance is to provide time for the employee to recover from their illness and return to their normal duties.”20

[27] Mr Dyke also said he argued that the IME report concluded that Mr Ewen had about a 50% probability of returning to his normal role within 12 months in circumstances where the Income Maintenance Policy provided for up to two years recovery time. As to the alternative proposal to termination that appears to have been put, which would have involved Mr Ewen continuing his employment until all his leave accruals were exhausted, Mr Ewen gave evidence that once that occurred, he had suggested a medical report could be sought 21 whereas Mr Dyke’s evidence was that the proposition he had put was when his leave was exhausted, Mr Ewen would agree to enter into a deed to retire from his employment and this would enable EnergyAustralia to fill Mr Ewen’s role immediately and avoid a possible breach of the Yallourn Enterprise Agreement.22 Mr Dyke’s account of the proposal for the continuing employment of Mr Ewen until his leave accruals were exhausted is confirmed in the letter dated 12 June 2020 in which Mr Ewen was notified that his employment was terminated.

[28] Mr Koopmans and Ms Howard adjourned to a separate room to discuss Mr Ewen’s proposal regarding the taking of leave and Mr Ewen says that on their return he was advised the proposal was declined by EnergyAustralia, and he was notified of his termination with immediate effect, with five weeks’ pay in lieu of notice. Mr Ewen was provided a letter dated 12 June 2020 confirming his termination. Mr Ewen said he remarked in response that the outcome was harsh given he was still under a medical certificate and had 43 years of service and Mr Dyke advised that the CFMMEU would be seeking a legal remedy on Mr Ewen’s behalf.

[29] At the hearing on 29 October 2020, Mr Ewen said that in line with Dr Rahgozar’s recommendations, he had undergone an EEG sometime during August 2020 following a first visit to the neurologist during July 2020. 23 He also said he had a follow up appointment with the neurologist in the following week after the hearing (November 2020).24 Mr Ewen gave evidence as to his condition as at the date of the hearing, as follows:

“You would agree that you're still not - your current condition is still not such that you're fit to perform your AUC role?---It's debatable now.  I've been slowly getting better and better over - well, since I've been on medication, and we've changed the dosage of medication and things like that, so it's improving slowly.

You've put no medical evidence before the Commission to the effect that you are now fit to perform the inherent requirements of your role, have you?---No, I haven't.” 25

and

“And, of course, you didn't say in that meeting that Energy - the conclusion that Energy Australia drew from medical evidence, i.e. that it was highly unlikely that you'd be able to return to your substantive role, you didn't say that that conclusion was wrong, did you, at the time?---It's very hard to predict ahead of today as to what's going to happen, so it was an unknown.  It's an unknown timeframe.  I'm still on medication and I don't know.

Given that, given that it was an unknown and, as you say, you're still on medication, you still don't know, at that time you didn't have a basis to say that the medical - that the conclusion drawn from that medical evidence was wrong, did you?---I had - I had issues.  That's why I was concerned and a bit shocked as to the document presented by Tina Konsoulas - I think that was her name - which was contradictory to my doctors and specialists' opinions.

Now, I just want to ask you just a couple of questions just to - nearly done - just about how - or what's happened since your dismissal.  You've not made attempts to seek alternative employment, have you?  You haven't looked for work?---No, I haven't.  I'm struggling enough, no.

That's because you're not currently fit for work, are you?---No, I'm not.  Slowly getting better, but no, I'm not.” 26

Initial matters to be considered

[30] There is no dispute between the parties, and I am satisfied, in relation to the four matters referred to in ss.396(a)-(d) of the Act, as follows.

[31] Firstly, Mr Ewen’s application was made within the 21-day period required by s.394(2) of the Act (s.396(a) of the Act).

[32] Secondly, there is no dispute that Mr Ewen is a person protected from unfair dismissal as defined by s.382 of the Act in that he is an employee who has completed a period of employment of at least the minimum employment period, and the sum of his annual rate of earnings and such other amounts is less than the high income threshold (s.396(b) of the Act).

[33] Thirdly, as to whether this matter involves a dismissal that was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), it was not in dispute and I find that EnergyAustralia is not a small business employer within the meaning of s.23 of the Act, having had 15 or more employees at the relevant time. As such, I am satisfied that the Small Business Fair Dismissal Code does not apply.

[34] Fourthly, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy and I find this to be the case (s.396(d)) of the Act).

Section 385 – Was Mr Ewen’s dismissal unfair?

[35] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act 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.”

[36] As I am satisfied as to the requirement in s.385(a) and there are no issues in dispute regarding ss.385(c) and 385(d) requiring determination, I need only determine whether Mr Ewen’s dismissal was harsh, unjust or unreasonable (s.385(b)) and the criteria I must take into account for this purpose are set out in s.387 of the 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.”

Was there a valid reason for dismissal relating to Mr Ewen’s capacity or conduct? (s.387(a))

[37] In considering whether the dismissal of Mr Ewen was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees).

[38] A valid reason need not be the reason given to Mr Ewen at the time of the dismissal. 27 The reason or reasons should be “sound, defensible and well founded”28 and should not be “capricious, fanciful, spiteful or prejudiced”.29

[39] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 30 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).

[40] In the letter terminating his employment dated 12 June 2020 31 EnergyAustralia stated the reason it was terminating Mr Ewen’s employment was because the physical effects of his medical condition meant that he was unable to safely perform the inherent requirements of the AUC role at that time or in the foreseeable future and nor was he able to safely attend the operational or administrative areas of the Yallourn Power Station and Mine. In that latter respect, it was stated that EnergyAustralia had been unable to identify any other suitable role for Mr Ewen which he could safely perform at EnergyAustralia Yallourn, or more broadly in the EnergyAustralia business.

[41] The reason for the dismissal relied upon by EnergyAustralia was a capacity based one, namely that Mr Ewen was unable to perform the inherent requirements of his safety critical role then or in the foreseeable future, and that there were no reasonable adjustments which could be made to allow him to perform the AUC role. Section 387(a) therefore requires me to consider and make findings as to whether, at the time of the dismissal, Mr Ewen suffered from the alleged incapacity based on the relevant medical and other evidence before me and, if so, whether there were any reasonable adjustments which could be made to his role to accommodate him. 32 Further, as was noted by the Full Bench in Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes:

“In accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button, a reason for dismissal based upon an injured employee’s incapacity to perform the inherent requirements of his or her position or role must be assessed against the requirements of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.” 33 (reference omitted)

[42] The following medical evidence was before me:

(a) In November 2019, Dr Klein recommended against Mr Ewen performing his contracted duties or any physical work and that he avoid hot work environments. Further, Dr Klein could not provide an estimate timeframe for Mr Ewen’s return to his role, stating it was dependent on his response to treatment and he recommended a change of role and duties;

(b) In January 2020, Dr Sajeev stated that the AUC role may not be appropriate for Mr Ewen due to his risk of syncopal episodes, noting that his medical condition could be triggered and/or exacerbated by prolonged standing, hot environments and a sustained squatting posture. Further, Dr Sajeev recommended job modifications that would reduce triggers and avoid high risk situations such as climbing. As for a prognosis, Dr Sajeev stated that it was “possible” with escalating therapy Mr Ewen might obtain sufficient control, but the approximate likelihood was only 50%;

(c) By the end of April 2020, Dr Rahgozar reported that Mr Ewen was not fit to perform the AUC role due to the safety sensitive nature of the work and his risk of falls, was not fit to perform duties that involved working at heights, near moving machinery or frequent climbing up and down stairs and ladders, only had capacity for office and administration duties where there were no safety sensitive issues and that the likelihood of Mr Ewen being able to return to normal work during the next 3-6 months was “not high;”

(d) When asked for some further information, Dr Rahgozar stated in May 2020:

•  The likelihood of Mr Ewen being able to return to normal duties in the next 3-6 months was almost zero due to the fact he required further assessment and implementation of a management plan and then further review to assess the outcome of such management plan before any decision could be made regarding his fitness for work.

•  The complexities of his presentation meant that it would be very hard to complete such a management plan in less than 3-6 months and given the prevailing COVID 19 restrictions at the time, more likely 6-12 months. In this regard, Dr Rahgozar stated the timeframe was estimated based on the “lack of high chance” of obtaining those investigations in a timely manner and then there would be a requirement to wait a further least 2-3 months before assessing the effectiveness of any necessary treatment and stabilisation of the condition before further diagnosis could be undertaken.

•  In theory and subject to a firm diagnosis, implementation of an effective management plan and significant improvement of his condition, the likelihood of Mr Ewen being able to return to full inherent requirements of the AUC role in 12 months was no more than 50%.

•  Mr Ewen was not fit for the AUC role given its safety sensitive nature.

[43] While Mr Ewen had an EEG and saw a neurologist for an initial consultation between the date of his termination and the hearing, no updated medical evidence as to his condition was submitted by him.

[44] Having regard to the consistent medical opinion in the evidence before me and the evidence from Mr Felsbourg regarding the nature of the AUC role, which I prefer over that given by Mr Dyke, I find that that Mr Ewen’s condition was such that he could not perform the inherent requirements of the AUC as at the date of his termination. Nor were there any reasonable adjustments which could be made to his AUC role to accommodate him. I also note that none of the doctors who assessed Mr Ewen were able to proffer a firm prognosis as to a realistic timeframe within which a return to work would be possible. In particular, Dr Rahgozar’s opinion in relation to a return to work was expressed as being theoretical and subject to a firm diagnosis, implementation of an effective management plan and significant improvement in Mr Ewen’s condition. Further, Mr Ewen’s testimony at the hearing confirmed that very little had changed since his dismissal. Mr Ewen said that even though he felt he was slowly getting better, he was still unfit for work and that the timeframe for any return to work remained unknown. This evidence was consistent with what had been suggested in the medical opinions obtained prior to Mr Ewen’s termination. Indeed, by the time the hearing took place four months after the termination of his employment, there was still no medical evidence suggesting that Mr Ewen was anywhere near on track to overcome his incapacity, which had by then persisted for approximately 19 months since March 2019, anytime soon. Having regard to the circumstances before me, I am satisfied there was a valid reason for the termination of Mr Ewen’s employment relating to his capacity.

Notification of the valid reason (s.398(b))

[45] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 34 in explicit terms,35 and in plain and clear terms.36 In Crozier v Palazzo Corporation Pty Ltd37 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[46] As Mr Ewen was notified of the reason for his dismissal, this is a neutral consideration.

Opportunity to respond to any reason related to capacity or conduct – s.387(c)

[47] Ordinarily, 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 should not be burdened with formality. 38

[48] Mr Ewen does not dispute that he was formally given an opportunity to respond to EnergyAustralia’s concern that he was no longer able to meet the inherent requirements of his position, however he submits that three days was not a reasonable time in which to respond to the type of concern raised. Having regard to the circumstances of this case, I agree. I do not consider EnergyAustralia treated Mr Ewen fairly in only providing him the IME report on 11 June 2020, the day before he was dismissed, particularly because it had held the IME report since 27 April 2020 and termination had never before been raised as a possibility. This weighs in favour of a finding that Mr Ewen’s dismissal was harsh, unjust or unreasonable and I am not persuaded there was nothing that Mr Ewen would (or could) have put before EnergyAustralia, even if he had been provided with the IME Report at the earliest possible opportunity.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[49] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 39

[50] There was no unreasonable refusal to allow Mr Ewen a support person in this matter, such that I find this consideration a neutral one.

Warnings regarding unsatisfactory performance – s.387(e)

[51] As Mr Ewen was not terminated on the basis of unsatisfactory performance, this factor is not a relevant consideration.

Impact of the size of the Respondent on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[52] I do not consider the size of EnergyAustralia to have been a relevant factor in this case (s.387(f)) and have noted that it has an in-house legal and employment relations specialists, such that s.387(g) of the Act does not apply.

Other relevant matters – s.387(h)

[53] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. Having regard to the material before me, I consider there are a number of matters that render Mr Ewen’s dismissal harsh, unjust or unreasonable and therefore, unfair.

[54] Firstly, the process adopted was an extraordinarily deficient one to subject to an employee with 43 years’ service. Mr Ewen was advised that the consultation with Dr Rahgozar was for the purpose of assessing his eligibility for Income Maintenance and yet he was then for the first time advised, only three days before his ultimate termination, that EnergyAustralia was considering terminating his employment based on Dr Rahgozar’s opinion. Even then, and with just three days to prepare for a show cause meeting, Mr Ewen was only provided with a copy of Dr Rahgozar’s report on the day before, leaving him virtually no time to absorb its contents or provide a considered response. I am persuaded that given Mr Ewen’s particular medical condition, he was not provided with sufficient or reasonable time to respond to the findings of Dr Rahgozar’s IME. Mr Ewen deserved better treatment and I do not accept that providing Mr Ewen with a reasonable period to respond would have imposed an unreasonable burden on EnergyAustralia or his colleagues due to any additional absence having to be covered by relief workers and overtime. This is because EnergyAustralia had itself agreed to set staff ratios.

[55] Secondly, in circumstances where a feature of the highly conditional theoretical pathway to a return to work outlined by Dr Rahgozar was the compromised timing (due to COVID-19 restrictions) of obtaining the further suggested neurological assessment and an EEG and the undertaking of any subsequent management plan, the decision not to allow Mr Ewen to access his accrued annual and/or long service leave while doing so was unfair. Clause 17.2(f)(i) of the Yallourn Enterprise Agreement provides that in the event an ill or injured employee exhausts his or her personal leave, he or she may elect to access annual leave and/or long service leave in place of personal leave (my emphasis). Unlike an election to access the Income Maintenance Insurance Policy in clause 17.2(f)(ii) of the Yallourn Enterprise Agreement, which is subject to an applicant meeting pre-requisites, the ability to access accrued leave would not appear to be subject to conditions. While EnergyAustralia sought to rely on clause 17.2(g) of the Yallourn Enterprise Agreement as a constraint on the clause 17.2(f)(i) entitlement, I consider that having regard to the circumstances of this case, Energy Australia needlessly and unreasonably denied Mr Ewen the option available under clause 17.2(f)(i). Mr Ewen could have remained an employee on leave while following suggestions of Dr Rahgozar even if doing so did not ultimately result in the significant improvement required to enable him to return to work.

[56] Thirdly, in this particular case, the manner of the dismissal whereby EnergyAustralia decided to pay Mr Ewen in lieu of notice of termination and not give him the option, contemplated under law, to serve his five week notice period had a harsh impact on him. Had Mr Ewen, who had already been incapacitated for a considerable period, been able to serve out a final five week notice period, his employment would have terminated during the next financial year and he would therefore not have met the significant and negative consequences of the taxation treatment of his accrued entitlements that resulted from being terminated with immediate effect on 12 June 2020.

[57] Finally, I have noted the evidence that other EnergyAustralia employees have been permitted be absent due to long-term illness and of a discretionary decision having been made for another employee to be absent on income maintenance, despite the operational pressure this might have imposed on the rosters.

[58] In terms of the submissions made regarding Income Maintenance Insurance, I note that while clause 23.5 of the Yallourn Enterprise Agreement outlines that EnergyAustralia will provide group salary continuance insurance that gives additional salary protection for up to two years to employees who are absent due to a long-term illness, its application is subject to the terms and conditions of the Income Maintenance Insurance policy. While the parties are in dispute as to if and when Mr Ewen became eligible for an Income Maintenance Insurance benefit, Dr Rahgozar’s report and opinion was the catalyst for EnergyAustralia’s rejection of Mr Ewen’s claim, on the basis that he was unable to meet what it asserted were the “eligibility requirements” of the policy – specifically, that there was medical information/documentation that supported the view that there was little prospect of Mr Ewen returning to his substantive role or any other suitable role if available. I am satisfied that the nature of the medical opinion expressed by Dr Rahgozar supported such a view. The outlining of a no more than 50% likelihood of Mr Ewen being able to return to the full inherent requirements of the AUC role in 12 months predicated on the three not insignificant preconditions of a firm diagnosis, implementation of an effective management plan and significant improvement of his condition, is capable of supporting the view that there is “little prospect” of a return to work. I therefore do not consider that the rejection of Mr Ewen’s claim for Income Maintenance Insurance rendered his dismissal unfair.

Remedy

[59] In the circumstances where I have found Mr Ewen was protected from unfair dismissal at the time of being dismissed and that he has been unfairly dismissed, s.390 of the Act prescribes that a remedy is available. Accordingly, I am required to determine whether to order the reinstatement of Mr Ewen or, if I am satisfied reinstatement is inappropriate, to order the payment of compensation if I am satisfied that such an order is appropriate in all the circumstances. 40

[60] The primary remedy under the Act is reinstatement, however I have had regard to how Mr Ewen has framed his submission regarding reinstatement and the circumstances of this case, and am satisfied it is inappropriate to order reinstatement (s.390(3)(a)). Mr Ewen’s evidence at the hearing confirms a continuing incapacity and inability to resume his duties and there was no evidence submitted that persuades me that the prognosis of Dr Rahgozar has been displaced or that Mr Ewen is no longer ineligible for Income Maintenance Insurance. Nor would I be persuaded in such circumstances to recredit the leave paid out upon Mr Ewen’s termination. I consider that Mr Ewen remains unable to perform the inherent requirements of the AUC role and I remain unpersuaded that there are any reasonable adjustments which could be made to his AUC role to accommodate him.

[61] I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation (s.390(3)(b)).

[62] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered.

[63] In considering each of the criteria in s.392 of the Act, it is useful to refer to the helpful restatement of principles to be applied in the assessment of compensation in Johnson v North West Supermarkets T/A Castlemaine IGA: 41

“[9] The well-established approach to the assessment of compensation under s 392 is to apply the ‘Sprigg formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

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

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

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”

[10]The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic,’ but, as the Full Bench observed in McCulloch v Calvary Health Care Adelaide, ‘while the task of determining an anticipated period of employment can be difficult, it must be done.’

[11]Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.” (my emphasis - references omitted)

[64] The Sprigg formula was discussed and refined in Ellawala v Australian Postal Corporation 42as follows:

“[31] The principles applicable to determining an amount to be ordered in lieu of reinstatement are dealt with in Sprigg. In that case the Full Bench endorsed the following approach:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

[32] Any amount provisionally arrived at by application of these steps is subject to whether offsetting weight is given to other circumstances, including those that need now to be taken into account under paragraphs 170CH(7)(a), (b) and (c). The legislative cap on the amount able to be ordered is then applied pursuant to ss.170CH(8) and (9).

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

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

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.

[35] In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first twelve months after termination - that is $36,000 - is deducted from the Commission's estimate of the applicant's lost remuneration. Monies earned after the end of the "anticipated period of employment", 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.

[36] The next step is to discount the remaining amount for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which the applicant was subject might have brought about some change in earning capacity or earnings.

…

[45] In relation to the fourth step set out in Sprigg we note that the usual practice is to settle a gross amount and leave taxation for determination.” (my emphasis, references omitted)

[65] In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, 43 the Full Bench stated that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. The Full Bench also proffered that the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.

[66] I consider it is appropriate in all the circumstances to make an order for payment of compensation and will assess compensation having regard to these matters.

Remuneration that would have been received if the dismissal had not occurred – s.392(2)(c)

[67] Given my findings regarding the evidence relating to Mr Ewen’s capacity for work and prognosis and Mr Ewen’s evidence at the hearing, I do not consider that I am in a position to conclude that Mr Ewen would have received or would have been likely to receive any remuneration if he had not been dismissed on 12 June 2020. That his condition was largely unchanged at hearing was consistent with the medical opinions available at the time of his dismissal and Dr Rahgozar’s prognosis has not been proven to be inaccurate. Bearing in mind one of Dr Rahgozar’s three preconditions for the prognosis of a not more than 50% likelihood of Mr Ewen being able to return to full inherent requirements of the AUC role in 12 months was “significant improvement” in a condition that has exhibited little improvement since March 2019, I am satisfied there is a sound basis for concluding the receipt of any future remuneration as an AUC would have been highly unlikely.

Remuneration earned – s.392(2)(e) and income reasonably likely to be earned – s.392(2)(f) and (g)

[68] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is also to be taken into account (under s.392(2)(f) of the Act). Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula. 44

[69] Mr Ewen has not earned any additional remuneration from employment or other work since being dismissed. As to the consideration in s.392(2)(f) of the Act, there is no evidence suggesting Mr Ewen is reasonably likely to earn any income during the period between now and the date upon which I would order that the compensation be payable (21 days).

Length of service – s.392(2)(b) and any other matters – s.392(2)(g)

[70] Mr Ewen had been employed full time for 43 years at the time of his dismissal. He was dismissed with five weeks’ payment in lieu of notice on 12 June 2020. Had he been permitted to serve his notice period, his employment would have terminated during the new financial year of 2020/2021. I have concluded above that EnergyAustralia’s failure to give Mr Ewen this option had a harsh impact on him. Mr Ewen gave unchallenged evidence that having been terminated in the 2019/2020 financial year has left him $26,503.00 worse off because of the way his accrued annual and long service leave was taxed, compared with how it would have been taxed if he had been allowed the option of taking it during the 2020/2021 financial year.

[71] Mr Ewen sought to access his accrued annual and long service leave by invoking clause 17.2(f) of the Yallourn Enterprise Agreement. As I outlined above, I consider that having regard to the circumstances of this case, Energy Australia needlessly and unreasonably denied Mr Ewen the option available under clause 17.2(f)(i). Accordingly, I consider it is appropriate in this matter for Mr Ewen to be compensated for the total additional annual and long service leave he would have accrued, and the additional public holiday benefits payable, had he been afforded the opportunity to remain employed while accessing the accrued annual and long service leave he was entitled to as at 12 June 2020. Mr Ewen was denied the opportunity of accruing this additional leave and additional public holiday benefits because of his unfair dismissal. The unchallenged evidence Mr Ewen gave regarding the quantum of the additional annual and long service leave he would have accrued ($14,645.00) and the public holiday benefits payable ($4,321.00) had he been able to access his existing leave, plus the superannuation payable during that additional leave ($15,867.00), produces a total of $34,833.00 gross.

[72] Adding the $26,503.00 and $34,833.00 components I have outlined above produces a total of $61,366 gross. I do not consider there is any basis for any deduction for contingencies in this matter and it will be left to EnergyAustralia to deduct taxation required by law.

Viability – s.392(2)(a)

[73] There was no evidence before me that would support a finding that an order for compensation will affect the viability of EnergyAustralia in any material way and there will be no deduction made having regard to this factor.

Mitigation efforts – s.392(2)(d)

[74] In considering whether Mr Ewen has taken steps to mitigate the loss suffered as a result of the dismissal, I note that following his dismissal Mr Ewen had, consistent with recommendations of Dr Rahgozar, undertaken an EEG and consulted a neurologist and was due to attend a follow-up appointment with the neurologist shortly after the evidentiary hearing. There will be no adjustment on account of this factor.

Misconduct – s.392(3)

[75] This factor does not arise in the case.

Compensation cap – s.392(5)&(6)

[76] The amount of compensation I order must not exceed the lesser of:

1) the amount Mr Ewen received or was entitled to receive during the 26 weeks immediately prior to his dismissal (in this case it would not appear to be in dispute that this amount would have exceeded $100,000.00); 45 and

2) half the amount of the high-income threshold immediately before the dismissal (in this case $148,7000 ÷ 2 = $74,350.00). 46

[77] As such, the compensation cap in this matter is $74,350.00 gross. The amount of compensation proposed does not exceed this.

Instalments – s.393

[78] I do not consider that there is any reason for compensation to be made by way of instalments.

Shock, Distress – s.392(4)

[79] The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to Mr Ewen by the manner of his dismissal.

Conclusion

[80] I am satisfied that Mr Ewen was protected from unfair dismissal, that the dismissal was unfair and that order for compensation is an appropriate remedy in all the circumstances. The overarching requirement in assessing compensation is to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case. 47 In this case, I consider the appropriate amount of compensation to be awarded to Mr Ewen equates to $61,336.00, less taxation as required by law.

[81] An order requiring the payment of this amount within 21 days will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

A Kentish for the Applicant.
A Pollock for the Respondent.

Hearing details:

2020.
Melbourne (via video on Microsoft Teams):
October 29 and November 18.

Printed by authority of the Commonwealth Government Printer

<PR726853>

 1   DCB at p241.

 2   DCB at p242.

 3   DCB at pp243-244.

 4   Transcript of hearing on 29 October 2020 at PN513.

 5   Transcript of hearing on 29 October 2020 at PN529.

 6   Transcript of hearing on 29 October 2020 at PN530.

 7   Transcript of hearing on 29 October 2020 at PN530-532.

 8   Transcript of hearing on 29 October 2020 at PN533.

 9   DCB at pp 197-198.

 10   DCB at p248 and transcript of hearing on 29 October 2020 at PN631-633.

 11   DCB at p 198.

 12   Ibid.

 13   DCB at p 199.

 14   Transcript of hearing no 29 October 2020 at PN550.

 15   DCB at p236.

 16   Transcript of hearing on 29 October 2020 at PN648-651.

 17   DCB at p236/

 18   Transcript of hearing on 29 October 2020 at PN672-675.

 19   DCB at p 171.

 20   DCB at p 172.

 21   DCB at p 32.

 22   DCB at p 172.

 23   Transcript of hearing on 29 October 2020 at PN170.

 24   Transcript of hearing on 29 October 2020 at PN157.

 25   Transcript of hearing on 29 October 2020 at PN 139-140.

 26   Transcript of hearing on 29 October 2020 at PN 222-225.

 27   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 28   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 29   Ibid.

 30   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 31   DCB at p 114.

 32   Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes[2013] FWCFB 9075 at [45] and CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005 at [50] and [77].

 33   [2013] FWCFB 9075 at [53].

 34   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 35   Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.

 36   Ibid.

 37 (2000) 98 IR 137, 151.

 38   RMIT v Asher (2010) 194 IR 1, 14-15.

 39   Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].

 40   Section 390(3) of the Act.

 41   [2018] FWC 679.

 42   Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000).

 43   [2017] FWCFB 429 at [43].

 44   Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [31].

 45   Fair Work Act 2009, s.392(6)(a)(ii).

 46   Fair Work Act 2009, s.392(5)(b).

 47   McCulloch v Calvary Health Care Adelaide[2015] FWCFB 873 at [29].