[2019] FWC 1751

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Cruise
v
Baxter Cassidy Pty Ltd T/A Ray White Langwarrin
(U2018/9375)

COMMISSIONER GREGORY

MELBOURNE, 19 MARCH 2019

Application for an unfair dismissal remedy.

Introduction

[1] Ms Sarah Cruise commenced working for Baxter Cassidy Pty Ltd T/A Ray White Langwarrin (“Ray White Langwarrin”) in December 2015, and worked as an Assistant Property Manager. She worked on a permanent part-time basis, and was engaged to work for 18 hours each week.

[2] However, in August last year Ms Cruise was dismissed from her employment. Ray White Langwarrin submits that her termination was a case of “genuine redundancy” after she failed to accept an offer of a full-time position, and therefore she cannot have been unfairly dismissed. Ms Cruise submits in response that her termination was not a case of genuine redundancy and, in any case, Ray White Langwarrin has not satisfied the relevant statutory requirements necessary to constitute a case of “genuine redundancy.”

[3] Ms Cruise subsequently made application under s.394 of the Fair Work Act 2009 (Cth) (“the Act”) claiming she has been unfairly dismissed. However, Ray White Langwarrin opposes the application and, as indicated, submits her dismissal was a case of “genuine redundancy” as defined by s.389 of the Act. Therefore she has not been unfairly dismissed. It also submits, in the alternative, that if the Commission finds her termination was not a “genuine redundancy” it was not in any case “harsh, unjust or unreasonable.”

[4] Mr Geoff Lake of Counsel appeared on behalf of Ms Cruise. Mr Justin Tierney of Counsel appeared on behalf of Ray White Langwarrin. Both were granted permission to appear under s.596(2)(a) of the Act as the matter involved a degree of complexity, particularly given the jurisdictional objection, and their involvement might enable it to be dealt with more efficiently.

The Issue to be Determined

[5] Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.” 1

[6] Section 389 continues to state:

“389 Meaning of genuine redundancy

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

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

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

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

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.” 2

[7] The Commission is accordingly required to determine, firstly, whether Ms Cruise’s dismissal was a case of “genuine redundancy,” as defined by s.389 of the Act, in which case she cannot have been unfairly dismissed under s.385. However, if the Commission finds her dismissal was not a case of “genuine redundancy” then it must determine whether Ms Cruise has been unfairly dismissed on the basis that her dismissal was “harsh, unjust or unreasonable.” The Commission is required in that context to have regard to the various matters contained in s.387 of the Act.

The Jurisdictional Objection

The Respondent’s Evidence and Submissions

Mr Nicholas Cassidy

[8] Mr Cassidy has been a Director of Ray White Langwarrin since 1999 and Ms Cruise commenced employment with the business in December 2015 in the role of Assistant Property Manager. She worked on a permanent part-time basis.

[9] In October 2017 Mr Cassidy sought to formalise her employment arrangements and provided Ms Cruise with a proposed contract of employment. However, Ms Cruise did not sign the contract. In June 2018 Mr Cassidy again provided a contract of employment to Ms Cruise, which set out her position description and commission structure. However, she again did not sign the contract, but continued to be employed for 18 hours per week at a weekly amount of $540.63, excluding superannuation. She also received a company vehicle and telephone and performed the duties set out in the contract provided to her.

[10] In August last year Mr Cassidy decided there was a strong business case for the role of Assistant Property Manager to be performed on a full-time basis. He considered this change had the potential to earn more revenue for the business and to enable more sales to be conducted. It would also avoid some administrative problems associated with the interaction between the role performed by Ms Cruise and that of the full-time Property Manager. Ms Cruise was accordingly offered the position of Assistant Property Manager on a permanent full-time basis.

[11] Mr Cassidy also said he was advised by the Victorian Chamber of Commerce and Industry that once he had made the decision to offer Ms Cruise the full-time role he was obliged to consult with her about this change.

[12] This process of consultation took place between 3 August and 24 August 2018. On 3 August Mr Cassidy met with Ms Cruise and explained that the part-time role was no longer appropriate for the business, and she had the option of taking on the full-time role. She asked in response for details about the role to be set out in writing.

[13] Mr Cassidy stated in his witness statement that in the period between 3 and 7 August he made various calls to the Victorian Chamber of Commerce and Industry in order to discuss the obligations in relation to making the part-time role redundant, as well as his obligations about consulting with Ms Cruise. It advised in response that he could meet his obligations by setting out in writing the changes to be made to the part-time role.

[14] On 7 August he sent an email to Ms Cruise which confirmed the decision, which was to take effect from 20 August 2018. The email also detailed the hours of work and the salary, which was proposed to be a gross amount of $58,790.00 per annum. Ms Cruise was informed that she had until 10 August to provide her position in response.

[15] On 8 August Mr Cassidy received an email from Ms Cruise which thanked him for the opportunity to consider the full-time position and requested several additional things, including a full-time role position description, a recalculation of the salary, a breakdown of the salary to show the car allowance, and the current commission structure. Her email also requested that the consultation period be extended by 7 days.

[16] Mr Cassidy considered that Ms Cruise was attempting to initiate a process of negotiation about the proposed changes, but was hesitant to get involved in that process because she had been difficult about these matters in the past and had refused, for example, to sign each of the two previous employment contracts presented to her.

[17] On 13 and 14 August Mr Cassidy, Ms Cruise, and some other staff members attended a conference in Queensland. Mr Cassidy did not think it was appropriate to discuss the proposed full-time role with Ms Cruise during this time.

[18] On 21 August Mr Cassidy approached Ms Cruise to discuss the full-time role but said she told him she did not have time to attend the meeting. Mr Cassidy said he formed the impression that Ms Cruise was unhappy about what was being proposed and did not want to accept the full-time role.

[19] On 24 August Mr Cassidy asked Ms Cruise to attend a further meeting in which he told her that she had ample opportunity to consider whether to accept the full-time role, and as she had not done so the business was required to make her redundant. He provided a termination letter to her, which stated in part under the heading “Termination of your employment by reason of redundancy”:

“The purpose of this letter is to confirm the outcome of a recent review by Ray White Langwarrin (the employer) of its operational requirements, and what this means for you.

As a result of a need for change of the level of service provided and time dedicated to the property management department, the position of Part-Time assistant Property Manager is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.

The employer has made the following attempts to find you an alternative position within the enterprise and any associated entities, including reviewing our current vacancies.

Your employment will end immediately. Based on your length of service, your notice period is 3 weeks. In lieu of receiving that notice, you will be paid the sum of $1,223.92.” 3

[20] Mr Cassidy also indicated that on or around September 2018 he completed the Small Business Fair Dismissal Code. A copy of the Code was attached to his witness statement.

[21] Mr Cassidy also indicated in his examination-in-chief that after Ms Cruise had a second accident in the company vehicle provided to her he had the car repaired and decided not to hand it back to her. He also stated that the full-time Property Manager was not coping with the workload and this was a further reason why the part-time Assistant Property Manager role needed to be made full-time. He also said that in the discussion with Ms Cruise on 3 August she asked him what would happen if she did not accept the full-time position and he responded by indicating, “Well, I guess redundancy.” 4

[22] He also indicated in cross-examination that he finally made the decision to make Ms Cruise redundant sometime on the afternoon of 24 August. He made the decision then because he had given her plenty of time to decide whether she wanted to accept the full-time role. He also believed that he had provided her with a clear indication about what the full-time role involved and did not consider it necessary to respond to her request for further information, prior to her making a decision about whether to accept the offer.

[23] He also denied that he had given instructions to remove Ms Cruise’s access to the computer system, or that she had been deliberately left out of a text message group that was established when he and several other employees attended a conference in Queensland.

[24] He also indicated in cross-examination that he had not actually spoken to anyone from the Victorian Chamber of Commerce and Industry about the circumstances involving Ms Cruise. However, his Office Manager had obtained advice from the Chamber and he had relied, in turn, on the information provided from her about what was required.

[25] He also stated that he gave Ms Cruise additional time to consider the effect of the changes being proposed, and understood that as long as he had consulted with her he did not need to provide anything further. He also indicated that he hoped she would accept the full-time position. In addition, the letter dated 7 August, which was given to Ms Cruise, did not contain any explanation about the reasons why he had decided to restructure her role, and it also made no mention of redundancy. He also acknowledged that the new role was proposed on the basis of Ms Cruise receiving $5 per hour less than what she was currently being paid.

The Respondent’s Submissions

[26] Ray White Langwarrin submits that Ms Cruise’s dismissal was a case of genuine redundancy, and it was also consistent with the Small Business Fair Dismissal Code. In dealing with the requirements in s.389 of the Act it relies on the decision in Ulan Coal Mines Limited v Henry Jon Howarth and others (“Ulan Coal Mines”) 5 in support of what constitutes a position being made redundant. It continues to submit that the decision to end the part-time role and to offer Ms Cruise a full-time position was a legitimate exercise of managerial prerogative by the Director of the business.

[27] It also relies on the decision of the Commissioner Smith in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd 6 in support of what it submits the obligation to consult requires. It continues to submit that it requires the decision-making process to be informed, but guarantees no right of agreement, nor does it act as a barrier to the prerogative of management to make decisions. It acknowledges in the present matter that while there could have been greater engagement the processes gone through were still sufficient to comply with the requirements in s.389, and the period of time provided for the processes of consultation was more than adequate. It submits, in conclusion, that regardless of who raised the issue of redundancy in the discussions on 3 August both parties were nevertheless put on notice that Ms Cruise could be made redundant if she did not accept the offer of the new full-time role.

[28] It also submits that the business had less than 15 employees at the time Ms Cruise was terminated and it complied with the Small Business Fair Dismissal Code in carrying out her dismissal.

The Applicant’s Submissions and Evidence

Ms Sarah Cruise

[29] Ms Cruise denies that in October 2017 Ray White Langwarrin sought to formalise her employment conditions by entering into an employment contract. However, she was provided with a contract of employment in June last year, which sought to formalise her part-time employment arrangements. However, it also proposed to make her responsible for the costs of fuel, cleaning, repairs and damage to her company vehicle. She had a discussion with the Office Manager at the time about her concerns about the attempt to pass on the car expenses, and was waiting on a response from the Office Manager about those issues before considering whether to sign the contract.

[30] Ms Cruise denies that she was ever provided with any information about the business case for her role to be performed on a full-time basis. She was also not aware of any significant increase in managed properties, and her role was in no way related to property sales. She was also not provided with any information about any administrative problems associated with her role and that of the full-time Property Manager.

[31] She also denies that terminating her part-time role was the only viable alternative, and a range of other options could have been considered, including some increase in her hours, or job sharing with another employee. She also denies she was provided with any other options, and was instead simply told in the discussion on 3 August that she needed to be working on a full-time basis. She was also told that Mr Cassidy had made the decision and was not prepared to enter into any discussion about it. She also denied that she ever told Mr Cassidy that she did not have time to attend the meeting on 21 August 2018.

[32] There was also no discussion in the final meeting on 24 August, and she was simply called into the meeting by Mr Cassidy, 10 minutes prior to her normal finish time. She was then handed an envelope, which contained the termination letter. When she asked Mr Cassidy why this was occurring he simply answered “That’s my decision.” 7

[33] In regard to the claims about consultation Ms Cruise provided the following explanation in her evidence about what occurred. In the meeting on 3 August she tried to engage Mr Cassidy in a meaningful discussion about what he had proposed, but was not provided with an opportunity to discuss any other options, or to seek to vary or mitigate what was being proposed. She then asked for a copy of the full-time employment proposal in writing, which she received in brief outline on 7 August 2018.

[34] On 8 August 2018 she sent an email to Mr Cassidy requesting the following additional information. It stated as follows:

“Dear Nicholas,

I am in receipt of todays’ letter of offer and I Thankyou for the opportunity to change to a full time position within your workplace.

This certainly is an exciting offer and one I aim to make work for my family to ensure it’s success for all parties involved.

Unfortunately your requested time frame of 2 days is not reasonable for an adequate response. I will be responding in writing within 7 days.

As I’m sure you will appreciate, I have a young family with 3 children and I must consider my options with school and kinder hours given the new positions outlined hours.

Prior to making a decision, I require the following information

- A full position outline, including the additional duties required to warrant the new full time hours. I believe the current 18 hours I work is sufficient to conclude all set tasks. I am not aware of any tasks that are not being completed in the current structure of our department.

- I also require a recalculation of the stated “all inclusive” pay rate outlined in your offer. Please note I am currently earning $30.35 per hour.

At this new reduced rate I will be significantly disadvantaged financially, I understand a pay reduction is not able to be enforced under workplace laws.

- As per the recent change in law, I also request a break down of the ‘all inclusive’ inclusions to show the exact portion that is allocated to car allowance per km, as it is dependent on the car I drive and it’s age/ engine size. As you are aware I am in the market for a new vehicle which will alter the final result slightly.

- There is also no mention of my current commission structure which will need to be included separately and presented to me with the rectified offer.

Finally I would like to formally request an outline of what the ramifications will be should I not accept your offer.

Kind regards,

Sarah Cruise” 8

[35] Ms Cruise did not receive a reply to this email, and on 21 August she sent a further text to Mr Cassidy requesting a meeting but again received no reply. In addition, in the time between the initial meeting on 3 August and the meeting on 24 August, when her employment was terminated, there were no other discussions between her and Mr Cassidy about the proposed restructure.

[36] Ms Cruise acknowledged in cross-examination that there may have been good reasons for changing the structure of the business that she was not aware of. She also acknowledged that she did not provide a response in writing within 7 days after first being spoken by Mr Cassidy on 3 August, but did not respond within that timeframe because she was waiting for him to respond to the matters she had raised in her email of 8 August. She also denied in cross-examination that Mr Cassidy had made reference to redundancy in the discussions on 3 August, and he had simply indicated instead that the change involved “full-time or nothing.” 9 She also denied that she had told him on 21 August that she did not have time to meet with him.

[37] She also acknowledged in cross-examination that after having two accidents in the company vehicle provided to her that this might have justified removing the vehicle from her. She also made enquiries about why her access to the computer database was removed but was not provided with an acceptable explanation about why this had occurred.

The Applicant’s Submissions

[38] Ms Cruise submits that Ray White Langwarrin has not satisfied the consultation obligations associated with “genuine redundancy,” and its evidence indicates that it was not aware of the relevant consultation clause in the Real Estate Industry Award 2010. In addition, there was no genuine process of consultation gone through, and this was emphasised by its failure to respond to her email of 8 August, or her follow-up text message on 21 August. Ms Cruise continues to submit that the offer of full-time employment was instead a device or proposal put forward in the knowledge that she would be unable to accept the offer and would have to resign from her employment. This was emphasised by the fact that it was an unattractive offer, given that it proposed to reduce her existing hourly rate of pay by approximately $5. She also submits that her dismissal cannot be considered to be consistent with the Small Business Fair Dismissal Code as again there had been a failure to satisfy the Award consultation provisions.

[39] Ms Cruise continues to submit that the jurisdictional objections raised by Ray White Langwarrin should therefore be dismissed, and the matter instead involved a clear case of unfair dismissal in that her termination was harsh, unjust and unfair. She notes, in particular, that she was not provided with any notice of the meetings, and had no opportunity to have a support person involved in any of the discussions. There was also no valid reason for her termination based on the reasons stated by the business for its decision to offer her the full-time position.

Consideration

[40] It is necessary at the outset to deal with the jurisdictional objections that have been raised in response to the application. The definition of what constitutes “genuine redundancy” is contained in s.389 of the Act and has been set out at an earlier point in this decision. It, firstly, requires that “the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.”

[41] The respondent made reference in its submissions to the decision of a Full Bench of Fair Work Australia in Ulan Coal Mines, which considered the relevant words contained in the legislation.

[42] It concluded:

“[15] These were the circumstances in which it was necessary to consider the meaning and application of the relevant statutory provisions and, in particular, the expression “the person’s employer no longer required the person’s job to be performed by anyone” in s.389(1)(a) of the Act. These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy (see e.g. R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511). They have also been adopted in the National Employment Standards provided under the Act in dealing with entitlements to redundancy payments (see s.119).” 10

[43] The Full Bench continued:

“[16] The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:

“1547 Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548 The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;

• the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person‘s job no longer exists.” 11

[44] The Full Bench continued:

“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.” 12

[45] Mr Cassidy made reference in his evidence to various factors that led him to conclude that the role of Assistant Property Manager needed to be performed on a full-time basis, rather than as a part-time position involving 18 hours per week. Ms Cruise took issue with the rationale relied on for this business case advanced by Mr Cassidy, but also acknowledged in cross-examination that it was ultimately his prerogative, as the business owner, to be making decisions about how the business was structured.

[46] However, the evidence provides grounds to question Mr Cassidy’s motivation for taking the decision that he did, and whether it can be said to be justified on genuine business grounds, or whether it was instead a strategy designed to leave Ms Cruise with no option but to resign from her employment, given her existing family responsibilities. However, given the conclusions I have come to about other aspects of this matter it is not necessary to determine whether the changes were genuinely motivated by “the operational requirements of the employer’s enterprise.” It is also acknowledged that as a general principle the Commission should not be ‘second-guessing’ decisions made by a business, or acting to frustrate the legitimate exercise of an employer’s managerial prerogative.

[47] Section 389 next requires the employer to have complied with any obligation in a Modern Award or enterprise agreement that applies to it to consult about the redundancy. It is common ground between the parties that the business is subject to the Real Estate Industry Award 2010, and Ray White Langwarrin acknowledges in its submissions that Ms Cruise was employed at the Level 2 classification in the Award.

[48] Clause 8. Consultation in the Real Estate Industry Award 2010 relevantly provides:

“8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[49] There is again no contest between the parties that the changes proposed by Ray White Langwarrin required it to consult with Ms Cruise. However, it submits that it has complied with this obligation. Ms Cruise submits that it has not.

[50] The clause imposes an obligation upon an employer to do several things. It must discuss the introduction of the change with the employee affected. It must discuss the effect that the changes are likely to have on the employee. It must discuss any measures to avert or mitigate the adverse effects of the change on the employee. It must also give prompt consideration to matters raised by the employee in response to the changes.

[51] In addition, for the purposes of the above discussions the employer must provide in writing to the employee all relevant information about the changes, including the nature of what is proposed, the expected impact on the employee, and any other matters likely to affect the employee, with the proviso that it is not required to disclose confidential information that might be contrary to its interests.

[52] Ray White Langwarrin took the Commission in its submissions to the decision of then Commissioner Smith in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd 13 in support of its view about what the consultation obligations involve. It referred, in particular, to [25] of that decision when Commissioner Smith concluded:

“In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. Section 170GA(1)(b) of the Act speaks of measures to avert or minimise terminations or to mitigate the adverse effects of the terminations. Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may effect the employment prospects of individuals. The opportunity to seek to avoid or mitigate the effects of a termination can not be underestimated by those who wield power over those and their families who will the subject of the exercise of that power.” 14

[53] Commissioner Smith also continued in that decision to quote from the decision of the Full Bench in Liu v Windsor Smith [Print Q3462] when it stated:

“We add that in ordinary circumstances it is reasonable for an employer who is contemplating redundancies to discuss the matter with the employees, and their representatives should the employees so desire, to enable alternatives to be canvassed and to allow employees who are in peril of losing their employment to adjust their affairs accordingly.”

[54] The evidence in this matter indicates that the following occurred. On 3 August last year Ms Cruise met with Mr Cassidy and was told that her role needed to be performed on a full-time basis. She was offered the opportunity of taking on that full-time role. No details in writing were provided at the time about what was proposed, and Ms Cruise accordingly requested that written details be provided to her. It is unclear whether any reference was made to the possibility of redundancy in those discussions, although it appears that this possibility might first have been raised by Ms Cruise when she contemplated the options available to her if she did not accept the full-time position.

[55] She then received an email from Mr Cassidy on 7 August 2018 in regard to what was proposed, in response to her earlier request for further details. It indicated that it was “to confirm the essential terms and conditions of the Assistant Property manager position, effective of Monday 20^th August, 2018.” It continued to state:

“Your Position:

Assistant Property Manager

Immediate Supervisor: Nicholas Cassidy

Employment: Permanent Full-Time capacity

Minimum Hours:

Commencement date: Monday 20th August, 2018 at 8.30am

Hours: 8:30am to 5:30pm (1 hour lunch break)

Days: Monday to Friday

Remuneration:

Salary: $58,790.00 Per Annum (Gross)

(Including Superannuation, Car allowance, Leave loading & Standby Fee)

Please sign this letter as acceptance of the terms of your employment.” 15

[56] It was also accompanied by a text message which asked Ms Cruise to provide her response to the offer by Friday, 10 August. Ms Cruise then sent an email to Mr Cassidy on 8 August, which has been set out at an earlier point in this decision. It requested additional time to provide a response and sought a range of additional information, including details about what additional tasks were required to be completed as part of the new full-time position. She also sought further details about the pay rate, given that it was proposing a reduction in earnings of around $5 per hour. She also sought details about the allocation that was to be attributed to the car allowance. In addition, the proposal contained no details about a commission structure in circumstances where Ms Cruise was currently in receipt of commission entitlements.

[57] No response was received to this request. Ms Cruise subsequently sent a text message seeking a further meeting on 21 August, but again no response was received. She was then called into a meeting on 24 August, 10 minutes prior to her normal finish time, when she was told that her employment was to be terminated.

[58] I am satisfied, in response, that the evidence indicates that Ray White Langwarrin cannot be said to have complied with its obligations in clause 8 of the Real Estate Industry Award 2010. It did not provide relevant details about all required aspects of the changes. It did not discuss the effect that the changes were likely to have on Ms Cruise, particularly given her family responsibilities which were clearly known and understood by the business, given she regularly brought her children to work for periods of time after collecting them from kindergarten, and prior to collecting her other children from school. There is also no indication that the business discussed any measures to avert or mitigate the adverse effects of the changes, and in this context it seems that a number of options were clearly open. For example, there could have been some discussion about other options in regard to the number of hours per week, in circumstances where Ms Cruise was currently working 18 hours per week and the business was proposing that she now move to a 38 hour week arrangement. Job sharing with another employee, and other similar arrangements, might also have been canvassed.

[59] I am also satisfied that it is of particular significance that the business chose not to respond to the email dated 8 August from Ms Cruise, which by any standard set out a range of enquiries that an employee contemplating the sort of change that was being proposed could reasonably expect to make. I am accordingly satisfied that the business was obliged to provide a response to Ms Cruise about these matters in the context of its obligation to provide details about the effect of the changes upon her, and in terms of its requirement to give prompt consideration to matters raised by her. The evidence indicates instead that after sending the outline to her on 7 August the business did not realistically engage with her again until the brief discussion on 24 August when Ms Cruise was told her employment was to be terminated with immediate effect.

[60] Ms Cruise was not provided with the opportunity to be involved in an informed decision making process such as that contemplated by Commissioner Smith in the decision referred to above. She was also not provided with any opportunity to seek to mitigate the effect of what was being proposed, in circumstances where it would seem there were a number of options that could have been considered. In addition, it does not appear that there was any attempt made to enable any alternatives to be canvassed or considered, which might have allowed Ms Cruise to remain in ongoing employment.

[61] Section 389 finally provides that a dismissal is not a case of genuine redundancy “if it would have been reasonable in all the circumstances for the person to be redeployed,” either within the business or that of an associated entity. Ray White Langwarrin is obviously of the view in this context that it was endeavouring to redeploy Ms Cruise to the newly created position of full-time Assistant Property Manager. However, it appears that it was also of the view that this was the only redeployment option, and it was not prepared to consider any other different working arrangements.

[62] I am not satisfied, in conclusion, for the reasons indicated above that Ray White Langwarrin can be said to have satisfied the requirements in s.389 of the Act. In coming to this conclusion I have had particular regard to its failure to comply with the requirements in s.389(1)(b) involving the obligation contained in the Real Estate Industry Award 2010 to consult about the redundancy. It follows that Ms Cruise’s termination is not a case of genuine redundancy, and the jurisdictional objection based on this ground must be dismissed.

[63] The second jurisdictional objection raised by Ray White Langwarrin is based on its submission that the termination was carried out in accordance with the requirements of the Small Business Fair Dismissal Code. The Commission was only provided with limited submissions in support of this objection and I am satisfied that it can be dealt with relatively quickly. Compliance with the Code also requires compliance with any requirements to consult about redundancy in a Modern Award. The conclusions that I have come to in regard to compliance with s.389 accordingly also apply in regard to compliance with the Code. I am again not satisfied that this second jurisdictional objection is made out.

[64] I now turn to consider whether Ms Cruise’s dismissal was “harsh, unjust or unreasonable,” taking into account the various considerations in s.387. I note in this context that the decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 16 provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 17

[65] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited 18 (Rose) restated the above proposition, and also added (references omitted):

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.” 19

[66] I now turn to consider whether Ms Cruise’s dismissal was “harsh, unjust or unreasonable” taking into account each of the considerations in s.387.

(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)

[67] Previous authorities have again considered what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 20 is often referred to in this context. His Honour came to the following conclusions:

“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.

Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 21

[68] In Parmalat Food Products Pty Ltd v Wililo 22 the Full Bench also concluded that:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 23

[69] It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the Employer believed it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi 24 at paragraph 19 when it stated:

“…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 25

[70] These authorities make clear that the existence of a “valid reason” is generally the most important consideration among those in s.387. It is also clear from these authorities that a “valid reason” is one that is “sound defensible and well founded,” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the capacity or conduct of the employee, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt this approach in coming to a decision in this matter.

[71] Ray White Langwarrin submits that regardless of any decision made by the Commission in regard to satisfaction with the requirements contained in the statutory definition of “genuine redundancy” in s.389, it had a valid reason to dismiss Ms Cruise because her part-time position had been made redundant, and she was not prepared to accept the alternative of the full-time position offered to her. Ms Cruise submits, in response, that there was no valid reason for her termination, and the whole exercise was instead a sham under the guise of a purported restructure, which was intended to bring her employment at Ray White Langwarrin to an end. It sought to achieve this outcome by removing her existing position and presenting her instead with the unattractive option of full-time work which it knew she was most unlikely to accept, given her family circumstances.

[72] When the evidence is viewed objectively I am not satisfied that it is possible to conclude that Ray White Langwarrin had a valid reason to dismiss Ms Cruise in the sense that the reason was sound, defensible or well founded, and that it was instead motivated by a desire to see her leave her employment. I have had regard to the following matters, in particular, in coming to this conclusion.

[73] Firstly, while it has been acknowledged already that the Commission should not generally be involved in ‘second-guessing’ the decisions made by a business, the available evidence provides little to substantiate the business case to support the need to restructure Ms Cruise’s position.

[74] Secondly, Ms Cruise was presented with an alternative that the business must have known she was almost certain to reject. It was well aware of her family circumstances, and with three young children full-time work was an unlikely proposition. The offer that was made to her was also substantially different from her existing conditions of employment in a number of significant respects. It offered an hourly rate that was around $5 less than the rate she was currently on. It also did not appear to involve the opportunity to earn additional commission payments, unlike her existing role, and, finally, it involved the provision of a car allowance, rather than a supplied and maintained vehicle.

[75] Thirdly, as detailed already the business was not prepared to get involved in any meaningful discussion about its proposal, or how it might be able to be amended to make it more acceptable to Ms Cruise. This again reinforces the suggestion that it was not a genuine proposal, but was instead one that was presented on a rigid and inflexible basis with the intention that it would leave Ms Cruise with no option but to leave her employment.

[76] It is not necessary to go into these matters in further detail, but there are also a number of other matters referred to in the evidence which suggest that Ms Cruise was ‘on the outer,’ and support the view that the business was looking to get rid of her. I refer in this context to the failure to return her company vehicle, her apparent inability to access the computer system, and her apparent isolation while attending the conference in Queensland.

(b) whether the person was notified of that reason

[77] Ms Cruise was notified of the reason for her dismissal when she was called into a meeting, 10 minutes prior to her normal finishing time, and given a letter terminating her employment.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[78] This consideration is not relevant in the context of this matter given that Ms Cruise’s dismissal was not related to her capacity or conduct.

(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

[79] There is no evidence indicating that Ms Cruise was ever denied the opportunity of having a support person present at any discussions relating to her dismissal. However, in practice there was little opportunity for her to consider the need for a support person to be present, given that she was called into a meeting at short notice, immediately prior to her normal finish time, and handed a letter indicating that her employment was terminated with immediate effect.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[80] This consideration is again not relevant in the circumstances of the present matter.

(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

(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

[81] I am satisfied that it is appropriate to deal with each of the above matters together. It is clear that Ray White Langwarrin is a relatively small business and does not have dedicated human resource management or expertise. The evidence also indicates that the business is a member of the Victorian Chamber of Commerce and Industry and did make contact with that organisation to seek advice about the appropriate course of action, although there is some conflict in the evidence about whether Mr Cassidy spoke directly, or relied on advice that his Office Manager had obtained. However, regardless of who or when that advice was obtained I am not satisfied that the fact that the business does not have dedicated human resource management or expertise necessarily provides a sufficient excuse or justification for what occurred.

(h) any other matters that the FWC considers relevant

[82] I am not aware of anything further that needs to be considered in this context.

Conclusion

[83] I have had regard to all of the submissions and evidence provided by the parties in this matter. As indicated, I have also had regard to each of the matters in s.387 that the Commission is required to take into account. I am satisfied, in conclusion, that in all the circumstances the decision by Ray White Langwarrin to dismiss Ms Cruise was at least “unjust” and “unreasonable,” and that therefore she was unfairly dismissed. In coming to this decision I have had particular regard to the conclusions reached in regard to “valid reason.”

Remedy

[84] I am now required to consider what is an appropriate remedy in the context of s.392 of the Act. I am satisfied that reinstatement is not a relevant consideration in this context, given the breakdown in the relationship between Mr Cassidy and Ms Cruise, and the fact that Ray White Langwarrin is a relatively small organisation. In addition, Ms Cruise does not seek to be reinstated to her position, and the business is opposed to any such suggestion. I now turn to consider the relevant provisions in the Act relating to awards of compensation.

[85] Section 392 of the Act states:

“Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

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

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

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

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

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

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

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

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

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1 must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.” 26

[1] In addition, previous Commission decisions have made clear that it is necessary to take into account all of the circumstances of the case in considering any award of compensation, including the specific matters identified in s.392(2)(a) to (g), and to consider the other relevant requirements in s.392. The long established approach to the assessment of compensation is to apply the formula derived from the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (“Sprigg”). 27 This approach was most recently confirmed in the context of the present legislative framework by the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge (“Bowden”).28 The first, and perhaps most important step to be taken, is to determine what the employee would have received by way of remuneration, or would have been likely to receive, if they had not been dismissed. This was described in Bowden, citing Ellawala v Australian Postal Corporation,29 in the following terms:

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

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

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’. This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the ‘anticipated period of employment’ are deducted.” 30

[2] Once this assessment has been made various adjustments are then required, including for the amount of income earned since the time of dismissal, any amount on account of contingencies, any reduction on account of the employee’s misconduct, and the application of the statutory salary cap. This approach is, however, subject to the overarching requirement to ensure that the level of compensation is an amount that is considered appropriate having regard to all of the circumstances.

[3] I now turn to deal with the matters in s.392 in the order in which they appear. I am not aware of any evidence to suggest, firstly, that there is any issue concerning the effect of any order of compensation on the viability of Ray White Langwarrin. While it is a relatively small business with 8 employees it has been in existence for a significant period of time, and there was no suggestion in any of the evidence or submissions that any order of compensation might impact on the viability of the business.

[4] Ms Cruise was, secondly, employed for more than two and a half years at the time she was dismissed. This is a reasonable period of employment, particularly in circumstances where the evidence indicates the business had a significant turnover of employees.

[5] The Commission is next required to consider what remuneration Ms Cruise would have earned if she had not been dismissed. This involves making an estimate about how long she might have remained in employment had she not been dismissed. This is inevitably a matter that is difficult to come to a definitive conclusion about.

[6] The submissions provided on behalf of Ms Cruise suggest that there was no reason why she could not have remained in her employment for a considerable period of time. Her children were soon to all be of school age, and she would no longer be restricted by responsibilities associated with collecting her children from kindergarten. It is submitted that if the business had of been only a little more flexible it is reasonable to conclude that she would have remained in her employment for a considerable period of time. Ray White Langwarrin acknowledges in response that Ms Cruise had a previous period of employment “of some standing,” 31 however, she cannot be said to have had a long career in her position. As indicated already it also appears that for whatever reason Ms Cruise was out of favour with the business, and that this might also have influenced the length of time she remained in employment, if not for her dismissal in August last year.

[7] It is also noted that in terms of the amount of remuneration that would likely have been received Ray White Langwarrin seeks to rely upon the decision of a Full Bench of the Commission in UES (Int'l) Pty Ltd v Leevan Harvey (“UES”) 32 when it concluded at [53]:

“We are of the view that the remuneration Mr Harvey would have received, or would have been likely to receive, if he had not been dismissed would have been another two weeks’ remuneration. Two weeks is the period it would have taken UES to comply with its obligations in the relevant modern award to consult with Mr Harvey about the redundancy that led to his dismissal. Two weeks’ remuneration for Mr Harvey was an amount of $1,365.38 gross plus 9% superannuation.” 33

[8] However, I am satisfied that the decision can be distinguished from the circumstances involved in the present matter. The Full Bench concluded in UES that the Respondent did have a sound, defensible and well-founded reason for dismissing the Applicant because his position had been made redundant, and it was not reasonable in all the circumstances to redeploy him elsewhere. However, it had failed to consult with him in terms of the relevant consultation requirements. Therefore, the Full Bench in considering the future remuneration that would have been earned by the Applicant only had regard to the time that would be necessary for the Respondent to comply with its consultation obligations, which it estimated to be a further period of two weeks. At that time his position would, in any case, have been made redundant.

[9] That is a different situation from the circumstances involved in the present matter, given that the Commission has concluded that Ray White Langwarrin was not only in breach of its consultation obligations, but also did not have a valid reason to dismiss Ms Cruise on grounds of redundancy. I accordingly do not consider that I am bound to follow the approach adopted by the Full Bench in UES.

[10] In conclusion, it is impossible to be precise about how long Ms Cruise might have remained in employment had she not been dismissed. However, I am satisfied that it is reasonable to conclude that in all the circumstances she would have at least remained in employment for a period of 9 months.

[11] The evidence also indicates that Ms Cruise was employed by another real estate agency for a period of approximately six weeks after being dismissed, and worked for the same number of part-time hours at a slightly higher hourly rate than she was previously receiving, but without any entitlement to commission payments. This meant that she received a slightly lower rate of pay in total than when she was employed by Ray White Langwarrin. It is noted that she resigned from this new employment, but indicated in her evidence that she did so because ‘the writing was on the wall,’ and there was simply not enough work available for it to be likely that she would have remained in ongoing employment in that new position. I see no reason to take issue with this evidence provided by Ms Cruise in this regard.

[12] The legislation also makes clear that if the Commission is satisfied that the employee’s misconduct contributed to the decision to dismiss the employee then the amount that might otherwise be ordered is to be reduced. I am not aware of any evidence that suggests that a deduction should be considered in this context.

[13] The decision in Sprigg also makes reference to the requirement to consider the impact of contingencies, and whether they should have any impact on the amount to be awarded. It also makes clear that this applies, in particular, to the estimate being made about the anticipated period of future employment. Given all of these uncertainties in this matter I am satisfied that it is appropriate to make a further deduction of 25% from the total amount of compensation awarded on the basis of contingencies.

[14] The compensation cap is then referred to in s.392(5), and it provides that the amount ordered must not exceed the lesser of the total amount of remuneration either received by the person, or to which the person is entitled for any period of employment with the employer during the 26 weeks immediately before the dismissal, and half the amount of the high income threshold that existed at the time of the dismissal. That amount was $145,400.00 immediately before the time of Ms Cruise’s dismissal. The amount of compensation currently under consideration in this matter is clearly well below the compensation cap.

[15] It is also noted that Ray White Langwarrin indicated in its submissions that the appropriate figure to be used in calculating Ms Cruise’s weekly earnings was $724.00 per week. Ms Cruise did not indicate a contrary view in her submissions, and I have accordingly based my calculations on this weekly income figure.

Conclusion as to Remedy

[16] The amount of compensation that the Commission has accordingly arrived at has been calculated on the following basis:

• Step 1: lost remuneration (nine months) – $26,640.00

• Step 2: remuneration earned (six weeks) – $3,780.00

• Step 3: contingencies (25%) – $6,660.00

• Step 4: payment received in lieu of notice (three weeks) – $1,621.89

= $14,578.11

[17] The final amount of compensation to be ordered is therefore $14,578.11, less deduction of any tax as required by law. I am satisfied that this amount of compensation is an appropriate amount in all the circumstances. In accordance with s.392(1) the amount of the order does not include any payment by way of compensation for shock, distress, humiliation, or other analogous hurt caused to Ms Cruise by the manner of her dismissal.

[18] The Commission accordingly orders that Ray White Langwarrin pay Ms Cruise the sum of $14,578.11, less deduction of any tax as required by law, within 21 days of the date of this decision. An Order to this effect is issued in conjunction with this decision in PR705944.

COMMISSIONER

Appearances:

G Lake of Counsel for the Applicant.

J Tierney of Counsel for the Respondent.

Hearing details:

2018.

Melbourne:

December 3.

Printed by authority of the Commonwealth Government Printer

1 Fair Work Act 2009 (Cth) s 385.

2 Fair Work Act 2009 (Cth) s 389.

3 Witness Statement of Nicholas Cassidy dated 15 October 2018, annexure NC-3.

4 Transcript at PN637.

5 [2010] FWAFB 3488.

6 PR911257.

7 Transcript at PN243.

8 Witness Statement of Sarah Cruise dated 22 October 2018, attachment SC-1.

9 Transcript at PN403.

10 [2010] FWAFB 3488 at [15].

11 Ibid at [16].

12 Ibid at [17].

13 PR911257.

14 Ibid at [25].

15 Witness Statement of Nicholas Cassidy dated 15 October 2018, annexure NC-1.

16 [2011] FWAFB 7498.

17 Ibid at [20].

18 Print Q9292 (AIRC, Ross VP, 4 December 1998).

19 Ibid.

20 (1995) 62 IR 371.

21 Ibid, 373.

22 [2011] FWAFB 1166.

23 Ibid at [24].

24 Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).

25 Ibid at [19].

26 Fair Work Act 2009 (Cth)s 392.

27 Print R0235 (AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998) [(1998) 88 IR 21].

28 [2013] FWCFB 431.

29 Print S5109.

30 Ibid.

31 Transcript at PN1272.

32 [2012] FWAFB 5241.

33 Ibid at [53].

Sarah Cruise v Baxter Cassidy Pty Ltd T/A Ray White Langwarrin