Scott McDougall v Dingo Australia T/A Dingo Australia
[2019] FWC 6803
•3 OCTOBER 2019
| [2019] FWC 6803 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott McDougall
v
Dingo Australia T/A Dingo Australia
(U2019/6298)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 3 OCTOBER 2019 |
Application for an unfair dismissal remedy.
On 6 June 2019, Mr Scott McDougall (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Dingo Australia T/A Dingo Australia (Dingo).
Mr McDougall was dismissed from his employment on 17 May 2019 for misconduct at the initiative of the employer. The dismissal took effect immediately. Mr McDougall denies that the misconduct occurred and submits that he was dismissed because he was on Workcover, therefore his dismissal was unfair.
Background and case outline
Mr McDougall commenced his employment on 13 June 2017 and was employed as a full-time service technician.
Mr McDougall sustained a workplace injury to his back in the process of fixing a machine and reported this injury to the Respondent on 30 July 2018. He completed a Worker’s Injury Claim form (the WIC form) and submitted his claim to Dingo’s Keilor office. He submits that he contacted Mr May, Chief Executive Officer on a number of occasions requesting he sign and submit the WIC form to Workcover.
Mr McDougall maintained that it was his employer’s responsibility to lodge the WIC form, however during phone conversations Mr May denied that it was Dingo’s responsibility and instead believed that it was the responsibility of Mr McDougall to lodge his own WIC form.
Dingo submit that on 20 September 2018 Mr May, the Operations Manager at the time, received a phone call from Mr McDougall during which Mr McDougall swore at and threatened Mr May. Mr McDougall denies the allegations.
On 10 October 2018 Dingo Australia sent a letter to Mr McDougall requesting he show cause as to why his employment should not be terminated. The letter gave Mr McDougall either seven days to respond or alternatively, because Mr McDougall was on leave due to his workplace injury, he was to provide a response prior to his return to work.
Mr McDougall submits he received the letter however he chose not to respond.
Mr McDougall attended a return to work meeting with a representative from AMS and Mr Wayne Weston, Keilor Branch Manager on 13 February 2019 to discuss a return to work plan. Mr McDougall did not return to work as there were no suitable alternative duties.
Subsequent to the return to work meeting and after seeking advice from their insurer Dingo Australia sent a letter to Mr McDougall requesting that he respond to the alleged misconduct and an additional allegation that he had been working on weekends, providing Dingo parts and mechanical services for ‘cash in hand’, without permission or approval from the company. Mr McDougall was required to respond by 5pm on 16 May 2019.
Mr McDougall failed to provide a response to the show cause letter and his employment was terminated on 17 May 2019.
Procedural Background
The matter was conciliated on 12 July 2019 however was unable to be resolved. The matter was subsequently listed for hearing before me on 26 September 2019. Directions were issued which required the Applicant to file his material by no later than noon on Monday 12 August 2019. No such material was received from the Applicant.
The matter proceeded to a non-compliance hearing before Commissioner Bissett on 16 August 2019. The Commissioner granted the Applicant an extension of time in which to file his submissions to noon on Friday 23 August 2019.
Once again, the Applicant did not file materials in accordance with the directions of the Commission. At 1:55pm on Friday 23 August 2019, Mr McDougall contacted the Commission to advise he had been unable to file his submissions as one of his witnesses was unwilling to provide a statement. Mr McDougall was advised by staff of the Commission that he should file the remainder of his materials and seek an extension in writing. The Applicant made such a request at 2:50pm on Friday 23 August 2019.
Mr McDougall subsequently filed some materials at 1:40pm on Monday 26 August 2019. He did not file any witness statements.
I listed the matter for a mention/direction hearing by telephone at 11.30am on Tuesday 10 September 2019. A notice of listing was issued to the parties on Thursday 5 September 2019 requiring the parties to provide their appropriate contact details by no later than 5pm Monday 9 September 2019. No correspondence was received from the Applicant.
At 10am on Tuesday 10 September 2019, my chambers sent correspondence to the Applicant noting that he had not provided his contact details and requesting that he do so urgently. No response was received and, despite several attempts by my Chambers, Mr McDougall was unable to be dialled in to the telephone hearing.
Dingo made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr McDougall’s failure to attend a hearing held by the Commission in relation to his application. I waived compliance with the Fair Work Commission Rules 2013 and accepted Dingo’s oral application.
Following the hearing, correspondence was sent to Mr McDougall’s nominated email and postal addresses advising him of Dingo’s s.399A application. Mr McDougall was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 13 September 2019. This correspondence stated that if the Commission did not receive a response, Mr McDougall’s application for relief from unfair dismissal would be dismissed.
On 13 September 2019, Mr McDougall filed in the Commission a medical certificate. The matter was listed for a non-compliance hearing on 16 September 2019, during which Mr McDougall provided further reasons for his failure to attend the mention/directions hearing. I accepted Mr McDougall’s submissions and dismissed Dingo’s s.399A application.
The matter was subsequently listed for arbitration before me on 26 September 2019.
The parties were self-represented.
Mr McDougall gave evidence on his own behalf.
The following witnesses gave evidence on behalf of Dingo Australia:
· Mr Rohan May, Chief Executive Officer; and
· Ms Angela Paterson, Share Services Manager.
Preliminary Matters
Section 396 of the Act requires that the following matters be decided before the merits of Mr McDougall’s application may be considered:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 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 (the Code);
(d) whether the dismissal was a case of genuine redundancy.”
There was no contest between the parties in relation to items above and I am satisfied that Mr McDougall is a person protected from unfair dismissal.
Therefore, the issue for me to determine is whether there was a valid reason for Mr McDougall’s dismissal.
The cases presented
Submissions of Mr McDougall
Mr McDougall submits he worked a 40-hour week with varying overtime hours. After working back over a weekend to complete a customer job he sustained a back injury.[1]
Mr McDougall submits he had made numerous phone calls to Mr May about his WIC form and Mr May was “overcomplicating things in the hope that I would walk away”.[2]
Mr McDougall further submits that Mr May was aware that it was Dingo’s responsibility to lodge the WIC form however he kept denying it was their responsibility.[3]
Mr McDougall submits that during the phone call on 20 September 2018 he told Mr May to “do the right thing by me, like I had them”. After the phone call he received the show cause letter.[4]
Mr McDougall submits that he did not bother to reply to the show cause letter because Mr May had not returned his phone calls or responded to the correspondence he had sent prior to the phone call taking place. Mr McDougall submits that he did not engage in the conduct alleged by Mr May and therefore his dismissal was unfair.
Evidence of Mr McDougall
Mr McDougall’s evidence was that he was upset with Mr May because every time he spoke to him about his Workcover claim he was told that it was his responsibility to lodge the WIC form.
Mr McDougall does not deny that he called Mr May on 20 September 2018, however he denies the allegation that he had been abusive and threatening to Mr May. Mr McDougall gave evidence that he may have said something to the effect of “pull your fucking head in and do the right thing”.
On 21 September 2018 Mr McDougall wrote to Workcover informing them that he had provided the WIC form to the Branch Manager at the Dingo Australia Keilor Office and that they had since signed and returned the forms back to Mr McDougall, however had not done anything further about it. Mr McDougall attached a copy of his WIC form to that correspondence.[5]
Mr McDougall gave evidence that he had received the first show cause letter sent by Mr May requesting that he provide a response as to why his employment should not be terminated. Mr McDougall’s evidence was that he had decided not to respond to the show cause letter because the allegations were not true, and because they weren’t true, he shouldn’t have to respond. He also gave evidence that he didn’t respond because Mr May didn’t always return his calls. He also gave evidence that he had spoken to an ex-employee that told him he no longer had a job, and as such he didn’t see the point in responding. Mr McDougall did concede however that he had received no such correspondence from Dingo.
Evidence was put to Mr McDougall that he had failed to attend a number of scheduled appointments relating to his Workcover claim. Mr McDougall denied that he had failed to attend any of the scheduled appointments, however he did concede that he didn’t respond to calls from Mr May because “he had decided not to” or didn’t see why he should.
After Mr McDougall met with Dingo Australia to discuss his return to work, he received the second show cause letter. Again, Mr McDougall’s evidence was that he decided not to respond and that he was of the opinion he shouldn’t have to because he denied the alleged misconduct. Mr McDougall was of the opinion that he should not have to respond to any matters related to the alleged misconduct because the company had not been proactive in lodging his WIC form and he had made a number of calls to the company during which he was repeatedly and incorrectly told that it was his responsibility to lodge the WIC form.
Submissions of Dingo
Dingo submits that Mr McDougall reported a workplace injury on 30 July 2018.[6] Due to potentially misleading advice from their insurer Dingo considered it was Mr McDougall’s responsibility to lodge his WIC form and he had failed to do so.
Dingo submit that on 20 September 2018 Mr May received a phone call from Mr McDougall during which Mr McDougall engaged in insulting, threatening and harassing behaviours.[7]
On 9 October 2018 Mr McDougall was sent a show cause letter providing him with an opportunity to respond in writing as to why his employment should not be terminated. Mr McDougall failed to respond.[8]
Mr McDougall was provided with a second show cause letter prior to his scheduled return to work. Again, Mr McDougall failed to respond. In the absence of a response Dingo chose to terminate Mr McDougall’s employment on 17 May 2019, submitting that there was a valid reason for the dismissal due to his threatening and abusive conduct.[9]
Evidence of Mr Rohan May
Mr May gave evidence that he was employed as the Operations Manager at the time of the incident that led to Mr McDougall’s dismissal.[10] Mr May had taken at least two phone calls from Mr McDougall during which time they discussed why Mr McDougall’s WIC form had not been lodged. Mr May’s evidence was on both occasions he informed Mr McDougall that he needed to lodge the WIC form. Mr May conceded that he may have misunderstood the instructions from his insurer, however submitted that in any case he had instructed his HR officer at the time to “sort out” the matter. Mr May recalled that the HR officer had eventually sent the WIC form directly to the Workcover agency in an attempt to progress the matter.
On 20 September 2018, whilst he was outdoors smoking, he received a phone call from Mr McDougall. His evidence was that he asked Mr McDougall how he was to which Mr McDougall responded aggressively, stating “how the fuck do you think I am, I’ve got no fucking money and you fuckwits aren’t paying me.”[11]
Mr May’s evidence was that he made several attempts to calm Mr McDougall down and let him know he wouldn’t proceed with the phone call if he continued to shout or be aggressive to which he says Mr McDougall responded stating;
“You’re fucking dead”; I’m going to do you; You wait until you get to Melbourne you. Your dead c*nt.” [12]
Mr May’s evidence was that he informed Mr McDougall that he wouldn’t be spoken to that way, however Mr McDougall continued to make threats stating;
“I’m going to smash you, smash your fucking head in, you’re a fuckwit, you can go (just) and get fucked.”[13] (sic)
Mr May’s evidence was that he is used to swearing in the workplace however having threats made by an employee of this nature was something he was not used to and made him feel unsettled. He submitted that threats of this nature were something that no employer should have to accept.
Mr May spoke immediately to Ms Paterson who was in the vicinity and says he told her that it was the first time he had been officially threatened to be killed.[14] Although he was unsure as to whether it was that day or over the next few days, he made inquiries with Ms Paterson as to why Mr McDougall had not lodged his WIC form and asked her to look into it.[15]
Mr May’s evidence was that he requested a show cause letter be drafted and that, due to Mr McDougall being on leave due to a workplace injury, the decision was made that Mr McDougall was to reply either within 7 days or alternatively provide a response prior to returning to work.[16]
Mr May’s evidence was that during Mr McDougall’s absence he became aware through customers that Mr McDougall had been working on weekends for “cash” without the knowledge or permission of the Company.[17]
Mr May’s evidence was that when he was advised that Mr McDougall sought to return to work he requested Ms Paterson seek advice on how they should handle the outstanding matter, being the alleged misconduct that occurred in September 2018.[18] After receiving advice from the agency he drafted a second letter in which he put the allegations to Mr McDougall in the following terms;
“We have had information provided to us that you were working on weekends within the Company workshop, providing Dingo parts and mechanical services for ‘cash in hand’. Further, we cannot find any records of you recording, invoicing or otherwise engaging in such work on behalf of the company.”[19]
Mr May also included that the company was still considering the termination of his employment and he was to respond to the outstanding matter and the new allegation raised by 16 May 2019. [20]
Mr May’s evidence was that in the absence of a response from Mr McDougall he proceeded to terminate his employment.
Evidence of Ms Paterson
Ms Paterson is the Shared Services Manager and is responsible for the Human Resource functions within the business.[21]
Ms Paterson’s evidence was that one of her direct reports was initially responsible for the Workcover claim submitted by Mr McDougall and she had advised Ms Paterson that she was having trouble contacting Mr McDougall and getting him to lodge the WIC form. Ms Paterson’s evidence was that this was causing problems because they were unable to process Mr McDougall’s medical bills.[22]
On 20 September 2018 Ms Paterson says she recalls seeing Mr May walking around near the lunch area whilst she was eating her lunch. She submitted that she had quickly worked out from the nature of the discussion that he was talking to Mr McDougall. Ms Paterson’s evidence was that Mr May looked visibly upset and ended the phone call. Her evidence was that Mr May stated words to the effect “Its official, I have been threatened by Scott that he was going to fucking kill me”. Ms Paterson’s evidence was that she was approached by the Workshop Supervisor who was also concerned for Mr May.[23]
Ms Paterson’s evidence was that due to the nature of the threat she made a file note as to what had occurred.[24]
Ms Paterson’s evidence was that she when Mr McDougall’s return to work was approaching, she had discussed with Mr May and sought advice from their insurer, Xchanging, as to how they should approach the outstanding matter of the alleged misconduct. Upon receiving advice, she assisted Mr May in drafting a letter to be sent to Mr McDougall.[25]
In the absence of receiving a response form Mr McDougall, Ms Paterson sent the letter prepared by Mr May notifying him of his dismissal.[26]
Consideration
Harsh, Unjust Unreasonable
Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.[27] McHugh and Gummow JJ explained as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[28]
I will now consider each of the matters set out in s.387 of the Act.
Was there a Valid Reason for the dismissal- s.387(a)
The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[29] The reason for the dismissal should be “sound, defensible and well founded”[30] and should not be “capricious, fanciful, spiteful or prejudiced.”[31]
The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[32] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[33]
In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[34] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[35]
There is a dispute in this matter as to what was said during the phone conversation that took place between Mr McDougall and Mr May on 20 September 2018. Mr McDougall denies Mr May’s account of the events. His evidence is that Mr May fabricated what was said so as to terminate Mr McDougall’s employment because he had made a Workcover Claim.
Mr May’s evidence is that the Workcover claim did not form part of their reasoning for the termination of Mr McDougall’s employment. Mr May’s evidence was that the dismissal was due to Mr McDougall’s conduct that led to the decision to terminate his employment.
In this matter I prefer the evidence of Mr May. Mr May’s evidence was supported by the witness account of Ms Paterson. Ms Paterson presented as a credible witness and recounted her observations that Mr May appeared distressed after taking the phone call from Mr McDougall. Ms Paterson’s evidence was supported by her contemporaneous notes that she had made immediately after Mr May had relayed to her his account of the phone call and as a result of the severity of the concerns raised by Mr May.
Further, the evidence presented does not support a finding that Dingo had decided to terminate Mr McDougall due to his Workcover claim. Whilst there was some confusion about who was responsible for lodging the WIC form, I am not persuaded that Mr May was being deliberately obstructive in the process. I am satisfied he held a genuine belief that it was Mr McDougall’s responsibility to lodge the WIC form until he was informed otherwise. It is evident that the confusion arose as a consequence of the correspondence that had been exchanged between Ms Deem (a junior staff member reporting to Ms Paterson), the company’s insurer and Ms Paterson, and Ms Paterson to Mr May. At all times Mr McDougall was encouraged by Mr May to submit his WIC form so as to progress the claim. Further, the email evidence supports a finding that Mr May himself had instructed Ms Paterson to resolve the issue of the claim lodgement.
In constructing the show cause letter Mr May had taken into consideration Mr McDougall’s absence from work and had provided him with what he termed “time to cool off and reconsider his actions”.
It is not in contention that Mr McDougall had received the two show cause letters and that he had refused to respond to either of those letters. Mr McDougall was aware that in the absence of a response his employment may be terminated however he remained obstinate in choosing not to respond.
Whilst I empathise with Mr McDougall’s situation, Mr McDougall demonstrated an unwillingness to engage with Dingo throughout the process which contributed to the adverse finding against him. Mr McDougall demonstrated similar behaviours throughout the conduct of these proceedings. In response to my question during the hearing as to why he chose not to contest the allegations his response was “why should I”. When asked again why he chose not to respond when he knew that the likely consequence would be that his employment would be terminated Mr McDougall simply stated “I decided not to”. Mr McDougall was asked if he wanted to provide any further reasoning and his response again was “why should I”.
This is not an issue of whether or not swearing is acceptable in a workplace. The present matter is about allegations of threatening and abusive behaviours and misappropriation of company property. Mr McDougall refused to respond to either of those allegations when he was provided with ample opportunity to do so. Whilst Dingo chose not to take the matter of misappropriation of company property any further, they decided to act on the conduct that occurred on 20 September 2018. As earlier stated, in considering the factual dispute between the parties I have preferred the evidence of Mr May and Ms Paterson. I am satisfied that the conduct constituted serious misconduct and therefore Dingo had a valid reason for the dismissal of Mr McDougall.
Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made[36], and in explicit[37] and plain and clear terms.[38] In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[39]
Dingo submit Mr McDougall was notified of the reasons for his dismissal and given ample time to provide a response to those reasons. They submit Mr McDougall failed to respond and made no request for additional time to provide a response.
Mr McDougall was provided with a show cause letter outlining the alleged conduct and he was provided with an opportunity to respond on each occasion, however he chose not to do so. I am satisfied that Mr McDougall was notified of the reasons he was being dismissed in the show cause letters sent to him on 10 October 2018 and 14 May 2019.
Mr McDougall submits he was given an opportunity to respond and he chose not to because he didn’t agree with the content of the letter and because Dingo had not tried contacting him since he reported his workplace injury.
I am satisfied that Mr McDougall was given an opportunity to respond to the allegations of misconduct referred to earlier in this decision.
Unreasonable Refusal of a Support Person – s.387(d)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.[40] With respect to this consideration, the Explanatory Memorandum states:
“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.”[41]
There were no discussions relating to the dismissal accordingly there was no reasons to have a support person involved. In the circumstances I find this factor to be neutral.
Warnings regarding Unsatisfactory Performance – s.387(e)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.[42] Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.[43] The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.[44]
Mr McDougall was dismissed for reasons of conduct and due to the nature of the conduct consideration of any prior warnings has no relevance. I therefore find this factor to be neutral.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.[45] Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.[46]
Dingo submit that they acted in a procedurally appropriate and fair manner in the carriage of this matter.
Dingo Australia are not a large employer and at the time of Mr McDougall’s dismissal they had 37 employees. Dingo also have a small HR department run by the Shared Services Manager, however I do not consider that the size of the Respondent impacted the procedures they followed in dismissing Mr McDougall.
Other Relevant Matters – s.387(h)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any other matters that the Commission considers relevant.
There are no other matters raised by the parties in this matter therefore I find this consideration to be neutral.
Conclusion
Having considered each of the matters specified in section 387 of the Act I am satisfied that Mr McDougall’s dismissal was not harsh, unjust or unreasonable. Accordingly, I find that Mr McDougall was not unfairly dismissed.
The application is therefore dismissed. An order[47] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
S. McDougall on his own behalf;
R. May for the Respondent.
Hearing details:
2019
Melbourne
26 September
<PR712948>
[1] Exhibit A1
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Exhibit A2
[6] Exhibit R1, 7
[7] Ibid., 8
[8] Exhibit R1, 10-11
[9] Ibid., 14-19
[10] Exhibit R2, 1-2
[11] Ibid., 6
[12] Ibid., 11
[13] Ibid., 12
[14] Ibid., 17-19
[15] Ibid., 23
[16] Ibid., 24-27
[17] Ibid., 44-45
[18] Ibid., 42-43
[19] Respondent documents [14]
[20] Exhibit R2, 51-52
[21] Exhibit R3, 1
[22] Ibid., 2-5
[23] Ibid., 6-14
[24] Ibid., 15; Respondent Documents [4]
[25] Ibid., 17-26
[26] Ibid., 27-29
[27] (1995) 185 CLR 410.
[28] Ibid at 465
[29] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
[30] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
[31] Ibid
[32] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
[33] Ibid.
[34] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
[35] Ibid
[36] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
[37] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
[38] Previsic v Australian Quarantine Inspection Services Print Q3730
[39] RMIT v Asher (2010) 194 IR 1 at 14-15
[40] Fair Work Act 2009 (Cth) s.387(d).
[41] Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].
[42] Fair Work Act (Cth) s.387(e).
[43] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
[44] Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
[45] Fair Work Act (Cth) s.387(f).
[46] Fair Work Act (Cth) s.387(g).
[47] PR712949
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