Roger Maybury v Canterbury Trading Pty Ltd T/A Canterbury Sink & Tap
[2018] FWC 1077
•1 MARCH 2018
| [2018] FWC 1077 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Roger Maybury
v
Canterbury Trading Pty Ltd T/A Canterbury Sink & Tap
(U2017/10677)
| COMMISSIONER LEE | MELBOURNE, 1 MARCH 2018 |
Application for relief from unfair dismissal - high income threshold.
Introduction
Mr Roger Maybury (the Applicant) has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his former employment with Canterbury Trading Pty Ltd T/A Canterbury Sink & Tap (the Respondent).
The matter was listed for Jurisdiction (No Award or Agreement – Applicant’s annual earnings exceed High Income Threshold) Conference/Hearing in Melbourne on 30 January 2018. The Applicant gave evidence on his own behalf. The Applicant was represented by Mr Campain, who I note is not a lawyer or a paid agent and did not require permission to appear. Mr Champion appeared on behalf of the Respondent and was granted permission to appear as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Evidence for the Respondent was provided by Mr Nicolas Hermence, Director and Owner of the Respondent Company.
Mr Maybury was employed as a Sales and Marketing Director. He commenced employment on 5 March 2014. It is not in dispute that the Applicant’s employment was terminated on 15 September 2017.
The Respondent contends that the Applicant’s application should be dismissed on the basis that he was not a person protected from unfair dismissal because his annual rate of earnings exceeded the high income threshold. The Applicant contends that he was protected from unfair dismissal as his income did not exceed the high income threshold. The relevant high income threshold at the time of the dismissal is $142,000.
Legislation
Section 396(b) of the Act requires that the question of whether a person is protected from unfair dismissal is to be decided before the merits of the person’s application are considered. Section 382 of the Act provides for when a person is protected from unfair dismissal as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
The high income threshold for the purpose of s.382(b)(iii) has been $142,000 since 1 July 2017.
The term “earnings” is defined in s.332 of the Act as follows:
“332 Earnings
(1) An employee’s earnings include:
(a) the employee’s wages; and
(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and
(c) the agreed money value of non-monetary benefits; and
(d) amounts or benefits prescribed by the regulations.
(2) However, an employee’s earnings do not include the following:
(a) payments the amount of which cannot be determined in advance;
(b) reimbursements;
(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;
(d) amounts prescribed by the regulations.
Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).
(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:
(a) to which the employee is entitled in return for the performance of work; and
(b) for which a reasonable money value has been agreed by the employee and the employer;
but does not include a benefit prescribed by the regulations.
(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:
(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;
(b) the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee;
(c) the employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, a State or a Territory.”
For the purposes of assessing such other amounts as contemplated in 382(b)(iii), Regulation 3.05(1) and 3.05(6) of the Fair Work Regulations 2009 (the Regulations) are relevant:
Regulation 3.05(1) and 3.05 (6) of the Regulations provide as follows:
“3.05 When a person is protected from unfair dismissal — high income threshold
(1) For subparagraph 382 (b) (iii) of the Act, this regulation explains how to work out amounts for the purpose of assessing whether the high income threshold applies in relation to the dismissal of a person at a particular time.
Note Under section 382 of the Act, a person is protected from unfair dismissal if specified circumstances apply. One of the circumstances is that the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.Benefits other than payment of money
(6) If:
(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and
(b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332 (3) of the Act; and
(c) the FWC is satisfied, having regard to the circumstances, that:(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and
(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and
(iii) the FWC can estimate a real or notional money value of the benefit;
the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382 (b) (iii) of the Act.”
Questions to be determined
There has not been any suggestion by the Applicant that the unfair dismissal jurisdiction in this particular matter could be enlivened by any other means other than satisfying the Commission that the annual rate of earnings of the Applicant were below the high income threshold at the time of dismissal. That is there is no suggestion, nor is it apparent, that the Applicant is covered by a modern award or by an enterprise agreement.
Therefore, the only question to be determined is whether the Applicant’s annual rate of earnings exceeded the high income threshold. The annual rate of earnings is to be assessed as at the time of dismissal. It is not an assessment of the actual earnings in the 12 months immediately prior to dismissal.[1] It is not in dispute that the Applicant’s wages were $136,700 at the time of dismissal.[2] This is less than the relevant high income threshold of $142,000. What is in dispute is whether or not additional benefits that the Applicant derived should be included in assessing the annual rate of earnings of the Applicant.
Did the Applicant’s earnings exceed the high income threshold?
Evidence
The additional benefits the Respondent asserts should be included are the “petrol benefit” and the “toll benefit”. Once the private component of these additional benefits is added, the Respondent asserts that the annual rate of earnings exceeds the high income threshold. The Applicant objects to the toll and petrol costs being included as part of his earnings as it was not part of his contract of employment and could be rescinded by the Respondent at any time. Further, that a management meeting was held every month where company costs were discussed and approved including petrol and toll costs.[3]
The evidence of Mr Hermence is that he made an agreement with Mr Maybury that Canterbury Sink & Tap would pay for his petrol for driving to and from his home to the office and that he would be provided with an E-Tag for his car. His evidence in relation to this is as follows:
“He [the Applicant] had a company credit card and it was agreed that he could pay for his petrol usage in his own car to drive to and from work on the company credit card. We did not agree the dollar figure in advance as to the value of that petrol benefit. In practice the way this worked was that Mr Maybury use [sic] the company credit card to pay for petrol, notified the company that this was an amount to be paid by the business and then the company paid the credit card bill. I and Mr Maybury also agreed that the company provide Mr Maybury with an E-Tag for his car and pay the road tolls for his regular home-office-home daily commute from Mornington to Croydon South. That is, the company paid these road tolls recorded on the company E-tag. We did not calculate (or agree) the dollar value of these tolls in advance”.[4]
During cross-examination a proposition was put to the Applicant that had he reached an agreement with the Respondent that they would “…pay for your petrol, from home to the office and back again?” to which he answered “Yes, I suppose so”.[5] As to the payment of the tolls, the Applicant agreed that he had reached an oral agreement with Mr Hermence that he would pay for his tolls for the commute from his home to the office and back again.[6] It does not seem to be in contest that the parties did not agree the dollar value of these benefits in advance. The Applicant primarily used his own vehicle for both the commute to and from work and for other business related travel, although a larger vehicle supplied by the Respondent was sometimes used for deliveries.[7] The Applicant claimed that on occasion the credit card was refused and he would be reimbursed for the cost of the petrol.[8]
There is some dispute as to whether the Applicant was primarily office based or whether he spent a great deal of time out of the office. This is relevant to a consideration of the amount of business as opposed to private travel the Applicant undertook. The Applicant asserts that he made regular calls on clients, set up displays, made deliveries and product service calls and that he delivered and collected goods from retail customers and private individuals. Further, that he travelled to the airport on business and to various other businesses, including the Respondent’s graphic designer in Footscray and that he made deliveries from the warehouse to the retail showroom in Camberwell.[9] The Respondent accepts that the Applicant did drive the vehicle for business purposes and that he went to the showroom in Camberwell and to Footscray from time to time.[10] Mr Hermence asserts that as the Applicant was Sales and Marketing Director he performed an office based job. He was not driving between customers for business purposes and that it was the exception (not the rule) that he used his own car for business purposes.[11] Mr Hermence estimates, having regard to the distance of the daily commute of the Applicant from home to work that the Applicant used his car for business purposes only 10% of the time.[12]
Mr Hermence claims that the Applicant’s regular habit was to drive his car from home to work and back again, Monday to Friday. Based on a Google map search, the Respondent estimated the commuter round trip at 120.6km daily, being from Mornington (where Mr Hermence understood the Applicant resided) to Croydon South (where the Applicant worked).[13] During the hearing it emerged that the Applicant actually lived in Mt Martha for all but the last two weeks of his employment before he was dismissed[14] which the Applicant agreed was a longer commute than from Mornington.[15] The Respondent asserts that the commuter round trip from the Applicant’s home in Mt Martha to Croydon South is approximately 150km.[16] The Applicant does not appear to dispute this contention.[17]
The Applicant asserts that while he did commute from his home to the office in Croydon South and back again, on many occasions he would travel to other destinations during the day. On that basis, he disputes the number of commuter trips that the Respondent suggests that he took. The Applicant put his evidence this way during the hearing:
“There were a number of occasions where I would go to the office and then somewhere else and then drive back to the office and then back onto the journey home, because, at the request of Mr Hermence, I may be going into the showroom, I may be going to drop something off and therefore I have to take something back to the office, whereas normally if I was going to the showroom I would be taking a different route back home, so it would be different. So there were all kinds of different things happening. You know, with a small business the allocation of time and resource is important and it was what it was.”[18]
During the hearing, the Respondent asserted that EastLink Statements[19] of the Applicant’s E-Tag appeared to show 205 commuter trips that the Applicant took in the approximate 11 month period leading up to the dismissal. The Respondent believed that the number of trips “seemed about right” assuming there are 260 working days in a year.[20] At the hearing the Applicant was asked to comment on that proposition however was unable to given the short time period he had to consider the EastLink Statements. To enable that difficulty to be overcome, I allowed a further period subsequent to the hearing for the Respondent to file written submissions as to what the evidence in the EastLink Statements demonstrates and a further period for the Applicant to file any submissions in response. The Respondent ultimately asserted in its submissions filed on 6 February 2018 that the Eastlink Statements showed that on 189 days:
“…it appears that Mr Maybury entered the Thompson/Frankston entry point of the EastLink in the morning, usually between 7am and 9am, and exited the Thompson/Frankston point of the EastLink in the evening, usually between 4:30pm and 8pm. Only days on which there is a morning and afternoon toll have been counted. The inference is that these days represent a full day of work. Nos. 1-189 are marked against relevant days.”[21]
In response, the Applicant asserts that the EastLink Statements demonstrate that there were 103 same day returns and 37 days one way.[22] The Applicant accepts that travel on six Saturdays and four Sundays was personal use.[23]
A significant part of the difference in what the parties say the EastLink Statements demonstrate can be explained by the fact that the Applicant asserts that the Respondent’s submissions which lead to the calculation of 189 days are not “soundly based as it is considered to be broken travel as work is involved, not accepted practice by Commerce and Industry or personal travel by the Australian Taxation office as site must be nominated as the base or workplace”.[24] In contrast the Respondent asserts that:
“A conservative approach (favourable to Mr Maybury) has been adopted: days have not been counted when Mr Maybury used EastLink only in one direction, despite the fact that on these dates Mr Maybury may have travelled to and from work but did not use the EastLink for both ways. Days have also not been counted when the “to and from” trip home does not appear to be within regular work hours. Nonetheless, it is the Respondent’s position that even if Mr Maybury deviated from his direct commute for business purposes he still received the private benefit of payment of his petrol for the full distance of his private commute.”[25]
I note that the Applicant was dismissed on 15 September 2017 so it is only until this date which is relevant.
Based on the final submissions lodged by the Applicant he asserts that his annual earnings were:
Salary $136,700
Petrol $2,309.04
Tolls $1,454.31
Total: $140,463.35
The Respondent submits that a series of spreadsheets prepared by the Respondent[26] demonstrate that the Respondent paid $6,449.88 for the Applicant’s fuel consumption in the last 12 months of his employment. The Applicant indicated in his submissions that he was unable to confirm or dispute the cost of fuel at $6,449.88 although it appeared to be in line with the 36,000 kilometre odometer reading for his vehicle in the year 2016/17.[27] The Applicant confirmed this position during the hearing.[28] Based on the original assumption that the Applicant resided in Mornington for the vast majority of the relevant period, the percentage of personal use of the car asserted by the Respondent was approximately 68%. Based on the evidence provided by the Applicant during the hearing in relation to his residential address, the Respondent amended this to approximately 78% (as Mt Martha is further from Croydon South than Mornington).[29]
Consideration
In this matter, the Applicant’s annual rate of earnings as contemplated in 382(b)(iii) is not in dispute. The issue is what “other amounts (if any)” should be added to the annual rate of earnings in order to be able to establish whether or not the Applicant exceeds the high income threshold.
Section 382(b)(iii) of the Act provides that “other amounts (if any)” are to be worked out in accordance with the regulations. The relevant regulation is regulation 3.05 which explains how to work out amounts for the purpose of assessing whether the high income threshold applies in relation to a person at a particular time.
Regulation 3.05(6) (extracted above) is relevant to the consideration of the toll and petrol benefit in this circumstance. I will consider each of its provisions in turn.
(a)Was the Applicant entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer?
The answer to this question is clearly yes. It is apparent that in respect to 3.05(6)(a) there was an agreement between the Applicant and the Respondent that the Respondent would pay for petrol and tolls.
(b)Is it the case that the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332 (3) of the Act?
I agree with the Respondent’s submission to the effect that the petrol benefit and toll benefit were not “non-monetary benefits” within the meaning of s.332(3) of the Act because the Applicant and Respondent had not agreed to a reasonable money value and they were not “payments” within the meaning of s.332(2)(a) of the Act. The arrangement was that the Respondent would pay for the debt accrued on the credit card for petrol and for the debt accrued on the E-Tag for tolls.[30]
(c)(i) Should the benefit be considered for the purpose of assessing the high income threshold?
In respect to 3.05(6)(c)(i) the Respondent submits that the Commission should consider the benefit for the purposes of assessing whether the high income threshold applies because it was a benefit of a real and substantial kind and was provided on an ongoing basis as part of an agreement between the Applicant and the Respondent.[31] The Applicant argued, based on the decision in Davidson v Adecco Australia Pty Ltd T/A Adecco (Adecco)[32] that the payments were reimbursements and that “on occasions” the credit card was refused and the Applicant had to pay in cash and then gain reimbursement from the Respondent.[33] I do not accept this submission. The decision of the Commissioner in Adecco was made on the basis that the uncontested evidence was that the allowance paid to the employee was almost entirely used for business purposes and therefore should not be included in the calculation of earnings. I agree with the Respondent’s submission that the toll and petrol benefit was a benefit of a real and substantial kind, provided on an ongoing basis. I am satisfied that the benefit should be considered for the purpose of assessing the high income threshold.
(c)(ii) Did the Applicant and the employer agree a money value of the benefit?
It is clear on the evidence that the parties have not agreed a money value of the benefit. While the evidence shows that there the Applicant and Mr Hermence agreed that the benefit would be given as part of the terms of the employment, there is no evidence that there was any agreement on what the money value of that benefit would be.
(c)(iii) Can an estimate be made by the Commission of the real or notional value of the benefit?
I am satisfied that I can estimate a real or notional value of the benefit.
I am satisfied on the evidence that the Applicant benefited from the Respondent meeting the costs of $6,449.88 for his petrol consumption in the year prior to his dismissal. I am also satisfied that he benefited from the payment of tolls through the E-Tag account consistent with the Eastlink Statements. The value of the benefit should not include the whole benefit but only the proportion of the benefit that can properly be considered the private benefit. The proportion of the benefit that was private use and that was business use needs to be determined.
I am satisfied that the Applicant regularly travelled to and from Croydon South (where his office was located) and Mount Martha (where he resided for almost all of the year before his dismissal). I am also satisfied that from time to time the Applicant drove to other destinations to and from the office in Croydon South. However, this does not change the fact that the Applicant derived a private benefit of having his petrol paid for the commute. The fact that the Applicant sometimes travelled different routes or made other business trips during the working day does not alter the nature of that benefit. I therefore reject the Applicant’s notion of only selecting trips from the EastLink Statements that are directly to and from his place of work and which do no not cover any side trips for business purposes as a basis for estimating the real or notional value.
I note that in the Applicant’s written response to the Respondent’s submissions which were filed after the hearing, the Applicant submitted that the personal distance travelled should be calculated by reference to the manufacturers claimed fuel consumption per kilometre and multiplied by an average cost of $1.29 for fuel. An attached print out of specifications for a Toyota Tarago was supplied to support the average fuel consumption figure provided. I cannot ascertain from the applicants materials what the $1.29 average fuel cost is based on.[34] I also note that none of these propositions were advanced during the hearing. The Applicant’s position at the hearing was that the petrol and toll benefit should not be included at all.
Nevertheless, I have considered whether or not it is appropriate to use the Applicant’s preferred methodology. In this matter, I have evidence of the actual dollar amount of petrol purchased by the Applicant on the company credit card in his last year of employment. I note that assuming that the amount of kilometres travelled is approximately 36,000, then using the Applicant’s methodology the amount that should have been paid in petrol costs for the year is $4,146.43.[35] This is significantly different to the amount that was actually paid on the credit card for the year of $6,449.88. This is a difference of approximately $2,300.00. While one would not expect the amounts to perfectly align, the amount accrued on the Applicant’s credit card for petrol is approximately 50% more than one would expect for 36,000 kilometres of travel, using the Applicant’s methodology. This consideration alone gives me cause for concern as to the Applicant’s preferred methodology. In the circumstances of this case, where I have evidence as to the actual amount of money petrol purchased by the Applicant on the company credit card in his last year of employment and a reasonable basis upon which to proportion that actual amount to private as opposed to business travel, I prefer the approach to estimating the real or notional benefit submitted by the Respondent.
It is common ground that the shortest distance from Mt Martha to Croydon South is 75 kilometres. This should be the basis for calculating the private benefit of the commute. As to the number of trips, the Respondent claims that there are 189 days which represent a full day of work where the Applicant entered the Thompson/Frankston point in the morning and exited the Thompson/Frankston point in the evening on EastLink.[36] However, having considered the marked up copy supplied by the Respondent I do not agree that there are 189 trips that meet that criteria. As an example, the trips on 17 February and 28 March do not meet the criteria. On my count there are in fact 174 trips that meet the criteria, not 189 trips. One also must consider that for the last two weeks of his employment the Applicant was living in Mornington and as such a shorter distance should be used for those trips. To account for this I have calculated 10 trips on the basis of the shorter distance, assuming that the Applicant had the benefit of the shorter commuter trip on 5 days in each of those two weeks.
Taking this into account the calculation of the value of the benefit is as follows: The total number of trips is 174. Of those trips, 164 were 150 kilometre round trips and 10 were 120 kilometre round trips. (164 trips x 150km) + (10 trips x 120km) = 25,800 kilometres travel that can be reasonably described as travel to and from work at the shortest distance (the commuter trip). This benefit is properly considered as a private benefit.[37] I agree with the Respondent that this is a conservative estimate of the amount of private use of the vehicle by the applicant as it does not include any other private travel.
The Applicant’s evidence is that he travelled approximately 36,000 kilometres in the 2016/17 financial year.[38] Although the time periods do not perfectly align (as the Applicant was dismissed in mid-September 2017 he actually worked 10 weeks or so into the 2017-18 financial year) I consider it is reasonable to use the Applicant’s evidence that the amount of total travel in his car recorded on his odometer of 36,000 kilometres for the 2016/17 financial year, in order to proportion the amount of kilometres travelled as private and business.
As there was at least 25,800 kilometres travelled as a commuter trip, this represents approximately 70% of the 36,000 kilometres travelled. As the total of amount of petrol purchased on the company credit card by the Applicant in the twelve-month period leading up to the dismissal was $6,449.88 then 70% of this amount equals $4,514.91. This amount combined with the wages amount of $136,700 totals $141,214.91.
A further amount representing the private component of the toll benefit needs to be added to this amount. The Respondent submitted that the estimate cost of the tolls for the round trip was $11.00. The cost of a single journey on EastLink from 14 October to June 30 2017 was $5.49 ($10.98 round trip total) and from July 1 to September 2017 was $5.57 ($11.14 round trip total). The Applicant did not disagree with the cost of the toll being estimated at $11.00.[39] I agree that $11.00 is a reasonable estimate of the value of the toll for the commuter round trip. Based on the 174 round trips and conservatively estimating the toll benefit from those trips at $11.00 per trip leads to an amount of $1,914.00. Adding this to the amount yields a total of $143,128.91. I note that this amount is very conservative as it does not take into account any private travel other than the benefit of the shortest distance journey from home to work and return.
Conclusion
Having regard to all the circumstances, I am satisfied that the sum of the Applicant’s annual rate of earnings, and such other amounts (if any) worked out in relation to the Applicant in accordance with the regulations, is $143,128.91. This exceeds the high income threshold. It is not apparent that the Applicant is covered by a modern award or enterprise agreement. Therefore the Applicant is not a person protected from unfair dismissal. The application is therefore dismissed.
An order will be issued concurrently with this decision.
COMMISSIONER
Appearances:
D Campain for the Applicant
M Champion of Counsel for the Respondent
Hearing details:
2018
Melbourne:
30 January.
Final written submissions:
13 February 2018
<PR600534>
[1] Zappia v Universal Music Australia Pty Limited t/a Universal Music Australia[2012] FWAFB 6108 at [9]
[2] PN254 and PN442
[3] Exhibit A1, Applicant’s materials, submission p.1, PN70
[4] Exhibit R1, Witness Statement of Nicholas Hermence, [11]
[5] PN257
[6] PN304
[7] Exhibit A1, Applicant’s materials, submission p.1, PN147 and PN152 – PN153
[8] PN69
[9] Exhibit A1, Applicant’s materials, submission p.1, PN76, PN374
[10] PN406
[11] Exhibit R1, Witness Statement of Nicholas Hermence, [10]
[12] Exhibit R1, Witness Statement of Nicholas Hermence, [10]
[13] Exhibit R1, Witness Statement of Nicholas Hermence, [12]
[14] PN258 – PN264
[15] PN288
[16] Respondent’s submissions regarding Exhibit R2 (Eastlink Statements), filed 6 February 2018, [3]
[17] PN288, PN347
[18] PN334
[19] Exhibit R2, Bundle of four EastLink quarterly statements
[20] PN337
[21] Respondent’s submissions regarding Exhibit R2 (Eastlink Statements), filed 6 February 2018, [5]
[22] Applicant’s submissions regarding Exhibit R2 (Eastlink Statements), filed 13 February 2018, [7]
[23] Applicant’s submissions regarding Exhibit R2 (Eastlink Statements), filed 13 February 2018, [9]
[24] Applicant’s submissions regarding Exhibit R2 (Eastlink Statements), filed 13 February 2018, [2]
[25] Respondent’s submissions regarding Exhibit R2 (Eastlink Statements), filed 6 February 2018, [6]
[26] Exhibit R1, Witness Statement of Nicholas Hermence, Attachment NH5
[27] Exhibit A1, Applicant’s materials, submission p.2,
[28] PN296 – PN300
[29] Respondent’s submissions regarding Exhibit R2 (Eastlink Statements), filed 6 February 2018, [3]
[30] Respondent’s outline of argument, filed 13 November 2017, [17]
[31] Respondent’s outline of argument, filed 13 November 2017, [20] – [24]
[32] Davidson v Adecco Australia Pty Ltd T/A Adecco[2012] FWA 8393
[33] PN68
[34] Applicant’s submissions regarding Exhibit R2 (Eastlink Statements), filed 13 February 2018, Attachment B
[35] 36,000kms divided by an average of 11.2kms per litre i.e. 8.9 litres per 100kms, and multiplied by an average cost of $1.29 per litre - see Applicant’s submissions regarding Exhibit R2 (Eastlink Statements), filed 13 February 2018, [10]
[36] Respondent’s submissions regarding Exhibit R2 (Eastlink Statements), filed 6 February 2018, [5]
[37] [2012] FWAFB 6108 at [11]
[38] Exhibit A1, Applicant’s materials, submission p.2, PN300
[39] PN329
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