Sharon Kaibel v CKI People Pty Ltd
[2015] FWC 4220
•29 JULY 2015
| [2015] FWC 4220 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Sharon Kaibel
v
CKI People Pty Ltd
(U2014/16691)
COMMISSIONER HAMPTON | ADELAIDE, 29 JULY 2015 |
Application for relief from unfair dismissal – alleged unauthorised downloading and theft of intellectual property – small business – whether dismissal consistent with the small business fair dismissal code – dispute about when dismissal took place – not satisfied that belief of employer at time of dismissal was reasonably held – whether valid reason for dismissal – theft or deliberate breach of instructions not proven - conduct damaged trust and confidence in the relationship – valid reason - not satisfied that serious misconduct warranted dismissal without notice – dismissal harsh and unjust – remedy – compensation awarded.
1. Introduction and case outline
[1] Ms Sharon Kaibel has made an application under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer, CKI People Pty Ltd (CKI).
[2] CKI describes itself as a People Development and Change consultancy. It provides training, consultancy and related business services. Ms Kaibel was originally employed by a number of related employers and transitioned to the respondent in December 2013 when her then employer was purchased by CKI. That prior service extends back to 2008.
[3] This matter has proceeded on the basis that CKI is a small business as defined under the Act, 1 given that the number of employees employed at the time of Ms Kaibel’s dismissal was less than 14. This was ultimately consistent with the evidence2 given in the matter. As such, the Small Business Fair Dismissal Code (the Code) is relevant to this application and CKI contends that the dismissal was consistent with the Code.
[4] There is no dispute that Ms Kaibel was protected from unfair dismissal within the meaning of s.382 of the Act and there is a valid application before the Commission.
[5] Ms Kaibel was terminated on the basis of alleged misconduct associated with the downloading of the contents of one of CKI’s main computer drives (the Z drive) to a personal external hard drive on two occasions. It is contended that in so doing, Ms Kaibel was downloading confidential personal and business information and intellectual property (IP) without authorisation, contrary to policy and instructions, and without any work-related reason. Further, it is also now contended by CKI that Ms Kaibel was taking the IP property for use in her own business. CKI reported the alleged conduct to the Police following the dismissal of Ms Kaibel.
[6] Ms Kaibel accepts that the Z drive was downloaded to her personal external hard drive on one previous occasion, and again in the lead up to the dismissal. However, Ms Kaibel contends that this was done to give her remote access to a range of files and materials that could be relevant to a particular project that she was undertaking on each occasion. Further, Ms Kaibel contends that she was not instructed not to do so and was not in breach of any policy. Ms Kaibel denies that any of this material was taken for her own business purposes.
[7] Ms Kaibel further contends that CKI did not carry out a reasonable investigation and summarily dismissed her without giving her any opportunity to provide her version of events. On that basis, Ms Kaibel contends that her dismissal did not comply with the Code and was unfair on a number of grounds including that it was harsh and unjust as she did not do what was alleged and was denied procedural fairness.
[8] Ms Kaibel is seeking the maximum compensation available under the Act.
[9] CKI contends that Ms Kaibel’s conduct represented serious misconduct and, in effect, that it believed on reasonable grounds that the conduct was sufficiently serious to warrant immediate dismissal. That conduct included the downloading of the Z drive and other actions that were contended by CKI as being preparation to conduct her own business using the IP of her employer.
[10] Further, CKI contends in effect, that the applicant’s conduct was so severe that any alleged procedural deficiencies, which were not conceded by the employer, were not serious enough to result in the dismissal being harsh, unjust or unreasonable. That is, the severity of the conduct was so high that any deficit in the process would not result in the dismissal being harsh, unjust or unreasonable. The employer also contends that in any event, the outcome would not have changed even if there was a delay to have conducted a more fulsome investigation.
[11] CKI further contends that Ms Kaibel took a long time to review the CKI employment contract before signing it and clearly knew the requirements of her role and the obligation to abide by the relevant policies. If further contends that the applicant had, in effect, admitted that she selectively decided which policies to use and follow.
[12] Given the evident factual conflicts, I was obliged 3 to conduct a hearing or conference in order to make the necessary findings leading to the determination of the jurisdictional issue and the matter more generally. This application was subject to a hearing following consultation with the parties as contemplated by s.399 of the Act.
[13] Ms Kaibel was represented with permission by an agent, Mr Clarke and CKI was represented by its Chief Executive Officer, Mr Iliveski. Given the absence of external representation for CKI, appropriate assistance and latitude was provided to facilitate the presentation of its case. 4 However, CKI retained full responsibility for the conduct of its case and the provision of relevant evidence. Further, steps were taken to ensure that natural justice was provided to Ms Kaibel in relation to aspects of the evidence that were not originally put to her under cross-examination.
2. The evidence
[14] Ms Kaibel provided a witness statement and gave evidence in the matter.
[15] CKI provided witness statements and led evidence from the following:
● Sue Crawford, Owner of the former business and General Manager of the Adelaide Office of CKI;
● Karola Laventure, Business Operations – in the Adelaide office of CKI; and
● Jim Ilievski, Chief Executive Officer of CKI.
[16] I hold reservations about some of the evidence before the Commission and in particular the degree to which the evidence has been shaped to support various contentions. Ms Kaibel gave direct and confident evidence. However, her position was not always convincing on some elements and the justification provided for certain actions was only superficially plausible.
[17] I also note that in describing the material in the Z drive, Ms Kaibel attempted to downplay the range and nature of its contents, and indicated at various points that she had brought some of the IP from her earlier business and that some of the training materials were publicly available in any event. I accept that this is true to some extent but her attitude towards the IP involved is a factor to be taken into account.
[18] Ms Crawford felt let down by Ms Kaibel and was distressed by the circumstances. This impacted on her evidence to some degree and I consider that this led to the exaggeration of her evidence in certain limited respects. In particular, evidence about certain alleged direct instructions to Ms Kaibel regarding the downloading of the Z drive and the precise expectations surrounding the working from home days in December 2014. What might have been reasonable inferences about those matters were claimed by Ms Crawford to be specific express instructions, without any direct basis or supportive evidence. I also note that Ms Crawford contended that a specific service being provided by Ms Kaibel following the dismissal was able to be delivered by CKI without a sufficient foundation for that suggestion. This does not however mean that I discount her testimony on other matters where clear and consistent evidence was provided.
[19] In terms of the facts of the discussion between Mr Iliveski and Ms Kaibel on the day of the dismissal, I generally prefer the evidence of Mr Iliveski.
[20] In general terms, I have no concerns about the facts stated in the evidence of Ms Laventure. I also note that her recall of the staff meeting and initial discussions on 18 December 2014 was not particularly clear.
3. Ms Kaibel’s employment and the general context leading to her dismissal
[21] Given the impact of the Code upon this matter, it is appropriate to set some of the context for the dismissal based upon the evidence before the Commission. In so doing, I will leave the specific events directly bearing upon the dismissal for later consideration.
[22] Prior to the employment related to this application, Ms Kaibel was a self-employed Director of her own company, Image & Moore Pty Ltd, and had earlier been the sole proprietor of a training business.
[23] Ms Kaibel has been employed with CKI for just over a year. Prior to working for CKI she worked as a Senior Consultant for Right Turn Pty Ltd (Right Turn) which was a business conducted by Ms Crawford. Business interests in Right Turn were purchased by CKI in or around 2013. Due to certain legal constraints, the Registered Training Organisation part of that business was formally retained in the name of Right Turn. As a result of this sale, Ms Kaibel and another Adelaide staff member were “transferred” across to CKI, where new employment contracts were proposed and signed. Two other staff members were retained by Right Turn.
[24] Prior to Right Turn, in May 2008 Ms Kaibel was employed as a Senior Consultant with Leapfrog People, a company also conducted by Ms Crawford. Ms Kaibel’s employment was continuous from that time.
[25] In addition to her consulting and training experience, Ms Kaibel holds various qualifications including in relation to management, public speaking and workplace training and assessment.
[26] In general terms, the Adelaide office of CKI and Leap Frog operated on an integrated basis.
[27] As part of the business arrangements with CKI, Ms Crawford became the Regional Manager for CKI despite being employed by Right Turn. Ms Crawford would conduct staff meetings and issue directions as required on behalf of CKI. Those arrangements also contemplated the eventual complete integration of the Leap Frog business into CKI, including the computer system.
[28] I note that Ms Kaibel had started a personal blog in August 2010 about personal and other development opportunities and initially referred to different events and services offered by Right Turn. In 2011, Ms Crawford requested that applicant to stop referencing Right Turn in her blog. Ms Kaibel ceased using her blog entirely in December 2013, after a meeting with Ms Crawford during which it was confirmed that Ms Kaibel was no longer to undertake any marketing activity given that her role (only) contemplated program and business development.
[29] Ms Kaibel was employed by CKI in November 2013 as a Senior Consultant and her salary was $119,650 plus 9.5 per cent superannuation. The applicant provided her own mobile phone however work related calls and downloads were met by CKI. The express terms and conditions of employment were confirmed in a written contract and certain policies that were appended to that contract.
[30] Ms Kaibel’s role involved the development and provision of training and consultancy services to the business clients of CKI. This included the development and delivery of training package, often at the premises of the clients. Interstate and local travel was required. PowerPoint and other training products were often developed and delivered from standard material held within the CKI (and Right Turn) computer systems.
[31] When in the office, Ms Kaibel had access to the full Z drive, where most of the IP was stored. This encompassed proposals, rates charged to clients, presentations and details of training provided including the names of clients and persons attending training courses. When working remotely, Ms Kaibel initially used a “dongle” supplied by her employer however at some stage this was no longer used and she was in effect required to use material from her C drive on the laptop or a USB device.
[32] It is evident that Ms Kaibel had a tendency to store large amounts of material on her laptop and this caused the computer to operate sluggishly. It is likely that in mid-2014, Ms Kaibel was advised by Xentech, an external IT service provider engaged by CKI, to transfer backup files to a separate hard drive. I note that this could not represent authority to download the Z drive, but rather, an indication from an apparently authorised source that it was not inappropriate to use external hard drives within the business.
[33] As a registered training organisation, Right Turn (CKI), had certain confidentiality obligations and this included the need to protect the privacy of personal information stored on its computer systems.
[34] When delivering presentations, the company provided laptop would often be utilised. Ms Kaibel would use her C drive to store such presentations and there is a dispute about the degree to which these presentation were always also stored on the Z drive as was required.
[35] Although there is a dispute about the detail, there was a meeting between Ms Kaibel and Mr Ilievksi in late November/early December 2014. Discussions were held about Mr Ilievski’s plans and the direction of the company. Despite some assurance that Ms Kaibel was a valued member of the team, she left the meeting feeling uncertain about the future of the business and her employment given the employment costs of running the local business.
4. Was the dismissal consistent with the Code?
4.1 The application of the Code
[36] Section 385 of the Act provides as follows:
“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.”
[37] This means that if Ms Kaibel’s dismissal was consistent with the Code, it cannot be considered to be unfair within the meaning of the Act. Section 396 of the Act also requires, in effect, that matters arising from s.385 are to be decided before dealing with the merits of the application.
[38] Section 388 of the Act further provides:
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[39] As previously noted, CKI is a small business as defined under the Act.
[40] The Code as declared is set out as follows:
“The Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[41] Ms Kaibel was dismissed without notice or warning. Accordingly, it was a summary dismissal within the meaning of the Code and under its terms the onus is on CKI to demonstrate that it has complied with the Code. Given the import of s.385, if compliance is not demonstrated, the unfair dismissal application is to be determined pursuant to the considerations set out in s.387 of the Act.
[42] Under the Code it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The Code defines serious misconduct as including ‘theft, fraud, violence and serious breaches of occupational health and safety procedures.’
[43] The Commission does not have to make a finding, on the evidence, whether the conduct occurred. Rather, the Commission needs to determine whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal. 5
[44] The summary dismissal aspect of the Code was considered by a Full Bench in Pinawin T/A RoseVi.Hair.Face.Body v Domingo. 6 The Full Bench stated:
“[29] ... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.
[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”
[45] Accordingly, for an employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish that it did in fact hold the belief that:
● the conduct was by the employee;
● the conduct was serious; and
● the conduct justified immediate dismissal.
[46] The employer must establish that it had reasonable grounds to hold the belief, which could be established by providing evidence of inquiries or investigations the employer undertook to establish their belief. Reasonable inferences may also be drawn from such an investigation depending upon the circumstances. 7
[47] Some of CKI’s evidence concerns information and allegations ascertained after the dismissal. That material is not relevant to the application of the summary dismissal elements of the Code. For that reason, it is necessary, at least initially, to consider the evidence of what CKI did in the lead up to, and knew at, the point of the dismissal.
[48] There is also a dispute about the precise point of dismissal. Ms Kaibel contends that she was dismissed during the first conversation with Ms Crawford on 18 December 2014. CKI contends that the applicant’s dismissal was only confirmed following a subsequent phone call with Mr Iliveski and the provision of the letter of dismissal. This bears upon the point in time that the assessment of the employer’s knowledge is to be undertaken for the purposes of the Code.
4.2 When did the dismissal take place?
[49] On 18 December 2014 Ms Kaibel left work during the course of the day to seek treatment for a migraine headache.
[50] After Ms Kaibel had been treated for her migraine she received (or returned) a phone call from Ms Crawford who questioned whether Ms Kaibel was coming back to the office. Ms Kaibel indicated that she was intending to come to the office and Ms Crawford told her to go home instead.
[51] Upon returning home, Ms Kaibel spoke to Ms Crawford who asked her if she had downloaded company files to her personal drive. Ms Kaibel responded that she had and it was to enable her to work from home (or remain mobile) as instructed. Ms Crawford indicated that the applicant did not need the entire Z drive and that nobody, except Ms Laventure, had permission to copy the Z drive. Ms Crawford then explained to Ms Kaibel that she had spoken to the company owner, Mr Ilievski, and was instructed to terminate her employment straight away and advise her not to return to the office. Although it is not critical to this issue, it is also possible that Ms Crawford also stated that she had retained Ms Kaibel’s hard drive and it was being delivered to her IT company Xentech to remove all the work files.
[52] Ms Kaibel reacted strongly to being advised of the dismissal and indicated that she wanted to talk to Mr Iliveski.
[53] Mr Iliveski and Ms Kaibel spoke later that afternoon and on balance it is likely that Mr Iliveski stated, or at least implied that the applicant had stolen company records and information. Amongst other matters, Ms Kaibel explained that she was seeking access to the same information (at home) that existed at work and given her migraine that day, considered that the easiest way was for her to duplicate the Z drive. Ms Kaibel also explained that she had done so before in order to work remotely given that she did not have remote access to the computer system when travelling for work.
[54] Mr Iliveski emphasised the volume of information and IP that had been copied and Ms Kaibel indicated that it was “a silly thing to do”. Ms Kaibel reiterated that she was simply seeking to work from home but acknowledged, in effect, that there would have been a better way to do that.
[55] Mr Iliveski confirmed that in any event the applicant was in serious breach of her employment conditions, reiterated that she had been dismissed and was not to return to the office. A letter of dismissal was subsequently forwarded to Ms Kaibel by CKI. It provided as follows:
“Dear Sharon,
I refer to our telephone conversations on Thursday 18 December and also your conversation with Sue Crawford, General Manager Consulting Services, CKI People in relation to your serious breach of employment conditions. We have conducted an investigation with the assistance of Xentech who have confirmed that you have copied company and client data onto a personal device.
When given the opportunity to explain your conduct you indicated that you had done this "to keep yourself mobile" and indicated that this was a "silly mistake". You did not seek, nor were you given authorisation - direct or implied. We believe that the information you downloaded exceeded the requirements of your role and as such these actions constitute serious and wilful misconduct. As per the separation terms in your contract of employment, we are exercising our right to terminate your employment immediately.
I have authorised all access to the office and property, including email accounts, to be revoked effective immediately.
We will arrange for your personal belongings to be packed up and sent to you.
Sharon, please return all CKI People and Right Turn keys and equipment including intellectual property to the office. You advised Sue Crawford that you have other hard drives containing company and client information which needs to be returned as well, with any further copies deleted. You can liaise with Sue Crawford re this.
Sharon, I remind you that some obligations relating to your employment specifically regarding Intellectual Property and Duties of Confidentiality, including business contacts and clients, continue beyond termination
Yours faithfully
… …” 8
[56] A dismissal within the meaning of the Act refers, in the present context, to circumstances where the employer’s action ‘directly and consequentially’ results in the termination of employment, and/or had the employer not taken this action, the employee would have remained employed. 9 Further, there must be action by the employer that either intends to bring the relationship to an end or has that probable result.10
[57] It is evident that Ms Crawford had the authority, acting on behalf of Mr Iliveski, to effectively communicate a dismissal to Ms Kaibel. Viewed objectively, the probable result of Ms Crawford indicating that she had been instructed to terminate Ms Kaibel’s employment straight away was that this ended the employment.
[58] Accordingly, based upon the evidence before the Commission, Ms Kaibel was dismissed during the course of the telephone discussion with Ms Crawford on the afternoon of 18 December 2014. The subsequent telephone discussion with Mr Iliveski was a discussion about, and potentially a review of, the dismissal.
[59] As a result, the actions and knowledge of the employer for the purposes of the Code are to be assessed based only upon evidence up to and including the telephone discussion between Ms Kaibel and Ms Crawford.
4.3 What happened and what did CKI know prior to the dismissal?
[60] On 18 December 2014, a staff meeting occurred where Ms Kaibel and the other Adelaide office staff were advised by Ms Crawford that they were to work from home on Monday 22 December and Tuesday 23 December 2014. These days would, in the normal course, be ordinary working days, however due to security and building access issues, staff members were not able to enter the office building on those days. Ms Crawford requested that all work items be completed or near completion and that all files should be sorted and office backups, to the Z drive, also be completed. In addition, staff members were instructed to remove personal files from the computer.
[61] Ms Crawford also indicated to Ms Kaibel that she might not be able to take her work laptop home as there was system testing that needed to be completed and Ms Kaibel indicated that this may create a problem. The consequences of Ms Crawford’s instruction was that Thursday 18 December would in effect be the last proper working day in the office before Christmas as Friday 19 December was to be the office Christmas lunch.
[62] During this time, the computer files held by the former business (Right Turn) were to be fully transitioned into the CKI computer system. To that end, Ms Kaibel had previously received emails from the IT Coordinator requesting that all files be cleaned up and personal files deleted in readiness for the IT system change.
[63] On 18 December 2014, Ms Kaibel had a migraine and had made arrangements to attend Chiropractic treatment that afternoon.
[64] Prior to leaving for her appointment, Ms Kaibel spoke to Ms Crawford and when questioned, indicated that she had completed the backup of her computer files as required. No mention was made of any other computer backups that were being undertaken.
[65] At approximately 3.15pm on 18 December 2014, Ms Laventure noted that Ms Kaibel’s laptop was still on, and as the applicant was not expected to return to work that day, took steps to shut it down. In so doing, Ms Laventure noticed that files were being copied from the C drive (Ms Kaibel’s personal drive) and the Z drive to an external hard drive, which did not belong to CKI.
[66] Ms Crawford was advised of this development and along with Ms Laventure inspected the applicant’s laptop and noted that an external hard drive was connected by a cable with the drive located back under the riser that supported the computer. I note that Ms Laventure and Ms Crawford immediately took the view that the hard drive had been “hidden” under the riser and that the apparent downloading of the Z drive was a very significant and disturbing development.
[67] Ms Crawford instructed Ms Laventure to contact CKI’s external IT service provider, Xentech, to confirm what was happening. Xentech remotely accessed Ms Kaibel’s computer system and confirmed that the C and Z drives were being downloaded to the external hard drive. Xentech also indicated that the Z drive had been previously downloaded by Ms Kaibel in September 2014.
[68] The laptop was showing that after five hours, approximately 65 gb out of a total of 95 gb (comprising over 180,000 items) had been downloaded from the Z drive and that this would take a further 20 hours to complete. This estimate is likely to excessive and I note that it is common knowledge that estimates of downloading times during that process are often unreliable. The extent and nature of the downloaded Z drive was however very significant and would have taken well in excess of the five hours already taken up.
[69] Ms Crawford rang Mr Iliveski and advised him about the downloading and that this had been confirmed by Xentch. Mr Iliveski immediately instructed Ms Crawford to terminate Ms Kaibel’s access to emails and to the office, and to terminate her employment. I note that Mr Iliveski may have indicated that the termination should proceed unless Ms Crawford considered that there was a valid reason for accessing the file. However, on balance, I am not satisfied that Ms Crawford was open to any alternative explanation and understood her instructions to be to immediately terminate the applicant’s employment. 11
[70] Ms Crawford consulted her husband, composed a script and after leaving a message, spoke to Ms Kaibel by phone when the applicant returned to her home.
[71] The events of the termination discussion have been outlined earlier in this decision.
[72] Accordingly, CKI believed that Ms Kaibel had downloaded (or was in the process of downloading) the Z drive to a personal external hard drive and that this had occurred without authorisation and without notifying the employer that she was doing it. It also believed that Ms Kaibel had done so on a previous occasion. 12 The extent of this belief was also confirmed in the subsequent letter of dismissal set out earlier in this decision. There was no reference to alleged theft in that correspondence and some of the evidence provided by Mr Iliveski did not delineate between the belief held at that time and the subsequent allegations based upon some further investigation.
[73] Mr Iliveski reported the matter to the Police in part because he had suspicions about whether the IP had been stolen. The main reason for doing so appears to be that he wanted to have a police report in the event that an insurance claim was to be made (for any losses to the business). 13
[74] At the point of termination, and based upon the limited investigation that had been undertaken, CKI knew:
● Ms Kaibel had downloaded (or was in the process of downloading) the Z drive to a personal external hard drive and that this had occurred without authorisation and without notifying the employer that she was doing it;
● Ms Kaibel had done so on a previous occasion;
● The downloading of the Z drive and C drive appeared to be the exact opposite of the instructions to upload all work related material to the Z drive and remove all personal items in preparation for the full transition of the computer system;
● Ms Kaibel claimed that duplicating the Z drive was to enable her to work remotely (from home and to undertake work when travelling);
● The Z drive contained much of the IP of CKI and the predecessor businesses, and also included some personal and private business information associated with training attendees and clients’ businesses;
● During work at the office, Ms Kaibel had full access to the Z drive and duplicating the Z drive would have enabled her to have that access when working remotely;
● The extent of the information on the Z drive would not have been required to undertake most remote work;
● Ms Kaibel was a senior employee, relatively highly-paid and was a entrusted with the relevant IP of the business when required;
● Although Ms Kaibel had earlier conducted a personal blog site, there was no real basis at that point to assume that the IP was (or had been) misappropriated for an improper purpose;
● The most recent copying of the Z drive was undertaken in the lead up to a period where Ms Kaibel would not have access to the office, was to work at home and then go on leave for some weeks; and
● The personal external hard drive was placed out of sight under the laptop computer riser on Ms Kaibel’s desk.
[75] CKI did not explore, and did not know, what had been done or would be done with the material from the Z drive by Ms Kaibel; the circumstances under which the material had been copied in September 2014; or on what basis Ms Kaibel considered that it was appropriate for that downloading to be done beyond the suggestion of the need for remote access. For instance, it did not seek any information about the nature of the work that was allegedly being contemplated in any work to be undertaken from home or remotely.
[76] Whilst Ms Crawford knew what instructions had been given about backing up the Z drive and the need to prepare for the IT system conversion, she did not know about the detail of the written contract of employment between Ms Kaibel and CKI. Mr Iliveski knew about the written contract of employment but not all of the earlier discussions and employment practices. As both participated in the discussions leading to the dismissal, I will however assume that their collective knowledge is relevant for present purposes.
[77] The employment contract relevantly stated:
“Intellectual Property and Duties of Confidentiality
Your execution of and adherence to these terms is a condition of your employment with CKI People Pty Ltd. Terms are as follows:
Protection of Intellectual Property
A. All inventions, discoveries, improvements, research, techniques, plans and any documents which you may conceive, make or create (whether alone or not) during the period of your employment, relating to or connected with anything which has been, is or may become the subject of the Company's business or interest ('Inventions') are the exclusive property of the Company and you have no proprietary or other right in any such Invention.
B. You assign to the Company all proprietary rights including ownership rights and copyright and other rights (including to the maximum permissible extent, moral rights), title and interest, present and future in and to any Inventions and agrees to take any action necessary to give full effect to this assignment.
Confidentiality
You agree that:
A. (1) Except as authorized or required by your duties as an employee of the Company, you shall not reveal to any person any of the trade secrets or confidential operations, processes or dealings or any information concerning the Group's business or the organization, business finances, transactions' or affairs of the Group and its clients ('confidential information') which may come to your knowledge prior to, during, or after the period of your employment; and
(2) You shall keep completely secret all confidential information entrusted to you; and
(3) You shall not use or attempt to use confidential information in any manner that may or may be likely to injure or cause loss either directly or indirectly to the Company or its business.
(4) You may not attempt to entice any Company employees to terminate his or her employment with the Company for a period of 6 months after the termination of your employment.
(5) On your employment separation you shall return to the Company all Company property including equipment, documents and other materials containing such confidential information.
B. This restriction shall cease to apply to information that comes into the public domain other than by an act or omission of the employee.” 14
[78] The “Employment Policies and Agreements Appendix”, which applied in conjunction the contract, relevantly provided as follows:
“Electronic Files and Directory Security Protocol
In addition to the Electronic Mail and Internet Protocol, you are required to use the company's systems in an appropriate and secure manner at all times, whether through direct logon or remote access. This includes keeping confidential all information on any explorer desktop or drive or on any laptop or online business package that relates to the company, clients, business partners and employees. You are not permitted to use another team member's login, share or distribute passwords or access another team member's files or drives without their permission. You are not permitted to request IT or the helpdesk to provide passwords or access another team member's login, password or rules without their permission plus the permission of their department manager or Human Resources. You should regularly change your password and secure the system when away from your desk. Logging out of your computer prior to leaving at the end of the day is important. Any confidential information and particularly all sensitive matters should be password protected and only stored in your personal drive for the time that it is needed, and then deleted as you would securely store or shred any such paper documents.
You are also not permitted to load non-approved software onto company computers; or use the company's system or equipment for other non-employment or personal small business activities.
The information on any drive or file may be retrieved with !he permission of the Department Director or Head of Human Resources, and this includes for regulatory, investigation or audit purposes.
The company will regard any breach of security as a serious manner and disciplinary action, following an investigation, may include documented warning, suspension during investigation, transfer, demotion or dismissal.
… …
Agreement for Employees Regarding Confidential Information
Please review the terms and conditions of the following Agreement
This Agreement for Employees Regarding Confidential information (this "Agreement") is by and between the employee indicated below ("you") and CKI People Pty Ltd.
In connection with your employment by CKI People Pty Ltd (the "Employer"), you may need CKI People Pty Ltd, to provide you access to Confidential Information. In exchange for CKI People providing you with this access, you and CKI People Pty Ltd agree as follows:
"Confidential Information" means non-public information, materials and systems, including but not limited to information systems, computer systems, voice mail systems, email systems, information and materials describing or relating to the business and financial affairs, personnel matters, operating procedures, organizational responsibilities, marketing matters, trade secrets, inventions, designs and policies or procedures of CKI People, and employees or clients of CKI People or other third parties. Confidential Information does not include any information to the extent that it is
(i) already in your lawful possession prior to your receipt of it or access to it in connection with, in reliance on or as a consequence of this Agreement;
(ii) in, or comes into, the public domain and is generally available through no wrongful act or omission by you, the Employer, the Employer's affiliates, or any other person who you know or reasonably should suspect to be subject to confidentiality obligations,
(iii) acquired by, or becomes available to, you from any other source, provided that the source is not subject to a confidentiality agreement and the information was not acquired directly or indirectly from CKI People; or
(iv) derived independently by you, without any reference to or reliance on, and not as a consequence of, information provided or obtained in connection with, in reliance on or as a consequence of this Agreement.
The Confidential Information is (a) solely and exclusively the property of CKI People, (b) subject to obligations in relation to Confidential Information under the common law; and (c) protected by the Corporations Act 2001 (Commonwealth).
Confidential Information may be used only as authorized and only for the purposes of performing your duties to the Employer. You may disclose the Confidential Information to any other officer or employee of CKI People or the Employer who has a need to know or see the Confidential Information provided that the disclosure is required in the proper course of performing your duties to the Employer.
You will hold all Confidential Information in strict confidence and, except for the above authorized uses, you have no right or obligation to and will not, nor will you permit any other person to, give, disclose, copy, reproduce, sell, assign, license, market or transfer Confidential information to any person, company or corporation, including any partner, officer or employee of CKI People or the Employer, who does not have a need to know or see the Confidential Information. This provision applies to writings, materials and embodiments of any kind (whether written or verbal) containing such information, including books and articles.
You may disclose Confidential Information to the extent (but only to the extent) required to comply with any applicable law or legally binding order of any court, government, semi government authority or administrative or judicial body, provided that you promptly notify CKI People Pty Ltd of such requirement (including without limitation by providing complete copies of applicable summonses or subpoenas prompting the disclosure) and cooperate with CKI People Pty Ltd as reasonably requested for purposes of protecting the Confidential Information from unauthorized use and disclosure.” 15
[79] CKI did not explore what was Ms Kaibel’s understanding of the reference to “personal drive” in the context of the policy and did not check what Ms Kaibel had done, if anything, to protect the information on the personal external hard drive and/or whether it had been deleted once used in September 2014. It also did not check what instructions or information had actually been given to Ms Kaibel about the use of external hard drives.
[80] Although Ms Crawford suggested in her evidence that Ms Kaibel and others were specifically instructed that they were not to download the Z drive, the only direct evidence about the issue was that Ms Laventure was instructed to back up the Z drive and that all employees knew that was her role. As explained by Ms Laventure, no one else was authorised to back up the Z drive to a backup drive 16 and I accept that this was so. However, this was not an express direction to others not to download that drive.
[81] It is clear that the importance of moving all material to, and protecting the information on, the Z drive was emphasised to all staff. I also accept that the importance and sensitivity of the IP and confidential information was known and understood by all employees, particularly Ms Kaibel, given her role in the business and previous work.
[82] It was also reasonable for CKI to make its decision on the basis that Ms Kaibel had not been authorised to download the Z drive. However, based upon the evidence before the Commission I am not persuaded that the employer understood on a reasonable basis that a direct instruction not to duplicate the Z drive was given to Ms Kaibel at any time.
4.4 Conclusions on the Small Business Fair Dismissal Code
[83] Ms Kaibel contends that CKI did not conduct any real investigation into the circumstances and reached conclusions without any proper foundation. That is, there was no basis available for the employer to reasonably consider that immediate dismissal was appropriate.
[84] CKI contends that Mr Ilievski was provided with the information that was true and valid and was from experienced Adelaide Staff. He took it to be true and raised serious concerns about Ms Kaibel’s conduct. Xentech completed an investigation and confirmed the downloading to be true. Accordingly, CKI argued that it had a sufficient basis and reasonable belief that the conduct occurred and warranted dismissal.
[85] The conduct of Ms Kaibel was reported to the Police. Under the Code, this is a potential indicator that a belief was held that serious misconduct took place. There must however be a reasonable basis for that belief.
[86] There were reasonable grounds for CKI to believe that Ms Kaibel has acted inappropriately and without authorisation. There were also reasonable grounds to suspect that Ms Kaibel had acted in a manner that could have been in breach of her obligations as an employee and potentially put the business at risk. It also had some grounds to suspect that Ms Kaibel may have downloaded the information for improper purposes.
[87] However, given the seriousness of the allegations, the matters that it did not know and the very limited investigation and discussions prior to the dismissal, it did not have a reasonable basis at that time to conclude that Ms Kaibel had in fact seriously breached her obligations and/or actually put the business at risk.
[88] To the extent that CKI believed at that time that Ms Kaibel had “stolen” the IP, there were grounds for concern, but at this point, such was speculation. There was certainly insufficient foundation at that stage for such a belief to be reasonably held.
[89] As outlined earlier, the application of the Code to a summary dismissal requires the Commission to consider whether the employer, in determining its course of action in relation to the employee at the time of dismissal, knew the relevant facts or carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.
[90] In this case, the employer is a small business but it is technically advanced and managed by persons qualified in business leadership and employment related matters.
[91] In the circumstances, I am on balance not persuaded that CKI believed on reasonable grounds that Ms Kaibel’s conduct warranted summary dismissal at that point.
[92] In light of the above, I find that the employer has not demonstrated that the dismissal of Ms Kaibel was consistent with the Code.
5. Was the dismissal unfair?
[93] Given the above, I must apply the considerations established by s.387 of the Act.
[94] Section 387 of the Act provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[95] It is clear that s.387 of the Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.
[96] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to Ms Kaibel’s capacity or conduct (including its effect on the safety and welfare of other employees)
[97] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly. 17
[98] In applying this approach, it is also important to recognise that conduct occurs in a context and this must also be taken into account. This might include the circumstances in which any misconduct occurs and the events leading to that point. 18
[99] Where the conduct involves alleged serious misconduct, the principle established in Briginshaw v Briginshaw 19may be relevant:
“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.’ 20
[100] The Briginshaw principle does not raise the standard of proof beyond the balance of probabilities. The strength of the evidence needed to establish a fact on the balance of probabilities ‘may vary according to the nature of what it is sought to prove’. More serious allegations may require stronger evidence. 21
[101] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, unlike the application of the Code, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.22 Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal. 23
[102] In addition to the conduct discussed above in relation to the Code, CKI relied in this matter on some additional alleged conduct that it discovered after the dismissal. Some of this emerged from inquires conducted after the lodgement of this application, and on one issue, during the course of the hearing itself. These matters included:
● There was no work required on the relevant project in the Christmas/New Year period as claimed by Ms Kaibel, and accordingly, there was no business need at all for the downloading of the Z drive in December 2014;
● Ms Kaibel established and conducted another business (AchieverNet) whilst employed by CKI and using CKI’s computer and facilities;
● Some of CKI’s IP was copied into a “Dropbox” facility being used by Ms Kaibel and this was loaded and stored in the name of AchieverNet; and
● This occurred without authorisation and in conflict with her duties to CKI.
[103] It is appropriate to deal with each of these allegations, and those earlier referred to in terms of the Code, based upon the evidence before the Commission. Each of these matters are related to some extent and all of the relevant facts and considerations must be taken into account in assessing whether a valid reason for dismissal existed.
The justification for duplicating the Z drive
[104] Ms Kaibel took steps to duplicate the Z drive to her personal external hard drive on two occasions; being in September 2014 and the day of the dismissal on 18 December 2014.
[105] In relation to the September downloading, Ms Kaibel contends as follows:
● It was anticipated that a significant training package was required to be delivered in November 2014 (it was later delayed by the client);
● Ms Kaibel was to take four weeks leave in October 2014 and it was necessary that the preparation be done in advance so as to be ready for the training sessions; and
● There was no usable remote access and copying of the Z drive that allowed Ms Kaibel to access all relevant material to prepare for the sessions.
[106] CKI contends as follows:
● The September downloading was undertaken whilst Ms Crawford was away from work and no advice about the downloading was given by Ms Kaibel and no permission was sought;
● The relevant material could have been accessed from the considerable material already stored on Ms Kaibel’s laptop or accessed in other ways, such as the use of a USB;
● The materials for the training concerned involved other staff members and were fully completed by the time of Ms Kaibel’s leave; and
● There was no work-related justification for copying the full Z drive.
[107] In relation to the 18 December 2014 downloading, Ms Kaibel contends as follows:
● Due to the short notice of the office closure, and the fact Ms Kaibel had a migraine to which she received treatment that afternoon, she backed up the Z drive and her personal C drive as an expeditious way to work from home on the Monday and Tuesday and during her period of leave in January. That is, Ms Kaibel was preparing for a client’s training program which was due to begin in January 2015 and as she may not have access to her laptop, the files could not be saved to her “desktop” storage;
● Ms Kaibel copied the entire drive as she wanted to begin preparing for this assignment whilst on leave in the week commencing 12 January 2015. The reason that the entire drive was copied is that she could not find where the particular information was filed that was required for the job she was intending to do. Ms Kaibel had asked, in the days leading up to the dismissal, the Office Administrator to search for this information which she found in several different places on the drive. Furthermore, with the cleaning and backup of the files that was occurring at that time, it meant that files were getting moved around; and
● Ms Kaibel states that preparing client materials and information in advance was not unusual and that she planned to work on this information during her time off over the Christmas/New Year break.
[108] CKI contends that:
● The applicant was not required or expected to undertake developmental work on the two “work from home days”;
● The program relied upon by Ms Kaibel as justification for copying the Z drive was the subject of a proposal that had only just been finalised by Ms Kaibel (and others) and submitted to the client on 16 December 2014. The proposal had not been accepted by the client and even if it was to be accepted, the first commitment would not have been until February 2015 in the form of a panel kick off rather than the full delivery of the training program;
● The program concerned involved leadership mentoring and there was already considerable resource material collated within a folder in the Z drive and this had been shown to the applicant;
● Ms Kaibel claimed to have superior knowledge of the IP material yet also claimed to be unaware of the mentoring material;
● There were other mechanisms that Ms Kaibel could have used if she required certain information including talking to other employees, asking where certain documents were stored and obtaining a work hard drive; and on that basis
● There was no work-related justification for copying the full Z drive to her personal hard drive.
[109] The downloading of the entire Z drive was a very significant action, given the volume, content and commercial sensitivity of the material. The IP to be found in the Z drive represented much of the intellectual assets of the business that had recently been sold by Right Turn and purchased by CKI.
[110] I have significant reservations about the explanations provided by Ms Kaibel. I accept that she may have been keen to work on the training program in September and given that she was to be out of the office, required access to a broad range of material that might assist her to do that. However, duplicating the entire Z drive in order to access some of the material that might well have been stored in (or moved by her into) in a single folder, was an extraordinary step and not objectively justifiable.
[111] It should be appreciated that at that time there was no question of short notice or problematic access to the lap top involved, and the training program was already proposed and approved. Indeed, most, if not all, of the actual material for the program was already developed. 24
[112] In relation to the December downloading, there is, at least conceptually, slightly more justification for that action. That is, there was uncertainty about access to the laptop and the program required some development as it was new, at least to Ms Kaibel. This may have meant that access to a broader range of material may have been necessary. However, I note in that regard that a folder of material associated with mentoring programs existed on the system. 25
[113] In addition, in the context of the migraine, the downloading of the Z drive may have appeared to Ms Kaibel to be the best option rather than finding and storing the required material.
[114] However, the proposal concerned had only just been provided to the client, there was at best considerable uncertainty as to whether it would be accepted, and the actual program did not start until at least February 2015.
[115] It is evident that although downloading the Z drive was one way of providing access to material to work remotely, there was no objectively justifiable need to download that volume or range of files. The decision to do so rightly raised concerns about the security of the information and suspicions as to the motives of Ms Kaibel.
[116] As found earlier, there was no approval, express or implied, for the downloading of the Z drive to a personal external hard drive.
Whether the duplication of the Z drive and/or the C drive was in breach of instructions or policy (including the manner in which it was done)
[117] I have dealt with some of this aspect when considering the application of the Code. I am not satisfied that there was a direct instruction not to download the Z drive.
[118] The employment contract and the policy also do not directly prohibit such duplication however there were significant restrictions on the use of sensitive or private material and the need to protect the IP of CKI was clear. The policy also requires that any confidential information should be stored on the employee’s “personal drive” only for the time that it is needed.
[119] The duplication and storage of the Z drive did create risks for the business. The IP, business and personal information on the external hard drive should have been kept secure and subject to password and other protection at all times. The downloading to the hard drive was not consistent with that part of the policy. Even assuming that a personal external hard drive was a “personal drive” for the purposes of the policy, there is also no indication that the hard drive was being used as temporary storage as required.
[120] The duplication of the Z drive in December 2014 via the personal hard drive located away from view is a cause for suspicion. I do not accept that this was done for the reasons suggested by Ms Kaibel. That is, to protect the drive from dust and for security reasons. These are arguments of convenience and are not credible. It is far more likely that Ms Kaibel was uncertain about whether the copying of the Z drive was appropriate and did not seek to draw attention to that fact. This is also consistent with the absence of any disclosure about the downloading to anyone else at CKI, including when asked by Ms Crawford about whether she had completed the file movements and tidy up, immediately before heading off to the Chiropractor.
[121] In terms of the C drive, given the state of the evidence about the advice provided by Xentech and the CKI policy, and the lack of evidence about whether this was part of cleaning up personal items from the system, there is no basis to find that this was, in itself, a breach of CKI policy.
Whether the use of the Dropbox facility itself was in breach of instruction or policy
[122] A Dropbox is a file hosting service that allows a user to store documents, photos and videos in a designated/nominated folder. The Dropbox software must be loaded onto the computers used to store or access files.
[123] Files are uploaded to Dropbox’s “cloud-based” services and any file that is saved in the Dropbox folder will automatically be saved to the Dropbox website and any computers and mobile devices that have Dropbox installed. Everything stored in Dropbox is, at least conceptually, private, and users can control what is shared with others. Dropbox is password protected and can be further secured with a two-step verification process; it also keeps a one month history of all the documents saved to the Dropbox, so files deleted from the Dropbox folder may be recovered from any of the synced devices.
[124] The Dropbox was installed by Ms Kaibel on her work supplied laptop and was arranged under the “Achivernet” banner and had folders relating to topics, and sub-folders relating to common PowerPoint presentations, with five further sub-folders relating to major clients of CKI. As alluded to earlier, AchieverNet, is a business registered by Ms Kaibel and this was the case at the time of her dismissal.
[125] In this case, there are two aspects to the use of the Dropbox. Firstly, that the Dropbox was loaded onto the computer system and used to remotely access CKI files and materials. Secondly, that the Dropbox was arranged under the banner of AchieverNet, being the business registered by Ms Kaibel.
[126] There is no suggestion that CKI approved the Dropbox and it was apparent from the evidence that its existence was not known by Mr Iliveski or Ms Laventure until after the dismissal. 26 This is significant given the latter’s role in the organisation included the administration of the IT system.
[127] The loading of the Dropbox onto the work system without approval would be in breach of CKI’s policy. Ms Kaibel contends that it was already on the system and being used by her prior to her employment by CKI. There is no indication that her previous employer had a similar policy preventing the loading of “external” software. Indeed, Ms Laventure implied that there were no similar formal IT policies within Right Turn. 27
[128] The loading and accessing of the Dropbox was probably not therefore in breach of that element of the policy. However, given the application of the policy, it would have been appropriate for Ms Kaibel to advise CKI and seek permission to use such a service involving its IP and to seek approval to continue to use the unauthorised software. Further, the use of the Dropbox does raise further real issues about the need to download the Z drive in September 2014 and increases the sense of unease that surrounds Ms Kaibel’s use and storage of the IP belonging to CKI.
[129] Ms Kaibel explained the use of the AchieverNet name in the Dropbox arrangement as being one of convenience and indicated that this was part of some “brain storming” that had been done about possible future file structures for CKI. She denied that this was indicative of any ulterior motive. 28 The establishment of the file structure might be explained in that way however this does not explain why this was done using the Dropbox facility and in the name of Ms Kaibel’s own registered business.
[130] Even if not in breach of policy, the copying of the CKI IP to the Dropbox was clearly not authorised.
Whether Ms Kaibel established and conducted the AchieverNet business whilst employed by CKI and using CKI’s computer and facilities
[131] The evidence reveals that Ms Kaibel has been conducting her own training business, AchieverNet, since 5 January 2015. A bank account was established for the business on 6 January 2015. These events all occurred after the dismissal.
[132] The evidence also reveals that Ms Kaibel purchased the domain name to AchieverNet on 10 March 2013 and had the name registered on 4 April 2013. During August 2014, Ms Kaibel also had a logo for AchieverNet designed using a cheap (5 for $5) online service. None of this was known by CKI at the time of the dismissal but is now relied upon as a further indication that Ms Kaibel was collecting the IP of her employer to use in her own business.
[133] As outlined above, the Dropbox facility, including the sub-folders with CKI client information, was also created within the AchieverNet banner on the work laptop.
[134] CKI contends that Ms Kaibel may not understand or realise the severity or magnitude of what she had done. Ms Kaibel having access to the IP does “not automatically grant her permission to take or duplicate the IP to a private business account.” Further, it contends that Ms Kaibel was being “meticulous and ahead of the curve in preparing (for) her (new) business”. 29
[135] Ms Kaibel denies any intention to use the IP to establish or conduct her own business and rejected the suggestion that any uncertainty about the full transition to CKI led her to contemplate that action. 30
[136] There is no evidence that Ms Kaibel actually conducted the business of AchieverNet whilst employed by CKI. Some of the administrative steps, including the purchase of the logo, was undertaken using CKI’s computer. This element was not consistent with the relevant CKI policy.
[137] The practical operation of AchieverNet as a business took place after the dismissal. The evidence reveals that the training services being offered by AchieverNet utilise products that, in general terms, are not offered by CKI. However, neither of these factors are a useful indicator of what may have been intended by Ms Kaibel when downloading the Z drive. Each occurred after the dismissal with all of its consequences, and in the context of a police report and with this matter proceeding before the Commission.
Was there a valid reason for dismissal?
[138] These findings lead to two alternative conclusions. Namely, that Ms Kaibel adopted a naïve and inappropriate means to work remotely or that she deliberately attempted to take possession of the IP for potential personal use if and when required.
[139] There are also questions about compliance with policy, the seriousness of any breaches, and the impact of the overall conduct upon the necessary trust and confidence in the employment relationship.
[140] The combination of events and circumstances was grounds for suspicion and I have found that some of the explanations provided by Ms Kaibel were unconvincing. However, based upon the evidence before the Commission, I am not persuaded that Ms Kaibel’s conduct constituted theft or misappropriation of the IP as I cannot be satisfied to the requisite degree that such was intended or actually occurred. Put another way, given the seriousness and consequences of such a finding, it is not appropriate to imply the motives and intention of Ms Kaibel to that end.
[141] Some of Ms Kaibel’s conduct was not consistent with elements of the CKI policy.
[142] There was conduct that represented a serious misjudgement and Ms Kaibel took liberties with the IP of her employer that were not warranted and were not approved. Given the nature and importance of the IP, the failure to seek permission (or even to advise her employer of) the downloading of the Z drive and the installation and use of the Dropbox facility, represent grounds for considerable unease and do strike at the necessary trust and confidence in an employment relationship.
[143] This is particularly so given the circumstances at the time, and the manner in which the December downloading was undertaken.
[144] As outlined earlier, the reasons for some of those actions as provided by Ms Kaibel are superficially plausible, however, they do not represent justifiable grounds particularly for the downloading of much of the IP of the employer onto a personal drive in the manner that this was done.
[145] Trust and confidence is a necessary ingredient in any employment relationship. 31 In this case, the Adelaide office of CKI is a small workplace where Ms Kaibel and the other staff work relatively independently and directly with clients of CKI.
[146] Having considered the above factors and my findings more generally, I find that there was a valid reason for Ms Kaibel’s dismissal related to her conduct.
Section 387(b) – whether Ms Kaibel was notified of the reasons for dismissal
[147] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 32
[148] Ms Kaibel was notified of some of the reasons for dismissal prior to that event. The broad alleged facts were put however many of inferences relied upon by CKI were not identified.
[149] Those elements discovered after the dismissal were not, of course, notified to Ms Kaibel.
[150] The fact that some of the reasons for dismissal were not notified is a factor to be weighed in assessing whether the dismissal was unfair.
Section 387(c) – whether Ms Kaibel was given an opportunity to respond to any reason related to her capacity or conduct
[151] The process contemplated by the Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Ms Kaibel was aware of the precise nature of the employer’s concern about her conduct and had a full opportunity to respond to these concerns.33
[152] Given when the dismissal took place, the only opportunity afforded to Ms Kaibel to respond to the allegations occurred in the telephone discussion with Ms Crawford on 18 December 2014.
[153] The discussion had been set out earlier in this decision. The only issue raised was whether the downloading had taken place however there was no discussion about, or real opportunity to explain, why that had been done. The dismissal was going to take place and it did.
[154] The other elements now relied upon as part of the reasons for dismissal discovered after the dismissal were of course not raised with Ms Kaibel at any time prior to the dismissal.
[155] The fact that no opportunity was given to respond to some of the reasons for dismissal and that a genuine opportunity to deal with the primary allegations was not provided is a factor to be weighed along with other considerations in assessing whether the dismissal was unfair.
Section 387(d) – any unreasonable refusal by the respondent to allow Ms Kaibel a support person
[156] There was no request for a support person and accordingly this consideration is not relevant.
Section 387(e) – if the dismissal is related to unsatisfactory performance by Ms Kaibel – whether she has been warned about that unsatisfactory performance before the dismissal.
[157] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 34
[158] For the most part, the dismissal was not determined by reference to any unsatisfactory performance. Elements of Ms Kaibel’s dismissal may have related to the fact that in performing her job, the applicant used inappropriate means of accessing and storing the contents of the Z drive. To that extent, Ms Kaibel was not warned. However, CKI was not aware that this downloading had occurred and this must also be taken into account.
Section 387(f) – the degree to which the size of CKI enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Section 387(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.
[159] CKI is a small business and apparently does not have dedicated human resource management specialists. It is however a sophisticated business and provides advice to business on human resource development. Ms Crawford has also apparently undertaken extensive human resources roles during her career. 35
[160] Accordingly, although the size of this business is a relevant consideration, the absence of a proper investigation and a genuine opportunity for Ms Kaibel to address the allegations prior to the dismissal are not fully explained by that feature in this case.
Section 387(h) - other matters considered to be relevant
[161] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 36
[162] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo, 37 the Full Bench observed:
“[24] ... ... 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.”
[163] In this case there was misconduct but not serious misconduct that warranted immediate dismissal. In that context, the absence of notice or pay in lieu of notice is a factor to be weighed into the overall consideration.
[164] A dismissal may be unjust because the employee was not guilty of the alleged misconduct or unreasonable because the evidence or material before the employer did not support the conclusions reached. 38
[165] To the extent that CKI based its decision on the alleged theft of the IP, the evidence does not support that conclusion.
Conclusion on nature of dismissal
[166] I have found a valid reason for dismissal; albeit on a narrower basis than contended by CKI. I have also found that there was poor judgement exercised by Ms Kaibel in the liberties taken with the employer’s IP and there was some conduct not consistent with policy requirements, but the demonstrated misconduct fell short of serious misconduct warranting immediate dismissal. There was however conduct, not properly explained, that damaged the necessary trust and confidence in the employment relationship.
[167] There was procedural unfairness in the lead up to the dismissal. The manner of the dismissal is also a factor in this matter.
[168] As outlined earlier, the Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration, given the provisions of the Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects of this Part the Act in s.381 including ss.(2) which provides as follows:
“(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”
[169] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether the procedural deficiencies made any difference to the outcome.39
[170] I have also made findings relevant to the assessment of harshness, given the absence of notice, and whether the dismissal was unjust.
[171] On balance, I find that the dismissal of Ms Kaibel was harsh and unjust. It was therefore unfair within the meaning of the Act.
[172] The particular basis of those findings will however have implications for some of the considerations to be taken into account in terms of the remedies under the Act.
5. Remedy
[173] Division 4 of Part 3-2 of the FW Act relevantly provides as follows:
“Division 4—Remedies for unfair dismissal
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) the FWC may make the order only if the person has made an application under section 394.
(3) the FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
...
392 Remedy—compensation
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.40
(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.
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
[174] The prerequisites of ss.390(1) and (2) have been met in this case.
[175] Section 390 makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. Ms Kaibel does not seek reinstatement and given all of the prevailing circumstances and my findings I accept that reinstatement would be inappropriate.
[176] As a result, I need to consider whether compensation is appropriate, and if so, to what extent.
[177] A recent Full Bench in McCulloch v Calvary Health Care Adelaide41 (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg42 remains appropriate in that regard.
[178] Section 392(2) of the Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the Act,43 it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.
The effect of the order on the viability of CKI
[179] Nothing has been put to the Commission on this issue. In any event, the level of compensation that I have determined is unlikely to have any such impact.
The length of Ms Kaibel’s service with CKI
[180] Ms Kaibel has been employed with CKI and its predecessors since 2008. This consideration is supportive of an award of compensation being made.
The remuneration Ms Kaibel would have received, or would have been likely to receive, if she had not been dismissed
[181] This involves in part a consideration of the likely duration of Ms Kaibel’s employment in the absence of what I have found to be an unfair dismissal.
[182] Ms Kaibel contends that her employment, but for the dismissal, would have continued for at least 12 months, and that in July 2015, pro-rata Long Service Leave would have become applicable under the relevant provisions. On that basis, the maximum payment of “six months salary plus 9.5 per cent superannuation contributions” should be awarded. 44
[183] CKI contends that no compensation should be awarded on the basis that the employment would only have continued for a further day to permit a proper investigation to be conducted and because Ms Kaibel was offering services in competition to its business shortly after the dismissal.
[184] The Full Bench in McCulloch also confirmed that when assessing likely lost remuneration, cogent evidence was required where the Commission had not found a valid reason for dismissal.45 In this case I have found that a valid reason existed and the unfairness arose principally from the absence of notice and the procedure adopted by the employer. This must be weighed along with the nature and length of the employment and the potential for a different outcome to have arisen should a procedurally fair process have been adopted.
[185] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment only for a very short period. This further period would have been no more than the period of notice that may have been given by either party.
[186] Ms Kaibel’s remuneration with CKI at the time of dismissal was $119,650 ($2,3001 per week) plus 9.5 per cent superannuation.
[187] In all of the circumstances, employment in this case should be projected for no more than the notice period of five weeks from the date of the dismissal, which may well have been paid out in lieu.
[188] Accordingly, the projected remuneration loss for present purposes is $11,505.
The efforts of Ms Kaibel to mitigate the loss suffered by her because of the dismissal
[189] Ms Kaibel has attempted to establish her new business. It is reasonable to infer that she has made efforts to mitigate her losses.
[190] No discount to the amount of compensation is warranted based upon this consideration.
The amount of any remuneration earned by Ms Kaibel from employment or other work during the period between the dismissal and the making of the order for compensation
The amount of any income reasonably likely to be so earned by Ms Kaibel during the period between the making of the order for compensation and the actual compensation
[191] Ms Kaibel did not earn any income from her new business during the period of the projected employment. In these circumstances, no deduction on account of these considerations is appropriate.
Any other matter that the FWC considers relevant and the remaining statutory parameters
[192] In the absence of serious misconduct warranting dismissal without notice, the employment contract provided for four weeks’ notice or a greater period if specified by legislation. 46 In these same circumstances,47 the amount of notice payable to Ms Kaibel under the National Employment Standards48 would have been five weeks. Payment in lieu of notice is permitted by the Act.49
[193] Further, as I have taken into account the projected nature of the anticipated loss of remuneration over a very short period (s.392(2)(c)) that has already occurred, I do not need to make a specific allowance for contingencies in this matter.50
[194] There is demonstrated misconduct that may be taken into account as provided by s.392(3) of the Act. That is, there is misconduct that contributed to the decision and in other circumstances it would be appropriate to make a deduction on the amount of compensation otherwise due. In this case, the level of compensation is only equivalent to the level of notice due under the Act and I do not consider that an order of the Commission in this context should be less than the statutory minimum notice period given the circumstances.
[195] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.
[196] The amount of compensation that I have determined is far less than the maximum prescribed by s.392(5) of the Act as applied in this matter.51
[197] The figures used for the calculation are expressed in gross terms and appropriate taxation is to be deducted on the final amount of compensation.
[198] The compensation amount confirmed below is also appropriate having regard to all of the particular circumstances of this matter and the Commission’s statutory charter to ensure that a “fair go all round” is accorded to both the employer and employee concerned. 52
Conclusions on remedy
[199] After taking into account each of the relevant considerations, I find that compensation is appropriate in this matter. Further, I find that the compensation should be assessed having regard to the factors outlined above.
[200] Accordingly I find that compensation should comprise a payment by CKI to the Ms Kaibel of $11,505.
[201] 9.5 per cent superannuation is to be applied in addition to the above amount.
7. Conclusions and orders
[202] I find the Ms Kaibel’s dismissal was unfair within the meaning of the Act.
[203] I have found that compensation is appropriate and the amount determined above is also appropriate in all of the circumstances.
[204] The payment of $11,505 plus 9.5 per cent superannuation, less any required deduction of taxation, is to be made to Ms Kaibel by CKI within 14 days of this decision.
[205] An order to the above effect53 has been issued in conjunction with this decision.
COMMISSIONER
Appearances:
R Clarke, Agent, with permission, for Ms Kaibel.
J Ilievski, Chief Executive Officer, on behalf of CKI Pty Ltd.
Hearing details:
2015
Adelaide
June 22, 23.
<Price code C, PR568628>
1 Section 23 of the FW Act.
2 The evidence of Mr Ileviski went to the number of employees of CKI and any related business and confirmed that this was less than 14.
3 Section 397 of the Act.
4 This was done in a manner consistent with the statutory charter of the Fair Work Commission. See the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.
5 Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine[2013] FWAFB 1943; Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust t/as Banana Tree Cafe (2010) 204 IR 39 [61]; Pinawin v Domingo (2012) 219 IR 128 [27] and [29].
6 (2012) 219 IR 128.
7 Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine [2013] FWAFB 1943 at [29] and [41].
8 Attachment E to the witness statement of the applicant – Exhibit A1
9 Section 386 of the FW Act and see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.
10 Barkla v G4S Custodial Services Pty Ltd (2011) 212 IR 248.
11 Witness statement of Ms Crawford – Exhibit R3.
12 Witness statement of Mr Iliveski – Exhibit R12.
13 Evidence of Mr Iliveski – Transcript Sound Recording, 23 June 2015 at 12:55pm.
14 Attachment A to the witness statement of the applicant – Exhibit A1
15 Attachment B to the witness statement of the applicant – Exhibit A1
16 The evidence of Ms Laventure – Transcript Sound Recording, 23 June 2015 11:16am.
17 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at par [36].
18 See Qantas Airways v Cornwall (1998) 83 IR 102.
19 (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].
20 Ibid., 362‒3.
21 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; Guneyi v Melbourne Health T/A Royal Melbourne Hospital[2012] FWA 10270. See also Budd v Dampier Salt Ltd (2007) 166 IR 407 [15].
22 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.
23 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.
24 Evidence of Ms Crawford – Transcript Sound Recording, 22 June 2015 4:40pm.
25 Evidence of Ms Crawford – Transcript Sound Recording, 22 June 2015 4:23pm and 6:12pm.
26 Although Ms Kaibel later contended that the existence of the Dropbox was known by Ms Laventure, Ms Laventure’s contrary evidence was not challenged in cross-examination.
27 Evidence of Ms Laventure – Transcript Sound Recording, 23 June 2015 at 11:12am.
28 Ms Kaibel was recalled to give evidence about the dropbox as it was not referred to in her evidence and not raised during cross-examination.
29 CKI final submissions.
30 Evidence of Ms Kaibel – Transcript Sound Recording, 22 June 2015 at 11:01am.
31 Although stated in the context of reinstatement, the principles outlined in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 are relevant.
32 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
33 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
34 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
35 Exhibit R1.
36 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
37 [2011] FWAFB 1166.
38 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
39 See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.
40 Note: the subsection 392(5) amount was indexed to $133,000 from 1 July 2014 - as was relevant given the timing of this application.
41 [2015] FWCFB 873.
42 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431.
43 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.
44 Applicant’s written outline of submissions.
45 McCulloch at [27].
46 Separation clause of the contract – Attachment A to Exhibit A1.
47 Section 123 of the Act.
48 Section 117 of the Act.
49 Section 117(2)(b) of the Act.
50 See the discussion of contingencies in McCulloch at [20] to [23] and Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.
51 The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or $66,500.
52 Section 381(2) of the Act. See also Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].
53 PR569927.
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