Scott Parkinson v Thales Australia Ltd

[2023] FWC 594

[2023] FWC 594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Scott Parkinson
v

Thales Australia Ltd

(U2022/9839)

DEPUTY PRESIDENT BOYCE SYDNEY, 13 MARCH 2023

Application for an unfair dismissal remedy - whether dismissal was a case of genuine redundancy – employer objection concerning genuine redundancy dismissed.

Introduction

1. Mr Scott Parkinson (Applicant) has filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of that Application, the Applicant asserts that his dismissal by Thales Australia Holdings Pty Ltd T/A Thales Australia (Respondent) was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

1. The Applicant commenced employment with the Respondent on 16 December 2019 as a Material Handling (or Crane) Supervisor (MHS role) at the Respondent’s Garden Island Operations, and continued in that role until the date of his dismissal on 30 September 2022 for reasons of redundancy.[1] The Applicant was paid notice in lieu, a severance payment, and other accrued termination entitlements at the time of his dismissal.

1. The Respondent says that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act, and otherwise denies that the dismissal was unfair. Beyond the genuine redundancy objection, there is no issue that the Applicant is a person protected from unfair dismissal. The Respondent’s case is that it no longer requires the MHS role to be performed by anyone as it replaced that role with a more senior role, the Material Handling Manager (MHM role), on the basis of operational reasons (s.389(1)(a)), and that it has otherwise complied with ss.389(1)(b) and (2) of the Act.

1. Following the receipt of submissions and evidence in accordance with directions made, I held a hearing to resolve the Respondent’s genuine redundancy objection.

1. At the hearing, the Applicant was represented by Mr Kirk Bond, National Legal Officer, Maritime Union of Australia. Mr Daniel Murray, Principal Advisor – Workplace Relations, Australian Industry Group, appeared for the Respondent.

Relevant law

1. Section 385 of the Act qualifies a claim for unfair dismissal:

“385     What is an unfair dismissal

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

(a)     the person has been dismissed; and

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

(c)     the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

1. Before the Commission can consider issues of harshness, etc, s.396(d) of the Act requires that the Commission decide whether the dismissal was a case of genuine redundancy:

“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;

(d)     whether the dismissal was a case of genuine redundancy.”

1. Section 389 provides the statutory definition as to what qualifies as a genuine redundancy:

“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”.

1. In view of s.389 of the Act, there are three questions that need to be answered:

(a)       Was the Applicant’s job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise?

(b)       Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?

(c)       Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise, or an associated entity of the Respondent?

Was the Applicant’s job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise? (s.389(1)(a))

1. Sub-section 389(1)(a) of the Act provides that a person’s dismissal is a case of genuine redundancy if the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy.[2]

1. 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”.

1. The basis upon which “operational requirements” can be said to give rise to change is extremely broad. A change in operational requirements does not only arise where a business has excess labour, is running over budget, unprofitable, losing customers, or down on revenue/s. As Lee J stated in Nettlefold v Kym Smoker Pty Ltd[3] (Nettlefold), the phrase “operational requirements” encompasses change arising from both internal and external factors, including via the consideration of matters (over the short, medium and/or longer terms) such as “the past and present performance of the [business], the state of the market in which [the business] operates, steps that may be taken to improve the efficiency of the [business] by installing new processes, equipment or skills, or by arranging for labour to be used more productively, and the application of good management to the undertaking”.[4] Indeed, changes to operational requirements might arise because an efficient and/or profitable business proposes or desires to become even more efficient and/or profitable.

1. It equally follows that modifications to a business that might be said to be required or necessary, because of changes to operational requirements, are extremely varied and broad. In other words, the nature and extent of any modifications to a business flowing from changes in its operational requirements are essentially matters of managerial discretion. Such discretion might be exercised to make changes that are, in the opinion of the relevant decision-maker, required or necessary. The fact that others, for example, an employee, customer, shareholder, or stakeholder affected by a decision, or an unaffected member of the public, might consider a particular decision to be bad, or wrong, or consider that another alternative and better (or more appropriate) decision ought to have been made, is not to the point. Persons in managerial roles (in the for-profit, or not-for-profit, sectors) are tasked with the responsibility to make decisions in respect of how a business is run to achieve stability and/or growth over the short, medium and/or longer terms. It is certainly not the role of the Commission to stymie or interfere with operational decisions made on a bona fide basis within the extremely broad bounds of managerial discretion. As was stated by Vice President Hatcher in Low v Menzies Group of Companies[5]:

“It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.”[6]

1. It has been held that a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. Relevantly, the test is not whether the person’s duties or responsibilities (or some of them) survive or remain. Rather, the test is whether the whole of the job previously performed by an employee (unmodified) still exists.[7] Focus is to be placed upon the job, not the duties involved in that job, or the individual performing that job (or a new/modified job). Importantly, as broadly stated in Dibb v Commissioner of Taxation[8], an employee may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by another employee, or other employees.[9]

1. In his evidence in-chief, and as part of cross-examination, the Applicant went through the position description for the MHM role and identified those aspects of the role that he currently performs in his MHS role.  However, the Applicant accepted that:

   a)   in the MHS role, he did not perform all of the duties of the MHM role;

   b)   in the MHS role, he is not subject to the same accountabilities and responsibilities as the MHM role; and

   c)   he does not hold (or otherwise possess) all of the key knowledge, skills and experience required for the MHM role.[10]

1. Having considered the evidence and submissions of the parties, I find that the Applicant’s role was one that the Respondent no longer required to be performed by anyone in that the Respondent no longer required the MHS role as it was being replaced with or substituted by the MHM role.[11] More specifically, I find that:

a)   on the face of the position descriptions for the MHS and MHM roles, there are clear differences between the two roles in respect of knowledge and experience, accountabilities and specific duties;[12] and

b)   the Applicant did not perform all of the duties of the MHM role (in the MHS role), and nor did he (in the MHS role) have the same accountabilities, responsibilities, and reporting lines as the MHM role.  Significantly, the Applicant did not hold all of the requisite skills, qualifications, and experience required for the MHM role.[13]

1. In making the foregoing findings, I specifically reject the submission of the Applicant that the Respondent simply hired a manager at a higher rate of pay than the Applicant was being paid, and transferred the entirety of the MHS role to the MHM role.[14] A job no longer being required to be performed by anyone does not only arise in circumstances where a role, and the duties involved in or associated with that role, are deleted and/or redistributed amongst other staff or roles. A job no longer being required to be performed by anyone may also arise where the job is subsumed into a different job (i.e. being a job that is different in terms of skills, qualifications, experience, accountability, reporting lines and/or responsibilities).

1. The Respondent says that it had operational reasons for replacing the MHS role with the MHM role. In this regard, the Respondent’s evidence (in summary) is that after reviewing the Material Handling team (where the Applicant worked), it determined that to achieve necessary improvements to the functionality, leadership, and behaviours of that team, a proposed new structure with a more senior position leading the team (and reporting directly to the Director of Production) was required.[15]

1. Mr Stephen Farrow, the Respondent’s Director Productivity & Efficiency, gave the following evidence as to the operational reasons for the MHS role being no longer required to be performed:

“15. The reasons for the restructure were several. Among them, we were bringing in more external crane crews, and needed a manager to manage the function of crane operation across the wider span of both directly-employed and third party crane operation. We also had an expansion in the multi-ship docking, again putting a premium on higher-level planning and coordination and resource allocation, rather than one focused on direct supervision of employees.

16. In addition, and this is reflected in the position description, there was a need for more strategic focus, and for a focus on such activities as change management, improvement processes, and higher-level people management. These had not been part of the supervisor role.”[16]

1. The Applicant challenges the Respondent’s assertion that the MHS role was no longer required to be performed by anyone “because of” changes in the Respondent’s operational requirements. In this regard, the Applicant submits:

a)   the onus is upon an employer to prove (on the balance of probabilities) that a job is no longer required to be performed because of operational requirements (citing Kieselbach v Amity Group Pty Ltd[17]). In this case, the Respondent has failed to discharge this onus because it has failed to identify any operational requirement/s that necessitated the Applicant’s MHS role being replaced with the MHM role;

b)   despite Mr Farrow asserting that replacing the MHS role with the MHM role arose from a review carried out in July 2022, there is no documentary evidence to support that such a review ever occurred. In particular, there is no documentary evidence (beyond a new organisational chart) showing that any assessment or review by the Respondent ever occurred in relation to problems or concerns (financial, operational, or otherwise) with the Material Handling team that needed to be corrected, fixed or improved; and

c)   the evidence before the Commission is wholly counterintuitive to the Respondent’s claims that MHS role was replaced with the MHM role on the basis of genuine operational reasons (e.g. to ensure the future success of the Respondent’s business). In this regard, as at the date of the hearing, some three months after the Applicant’s dismissal, the MHM role has not been filled. Rather the MHM role is being performed by a temporary contractor at an annual cost of nearly $190,000 more than the Applicant was being paid in the MHS role.[18]

1. In response to the foregoing submissions and contentions of the Applicant, the Respondent makes the following points:

a)   The evidence identifying that the MHS role (being performed by the Applicant prior to his dismissal) was eliminated from the Respondent’s business operations has not been disputed. Further, there is no evidence that the MHS role has been performed by anyone (employee or contractor) post the Applicant’s dismissal. The contractor engaged to undertake the MHM role is an interim arrangement pending the successful recruitment of an employee to fill the MHM role.

b)   The MHM role is a newly created position. It is a different position to the MHS role in that it is a senior managerial role, with broader responsibilities and new reporting lines (as compared to the MHS role).

c)   The evidence is that there are a number of operational issues within the Respondent’s business that were unfulfilled by the MHS role, which the creation of the MHM role is intended to address. In and of itself this qualifies as an operational reason for making the MHS role redundant.

1. Even if it be accepted that the Respondent’s evidence concerning its operational requirements is somewhat less than ideal, it is not the role of the Commission to conduct a merits review of same. The facts are that the MHS role has been abolished and replaced with a newly created managerial position which the Respondent considers will (into the future) lead to improvements in functionality, leadership and behaviours within the Materials Handling team (and thus improvements to the Respondent’s overall enterprise). There is no suggestion on the evidence that the contractor currently undertaking the MHM role is other than an interim arrangement (or that the costs associated with that contractor will be incurred other than on an interim basis).

1. In my view, the Respondent’s determination that it no longer required the MHS role in its business, because of a change in its operational requirements (in the Nettlefold sense), is made out on the evidence. Again, the fact that the Applicant might consider the Respondent’s decision to abolish the MHS role to be bad, or wrong, or consider that another alternative and better (or more appropriate and logical) decision ought to have been made, is not to the point.

1. All in all, I find that the evidence discloses that the Respondent had genuine operational reasons to make changes to its business, and that such changes (as determined on a bona fide basis by the Respondent) resulted in the Applicant’s job in the MHS role no longer being required to be performed by anyone. I thus find that the Respondent satisfies s.389(1)(a) of the Act in that the Applicant’s job is no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy? (s.389(1)(b))

1. The statutory requirement under s.389(1)(b) requires a finding of fact, whereby the section “is not made out unless the various requirements of the relevant consultation clause are demonstrably discharged by the employer”.[19]

1. The parties accept that the Thales Australia Maritime Enterprise Agreement 2019 (Agreement) applied to the Applicant at the time of his dismissal. Clause 54 “Redundancy” of the Agreement sets out extensive consultation obligations upon the Respondent in the event of a redundancy.

1. Both parties put on extensive evidence and submissions as to whether the Respondent complied with Clause 54 in effecting the Applicant’s redundancy.[20]

1. During cross-examination, both Mr Farrow and Ms Alex Gardener (HR Business Partner) made various concessions (or admissions) as to the Respondent’s failure to comply with Clause 54 of the Agreement.[21] Having regard to those concessions, the plain meaning of the words set out in clause 54 of the Agreement, and the case law that outlines the general principles for genuine consultation to have been found to have occurred (as summarised in the Applicant’s submissions),[22] I do not accept that I am in a position to find that the Respondent has complied with its consultation obligations under Clause 54 of the Agreement.

1. I find that the evidence discloses that, in effecting the Applicant’s dismissal for reasons of redundancy, the Respondent did not comply with its obligations under the Agreement to consult about redundancy. I thus find that the Respondent has not satisfied s.389(1)(b) of the Act.

Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise? (s.389(2))

1. Sub-section 389(2) of the Act provides that a person’s dismissal cannot be a case of genuine redundancy if it would have been reasonable in all of the circumstances for the person to have been redeployed within the employer’s enterprise, or an associated entity of the employer.

1. The highest binding interpretation of s.389(2) remains that stated in Ulan Coal Mines Limited v A. Honeysett & Ors[23] (Honeysett):

“[26] [Subsection 389(2)] must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

…

[28] … [T]he question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer sometime after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered”.

(emphasis added)

1. It can been seen from the foregoing extract from Honeysett, that the reasonableness of redeployment for the purposes of s 389(2) of the Act is to be assessed as at the time of the relevant dismissal.[24] Further, in assessing the reasonableness of redeployment, it is necessary to identify the position or other work to which the employee could have been redeployed,[25] and determine whether that position or other work is, for want of a better term ‘the right fit’ (or reasonable) for both the employer and the employee. Relevantly, s.389(2) of the Act does not:

a)   interfere with the right or ability of an employer to require that the selection criteria (as to skills, qualifications or experience) for a relevant vacant position be met by an employee seeking to be redeployed;

b)   require an employer to fit a square peg into a round hole. In other words, simply because a vacant position exists at the time of an employee’s dismissal (redundancy), does not mean that an employer is required to bend, twist, ignore, delete, water down or otherwise amend selection criteria so as to enable the redeployment (of such redundant employee) to occur; or

c)   create an obligation upon an employer to redeploy an employee into a role that the employer does not accept is suitable (i.e. because the employee does not hold the requisite skills, qualifications and/or experience that the employer requires). Indeed, such an obligation could hardly be said to be reasonable.

1. The conclusions of the Full Bench in Teterin v Resource Pacific Pty Ltd t/a Ravensworth Underground Mine[26], as to the interaction between s.389(2) and s.385(d) of the Act, are also worth drawing attention to, as follows:

“The manner in which the Deputy President expressed his conclusions may be justified by reference to s.385(d), which requires that for a person to have been unfairly dismissed, the Commission must be satisfied that the dismissal was not a case of genuine redundancy. It must follow that the applicant in an unfair dismissal case bears the risk of failure if the state of satisfaction required by s.385(d) cannot be reached. If the Deputy President considered the evidence insufficient to allow him to determine whether redeployment was reasonable under s.389(2), then (there being no issue with respect to the s.389(1) matters) he could not be satisfied that the dismissals were not genuine redundancies, meaning that the applications before him had to be dismissed.”[27]

1. Similarly, in Jain v Infosys Ltd[28], the Full Bench said:

“… in the context of the question whether a dismissal was an unfair dismissal in which there is also agitated whether the dismissal was a case of genuine redundancy, to the extent that there is a legal onus of proof or something analogous thereto, it rests with the applicant in the sense that the applicant bears the risk of failure if the satisfaction required by s.385 including paragraph (d) is not reached.”[29]

1. In my view, the evidence before me is insufficient to determine (in the positive sense) that it would have been reasonable (or unreasonable) in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise. In reaching this conclusion, I note:

a)   the evidence of Ms Gardner that the Respondent did not “actively” take steps to redeploy the Applicant (beyond providing him with a “list of opportunities” (absent any detail as to those opportunities) that he could self-assess and apply for);[30] and

b)   the Applicant’s failure to identify (by way of evidence or submissions) the specific position/s or role/s that he says it would have been reasonable in all the circumstances for him to be redeployed into.

1. Given my finding that the Respondent has failed to comply with s.389(1)(b) of the Act, it is unnecessary that I make a finding in respect of s.389(2) of the Act, albeit, the issue will likely loom large in the merits hearing of the Application.

Summary of findings

1. Having regard to the evidence and submissions of the parties, I make the following conclusions:

(a)       As at the time that the Respondent made the decision to make the Applicant’s MHS role redundant, this job was genuinely no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise (s.389(1)(a) of the Act).

(b)       The Respondent has not satisfied its obligations as to consultation under the Agreement (s.389(1)(b) of the Act).

(c)       The state of the evidence does not enable me to make a finding as to whether it would have been reasonable in all of the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise (s.389(2) of the Act).

(d)       On the basis of my finding in (b) above, the Applicant’s dismissal was not a “genuine redundancy” within the meaning of s.389 of the Act.[31]  Whilst I make no finding at this stage of the proceedings, I note that a dismissal may still be classified as a ‘redundancy’ even if it not be a “genuine redundancy” within the meaning of the fair work legislation.

Conclusion

1. The Respondent has failed to make good its case as to genuine redundancy. The Respondent’s objection in this regard is therefore dismissed. An order to this effect will follow the publication of this decision, and the matter will be listed for directions to program the matter for a merits hearing.

DEPUTY PRESIDENT

Appearances:

Mr Kirk Bond, National Legal Officer, Maritime Union Of Australia, appeared for the Applicant.

Mr Daniel Murray, Principal Advisor – Workplace Relations, Australian Industry Group, appeared for the Respondent.

[1] Letter dated 30 September 2022 to the Applicant from Mr Scott Farrow (Director – Production, Above Water Systems) titled “Redundancy of Position and Termination”.

[2] Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488, at [15] (Boulton J, Drake SDP, and McKenna C), citing 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.

[3] (1996) 69 IR 370.

[4] Ibid, at 373.

[5] [2014] FWC 7829.

[6] Ibid, at [16]. Cited with approval in Adams v Blamey Community Group[2016] FWCFB 7202, at [14].

[7] Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674, at [27].

[8] [2004] FCAFC; (2004) 136 FCR 388.

[9] Ibid, at [43]-[44].

[10] Exhibit A1, Parkinson Statement, 7 December 2022, at [17] and Annexures “SP-1” (MHS role position description) and “SP-2” (MHM role position description, marked up by the Applicant).  See also Transcript, PN79 to PN139, and Respondent’s Submissions, 24 January 2023, at [12] to [18] (including the footnote references therein). Exhibit R4, Farrow Additional Statement, 14 December 2022, at [1]-[10].

[11] Exhibit R5, Gardener Statement, 25 November 2022, at [7]: “… in the new structure there was no supervisor position [MHS role] and the [Applicant’s position in the MHS role] was at risk”.  Exhibit R1, Stafford Statement, 21 November 2022, at [3]-[4].  Exhibit R3, Farrow Statement, 25 November 2022, at [3]-[7].

[12] Exhibit A1, Parkinson Statement, 7 December 2022, at [17] and Annexures “SP-1” (MHS role position description) and “SP-2” (MHM role position description, marked up by the Applicant).

[13] Ibid, and see also Transcript, PN79 to PN139, and Respondent’s Submissions, 24 January 2023, at [12] to [18] (including the footnote references therein). Exhibit R4, Farrow Additional Statement, 14 December 2022, at [1]-[10].

[14] Applicant’s Submissions, 7 December 2022, at [13].

[15] See, for example, Exhibit R5, Gardener Statement, 25 November 2022, at [7].

[16] Exhibit R4, Farrow Additional Statement, 14 December 2022, at [15]-[16].  See also, Exhibit R3, Farrow Statement, 25 November 2022, at [3]-[7].

[17] PR973864, AIRC, Hamilton DP, 9 October 2006, at [34].

[18] Applicant’s Submissions, 8 February 2023, at [14]-[27].

[19] Maxwell v Bardrill Corporation Ltd[2015] FWC 4019, at [40]-[41].

[20] Applicant’s Submissions, 8 February 2023, at [28]-[37].  Respondent’s Closing Submissions, 24 January 2023, at [26]-[44].  Respondent’s Closing Reply Submissions, 16 February 2023, at [23]-[27].

[21] Transcript, PN510-PN511, PN524, PN535-PN548, PN710-PN717.

[22] Applicant’s Submissions, 8 February 2023, at [35].

[23] [2010] FWAFB 3488; (2010) 199 IR 363.

[24] See also Technical and Further Education Commission v Pykett[2014] FWCFB 714 (2014) 240 IR 130, at [35].

[25] Ibid, at [34], [36], [38]–[40].

[26] [2014] FWCFB 4125; (2014) 244 IR 252.

[27] Ibid, at [31(2)]. See also at [26].

[28] [2014] FWCFB 5595.

[29] Ibid, at [35].

[30] Transcript, PN743-PN748.

[31] See also s.385(d) of the Act.

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