Rolando Locastro v City of Darebin
[2021] FWC 6656
•23 DECEMBER 2021
| [2021] FWC 6656 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rolando Locastro
v
City of Darebin
(U2021/7548)
DEPUTY PRESIDENT MASSON | MELBOURNE, 23 DECEMBER 2021 |
Application for an unfair dismissal remedy – dismissal not harsh unjust or unreasonable - application dismissed.
[1] On 26 August 2021, Mr Locastro (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with the City of Darebin (the Respondent) on 9 August 2021. The Applicant seeks an order for compensation and reinstatement.
[2] Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 6 December 2021. After hearing from the parties, I determined to conduct a hearing pursuant to s.399 of the Act.
[3] At the hearing, the Applicant was self-represented and gave evidence himself. The Respondent was granted permission to be legally represented pursuant to s.596(2) and was represented by Ms K Sullivan, Lawyer of Maddocks who called the following witnesses to give evidence:
• Ms Gemma Patford – People and Culture Business Partner
• Mr Paul Edwards – Team Leader Business and Performance
• Ms Paula Robinson – Principal of Workplace Legal Solutions
• Ms Zenobia Smith – Complainant
Background and evidence
[4] The Applicant commenced employment with the Respondent on 24 March 2009 as a School Crossing Supervisor pursuant to a contract of employment. 1 He was summarily dismissed for serious misconduct on 9 August 2021 having been found to have contravened the Respondent’s Code of Conduct in which the Applicant had been trained2 and to have sexually harassed a member of the public, in breach of the Respondent’s Equal Opportunity Policy. The background and evidence going to the Applicant’s dismissal is set out below.
[5] There are 108 school crossings within the Darebin City Council municipality and the Respondent employs approximately 110 School Crossing Supervisors. The Applicant was assigned to work at the school crossing at the intersection of Station Street and Dundas Street in Thornbury. On occasions, other School Crossing Supervisors would work at that crossing but the Applicant for most of the time worked at that crossing on his own. His hours of work were between 8.15am-9.15am and from 3.00pm-3.50pm each school day 3. The Applicant was considered by his Manager Mr Paul Edwards to be conscientious and respectful and had not been subject to a complaint prior to the incident that led to his dismissal4.
[6] At the time of the alleged incident involving the Applicant on 12 March 2021, Ms Zenobia Smith worked at the after-school program at Pender’s Grove Primary School where she was required to commence work at 3pm. To travel to the school, her normal route involved catching the 567-route bus and alighting at the bus stop near the intersection of Dundas Street and Station Street following which she walked to and crossed at the school crossing at the intersection of Dundas Street and Station Street. According to Ms Smith, the school crossing had been supervised for the past three or so years by the Applicant 5.
[7] Ms Smith gave a detailed description of the Applicant, that being he “has short black hair, olive skin, appears to be of Mediterranean heritage, and is of short stocky build, appearing to be between approximately 50-60 years of age” 6. She also states that he usually attended the school crossing on a bicycle, and she would often see him drape his uniform over the bicycle before he started work. Ms Smith was unaware of the Applicant’s name until recently7.
[8] On 12 March 2021, Ms Smith says she took her normal route to the Pender’s Grove Primary School and got off the bus at 2.50pm and walked towards the school crossing at which point she observed the Applicant had arrived on his bike and had his uniform hanging on his bike. She states that on this day her hair was curly which the Applicant commented on, stating that he liked her hair curly and that it looked much better than when she wore it straight. The Applicant than asked Ms Smith whether he could bounce one of the curls. While uncomfortable with the request she nonetheless allowed the Applicant to touch her hair. She says she did so to be polite and so as not to appear rude. The Applicant proceeded to touch her hair and while he was doing this Ms Smith observed the Applicant’s eyes move to her chest. She states that she felt these actions were entirely inappropriate 8.
[9] After the above incident Ms Smith says she felt uncomfortable and wanted to leave but the lights had not yet changed. She further states that the Applicant then asked her what she was doing on the weekend to which she replied she was undertaking gardening chores. The lights then changed at which point the Applicant said to Ms Smith “Oh yeah you’re a dirty girl aren’t you? I bet you like to get your hands dirty don’t you?”. This comment made Ms Smith feel extremely uncomfortable, but she laughed it off as she walked across the road away from the Applicant. According to Ms Smith the behaviour and comments of the Applicant made her feel “uncomfortable, dirty and violated” 9.
[10] Following the incident and on her arrival at the school, Ms Smith immediately reported the incident to her manager, Mr Daniel Clancy, and subsequently called the Respondent that same afternoon to speak with someone about the incident. After receiving advice from a council officer, Ms Smith filed a formal complaint on the 15 March 2021 10.
[11] Ms Patford, who is a People and Culture Business Partner for the Respondent, became aware of Ms Smith’s complaint on 16 March 2021 when it was brought to her attention by Ms Cassie Pearce who is a Business Support Officer for the Respondent. After further steps were taken by Ms Pearce to establish the identity of the School Crossing Supervisor that was the subject of the complaint, Ms Pearce confirmed to Ms Patford that the School Crossing Supervisor in question was the Applicant 11.
[12] Ms Patford recommended to Mr Edwards that the Applicant should be stood down pending an investigation given the seriousness of the complaint. Mr Edwards agreed to the recommendation and a letter was prepared and signed to that effect on 17 March 2021. A meeting with the Applicant was subsequently conducted on 17 March 2021 at which Ms Patford and Ms Pearce attended for the Respondent. Ms Patford states that the Applicant was informed at the meeting that;
(a) a serious complaint had been made against him, involving an allegation that he had touched a member of the public, specifically that he had touched her hair, and that he had also said inappropriate words to this person to the effect of “oh yeah you're a dirty girl, I bet you like to get your hands dirty don't you" on 12 March 2021;
(b) Council would be standing him down on full pay, pending the outcome of an external investigation into the Complaint, given the serious nature of the allegations that had been made against him; and
(c) an external investigator would contact him and he would be given the opportunity to respond to the Complaint 12.
[13] At the conclusion of the meeting on 17 March 2021 the Applicant was provided with the letter dated 17 March 2021 (the Notification of Stand Down Letter) signed by Mr Edwards confirming that he was to be stood down on full pay pending completion of the investigation. He was encouraged to utilise the services of the Respondent’s Employee Assistance Program 13.
[14] On 18 March 2021, Ms Paula Robinson (the Investigator) of Workforce Legal Solution was engaged by the Respondent to conduct the investigation into Ms Smith’s complaint. The Applicant was advised on 19 March 2021 by Ms Patford that the Respondent had appointed an independent external investigator and that a meeting would be conducted the following week for which he would be sent a formal invitation 14.
[15] On 23 March 2021, correspondence was sent by a legal representative engaged by the Applicant to the Chief Executive Officer (CEO) of the Respondent. The Applicant’s legal representative contended in the letter that defamatory comments had been made regarding the Applicant, sought the disclosure of the complainant’s identity, and demanded that the Respondent desist from any further publication of the defamatory comments 15. A response to the letter was provided by the Respondent’s CEO on 29 March 2021 declining to provide the complainant’s identity and confirming that the Respondent would proceed with the conduct of a confidential investigation16.
[16] On 30 March 2021, correspondence 17 signed by Mr Edwards for the Respondent was sent to the Applicant inviting him to a meeting at the Respondent’s 274 Gower Street Preston offices on 1 April 2021 to discuss the notification of the serious allegations and the upcoming investigation (the 1 April Meeting Invite). The Applicant was encouraged to bring a support person. He was advised that the investigation was confidential and that he was not to discuss the matter with any other employee. The Applicant was also contacted by Ms Pearce by phone on 30 March 2021 asking him to attend the 1 April 2021 meeting in person18.
[17] On 1 April 2021, a meeting was conducted at which the Applicant and his support person Ms Denise Lewis attended. Ms Patford and Mr Edwards attended on behalf of the Respondent and detailed the particulars of the allegations 19. The Applicant was advised by Ms Patford during the meeting that he would need to attend a meeting with the Investigator and was reminded of the Respondent’s Employee Assistance Program. He was further advised that if the allegations were proven, it would constitute a breach of the Respondent’s Code of Conduct20 and Equal Opportunity Policy21. At the conclusion of the meeting a further letter22 (the Notification of Serious Allegation and Investigation Letter) was provided to the Applicant which confirmed the matters discussed in the meeting and included copies of relevant policies and procedures23. The Notification of Serious Allegation and Investigation Letter relevantly stated as follows;
“…………………
Your alleged misconduct is as follows:
Allegation
It is alleged that you have acted in a manner which directly contravenes your responsibilities in relation to Darebin City Council’s (‘Council’) Code of Conduct.
It has been alleged that on Friday 12 March, at approximately 2.50 pm, you sexually harassed a member of the public though inappropriate behaviour, inappropriate comments, and unwanted physical contact.
Particulars:
Near the school crossing on the corner of Station and Dundas Street you engaged in a discussion with a member of the public about how you considered that their hair looked much better than when they wore it straight. You then asked if you could bounce one of the curls.
You then asked the member of the public what they were doing on the weekend, to which they responded with gardening chores. You responded with the comment “oh yeah you're a dirty girl, I bet you like to get your hands dirty, don't you?’ or words to that effect.
If proven, this behaviour could constitute a breach of Council’s policies and procedures, including but not limited to the following:
• Councils Code of Conduct
• Equal Employment Opportunity Policy
……………”
[18] On 14 April 2021, Ms Robinson interviewed Ms Smith regarding her complaint and subsequently prepared a statement 24 which was signed and returned by Ms Smith. Ms Robinson states that she formed the impression during her interview of Ms Smith that she was quite young, frank, had a clear recollection of the incident and was quite affected by it as she had avoided contact with the Applicant after the incident25.
[19] After several unsuccessful attempts over several days by Ms Robinson to contact the Applicant, including leaving phone messages that were not returned by the Applicant, a telephone meeting was arranged for 6 May 2021. Ms Robinson states that despite her attempts to keep the interview on track, the Applicant spoke over the top of her and would not let her speak. She further states that she explained to the Applicant that this was his opportunity to respond to the allegations and that if he did not want to, he could do so in writing 26.
[20] The Applicant states that he was expecting a follow-up call from Ms Robinson after the 6 May 2021 meeting which was not forthcoming. The Applicant then sent a text message to Ms Robinson on 21 May 2021 in the following terms;
“I am writing this summary regarding the false allegations made against me.
I work between 8:15 am- 915 am and 3:00 pm- 3:15 pm .
I do not make personal contact with anyone while at work also, I never make any personal comments to any one or hold any form of conversion
My personal information is not relevant and not to be printed or shared” 27
[21] On 2 July 2021, Ms Robinson replied to the Applicant’s text message and sought confirmation as to whether there was any further information the Applicant wished to put forward. The text from Ms Robinson stated as follows;
“We confirm that this is your response to the allegations made in relation to you and there is no further information you wish to put to the investigation before it is finalised?” 28
[22] Based on the information obtained during the investigation, Ms Robinson concluded on the balance of probabilities that the Applicant had engaged in the alleged conduct in contravention of his responsibilities under the Code of Conduct and that the conduct may amount to sexual harassment. Ms Robinson’s findings were set out in a report 29 (the Investigation Report) dated 21 May 2021 which was provided to the Respondent.
[23] On 24 May 2021, Ms Patford received a copy of the Investigation Report. She states that based on the seriousness of the substantiated allegations, a preliminary recommendation was made to the CEO that the appropriate course of action would be to terminate the Applicant’s employment, with which the CEO agreed 30.
[24] On 4 June 2021, a letter inviting the Applicant to a meeting proposed for 10 June 2021 was couriered to the Applicant. The purpose of the meeting was to discuss the outcome of the investigation and the proposed disciplinary action. After issues arose with respect to the Applicant support person’s availability due to Covid restrictions, the meeting was re-scheduled to 23 June 2021 31. This was confirmed in a letter32 sent to the Applicant on 16 June 2021 (16 June Meeting Invite Letter) signed by Ms Rachel Ollivier who is the Respondent’s General Manager, City Sustainability & Strategy
[25] On 23 June 2021, a meeting was conducted to which Ms Patford, Ms Ollivier, the Applicant, and his support person Ms Lewis attended. Ms Patford explained to the Applicant that the investigation had been completed and advised him of the outcome of the investigation, that being the Respondent had made the preliminary decision to terminate his employment and that he would be given an opportunity to show cause why he should not be dismissed. The Applicant was advised that he would be given until 1 July 2021 to respond to the preliminary decision reached. A letter setting out in detail the allegations and substantiated findings was provided to the Applicant on 23 June 2021 33 (the Investigation Outcome Letter), relevantly stating as follows in relation to the allegations and substantiated findings;
Allegation | Substantiated | Finding |
It is alleged that you have acted in a manner which directly contravenes your responsibilities in relation to Darebin City Council’s (‘Council’) Code of Conduct. It has been alleged that on Friday 12 March, at approximately 2.50 pm, you sexually harassed a member of the public though inappropriate behaviour, inappropriate comments, and unwanted physical contact. Particulars: Near the school crossing on the corner of Station and Dundas Street you engaged in a discussion with a member of the public about how you considered that their hair looked much better than when they wore it straight. You then asked if you could bounce one of the curls. You then asked the member of the public what they were doing on the weekend, to which they responded with gardening chores. You responded with the comment “oh yeah you're a dirty girl, I bet you like to get your hands dirty, don't you?’ or words to that effect. | Yes | The Allegation has been substantiated. It has been concluded that: • That you engaged in inappropriate conduct and behaviour towards the Complainant, making both unwanted physical contact and making inappropriate comments which were of a sexual nature • You made an unwelcome sexual advance or unwelcome conduct of a sexual nature, as you submitted the Complainant to an act of physical intimacy by touching her hair and made an oral statement with sexual connotations to the Complainant about being a dirty girl and that you bet she likes to get her hands dirty when she indicated that she was doing gardening on the weekend in responding to his query • Although the Complainant admitted that she indicated to you that it was fine when you asked her whether you could touch her curls, she indicated that she was uncomfortable with this • The information provided by the Complainant was quite specific with respect to the incident that occurred as of 12 March, 2021 and the Complainant has been consistent in the information that they provided to Council as to the incident that occurred and to this investigation. It was found that there is no reason why the Complainant would manufacture the alleged incident. • The Complainant provided a specific description of the School Crossing Supervisor which detailed their approximate age, hair colour and build. The Complainant also stated that the School Crossing Supervisor also has a bicycle that they have seen him rest his uniform on. This description matches you as the Respondent. |
[26] The Investigations Outcome Letter also confirmed advice given to the Applicant in the 23 June 2021 meeting that the Respondent had formed a preliminary view that the termination of the Applicant’s employment was appropriate and that before making a final decision the Applicant would be provided with an opportunity to ‘show cause’ why his employment should not be terminated.
[27] The Applicant requested and was granted an extension to 15 July 2021 to provide a show cause response 34. A show cause letter was subsequently sent to the Applicant on 29 June 202135 (the Show Cause Letter) confirming what was discussed during the meeting of 23 June 2021. The Applicant was invited to provide a written response to the Show Cause Letter by 5.00pm on Thursday 15 July 2021.
[28] On 14 July 2021, the Applicant responded to the Show Cause Letter in the following terms;
“can you please verify receipt when receiving this
This is my show cause why I should not be unfairly dismissed from Darebin.
I attended a meeting where Gemma is looking to have me unfairly dismissed from work, even though we made Gemma fully aware that Paula Robinson the investigator, was only interested in my name and personal details and did not give me an opportunity to speak (by speaking over me). To this Gemma replied “why would she lie" (the accuser), even though we made Gemma fully aware that the investigator (Paula Robinson) never presented any allegations to me in the investigation or evidence, and it shows that there was a pre-determined outcome to this investigation and Gemma is admitting she knows I have been given no evidence by her response.
The accusations were presented in a very vague manner by Gemma and as Paula Robinson presented no allegations to me, I was given no opportunity to answer to any evidence, even though Paula Robinson stated she would call me back, but never did.
Despite the fact that I would never say these things, and in the 10 years that I have worked for Darebin as a permanent part time, plus the 5 years as reliever, I have never said any of these things. No one has ever accused me of saying these things before. I have never said any of these things, in my full career of working for Darebin for over 15 plus years. I have never said these things and never been accused of anything like this, I find the pre-determined outcomes to an investigation unfair.
I have been given no anonymity, and no training on how to deal with these matters, but the accuser has been given anonymity. Without evidence being given to me, to answer to.
I have been treated unfairly by not being able to attend any training.
Gemma was vague about the time and place the accusations occurred and was not clear about what was specifically said.
Gemma said the accuser was able to describe me at work, it could have been a day or a week prior, it could have been anytime, or place I do not know, I was not presented with any specific time or place. Proving I am going to work does not prove I said anything or that I say any of those things.
Despite the fact that in 15 years plus of working for Darebin, I have never been accused of saying anything like this.
If you were to dismiss me on these grounds, I would find it unfair and unlawful dismissal.” 36
[29] Given the Applicant’s comments regarding Ms Robinson’s conduct of the investigation, Ms Patford wrote to Ms Robinson seeking a response on the matters raised in the Applicant’s Show Cause Letter response. Ms Robinson subsequently responded on 14 July 2021 stating that;
(a) Rolando was provided with a summary of the allegations that had been made against him and was told that he was expected to respond to the allegations during the teleconference on 6 May 2021;
(b) she was not fixated on his name or personal details;
(c) Rolando was aware of the allegations as he responded, in some form, via text message; and
(d) Rolando’s response did not change or impact on the findings made as part of the investigation. 37
[30] Ms Patford states that after careful consideration of the Applicant’s Show Cause Letter response and ensuring all relevant information was before her, she decided to recommend his dismissal to the Respondent’s CEO on the basis that he had engaged in serious misconduct by breaching the Respondent’s Code of Conduct and Equal Opportunity Policy. The recommendation was accepted by the Respondent’s CEO 38.
[31] On 3 August 2021, Ms Patford called the Applicant to arrange a meeting for 6 August 2021 however the Applicant did not answer the call and a message was subsequently sent to him by Mr Edwards via the School Crossing Supervisor phone. A hard copy invite 39 (the 3 August Meeting Invite Letter) was also couriered to the Applicant40.
[32] On 5 August 2021, the Applicant contacted the Respondent and sought to reschedule the planned meeting from 6 August 2021 to 9 August 2021. The request was agreed to, and Ms Patford arranged for a teleconference on 9 August 2021 41. A letter42 confirming the meeting was sent to the Applicant on 5 August 2021 (the 5 August Meeting Invite Letter).
[33] On 6 August 2021, the Applicant sent Ms Patford a text message advising that he would not be attending the meeting on 9 August 2021. Ms Patford replied that if he did not attend the meeting the Respondent would proceed through the process and the details of the outcome of the matter would be sent to him 43.
[34] On 9 August 2021, Ms Patford attempted to contact the Applicant by telephone but he did not answer so she left him a message. She then sent the Applicant a text message that she had couriered a letter that detailed the outcome of the disciplinary process. The letter dated 9 August 2021 44 informed the Applicant that he had been summarily dismissed on the grounds of serious misconduct due to the substantiated allegations (Termination Letter). The Termination Letter relevantly stated the following;
“………………….
I am writing to confirm the outcome of a disciplinary matter in which you were invited to show cause as to why your employment with Darebin City Council (‘Council’) should not be terminated.
Council has considered your response received on 15 July 2021 as well as information received as part of the investigation process.
I confirm that the Council has decided to terminate your employment based on the substantiated findings arising from the public complaint received on Monday, 15 March 2021.
Notification of allegations, internal investigation and stand-down from your employment
On Wednesday 17 March 2021, Cassie Pearce, Business Support Officer and Gemma Patford, People and Culture Business Partner notified you that, on Monday 15 March 2021, a public complaint was received by Council detailing an incident in which a School Crossing Supervisor located at the corner of Station Street and Dundas Street School crossing in Thornbury acted in a manner that directly contravened their responsibilities in relation to Council’s Code of Conduct, and Equal Employment Opportunity Policy.
After a preliminary assessment into the account, it was determined that the complaint applied to yourself. As the allegations were of serious concern, Council suspended you on full pay from your role as School Crossing Supervisor position pending an investigation of this matter being undertaken.
On Thursday 01 April 2021, you were provided with the full details of the allegations against you and were informed that your attendance would be required at a meeting with the Investigator where you would be afforded the opportunity to respond to the allegations. Council appointed Ms Paula Robinson, Principal, Workforce Legal Solutions to investigate these allegations.
On Wednesday 23 June 2021, you were notified of the findings of the investigation. In this letter you were provided with a final opportunity to show cause as to why your employment with Darebin City Council should not be terminated. You elected to provide your Show Cause response in writing which was received by Council on Thursday 15 July 2021.
Findings of investigation and Conclusions
As outlined to you in the letter dated 23 June 2021, based on the information provided to the investigation and on the balance of probabilities, the Investigator determined that the allegation is substantiated.
The substantiated behaviours set out in the findings constituted a breach of Council’s policies and procedures, including the following:
• Councils Code of Conduct
• Equal Employment Opportunity Policy
On the basis that these Allegations have been substantiated, further action has been taken under Councils Disciplinary Procedure.
When deciding an appropriate disciplinary action, Council considered several factors in accordance with its obligations under the Fair Work Act, the information you provided in response to Show Cause as well as how Council prides itself on being an organisation that takes its obligations to serve and protect the community incredibly seriously and has zero tolerance for sexual harassment. As a Council employee, you have a responsibility to treat others with respect and avoid situations that may be perceived as inappropriate. Your conduct was not only in breach of the above policies, but also has the real potential to cause serious reputational damage to the Council.
Termination of your employment
Accordingly, I have decided to terminate your employment with the Council and your employment will cease effective from today 09 August 2021.
………………….”
[35] The Applicant in his evidence flatly denied the allegations of misconduct arising from Ms Smith’s complaint. He further stated that he had not acted or spoken inappropriately to Ms Smith or any other members of the public more generally and referred to his long period of service with the Respondent during which period no complaint had ever been made regarding his conduct. He also states that he was not given the full details of the allegations at any point during the investigation and disciplinary process, and specifically highlighted that he only became aware of Ms Smith’s name when her witness statement was recently filed in these proceedings.
[36] The Applicant further states that there were other alleged factual details that had emerged in the materials filed by the Respondent in the proceedings that had not been put to him during the investigation. This included details of his arrival time at work on 12 March 2021 and whether he was or was not in his uniform at the time of the alleged exchange with Ms Smith. He states that the failure of the Respondent to provide him with all relevant information during the investigation meant he was unable to properly respond, which denied him procedural fairness.
[37] During cross-examination, the Applicant claimed that the allegations regarding the time and place of the alleged incident as put to him during the investigation were vague, as he had stated in his show cause response 45. He resisted the proposition put to him that the Notification of Serious Allegation and Investigation Letter dated 1 April 2021 was quite clear in that it stated that the alleged incident occurred at approximately 2.50pm on Friday 12 March 2021 near the school crossing on the corner of Station and Dundas Street.
Has the Applicant been dismissed?
[38] A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[39] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Initial matters
[40] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[41] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. It is not contested that the Applicant was dismissed on 9 August 2021 following which he filed an application for an unfair dismissal remedy on 26 August 2021. I am therefore satisfied that the application was made within the period required under subsection 394(2) of the Act.
Was the Applicant protected from unfair dismissal at the time of dismissal?
Minimum employment period
[42] It was not in dispute, and I find that the Respondent is not a small business employer, having stated in its Form F3 that at the time of the Applicant’s dismissal it employed 1200 employees. The Applicant commenced his employment with the Respondent on 24 March 2009 and was dismissed on 9 August 2021, that being a period of employment of almost 12.5 years. I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period of six months.
Modern award or enterprise coverage, annual rate of earnings
[43] It was not in dispute, and I find that, at the time of dismissal, the Applicant was in receipt of annual remuneration of $13,951.50. It follows that the Applicant’s annual rate of earnings was less than the high-income threshold.
Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?
[44] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[45] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the Act at the relevant time, having more than 14 employees (including casual employees employed on a regular and systematic basis). I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the Act.
Was the dismissal a case of genuine redundancy?
[46] Under s.389 of the Act, a person’s dismissal was a case of genuine redundancy if:
(a) the 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.
[47] It was not in dispute, and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[48] Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.
Was the dismissal harsh, unjust, or unreasonable?
[49] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission 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 the dismissal related to the Applicant’s capacity or conduct – s 387(a)?
[38] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”46 and should not be “capricious, fanciful, spiteful or prejudiced47.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer48.
[50] The reasons relied on by the Respondent for the dismissal of the Applicant were that he engaged in inappropriate conduct and behavior towards Ms Smith, making both unwanted physical contact and making inappropriate comments which were of a sexual nature. The substantiated behaviors set out in the Investigation Outcome Letter dated 23 June 2021 were said to constitute a breach of the Respondent’s Code of Conduct and Equal Employment Opportunity Policy.
[51] Before turning to consider whether the alleged conduct occurred and whether it constituted a valid reason for dismissal it is necessary for me to make findings in relation to certain background facts. Those findings are as follows;
• The Applicant was engaged as a School Crossing Supervisor and had been assigned to the crossing at the corner of Station Street and Dundas Street in Thornbury for several years.
• While other School Crossing Supervisors would occasionally work at the particular crossing, the Applicant generally worked alone.
• The Applicant’s hours of work were from 8.15am-9.15am and from 3.00pm-3.50pm each school day.
• The Applicant normally rode his bike to work and left it close to the crossing while working.
• The Applicant was working at the crossing on 12 March 2021.
• At the time of the incident on 12 March 2021, Ms Smith worked at the after-school program at Pender’s Grove Primary School where she commenced work at 3pm each school day.
• Ms Smith’s normal travel route to work involved her alighting from a 567-route bus walking to and crossing at the Dundas Street/Station Street crossing that was supervised by the Applicant on or about 3pm each day.
• Ms Smith knew the Applicant by sight but not by name at the time of the alleged incident on 12 March 2021. She described his age and physical features and that he rode his bike to work, none of which was disputed by the Applicant.
[52] Ms Smith gave evidence of the incident that occurred on the 12 March 2021 and is set out above at [6]-[10]. That evidence was consistent with the detail provided in her initial complaint filed with the Respondent on 15 March 2021 and with the statement dated 14 April 2021 that she provided as part of the Respondent’s investigation. The accounts provided by Ms Smith in each of the three documents referred to and in evidence were consistent in all key respects. That is, when Ms Smith arrived at the crossing on 12 March 2021 around 2.50pm the Applicant commented to Ms Smith on her hair and asked whether he could bounce one of her curls to which Ms Smith reluctantly agreed so as not to appear rude. According to Ms Smith, the Applicant followed up this behavior by asking her what she was doing on the weekend to which she replied gardening chores to which the Applicant then commented "oh yeah you're a dirty girl, I bet you like to get your hands dirty don't you". During the exchange Ms Smith says she noticed the Applicant looking at her chest.
[53] The Applicant for his part denies having touched the Applicant’s hair or made the alleged inappropriate comments on 12 March 2021. He also states that he would not engage in such conduct with any member of the public. He also pointed to claimed inconsistencies in respect of the time the Applicant was said to be staring at Ms Smith’s chest. In the 15 March 2021 complaint report, Ms Smith says she noticed the Applicant staring at her chest when he made the comments regarding her being a “dirty girl” whereas in her witness statement in these proceedings she says she noticed the Applicant’s eyes move to her chest when the Applicant was commenting on her hair. That claimed inconsistency aside and some uncertainty on Ms Smith’s part as to the colour of the Applicant’s bike, the Applicant did not otherwise challenge Ms Smith’s evidence during cross-examination.
[54] I found Ms Smith to be a witness of credit in that she was open, truthful, and consistent in the statements she had previously made and in her evidence in these proceedings. She confirmed in her evidence there had been no prior inappropriate behaviour on the Applicant’s part and also made appropriate concessions when pressed regarding a statement she made in relation to the Applicant seeming to enjoy speaking with younger women. She agreed that this was just an assumption on her part. As to the Applicant looking at her chest, she clarified that she noticed the Applicant doing so throughout their interaction on 12 March 2021.
[55] Beyond the Applicant’s flat denial of the alleged conduct, the Applicant offered no plausible explanation for why Ms Smith would have fabricated her version of what occurred on 12 March 2021. No prior incident or unpleasant exchange between the two that might have motivated a false allegation by Ms Smith was raised. In these circumstances I find it inherently unlikely that Ms Smith would have gone to the trouble of notifying her supervisor of the incident immediately on arrival at school on 12 March 2021, contacting the Respondent on 12 March 2021, filing a formal complaint with the Respondent on 15 March 2021, participating in an interview with Ms Robinson and then finalising a witness statement on 14 April 2021 and then preparing a witness statement and appearing in these proceedings.
[56] Having regard to the findings I have made that Ms Smith was a witness of credit and the inherent unlikelihood of her fabricating a story to implicate the Applicant, I prefer her evidence over that of the Applicant’s simple denial. I am comfortably satisfied that the Applicant engaged in the alleged conduct towards Ms Smith in that he inappropriately touched her hair and made inappropriate comments of a sexual nature.
[57] Having found the conduct as alleged occurred, I now turn to consider whether the conduct founds a valid reason for the Applicant’s dismissal. The Respondents Code of Conduct and Equal Opportunity Policy documents set out the obligations of employees in terms of respect for others and sexual harassment. The Applicant had undertaken training in these policies. The Respondent’s Equal Opportunity Policy defines sexual harassment as including unwelcome touching, staring, or leering at parts of another person’s body and comments of sexually demeaning nature. I am further satisfied that the Applicant’s conduct comprised each of these elements of sexual harassment and was therefore in breach of the Respondent’s Equal Opportunity Policy and the Code of Conduct.
[58] Finally, regulation 1.07 of the Fair Work Regulations 2009 (the FW Regulations) defines serious misconduct to include sexual harassment.
[59] I am satisfied that the conduct engaged in by the Applicant of which I have made findings above, was contrary to the Respondent’s Code of Conduct and Equal Opportunity Policy and constituted serious misconduct as defined at Regulation 1.07 of the FW Regulations. It follows that the conduct founds a valid reason for his dismissal which weighs in favour of a finding that his dismissal was not unfair.
Notification of the valid reason - s.387(b)
[57] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,49 and in explicit50 and plain and clear terms51.
[60] After completing the investigation into the alleged misconduct of the Applicant, the Respondent provided the Investigation Outcome Letter dated 23 June 2021to the Applicant. That correspondence set out the substantiated findings of misconduct and that a preliminary view had been reached that the appropriate disciplinary action was that of termination of the Applicant’s employment. The Applicant was afforded a further opportunity to respond and show cause why he should not be dismissed.
[61] After consideration of the Applicant’s show cause response, the Respondent determined to dismiss the Applicant, the decision being communicated to the Applicant in the Termination Letter dated 9 August 2021. The reasons relied on and communicated to the Applicant in the Termination Letter were confirmed as those previously communicated to the Applicant in the Investigation Outcome Letter dated 23 June 2021.
[62] I am satisfied that the Applicant was notified in clear, plain, and explicit terms the valid reason relied on by the Respondent in terminating his employment and that the notification of the reasons were provided to him before the decision to dismiss him was taken. This finding weighs in favour of a finding that the dismissal was not unfair.
Opportunity to respond to any reason related to capacity or conduct - s.387(c)
[59] An employee protected from unfair dismissal should be provided with an opportunity torespond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment52.
[60] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly53. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements54.
[63] The investigation and disciplinary process followed by the Respondent is set out in detail above but may be summarised as follows;
• Following the filing of the complaint by Ms Smith on 15 March 2021 and after confirming the identity of the relevant School Crossing Supervisor, the Applicant was met with by Ms Patford and Mr Edwards and suspended on full pay on 17 March 2021 pending completion of the investigation. This was confirmed in the Stand Down Letter dated 17 March 2021
• On 1 April 2021, a meeting was conducted at which Ms Patford, Mr Edwards, the Applicant and his support person attended. During the meeting, the Applicant was advised that an Investigator had been appointed and that he would need to attend a meeting with the Investigator. At the conclusion of the meeting the Applicant was provided with the Notification of Serious Allegations and Investigation Letter dated 1 April 2021 which set out the allegations. He was also provided with copies of relevant policies.
• On 6 May 2021, the Investigator interviewed the Applicant regarding the allegations.
• On 21 May 2021, the Applicant sent a text message to the Investigator providing a further response to the allegations. He did not reply to a text sent from the Investigator on 2 July 2021 seeking confirmation that there was no further information he wished to put before the investigation was finalized.
• On 23 June 2021, a meeting was conducted at which Ms Patford, Ms Ollivier, the Applicant and his support person attended. The outcome of the investigation was advised to the Applicant and at the conclusion of the meeting he received the Investigation Outcome Letter dated 23 June 2021. That letter set out the details of the allegations, the substantiated investigation findings and confirmed the Respondent’s preliminary view that dismissal was appropriate.
• The Applicant was then afforded an opportunity to provide a show cause response to the investigation findings and his proposed dismissal, which he provided on 14 July 2021.
• On 5 August 2021, the Applicant was notified by letter that a further meeting would be conducted on 9 August 2021 to discuss the serious allegations and investigation outcome. The Applicant was advised that if he did not attend the scheduled meeting the Respondent would proceed with the disciplinary process.
• On 9 August 2021, the Applicant failed to dial into the scheduled meeting and could not be contacted. The Respondent subsequently confirmed the Applicants dismissal in the Termination Letter dated 9 August 2021.
[64] The Applicant contends that the process followed by the respondent was procedurally unfair in several respects. Firstly, that the allegations as to the time and place of the alleged incident were vague. Secondly, the name of the complainant (Ms Smith) had not been provided to him prior to the filing of her witness statement in these proceedings. Thirdly, that the Investigator had failed to call him back as he had expected her to after their meeting on 6 May 2021. Fourthly, there were other matters of detail contained in the Respondent’s material filed in these proceedings that were not put to him during the investigation.
[65] In respect of the first ground, the Applicant’s claim of vagueness as to the time and place of the alleged incident must be rejected. The Notification of Serious Allegations and Investigation Letter dated 1 April 2021, which the Applicant did not dispute he had received, explicitly stated the date, approximate time, and place of the alleged incident. There could be no doubt as to when and where the incident was alleged to occur.
[66] As to the second point of unfairness raised by the Applicant, that of the identity of the complainant being unknown to him, that point also has no merit. Ms Smith was unknown by name to the Applicant at the time of the incident on 12 March 2021, so even had her name been disclosed to him as part of the investigation, it is difficult to see how that would have altered his capacity to respond to the allegations which were set out in the Notification of Serious Allegations and Investigation Letter dated 1 April 2021. In my view, the allegations were set out with sufficient particularity without disclosure of the complainant’s name as to enable the Applicant to have effectively responded.
[67] The Applicants states that he understood that the Investigator was going to call him back after their 6 May 2021 meeting concluded and that her failure to do so had denied him an opportunity to respond. Ms Robinson gave unchallenged evidence in the proceedings as to the Applicant’s behaviour during her interview of him, which was set out above at [19]. She gave evidence that she explained to the Applicant that he could provide a response in writing, which he subsequently did on 21 May 2021. There is no reference in the Applicant’s text message of 21 May 2021 to an expected phone call from Ms Robinson having not occurred. Nor is there any evidence that the Applicant made any attempt himself to contact Ms Robinson following the 6 May 2021 meeting. Finally, when Ms Robinson sent a further text message to the Applicant on 2 July 2021 querying whether there was any further information he wished to put forward, the Applicant did not respond. I am not persuaded that the Applicant was denied an opportunity to respond to the allegations during Ms Robinson’s investigation.
[68] As to additional information that was in the material filed by the Respondent which the Applicant states should have been put to him during the investigation, the Applicant refers to details of the time of his arrival at work on 12 March 2021 and whether he was wearing his uniform or not at the time of the incident. As to the first point, the Notification of Serious Allegations and Investigation Letter dated 1 April 2021 identified the time of the alleged incident with sufficient particularity, that being at approximately 2.50pm on 12 March 2021. On the second point, the evidence provided by Ms Smith in her witness statement that the Applicant’s uniform was hanging on his bike, does not go to the core allegations, that he sexually harassed the Applicant by unwanted physical contact and making inappropriate comments. It follows that these criticisms of the process followed by the Respondent have no merit and did not deny him an opportunity to respond to the central allegations.
[69] There can be little doubt in my view that the Applicant understood the allegations that were put against him by the Respondent. This can be seen firstly by the letter sent to the Respondent’s CEO by the Applicant’s legal representative on 23 March 2021. Secondly, the Applicant responded by text message to Ms Robinson on 21 May 2021 regarding the alleged misconduct. Finally, his show cause response provided to Ms Patford on 14 July 2021 engages with the allegations and investigation findings despite claiming the allegations were vague.
[70] I am satisfied that the Respondent followed a procedurally fair process in which it detailed the allegations to the Applicant, both in meetings and in writing. The Applicant was afforded an opportunity to respond to the valid reason related to his conduct that was relied on by the Respondent for his dismissal. That opportunity to respond was provided to the Applicant prior to the decision to dismiss him being taken. That he did not make best use of the opportunity afforded to him to respond to the allegations does not render the process unfair. My findings as to the procedural process followed by the Respondent weighs in favour of a finding that the dismissal was not unfair.
Support person – s.387(d)
[65] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[66] 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.”55
[71] I am satisfied that the Applicant was afforded an opportunity to be accompanied by a support person in each discussion held in relation to the disciplinary action. Moreover, various requests by the Applicant to defer scheduled meetings to accommodate his and his support persons’ availability were acceded to by the Respondent. These circumstances weigh in favour of a finding that the dismissal was not unfair.
Warnings regarding unsatisfactory performance - s.387(e)
[68] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.
Impact of the size of the Respondent on procedures followed - s.387(f)
[69] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed approximately 1200 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[72] The evidence in this matter indicates that the Respondent had access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
[73] The Applicant commenced employment with the Respondent in March 2009 and on the evidence of his immediate manager Mr Edwards, was a conscientious employee and had not been the subject of any previous complaint prior to the incident that led to his dismissal. Ms Smith also gave evidence that the Applicant had not engaged in inappropriate conduct before the incident on 12 March 2021. The Respondent submits that the Applicant’s employment history was considered in deciding to dismiss him, but that the gravity of his misconduct was sufficiently serious to justify dismissal. It is also the case that the Applicant is not a young man and is certainly closer to the end of his working life than to the beginning of it. In these circumstances, a dismissal is likely to be more profoundly felt in terms of the challenge of securing fresh employment.
[74] In my view, the age of the Applicant, his prospects of securing new employment and his unblemished employment record are matters that are relevant to consideration of whether the Applicant’s dismissal was unfair. These factors, when taken together, weigh in favour of a finding that the dismissal was harsh and therefore unfair.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?
[75] I have made findings in relation to each matter specified in s.387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable 56.
[76] As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related to his conduct has been established. The investigation and disciplinary process followed by the Respondent was procedurally fair, the dismissal was not related to the Applicant’s performance and the size and capacity of the Respondent did not impact on the procedures that it followed. These matters weigh either neutrally or in favour of a finding that the dismissal was not unfair.
[77] The only factors weighing in favour of a finding that the dismissal was unfair were those matters identified in my consideration of s.387(h), those being the Applicant’s age, employment record and prospects of securing new employment. While the Applicant’s conduct in his interaction with Ms Smith could never have been acceptable in my view, the contemporary environment has brought that type of behaviour into sharper focus. There can be no tolerance by employers of that type of inappropriate conduct, be that directed towards fellow employees or members of the public. While the matters I have identified in considering s.387(h) are of some weight, they are not sufficient to displace the weight I place on the existence of a valid reason and the procedurally fair process applied by the Respondent.
[78] It follows from the above that having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal, it was carried out in a procedurally fair manner and outweighs those other factors I have identified.
Conclusion
[79] Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.
[80] The application is dismissed. An Order will be separately issued giving effect to my decision.
DEPUTY PRESIDENT
Appearances:
R Locastro, Applicant.
K Sullivan for the Respondent.
Hearing details:
2021.
Melbourne (by Microsoft Teams):
December 20.
Printed by authority of the Commonwealth Government Printer
<PR737007>
1 Exhibit R6, Contract of Employment.
2 Exhibit R27, Notice regarding Applicant’s completion of Code of Conduct training.
3 Exhibit R4, Witness Statement of Mr Paul Edwards, dated 1 December 2021 at [5]-[7].
4 Ibid at [10].
5 Exhibit R1, Witness Statement of Ms Zenobia Smith, dated 1 December 2021 at [1]-[5].
6 Ibid at [6].
7 Ibid.
8 Ibid at [10].
9 Ibid at [11].
10 Exhibit R6, Ms Zenobia Smith sexual harassment complaint to City of Darebin, dated 15 March 2021.
11 Exhibit R2, Witness Statement of Ms Gemma Patford, dated 1 December 2021 at [6].
12 Ibid at [10].
13 Exhibit R8. Notification of Stand Down letter, dated 17 March 2021.
14 Exhibit R2 at [12]-[13].
15 Exhibit R10, Letter from McDonald Murholme to Respondent, dated 23 March 2021.
16 Exhibit R11, Letter from Respondent CEO to McDonald Murholme, dated 29 March 2021.
17 Exhibit R12, Meeting Invite letter to Applicant, dated 30 March 2021.
18 Exhibit R2 at [16].
19 Ibid at [18].
20 Exhibit R31, Code of Conduct 2020.
21 Exhibit 28, Equal Opportunity Policy, dated October 2019.
22 Exhibit R13, Notification of Serious Allegations and Investigation Letter, dated 1 April 2021.
23 Exhibit R2 at [19]-21].
24 Exhibit R18, Statement of Zenobia Smith, dated 11 May 2021.
25 Exhibit R3, Witness Statement of Paula Robinson, dated 1 December 2021 at [13].
26 Ibid at [18].
27 Exhibit R15, Text message from Applicant to Paula Robinson, dated 21 May 2021.
28 Exhibit R16, Text message from Paula Robinson to Applicant, dated 2 July 2021.
29 Exhibit R18, Investigation Report, dated 21 May 2021.
30 Exhibit R2 at [28].
31 Ibid at [29]-[30].
32 Exhibit R19, Invite to meeting letter sent to Applicant, dated 16 June 2021.
33 Exhibit R32, Investigation Outcome letter, dated 23 June 2021.
34 Exhibit R2 at [31].
35 Exhibit R20, Show Cause letter, dated 29 June 2021.
36 Exhibit R21, Email from Ms Lewis on behalf of Applicant to Gemma Patford with show cause response, dated 14 July 2021.
37 Exhibit R2 at [35], Exhibit R22, Email from Paula Robinson to Gemma Patford, dated 14 July 2021.
38 Exhibit R2 at [36].
39 Exhibit R23, Invite to meeting letter, dated 3 August 2021.
40 Exhibit R2 at [37].
41 Ibid at [38].
42 Exhibit R25, Invite to meeting letter, dated 5 August 2021.
43 Exhibit R2 at [39]
44 Exhibit R26, Termination Letter, dated 9 August 20211.
45 Exhibit R21.
46 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
47 Ibid.
48 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
49 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
50 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
51 Ibid.
52 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
53 RMIT v Asher (2010) 194 IR 1, 14-15.
54 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
55 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
56 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]– [7].
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