Robert Maat v WCH Services Pty Ltd T/A WCH Services

[2016] FWC 8324

[2016] FWC 8324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Maat
v
WCH Services Pty Ltd T/A WCH Services
(U2016/1790)

COMMISSIONER CRIBB MELBOURNE, 23 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] An application for an unfair dismissal has been made by Mr Robert Maat (the Applicant), under section 394 of the Fair Work Act 2009 (the Act). It is in relation to his dismissal by WCH Services Pty Ltd T/A WCH Services (the Respondent, the company) on 4 April 2016.

[2] There was a determinant of conference on Monday, 22 August 2016. Mr Maat attended the determinative conference and gave evidence as did Mr D Whelan, a former employee of the Respondent.

1. Introduction

[3] The determinative conference proceeded in the absence of the employer, Mr William Hancock. Prior to the determinative conference, the Commission wrote to Mr Maat and Mr Hancock, on 16 August 2016, in relation to the process for the proceeding. Amongst other matters, the Commission asked Mr Hancock about the lack of documentation from the Respondent and Mr Hancock’s request to attend the hearing by phone. There was no response from Mr Hancock so Mr Hancock was telephoned, on Thursday 18 August 2016, by the Commission and Mr Hancock was requested to respond by 19 August 2016.

[4] There was a further telephone call with Mr Hancock on Friday 19 August 2016 during which Mr Hancock was requested, by the Commission, to send an email with the reasons why he could not attend the hearing in person on Monday 22 August 2016. Additional material was received by the Commission from Mr Hancock, mid-afternoon on Friday 19 August 2016, in relation to the unfair dismissal application. At 5:15 p.m., a subsequent email was received from Mr Hancock requesting an adjournment for two months and stating, amongst other things, that he had a brick cleaning job on Monday 22 August 2016 which he needed to do as he was undergoing hardship.

[5] Mr Hancock’s adjournment request was forwarded to Mr Maat for his response. Mr Maat advised, on Saturday 20 August 2016, that he opposed the adjournment request. The Commission emailed Mr Hancock, on 20 August 2016, forwarding him Mr Maat’s response and asking if Mr Hancock wished to say anything further. Mr Hancock was advised that the Commission’s view was that, subject to hearing further from Mr Hancock, it was highly likely that the hearing would go ahead on Monday 22 August 2016.

[6] An email was sent by Mr Hancock, very late on Sunday night 21 August 2016, but it did not respond to Mr Maat’s objection to an adjournment of the hearing. Consequently, on receipt of this email around 8:30 a.m. on Monday 22 August 2016, the Commission emailed both parties to advise that the hearing was going ahead. This was on the basis that Mr Hancock had received 2 months’ notice of the date of the hearing and the Commission had not received any response from the Respondent which had persuaded the Commission to change its preliminary view.

[7] Whilst the Commission was conducting the determinative conference, two emails were received from Mr Hancock stating that he would like to attend and for the Commission to ring him urgently. Following the determinative conference, the Commission wrote to Mr Hancock and advised that the hearing had proceeded and that the Commission had taken full account of the written material that had been provided by the Respondent. Mr Hancock was also advised that the Commission had made it clear during the determinative conference that, whatever was decided during the hearing, would be made available to Mr Hancock with the opportunity for Mr Hancock to respond.

[8] The process was that Mr Hancock (and Mr Maat) would be sent the transcript of the determinative conference and that, within one week of receipt of the transcript, Mr Hancock was to provide a sworn statement giving the employer’s side of the story. Mr Maat would then be given an opportunity to respond. Having received a response from Mr Hancock and a reply from Mr Maat, the Commission would then either confirm the provisional decision reached at the end of the determinative conference or issue a new decision on the basis of the additional material received from the Respondent. If required, the issue of remedy would also be dealt with in the final decision. 1

[9] An email was sent to Mr Hancock after the determinative conference, advising him that the proceeding had gone ahead and the process which was to follow. The transcript was forwarded to both parties on 29 August 2016 which set in train the process that had been established at the end of the determinative conference. Mr Hancock was due to provide a response on 5 September 2016. An email was sent to Mr Hancock, on 2 October 2016 by the Commission, advising Mr Hancock that, as no further material had been provided, the Commission would make a final decision based on the material before it.

[10] This decision is, therefore, the final decision by the Commission in relation to Mr Maat’s application.

[11] The ex tempore preliminary decision that was made in transcript at the end of the determinative conference concerned two matters. The first matter was a jurisdictional objection by the employer on the basis that it is a small business employer and therefore covered by the Small Business Fair Dismissal Code (the Code). The second matter concerned whether the dismissal was harsh, unjust or unreasonable.

[12] It was made clear by the Commission at the conclusion of the determinative conference, that the Commission would either confirm the preliminary decision made during the conference or issue a new decision. 2

[13] I will now deal with each of the two matters covered by the preliminary decision in turn.

2. Jurisdictional objection by the employer

[14] As indicated above, the Respondent made a jurisdictional objection, in its Employer Response (Form F3) filed on 2 June 2016, on the grounds that the company was a small business employer and therefore covered by the Code. In its preliminary decision, the Commission determined that the Respondent is not a small business employer and that, consequently, the Small Business Fair Dismissal Code does not apply. 3

[15] This finding was made on the basis of a list of employees provided by Mr Hancock 4; a list of employees provided by Mr Maat5 and the witness evidence of Mr Maat and Mr Whelan.6 On Mr Hancock’s list were 7 employees not including Mr Maat which then took the number to 8 employees. Mr Maat’s list was reviewed during the conference which resulted, at its highest, in 16 employees and at its most conservative - 15 employees. It was Mr Maat’s and Mr Whelan’s evidence that the company had two trolley collection contracts at the time of Mr Maat’s dismissal. One was at Traralgon (Coles Stockland’s contract) and the other was at Frankston (Coles contract). Mr Maat was employed in relation to the Traralgon contract.

[16] All of the names on Mr Hancock’s list were also on the list provided by Mr Maat and they covered employees at both Frankston and Traralgon. The difference between the two lists was that Mr Maat included additional employees at Frankston and Traralgon together with an administration person, a mechanic and an accounts person.

[17] Having reviewed the witness evidence together with the relevant documentation, I confirm the provisional decision in relation to the Respondent’s jurisdictional objection. The Commission’s final decision, therefore, is that the employer is not a small business employer as defined by section 23 of the Act. That is, at the time of Mr Maat’s dismissal, the employer did not employ fewer than 15 employees. Accordingly, it is not necessary to consider whether or not Mr Maat’s dismissal was consistent with the Small Business Fair Dismissal Code. The Respondent’s jurisdictional objection in this regard is dismissed.

3. Was the dismissal unfair?

[18] Having found that the Small Business Fair Dismissal Code is not applicable, it is therefore necessary to consider whether or not Mr Maat’s dismissal was unfair.

[19] Section 385 of the Act provides that:

“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.”

[20] In the preliminary decision, it was found by the Commission that Mr Maat had been dismissed (section 385 (a)); that the Code was not relevant in this matter (section 385(c)) and that the dismissal was harsh, unjust and unreasonable (section 385(b)), on the basis of the criteria set out in section 387. 7

(a) Jurisdictional objection - genuine redundancy

[21] The Commission indicated during the determinative conference that it did not appear to be argued by the employer that it was a case of genuine redundancy and that a jurisdictional objection seemed not to have been made to this effect. 8 The Commission made it clear though that it was concerned about the possibility that Mr Maat’s dismissal was the result of the Respondent losing the contract to another contractor. The Commission advised that, if Mr Hancock’s response was that the contract came to an end, then that would change the Commission’s preliminary decision.9

[22] One of the very few documents provided by Mr Hancock was headed “Termination of contract by UTC”. 10 This document stated that the company received an email from UTC on 29 March 2016 regarding termination of the trolley collection contract. Mr Hancock then telephoned Mr Whitby to inform him of the termination of the contract and to inform Mr Maat and the other employees of the situation.11 The document went on to state that the services ended no later than 3 April 2016.12 It also indicated that Mr Whitby had informed Mr Hancock that Mr Maat was hired on the spot by UTC.13

[23] It was Mr Maat’s evidence that:

• On Monday 4 April 2016, he turned up at work as per normal. 14



• There were two Indian guys in the company’s outfit (uniform) who told him that they were working there now and to ring his boss. 15



• He rang Mr Whitby and Mr Whitby came to the site and made some phone calls. Mr Whitby then told Mr Maat that he was fired and to go home. 16



• He was not offered anything otherwise he would have taken the job. 17

[24] It was Mr Whelan’s evidence that they found out after 4 April 2016 that Mr Hancock had lost the contract in Traralgon and that the parent company were taking over the contract. 18 Mr Whelan also recalled that he had heard rumours from Mr Whitby that Mr Maat and the others were going to get hired again. He said that Mr Maat had never been called.19

[25] It appears to be common ground in the material before me that, on 4 April 2016, Mr Maat was dismissed due to the loss of the trolley collection contract at Traralgon by his employer. Despite Mr Hancock’s document stating that Mr Maat was immediately hired by UTC, I have not been persuaded that this is the case. I have no reason to doubt Mr Maat’s evidence (corroborated by Mr Whelan) that he was not offered employment by UTC.

[26] On reviewing all of the material following the determinative conference, in the Employer Response, it appears that Mr Hancock had also ticked the “Other” box in the list of jurisdictional objections. Mr Hancock had provided an explanation for his ‘Other’ objection which was to the effect that Mr Maat was not dismissed but laid off due to the company having had the contracts at all of its sites terminated. It was also explained that there was no other employment available to be given to Mr Maat.

[27] As the employer has indicated, in the Employer Response, an additional jurisdictional objection in relation to genuine redundancy, it is necessary for the Commission to deal with this jurisdictional objection.

[28] As can be seen from section 385 set out at paragraph [19] above, a person has been unfairly dismissed if the dismissal was not a case of genuine redundancy. The meaning of “genuine redundancy” is contained in section 389 of the Act as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[29] In relation to section 389(1)(a) of the Act, it appears to be common ground on the material before me that Mr Maat was dismissed due to the loss of the trolley collection contract by his employer. On this basis, the requirements of this section have been met.

[30] With respect to section 389(1)(b), it was Mr Whelan’s evidence that Mr Maat was covered by the Cleaning Services Award 2010. 20 That Award contains a consultation clause at clause 8 which requires consultation regarding major workplace change.

[31] There is very little evidence on this aspect of the matter. It was Mr Maat’s evidence that he was fired on the spot on Monday 4 April 2016. The document from Mr Hancock 21 states that the company was told of the termination of the contract on Tuesday 29 March 2016 and that Mr Hancock had then advised Mr Whitby of this and Mr Whitby was to inform Mr Maat and the other employees. The document also stated that the services ended no later than Sunday 3 April 2016. In addition, 3 April 2016 is the termination date contained in the Employer’s Response (Form F3).

[32] There were six days between the date Mr Hancock was notified of the termination of the contract and the date on which Mr Maat’s employment was terminated. There is no evidence before the Commission from Mr Hancock, about any steps he took between Tuesday 29 March 2016 and Monday 4 April 2016 to consult with Mr Maat about the termination of the trolley collection contract. Therefore, as the Respondent has not provided any further information or documentation to the Commission following the determinative conference, on the basis of the material before the Commission, I am unable to find that the employer has complied with the obligation in the Cleaning Services Award 2010 regarding consultation (section 389(1)(b)).

[33] With respect to section 389(2), in the Employer’s Response (Form F3), it was stated that there was no other employment to be given to Mr Matt. In Exhibit R1, Mr Hancock indicated that he had been advised by Mr Whitby that Mr Maat had been offered employment with UTC. As indicated in paragraph [25] above, I am satisfied that Mr Maat was not offered a position by UTC.

[34] As Mr Hancock indicated in the Employer’s Response (Form F3) and corroborated by Mr Whelan and Mr Maat in their evidence, the company lost its contract at Traralgon and also at Frankston. Therefore, it was not possible or reasonable for Mr Maat to have been redeployed to another position within the company. Accordingly, I find that it would not have been reasonable for Mr Maat to have been redeployed as the company lost all of its contracts at the same time. The requirements of section 389(2) have been met.

[35] I have found, in paragraphs [29] and [34] above, that the requirements of section 389(1)(a) (redundancy due to operational changes) and section 389(2) (redeployment was not reasonable) have been met. I have also found, at paragraph [32], that the requirements of section 389(1)(b) (consultation) have not been met. As section 389 (1)(a) and (b) are joined by “and”, both (a) and (b) have to be met, in the first instance, in order for the dismissal to be a case of genuine redundancy. This is despite the requirements of section 389(2) having been satisfied.

[36] Therefore, I am not satisfied that Mr Maat’s dismissal was a case of genuine redundancy within the meaning of section 392 of the Act. This is because there is no evidence that Mr Hancock consulted with Mr Maat about the loss of the contract, in accordance with the employer’s obligation in the modern award that applied to Mr Maat’s employment, to do so.

[37] Accordingly, in relation to the requirements of section 385 of the Act, I now turn to deal with section 385(b) - was the dismissal harsh, unjust or unreasonable?

(b) Section 387

[38] The criteria that the Commission must take into account in considering whether the dismissal was harsh, unjust or unreasonable are set out in section 387 of the Act. Section 387 provides as follows:

“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.”

[39] In the preliminary decision, the Commission found that the dismissal was harsh, unjust or unreasonable. 22 As a result of the necessity to consider the issue concerning genuine redundancy, the Commission finds, as its final decision that, on balance, Mr Maat’s dismissal was harsh. The basis for this is set out below.

(i) Section 387(a) - valid reason

[40] The reason for Mr Maat’s dismissal was not related to his capacity or conduct (including its effect on the safety and welfare of the other employees). But for the failure of Mr Hancock to comply with his obligations under the relevant modern award, Mr Maat’s dismissal would have been a case of genuine redundancy within the meaning of the Act.

[41] There was a valid reason for Mr Matt’s dismissal due to changes in the company’s operational requirements (the company’s loss of the trolley collection contract). However, the reason for Mr Maat’s dismissal was not related to Mr Maat’s capacity or conduct. In the circumstances of this case, this is to be regarded as a neutral factor in consideration of whether Mr Maat’s dismissal was harsh, unjust or unreasonable.

(ii) Sections 387(a) and (b) - notification and opportunity to respond

[42] These criteria deal with whether there was procedural fairness in relation to a reason for dismissal related to Mr Maat’s capacity or conduct. It is a fact that Mr Maat was not notified of a reason for his dismissal or given an opportunity to respond to a reason for his dismissal, related to his capacity or conduct. However, given the reasons for Mr Maat’s dismissal, these criteria will be regarded as neutral with respect to consideration as to whether Mr Maat’s dismissal was harsh, unjust or unreasonable.

(iii) Section 387(d) -support person

[43] As Mr Matt did not request to have a support person present, there could not have been an unreasonable refusal by the company to allow Mr Maat to have a support person present. This will be regarded as a neutral matter.

(iv) Section 387(e) - warnings about unsatisfactory performance

[44] As Mr Maat’s dismissal did not relate to unsatisfactory performance, this criterion is not relevant in this matter.

(v) Sections 387(f) and (g) - size of the enterprise and human resource specialists

[45] The company is a small company even though it is not a small business employer within the meaning of the Act. There does not appear to be a human resource specialist. As there is very little material before the Commission from the employer, the Commission is unable to discern whether the size of the employer and the absence of a dedicated human resource specialist had a detrimental impact on the procedures followed in effecting Mr Maat’s dismissal. Therefore, this will be a neutral consideration in relation to whether Mr Maat’s dismissal was harsh, unjust or unreasonable.

(vi) Section 387(h) - any other matters

[46] As indicated earlier, there was a valid reason for Mr Maat’s dismissal, namely, that the company’s trolley collection contract was terminated. The change in the company’s operational requirements tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[47] In addition, it was not reasonable in all of the circumstances to redeploy Mr Maat as the company’s contract was terminated at all of its sites. However, Mr Hancock failed to consult with Mr Maat in the period between being advised of the termination of the contract and the date on which Mr Maat’s employment was consequently terminated. The failure to consult, as required by the modern award, is a relevant matter which supports a conclusion that Mr Maat’s dismissal was harsh, unjust or unreasonable.

(vii) Conclusion

[48] In all of the circumstances of this matter, and having taken account of each of the factors set out in section 387 of the Act, I determine, on balance, that Mr Maat’s dismissal was harsh. This is because Mr Maat was not advised, as soon as his employer knew, that the company’s trolley collection contract had been terminated. The failure to consult, as required by the modern award, in the six day intervening period was unreasonable as it did not allow Mr Maat the opportunity to try and arrange to be taken on by UTC as an employee. Mr Maat was employed by the company in Traralgon, an area where unemployment is high, particularly in relation to lower skilled jobs.

[49] Accordingly, it follows that, pursuant to section 385 of the Act, Mr Matt was unfairly dismissed.

REMEDY

[50] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. I am satisfied that Mr Maat was protected from unfair dismissal at the time he was dismissed (section 390(1)(a)) and that Mr Maat was unfairly dismissed (section 390(1)(b)). Further, Mr Maat has made an application under section 394 of the Act (section 390(2)).

[51] Section 390(3) requires that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)). In all of the circumstances of this matter, I am satisfied that reinstatement of Mr Maat is inappropriate, particularly in light of the fact that Mr Maat’s dismissal was the result of a redundancy. In his evidence, Mr Maat indicated that he was seeking compensation as the Respondent was thought to be no longer working in the Valley. 23

[52] The second consideration is whether it is appropriate that an order for the payment of compensation is made (section 390(3)(b)). I consider that an order for the payment of compensation is appropriate, in all of the circumstances of this matter.

[53] Section 392(2) of the Act sets out the criteria for deciding the amount of compensation. These criteria are:

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

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

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

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

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

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

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

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

[54] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 24 (Haigh). In Haigh, the Full Bench also referred25 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket26 (Sprigg). I respectfully adopt the approach taken in Haigh.

Remuneration that would have been received (section 392(2)(c))

[55] Given the reason for Mr Maat’s dismissal, it is my view that the remuneration that Mr Maat would have received, or would have been likely to receive, if he had not been dismissed would have been another two weeks’ remuneration. This is on the basis that two weeks is the period that it would have taken the Respondent to comply with its obligations in the relevant modern award to consult with Mr Maat about the redundancy that led to his dismissal.

[56] Two weeks’ remuneration for Mr Maat is $962.28 gross plus 9.5% superannuation. This is based on the figures provided 27 by Mr Maat and Mr Whelan during the determinative conference, together with Mr Maat’s timesheet.28

Remuneration earned and income likely to be earned (section 392(2)(e) and (f)

[57] It was Mr Maat’s evidence that, apart from social security payments, he had not earned income from employment between his dismissal and the determinative conference. 29

[58] As the Commission’s usual approach is to not include social security payments as remuneration earned, there is no deduction from the provisional amount of $962.28 gross plus 9.5% superannuation.

Other matters (section 392(2)(g)

[59] There are no other matters that are considered relevant to be taken into account in determination of an amount of compensation in lieu of reinstatement for Mr Maat.

[60] It is noted, however, that it was Mr Matt’s evidence that he was not paid any notice on termination nor redundancy nor any of his accrued award entitlements (e.g. annual leave). In addition, it was stated by Mr Maat that he had not been paid for the week from 28 March 2016 to 3 April 2016 and that superannuation had not been paid for the whole period of his employment. 30

Viability (section 392(2)(a)

[61] There is no evidence before the Commission that an order for $962.28 gross + 9.5% superannuation payable to Mr Maat by the Respondent would affect the viability of the Respondent’s enterprise.

Length of service (section 392(2)(b)

[62] In the Employer Response (Form F3), the Respondent stated that Mr Maat commenced with the company on 23 September 2014. In his outline of submissions, Mr Maat stated that he commenced with the company in December 2014. 31 As the Respondent’s date is more precise, it will be used to calculate the length of service which is approximately 18 months.

Mitigation efforts (section 392(2)(d)

[63] On the basis of Mr Maat’s evidence, it is accepted that Mr Maat has made reasonable efforts to mitigate the loss suffered by him because of his dismissal. Therefore, there is no basis for a reduction in the provisional amount of $962.28 gross + 9.5% superannuation.

Misconduct (section 392(3))

[64] As misconduct did not contribute to the reason for Mr Maat’s dismissal, no reduction is required in the provisional amount.

Shock or distress (section 392(4))

[65] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Maat.

Contingencies

[66] As the anticipated period of employment (two weeks) has well passed, it is not proposed to make a deduction for contingencies.

Section 393

[67] There were no submissions that any amount of compensation should be subject to payment by instalments.

Compensation (section 392(5))

[68] The amount of $962.28 gross + 9.5% superannuation is less than the compensation cap in section 392(5) for Mr Maat.

Conclusion

[69] Therefore, it is considered appropriate to make an order that WCH Services Pty Ltd pay $962.28 gross, less taxation as required by law, + 9.5% superannuation to Mr Maat, in lieu of reinstatement, within 21 days of the date of this decision.

[70] An order 32 to this effect will be issued separately.

Appearances:

Mr Whelan for the applicant

Hearing details:

2016.

Melbourne:

August 22.

 1   Transcript PN 732 - 736 and 747 - 760

 2   Ibid PN 734

 3   Ibid PN 222

 4   Exhibit R1

 5   Exhibit A1

 6   Transcript PN 26 - 194

 7   Ibid PN 655

 8   Ibid

 9   Ibid PN 747 and 751 - 753

 10   Exhibit R2

 11   Ibid

 12   Ibid

 13   Ibid

 14   Exhibit A3 at paragraph 10 and Transcript PN 316 and 328 - 330

 15   Ibid and Transcript PN 332 - 334 and 458 - 459

 16   Ibid and Transcript PN 334 - 336, 342, 348 - 353 and 456 - 457

 17   Transcript PN 346 and 462 - 463

 18   Ibid PN 338 - 340

 19   Ibid PN 347

 20   Ibid PN 656

 21   Exhibit R2

 22   Transcript PN 654

 23   Ibid PN 665 - 676

 24   [2014] FWCFB 236

 25   Ibid at paragraphs [10] – [12]

 26 (1998) 88 IR 21

 27   Transcript PN 376 - 412

 28   Exhibit A3

 29   Transcript PN 684

 30   Ibid PN 624 - 652

 31   Exhibit A3 at paragraph 1

 32   PR587717

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