[2016] FWC 4573 [Note: An appeal pursuant to s.604 (C2016/4614) was lodged against this decision - refer to Full Bench decision dated 5 September 2016 [[2016] FWCFB 5520] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Shaun Van Malsen
v
Titan Plant Hire Pty Ltd
(U2016/5227)

COMMISSIONER WILSON

MELBOURNE, 14 JULY 2016

Application for relief from unfair dismissal.

[1] Shaun Van Malsen was employed by Titan Plant Hire Pty Ltd at its Darwin premises until his dismissal on 2 March 2016.

[2] The question of whether Mr Van Malsen is a person protected from unfair dismissal is one of the matters in s.396 of the Fair Work Act 2009 (the Act) requiring determination before considering the merits of the application. It is argued by Titan Plant Hire that he is not so protected because his employment dates only from 9 November 2015 and that, as a result, he has not completed the minimum period of employment. For the reasons set out below I have found that Mr Van Malsen’s employment commenced on 11 August 2015. He had therefore completed 6 months employment by the time he was dismissed.

[3] Titan Plant Hire employed around 20 employees at the time of Mr Van Malsen’s dismissal. Mr Van Malsen has therefore completed the minimum employment period, and since his employment was also covered by a modern award was thus a person protected from unfair dismissal at the time he was dismissed.

[4] .Neither party put forward that any of the remaining initial matters required such consideration. In relation to those remaining elements within s.396, I find that Mr Van Malsen’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

BACKGROUND

[5] Mr Van Malsen was first engaged by Titan Plant Hire as a casual employee on 11 August 2015 and became a full-time permanent employee of the company on 9 November 2015. His employment required him to work as a heavy duty fitter, maintaining and repairing heavy duty diesel equipment.

[6] For the reason that both parties were unrepresented, the matter proceeded by way of determinative conference before me, with Mr Van Malsen giving evidence on his behalf, as did his partner, Rowena Wynveld. Jason Madalena, Titan Plant Hire’s Managing Director, and Nathan Stretton, Project Manager of Resource Mining, a business related to Titan Plant Hire, appeared for and gave evidence on behalf of the Respondent.

[7] Titan Plant Hire objected to the evidence of Ms Wynveld as being remote to the matters in determination in this matter. I accept the evidence in her statement to the extent that it relates to the matters requiring determination by me, however I accord it less weight than the evidence of Mr Van Malsen, Mr Madalena or Mr Stretton.

[8] Mr Van Malsen also sought to tender a statement from a former Darwin Branch Manager of the Respondent, Gary Irving, who was not available for cross-examination of his written witness statement. Because that was the case, and his statement was largely unconnected with the matters in dispute in this application, I have had no regard to Mr Irving’s statement. In forming my decision on this matter, I have given consideration to the evidence of each and the written submissions and documents filed on behalf of both parties.

[9] Despite directions by the Commission for the Respondent to do so, no merits submissions were filed by Titan Plant Hire, and no witness statements of any kind were filed by it. While the Respondent filed two sets of documents, they were each in connection with its objection that Mr Van Malsen had not completed the minimum employment period. The Applicant was on notice to an extent of Mr Madalena’s evidence because of an extensive summary of the Respondent’s position within the Employer Response Form, however there was no indication prior to the determinative conference that Mr Stretton would be giving evidence, or on what topics. While this is so, Mr Stretton’s evidence was answered by Mr Van Malsen in the course of the determinative conference.

[10] Mr Van Malsen’s employment was subject to written letters of offer of employment, first as a casual and then as a permanent employee. The casual letter of offer refers to employment initially being offered as a casual position, with the Respondent advising that “[i]t is anticipated that after a successful trial period you will be offered a permanent position with Titan Plant Hire”. 1 The letter of offer further advised that Mr Van Malsen’s “average hours of work comprise 38 ordinary hours and up to 9.5 additional hours per week based on operational requirements”. The letter further sets out that his rate of pay, being a casual rate of pay, would be $42 per hour, which “includes a loading in lieu of paid leave entitlements. Your pay rate may be renegotiated on successful completion of your probation period.”2

[11] Mr Van Malsen worked for Titan Plant Hire every week between 11 August 2015 and 8 November 2015. The payslips he introduced into evidence show that his hours of work for the Respondent were, other than in the first week of the period, at least 38 hours per week. 3 He gave evidence that he would be told by his supervisor in the course of the week whether he was required to work on the coming Saturday; other than that, his hours were constant.

[12] Mr Van Malsen’s employment during his casual period of employment was, it seems, uneventful. There are no reports of warnings having been given, or other disciplinary events.

[13] In December 2015, Mr Van Malsen was given a letter that informed him that he had successfully completed his probationary period and that he was, with effect from 9 November 2015, a permanent employee. The letter of offer which communicates this matter is dated 9 December 2015, and was signed by Mr Van Malsen on 14 December 2015. The correspondence also informed him that his rate of pay remained at $42 per hour, but omits the reference to the rate including a loading in lieu of paid leave entitlements. I take this to be an indication that, from 9 November 2015, Mr Van Malsen would be in receipt of the paid leave entitlements and accruals allowed for by the National Employment Standards.

[14] Both letters of offer refer to Mr Van Malsen’s work encompassing;

“Repairs & Maintenance to all equipment (small engines to earthmoving equipment); and any other duties as requested by the Maintenance Manager.” 4

[15] Mr Madalena gave evidence, which I accept, that, in December 2015, around the time that the permanent employment letter of offer was provided to Mr Van Malsen, he had a conversation with the Applicant about the need for him to be available for periodic work at the Old Pirate Mine. The Applicant does not significantly dispute that there was such a discussion, or that he accepted the need to make himself available for such work.

[16] The Old Pirate Mine is in Western Australia, in the Tanami Desert, and is a significant distance from Darwin; 1600 km, in the Applicant’s submission. 5

[17] In January 2016, Mr Van Malsen was asked to go to the Old Pirate Mine, which is a gold mine. Mr Van Malsen agreed to the request. To get there required driving from Darwin with tools and equipment, including spare parts. He departed on 10 January 2016 and expected to be there for 12 days. When he arrived, he was inducted, including for occupational health and safety purposes. While the evidence about the number of people at the site is inconclusive, the evidence is nonetheless that it was a site involving a relatively small number of people.

[18] Mr Stretton was one of the people at the site responsible for supervision of Mr Van Malsen. He gave evidence that Mr Van Malsen’s role including filling-in for another employee and also ensuring plant at the site was fuelled and maintained. At least part of the work, prior to the commencement of production work, required ensuring that each item of plant was refuelled and greased. Mr Stretton was critical of Mr Van Malsen in two respects; he had difficulty in ensuring the equipment had the requisite pre-production checks completed before production started and he had to be reminded to wear the necessary personal protective equipment (PPE) that had been stipulated as a site requirement to Mr Van Malsen when he undertook the site induction. He resolved the problem of not completing the pre-production checks within time by allocating a mature-age apprentice to work with Mr Van Malsen on the duties. The PPE apparently consisted of basic requirements only – hard hat; safety glasses; boots and full body overalls; and safety gloves when the work required them. Mr Stretton’s evidence was that he noticed Mr Van Malsen repeatedly forget his hard hat and safety glasses. When he noticed those things, he reminded Mr Van Malsen, who would then comply. Mr Stretton gave no evidence that he had warned or disciplined Mr Van Malsen for these omissions.

[19] Mr Van Malsen’s first rotation at the Old Pirate Mine finished on 22 January 2016, and he returned to Darwin by road.

[20] On 1 February 2016, Mr Van Malsen was asked again to go to the Old Pirate Mine. He asked his supervisor, Steve Walker, if he could fly there, however the request was refused. Mr Madalena’s evidence about flying to the site includes that it would require some weeks advance notice, and that in any event Mr Van Malsen was required to take his tools with him, which might weigh several hundred kilograms. Mr Van Malsen had some misgivings about going again at the time he was asked, since he had family responsibilities to attend to and, connected with those responsibilities, Ms Wynveld was away during the same period on a work trip.

[21] He undertook the trip, leaving on 9 February and arriving back in Darwin on 19 February 2016.

[22] At least part of the need to work at the Old Pirate Mine had been to cover for absences of another employee, whom Titan Plant Hire put forward as having medical issues requiring his absence from the site.

[23] However, with connection with the February rotation, Mr Madalena is critical of Mr Van Malsen, saying that he failed to follow the company’s fatigue management requirements by driving excessively long distances without a break, or at least without sufficient breaks. Despite the criticism, the evidence resolves only to the point of it being a concern to the company, and a matter that was discussed with Mr Van Malsen and potentially Mr Stretton. The company’s contention is that, despite instruction and contrary to safe practice, Mr Van Malsen drove the entire distance to Darwin in a single day. Mr Van Malsen concedes he drove the route in a single day, but disputes both that it was unsafe to do so, or that he had been instructed not to do so.

[24] In any event, there is no evidence either of disciplinary action or a warning against Mr Van Malsen for what he did.

[25] Having returned to Darwin, Mr Van Malsen was soon asked to return to the Old Pirate Mine. That request was made on 1 March 2016, when Mr Walker told him the substantive employee’s medical conditions required him to again be away and that he, Mr Van Malsen, needed to be there. Mr Van Malsen says that Mr Walker told him that Mr Madalena would be in contact with him to discuss the matter with him, but that such never occurred. Instead, what happened next was entirely the province of conversations on the one part between Mr Van Malsen and Mr Walker, and Mr Walker and Mr Madalena on the other.

[26] Mr Walker did not give evidence in these proceedings.

[27] On Mr Van Malsen’s version of events, he had heard of a possible need to attend again when the person he had been replacing had asked him if he was returning to cover his break. He had asked Mr Walker about the possibility who told him he was not aware of the need. He did not want to go to the Old Pirate Mine again, or at least so soon after returning. He especially did not want to go with such short notice, which by the time the final request was made on 2 March 2016, he regarded as being only 12 hours’ notice, since he would need to leave the next day. If he had to go there, his preference was to fly and, because of his family circumstances, would like to negotiate the date he went. Both of the requests were refused. He also raised with Mr Walker that if he were to go he would like to be paid more for his trouble. He says Mr Walker consulted with Mr Madalena and relayed back to him that his rate would be increased to $50 per hour.

[28] Mr Van Malsen says that after considering the Respondent’s requests, and discussing the matter with Ms Wynveld, he communicated his refusal to go to Mr Walker.

[29] In contrast, Mr Madalena’s evidence is that there had been an agreement with Mr Van Malsen since December 2015 that he would be available to go to the Old Pirate Mine and that, with his refusal, he regarded Mr Van Malsen as failing to live up to his side of the agreement. In any event, Mr Madalena believed the request was reasonable since the company’s maintenance and repair work on the site was tailing down and likely to finish during March, or not long after, which it apparently did. He also emphasised that there was a genuine need for the company to have someone such as Mr Van Malsen at the site.

[30] Mr Madalena stated to the Commission that flying to the site would not be possible with it being such short notice, as well as because of the need for Mr Van Malsen to take with him his tools and some spare parts. By refusing to go, Mr Van Malsen was putting the company in a difficult position when it did not have another person to go to the site when it already had the substantive employee flying out.

[31] In relation to the question of the rate of pay for Mr Van Malsen at the site, he gives a different, almost enigmatic, version of events. He says that Mr Walker approached him on the subject and that he responded with words to the effect that if he is able to perform the duties of the other fitter then he will pay him $50 per hour. Whatever Mr Madalena meant with such an elliptical statement, it seems, if Mr Van Malsen is correct, that Mr Walker interpreted it as meaning that Mr Madalena would agree to pay $50 per hour if Mr Van Malsen agreed to go to the site.

[32] Mr Madalena also puts forward, through his recollection of what he was told by Mr Walker, that Mr Van Malsen initially agreed to go for a third rotation and then backed out of the arrangement. He also relays that Mr Van Malsen was in and out of Mr Walker’s office, perhaps 6 or 8 times, making various requests about the matter.

[33] Mr Van Malsen is adamant that he never agreed to go to the Old Pirate Mine a third time.

[34] The parties are agreed that the request for a third rotation was initially made on 1 March 2016, with it culminating on 2 March 2016, along with the expectation that Mr Van Malsen would travel to the Old Pirate Mine on 3 March 2016. Also agreed is that, on the afternoon of 2 March 2016, at about 12 PM, Mr Van Malsen was approached with the firm request to go. By 1 PM or 1:30 PM he had refused, and later that afternoon, at close to 4 PM, he was handed a letter of dismissal.

[35] The letter of termination was prepared on Mr Madalena’s instructions and communicated the following;

“2 March 2016

Shaun Van Malsen
[Address]

Dear Shaun,

Re: Termination of Employment

I advise that your employment with Titan Plant Hire has been terminated. Termination is effective immediately.

Your employment is terminated for disobeying reasonable work requests and unsatisfactory work performance.

Refusal to carry out lawful and reasonable instructions that are consistent with your employment contract is grounds for summary dismissal.

Your final pay will include the hours that you worked on 02.03.16 plus all entitlements owed. A payslip will be been forwarded to you reflecting the above.

We wish you well in your future endeavours.

Yours sincerely

Jason Madalena
Managing Director” 6

LEGISLATION

[36] Two matters require determination in this decision. The first matter is whether Mr Van Malsen is a person protected from unfair dismissal, with the contention being put that he has not served the minimum employment period provided for in ss.383 and 384 of the Act for reason of having worked some of his term of employment as a casual employee. The second matter arises in the event that Mr Van Malsen is a person protected from unfair dismissal, and is the consideration of whether he was unfairly dismissed, taking into account the criteria within s.387 of the Act.

[37] The meaning of the term “minimum employment period” is set out in s.383 of the Act. That period in this matter is six months, since Titan Plant Hire employed 20 employees at the time Mr Van Malsen was dismissed and thus is not a small business employer for the purposes of the Act. A person’s “period of employment” is qualified by s.384 as being their continuous employment, with certain casual employment being disregarded. So far as is relevant, s.384 sets this qualification out in the following terms;

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[38] Determination of whether a dismissal is unfair requires consideration of the criteria set out in s.387, which is in the following terms;

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.”

CONSIDERATION

WHETHER MINIMUM EMPLOYMENT PERIOD SERVED

[39] Consideration of this matter first requires resolution of the jurisdictional matter referred to above; namely that Mr Van Malsen may not have completed the minimum employment period with Titan Plant Hire of 6 months continuous service.

[40] Mr Van Malsen’s first employment with Titan Plant Hire was on 11 August 2015, and he finished employment on 2 March 2016. As recorded earlier, he worked initially as a casual employee and was advised on 9 December 2015 that he had been made a permanent employee with effect from 9 November 2015.

[41] The questions arise in relation to this of whether, as a casual employee, Mr Van Malsen’s employment was on a regular and systematic basis and whether during that time he had a reasonable expectation of continuing employment by Titan Plant Hire on a regular and systematic basis.

[42] The evidence leads inexorably to positive findings by me on each element.

[43] The Commission’s approach in these matters is well settled.

[44] Although, as a matter of contract, each occasion a casual employee is engaged is a separate contract of employment, 7 the task in matters such as these is to examine the period of service rather than the period of employment that is relevant.8 If it can be said that employment was on a regular and systematic basis and there was a reasonable expectation of continuing employment on a regular and systematic basis then a period of service by a casual employee will count towards the period of continuous service.9 After that point, continuous service will only be broken by one party making it clear to the other party that there will be no further engagements.10

[45] In assessing whether employment was on a regular and systematic basis the Commission looks for the employment to have been on a regular and systematic basis, not the hours worked. 11 A clear pattern or roster of hours may be strong evidence of regular and systematic employment. While the term ‘regular’ implies a repetitive pattern it does not mean frequent, often, uniform or constant.12 The term ‘systematic’ requires that the engagement be ‘something that could fairly be called a system, method or plan’.13

[46] Mr Van Malsen was employed in August 2015 on a casual basis, but subject to a letter of offer. That letter of offer put forward that while a casual, it was anticipated that after a successful trial period that he would be offered a permanent position with Titan Plant Hire. It further stipulated weekly hours of work of 38 ordinary hours and up to 9.5 additional hours, based on the operational needs of the business. All that was offered, actually occurred. At no stage was continuous service broken.

[47] I therefore find that, at the time he was dismissed, Mr Van Malsen had completed the minimum employment period and that he was a person protected from unfair dismissal.

WHETHER UNFAIRLY DISMISSED

[48] Having determined that Mr Van Malsen is a person protected from unfair dismissal, it is necessary for me to consider whether he was unfairly dismissed.

[49] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the criteria within s.387 set out earlier.

[50] A consideration of the evidence presented in this matter leads to the following findings which will inform my determination of the application;

(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)

[51] As referred to previously, Mr Van Malsen was informed in the letter of termination that he was “terminated for disobeying reasonable work requests and unsatisfactory work performance”.

[52] In effect, these reasons amount to three complaints;

that Mr Van Malsen refused to travel to the Old Pirate Mine a third time when he was asked on 2 March 2016;

that he failed to comply with the company’s directions for the wearing of PPE at the mine site and that he failed to follow its directions about safe driving and fatigue management; and

that he performed poorly when working at the mine site, and in particular that he was too slow in undertaking certain tasks.

[53] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship;

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 14

[54] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 15 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.16 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.17

[55] Mr Madalena conceded in giving evidence that the primary reason Mr Van Malsen was dismissed was his refusal to travel to the Old Pirate Mine a third time, and that while the other complaints had not previously been taken up with Mr Van Malsen they were tipping factors that contributed to the company’s decision to dismiss him.

[56] The second and third sets of complaint put forward by Titan Plant Hire, of failures to adhere to its PPE requirements or to its fatigue management policies, and of slowness at work, amount to not much more than niggles in the employment relationship. They were never put to him as disciplinary matters and he was not warned about them. Not even a firm conversation on the subjects is pointed to in assistance of the Respondent’s case. In any event, each complaint pre-dates the third request to go to the Old Pirate Mine; had they been an operative reason for his termination, whether individually or collectively, it would be unlikely that Titan Plant Hire would have been prepared to ask Mr Van Malsen to go to the mine site a third time.

[57] The highest that these other complaints rise, individually as well as collectively, is that these imperfections in the employment relationship were matters Mr Madalena took into account as adding to the reason for the dismissal.

[58] Mr Van Malsen concedes that he refused to go to the Old Pirate Mine when he was asked on 2 March 2016. The evidence is consistent with there being such a refusal, with Mr Van Malsen’s evidence on the matter being that he was told that he “was required to go there” and “to leave the next morning” and that he said “I did not agree to that”. 18

[59] To the extent that such refusal is misconduct, I find that it occurred.

[60] However, I am unable to find that Mr Van Malsen’s refusal amounted to a valid reason for his dismissal.

[61] Mr Van Malsen’s refusal was not serious misconduct within the meaning of the definition provided for within the Fair Work Regulations 2009. Objectively, his behaviour was not “wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment” 19, and was not a case of an employee “refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment”.20 Although this was a deliberate refusal by Mr Van Malsen to carry out a lawful instruction, there is insufficient evidence before me to allow a finding that the instruction was consistent with his contract of employment. Further, objectively speaking, the evidence does not allow a finding that the instruction was reasonable. Mr Madalena may well be correct that there was an agreement made in December 2015 with Mr Van Malsen that he would be available to go to the Old Pirate Mine, and such is not disputed by Mr Van Malsen. There is no evidence that, contractually, such obliged Mr Van Malsen to do so at short notice, and irrespective of concerns he may hold.

[62] While it is contended by the Respondent that the instruction was consistent with the contract of employment, that proposition is not supported by an examination of the contract. Other than the term agreed in December that Mr Van Malsen be available for work at the Old Pirate Mine, the contract of employment consists of the Titan Plant Hire Pty Ltd Employee Collective Agreement 2008 21 and the terms set out in the company’s letter dated 9 December 2015 and entitled “Completion of Probationary Period”. Neither document makes reference to there being an obligation to travel away from Darwin at short notice for an extended period. Instead, the collective agreement provides the following;

“Location of Employment
5.22 Employees shall initially be located at the site designated in their letter of offer. The employer is able to vary this location and shall provide them with reasonable notice of any location variation.”

[63] The December 2015 letter provides that Mr Van Malsen’s employment location is Darwin, and provides merely the following in relation to his working hours;

“HOURS OF WORK

7am to 5pm week days with a half hour break for lunch. Your average hours of work comprise 38 ordinary hours and up to 9.5 additional hours per week based on operational requirements.

Working on the weekend or outside the above stipulated hours will be on an as required basis and paid at your normal rate of pay.

By accepting this offer of employment you agree that this number of hours is reasonable.” 22

[64] In considering the reasonableness of the direction, it is necessary to take account both of the company’s need for an employee to urgently travel to the Old Pirate Mine site as well as Mr Van Malsen’s consideration of the matter and his reasons for refusing to do as directed.

[65] Titan Plant Hire’s need for him to attend the site arose because of the illness of the substantive employee. While Mr Van Malsen questions the veracity of the company’s statement on the matter, there is no evidence before me on the subject, other than that of Mr Madalena, who put forward the following in the company’s Employer Response Form;

“No one has lied to Shaun. On this particular occasion, the Current fitter on site [the employee] had 'suspected kidney stones' and they were planning on medi vac him off site for treatment. They took him to Balgo Medical Centre where it was determined that it could also have been a back strain but due to the remote location the medic requested that [the employee] see his own GP. This is nothing to do with us - it is completely controlled by the medics on site. If the medic says that an employee has to leave site then he must leave. They arranged for him to fly out on the Skippers flight the following day. This is none of Shaun's concern and he should not be privy to [the employee’s] medical conditions/ concerns unless [the employee]wishes to tell him (which it sounds like he didn't).” 23

[66] There is no evidence at all before me about what happened to the work that needed to be done after Mr Van Malsen was dismissed. That is, I am not aware of how the company dealt with the eventuality of the substantive employee not being on the site.

[67] On balance though, I accept that Titan Plant Hire had a genuine and urgent need for an employee to go to the Old Pirate Mine site at short notice when it asked Mr Van Malsen to do so on 2 March 2016.

[68] However, I consider that, in overall context, the direction was unreasonable since it did not take into account Mr Van Malsen’s circumstances, including that he had returned to Darwin about 2 weeks previously; that he had not expected or wanted to be traveling away from Darwin so much when he took the job with Titan Plant Hire; and that his family circumstances precluded him from doing so. Since his evidence is the only direct evidence of the conversation with his supervisor, Mr Walker, and it is capable of acceptance, I accept Mr Van Malsen’s evidence that Mr Walker agreed he could be paid more if he went to the site, but that he refused the request nonetheless for matters not connected with the question of payment.

[69] Mr Van Malsen’s evidence is that Mr Walker “required” him to go to the Old Pirate Mine site a third time and that he “did not agree to do that”. 24

[70] There is no evidence that Mr Van Malsen was informed he was being given a direction which may lead to his dismissal if he refused it.

[71] Dismissal of Mr Van Malsen for the primary reason of his refusal to go to the Old Pirate Mine site a third time, whether or not connected with the ancillary reasons advanced by Mr Madalena, was without warning and in any event was disproportionate to his conduct. Whether for the primary reason, or in connection with the ancillary reasons, Titan Plant Hire did not, at the time it dismissed Mr Van Malsen, have a valid reason for doing so.

[72] I find therefore that Mr Van Malsen’s dismissal was harsh, because the penalty of dismissal was disproportionate to his conduct; unjust, because the Respondent did not seek out or reflect upon his reasons for refusing to go; and unreasonable, because it sought to hold him to a direction which, in all the circumstances, and objectively viewed, was not reasonable for the company to make because it was made at short notice and without the opportunity for Mr Van Malsen to put forward reasons why he should not be compelled to comply.

(b) whether the person was notified of that reason

[73] It is the case that Mr Van Malsen was notified of the reason for his dismissal, however this occurred with him being provided with the letter of termination when the company had already made a decision it would dismiss him from employment. In all the circumstances, this does not amount to the procedural fairness requirement that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified.

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

[74] Consideration of the criterion of whether an employee has been given an opportunity to respond to the reason for dismissal is consequential to a finding there is a valid reason for dismissal, which I have not found. 25

[75] In any event, there is no evidence before me that Mr Van Malsen was given an opportunity, meaningful or otherwise, to reflect upon, consider, or respond to any of the reasons identified by Titan Plant Hire as grounds for his dismissal.

(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

[76] Because of the circumstances relating to Mr Van Malsen’s termination he was not in a position to consider whether he might need to have a support person in attendance. On the other hand, the evidence indicates that Mr Van Malsen did not specifically request to have a support person in attendance.

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

[77] There is no evidence that warnings of any kind were ever put to Mr Van Malsen either about his refusal to go to the Old Pirate Mine site a third time, being the primary reason for dismissal relied upon by the Respondent, or about the ancillary reasons relating to his non-adherence to the company’s policy on the use of PPE and safe-driving and his work performance while at the mine site.

(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

[78] Titan Plant Hire reports in its Employer Response Form that, at the time it dismissed Mr Van Malsen, it employed 20 employees. One of its witnesses, Mr Stretton, worked for a related business, Resource Mining. I am unaware of whether that business employs many people or whether there are other related entities in the group. In any event, I am satisfied that the size of the business is small, even though its size exceeds the threshold for a small business employer set out in the Act of “fewer than 15 employees”. 26

[79] Despite the size of the business, Mr Madalena gave evidence that before he instructed Mr Van Malsen be dismissed, he (or someone else in the business) sought advice on the matter from an unnamed external adviser. I am unaware of the nature of the advice, or of whether the advice was heeded.

[80] While that may be the case, I am satisfied as a result that the size of the employer’s enterprise appears to have impacted upon the decision to terminate Mr Van Malsen’s employment, and the way in which it was implemented.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[81] I find that the absence of dedicated human resource management specialists or expertise most likely impacted on Titan Plant Hire’s decision-making.

(h) any other matters that the FWC considers relevant

[82] A relevant consideration in this matter is that I do not find that Mr Van Malsen's conduct was sufficient to warrant summary dismissal.

[83] Having considered all of the criteria within s.387, I am of the view that in all the circumstances Mr Van Malsen was unfairly dismissed by Titan Plant Hire. Accordingly, I turn to consider the question of remedy for his dismissal.

REMEDY

[84] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are as follows;

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.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person
by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection

(1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

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.

(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.

[85] Pursuant to s.390(3) an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[86] Mr Van Malsen submits that in all the circumstances it would be inappropriate to reinstate him. While his application form referred to reinstatement as being his preferred remedy, he did not put this forward in the determinative conference conducted by me, instead submitting that he did not think the relationship between the parties could be re-established to make reinstatement viable. Accordingly, Mr Van Malsen sought an award of compensation for his unfair dismissal.

[87] Titan Plant Hire similarly submits it would be inappropriate to reinstate Mr Van Malsen to his former position.

[88] The issue of when reinstatement is inappropriate and the related question of the need for trust and confidence between the parties was considered by the Full Bench of the Commission in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter. 27 Having regard to the criteria set out within that decision, I am satisfied that in this particular case reinstatement of Mr Van Malsen to his former position would be inappropriate and that instead I should give consideration to an order for the payment of compensation

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

[89] While Titan Plant Hire did not make any particular submissions about the effect that an order for compensation may have on the viability of its enterprise, it put to me in submissions that it had a business to run in that it was subject to the usual economic and competitive strictures.

[90] Notwithstanding those generalised submissions, there is nothing before me which would indicate that an order of compensation in and of itself would negatively affect the viability of the employer’s enterprise.

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

[91] Mr Van Malsen’s employment with Titan Plant Hire was for a short period only, between 11 August 2015 and 2 March 2016, being a period of only slightly longer than six months.

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

[92] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters;

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

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

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.” 28 (endnotes omitted)

[93] The available evidence shows that notwithstanding that Mr Van Malsen was dismissed unfairly, there were stressors in the employment relationship emerging at that time.

[94] Mr Van Malsen had refused a direction from his employer. Even if that refusal had been accepted by Titan Plant Hire it would likely impact on the quality of an ongoing employment relationship. More likely it would lead to disciplinary action by the Respondent against Mr Van Malsen. Perhaps it would have led either to an ultimatum by the company or a renewed request from them at a later time and put forward somewhat more reasonably. In relation to that second prospect, I note that Mr Van Malsen had not refused to go ever again; but rather he had refused to go on the occasion directed.

[95] Further Mr Madalena, relying upon information provided to him by Mr Stretton, had identified work performance concerns. Even though those matters had not been put to Mr Van Malsen, the criticisms about him appear reasonably founded and capable of being put forward as the basis of performance or conduct-related conversational warnings.

[96] While not directly related to Mr Van Malsen’s employment, it was also the case that, in early March 2016, Titan Plant Hire’s work at the Old Pirate Mine was beginning to reduce and that the work it had associated with production activities had concluded by the start of April 2016.

[97] Mr Madalena gave evidence that part of the reason Mr Van Malsen had been asked to be involved in work at the Old Pirate Mine had been to ensure that he was productively employed over the Darwin Wet season when work in the Darwin branch was otherwise reduced. It therefore cannot be ruled out that redundancy of Mr Van Malsen may have occurred, whether on the basis of the available work in Darwin after the conclusion of the Wet season or because of the influence on the Northern Territory branch of the loss of the work associated with the Old Pirate Mine.

[98] The combination of these matters leads to the probability that Mr Van Malsen’s employment with Titan Plant Hire would not have continued indefinitely at the time he was dismissed.

[99] More likely, Mr Van Malsen’s employment future from early March 2016 was to be a matter of months.

[100] In overall context I estimate that overall range as being as little as one month and perhaps only as much as three months.

[101] On balance, the overall evidence leads me to find the anticipated period of employment at the time Mr Van Malsen was dismissed was a further ten weeks with the equal possibility that he may have resigned at that point; been dismissed for performance-related matters; or been dismissed for reason of genuine redundancy.

[102] I therefore determine the anticipated period of employment as being ten weeks and will deal with the possibility of termination payments being due to Mr Van Malsen at the end of that period through the consideration of contingencies.

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

[103] Mr Van Malsen submits that he has diligently endeavoured to obtain employment since leaving Titan Plant Hire’s employment in March 2016. He has applied for about 10 jobs as a fitter and has had two interviews for employment, but so far has been unsuccessful. At the time of the determinative conference he was 42 years of age. Titan Plant Hire queries his post-termination employment efforts, submitting that they “find it very unusual that Shaun has not been able to gain employment”.

[104] Given his occupation, location and age, Mr Van Malsen’s post-termination experience is not unusual. In all the circumstances I am satisfied that Mr Van Malsen has taken reasonable efforts to mitigate the loss he has suffered as a result of his dismissal.

(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

[105] Having been summarily dismissed, Mr Van Malsen did not receive any termination payment upon his dismissal, other than what I understand to be relatively small amounts of accrued leave.

(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

[106] There is no evidence before me in this regard, since at the time of the hearing Mr Van Malsen indicated that he was not employed.

[107] I find the compensation I propose does not need to be adjusted to take account of income he might receive between the making of the order for compensation and the actual compensation.

(g) any other matter that the FWC considers relevant

[108] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

CONCLUSION AND ORDERS

[109] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

[110] I find that reinstatement is not an appropriate remedy in this case.

[111] I find that compensation is appropriate.

[112] The approach by the Fair Work Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5). 29

[113] The Full Bench in the Haigh v Bradken Resources Pty Ltd 30 reiterated the principles for the assessment of compensation and connected issues that require consideration. It reinforced that any deduction on account of misconduct is also applied before the application of the legislative cap and, further;

“The assessment of the amount the employee would have received if the employment had not been terminated is referable to the entire circumstances including the basis on which the termination was found to be unfair. Where a procedural defect is the main reason for the termination being held to be unfair, this is a factor to be taken into account in determining the estimate of loss arising from the unfair dismissal.” 31

[114] The reasoning associated with an adjustment for contingencies was referred to in the matter of Slifka v J W Sanders Pty Ltd. 32 With reference to consideration of the calculation of compensation for the loss of wages and bonus and the loss of long service leave (paragraphs (d), (e) and (g) in the passage below), North J found;

“In relation to the items referred to in pars (d), (e) and (g), some allowance should be made for the contingency that the applicant may not have served the whole of the remaining 2½ years as an employee of the respondent, for reasons such as ill health, lawful termination by the respondent, voluntary resignation, or closure of the respondent’s business. None of these contingencies should attract a high allowance.

Finally, some allowance should be made for the fact that some part of the compensation will be received up to 2½ years earlier than if the applicant had completed his employment with the respondent.

In all the circumstances, it appears to me that an appropriate reduction for contingencies relating to the future is 25 per cent. As the total of the items referred to in pars (d), (e) and (g) is $30,000, a reduction of 25 per cent brings these items to a total of $22,500.” 33

[115] In Ellawala v Australia Postal Corporation 34, the Full Bench considered the application of a factor for “contingencies”, noting that a certain percentage discount for contingencies was generally appropriate, subject to adjustment up or down to take account of an applicant's particular circumstances.35 The Full Bench held that assessment of contingencies was to be made at the time of hearing, at which time any impact for reason of the various probabilities that might affect an employee’s earning capacity would be known. Such assessment would not be “a matter of assessing prospective probabilities but of making a finding on the basis of whether the applicant's earning capacity has in fact been affected during the relevant period”.36 The Full Bench in Bowden v Ottrey Homes37 endorsed the reasoning that “any discount for contingencies depends upon the circumstances of each particular case”.38

[116] In relation to the matter of contingencies, reasons for a reduction of compensation include the possibility of there being a shorter anticipated period of employment for some reason like that which I have established. In favour of a contingency increase is the possibility that the period is longer or that termination payments might increase the payments otherwise due to Mr Van Malsen at the point his employment ended. After consideration of the relative merits of an adjustment for the reason of contingencies, whether that be a decrease or an increase in the amount of compensation, I consider it appropriate on this occasion to make no adjustment to the compensation awarded.

[117] Section 392(3) requires that if the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the FWC must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct. While I have not found that Mr Van Malsen’s conduct was serious misconduct, it is capable of being found as misconduct.

[118] The section requires that consideration be given by the Commission to whether misconduct contributed to the decision to dismiss an employee even where it has been found there was no valid reason for the termination. 39 The absence of a valid reason may be relevant to the appropriate amount by which compensation should be reduced.40

[119] I have found Mr Van Malsen’s refusal to go to the Old Pirate Mine the third time was misconduct, but not serious misconduct that warranted summary dismissal. As a result, I must reduce the amount of compensation by an appropriate amount.

[120] I consider Mr Van Malsen’s misconduct was a product of his own genuine beliefs, both about the reasonableness of his need to address his personal circumstances, as well as what he perceived to be the unreasonableness of what was being demanded of him by Titan Plant Hire to again go to the Old Pirate Mine at short notice.

[121] In all, I consider the severity of Mr Van Malsen’s misconduct to be at the lower end of the scale. Accordingly, I consider it appropriate to make a reduction of 5% to the amount of compensation I would otherwise order on account of his misconduct.

[122] Having regard to the considerations established by s.392 of the Act, and the criteria established by the FWC, I find that compensation should comprise a payment by Titan Plant Hire Pty Ltd to Mr Van Malsen calculated as follows:

[123] Mr Van Malsen’s rate of pay was $42 per hour, or $1,596 per week, excluding overtime or weekend work. The order for compensation will be 10 weeks at the rate of $1,596 per week, with a further amount of 9.5% for the purposes of superannuation, 41 which is a total of $17,476. There will be a 5% deduction for misconduct and no reduction for contingencies, which reduces the total amount to be ordered to $16,602. I will take account of the impact of taxation by requiring that the amount to be paid to Mr Van Malsen be taxed according to law.

1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated	10 weeks projected lost income at the rate of $1,596 per week 42	$15,960.
9.5% Employer superannuation contribution on above	+ $1,516
Deduction for misconduct (5%) 43	– $874
2. Deduct monies earned since termination	– $0
3. Deductions for contingencies	– $0
TOTAL	$16,602

[124] The above amount does not exceed the compensation cap applying at the time of dismissal.

[125] An order requiring Titan Plant Hire to pay to Mr Van Malsen the total amount of $16,602, taxed according to law, is issued in conjunction with this decision. The total will be ordered to be split between a payment directly to him, and a payment to his superannuation account, on his behalf.

[126] In accordance with this decision, $15,162, less taxation, is to be paid directly to Mr Van Malsen, and $1,440 is to be paid to his superannuation account. The order will require the payments to be made within 14 days of the date of this decision.

COMMISSIONER

Appearances:

Mr S Van Malsen, with Ms R Wynveld (support person) for the Applicant.

Mr J Madalena on behalf of the Respondent.

Hearing details:

2016.

Darwin:

9 June.

Final written submissions:

Applicant: 22 & 24 June 2016.

Respondent: 22 June 2016.

1 Exhibit A7, 10 August 2015 Initial Contract of Employment.

2 Ibid.

3 Exhibit A10, Payslips of Shaun Van Malsen.

4 Exhibit A8, 9 December 2015 Full-Time Contract of Employment.

5 Applicant’s Further Written Submissions, 22 June 2016.

6 Exhibit A9, 2 March 2016 Termination Letter.

7 Shortland v Smiths Snackfood Co Ltd, [2010] FWAFB 5709, (2010) 198 IR 237 at [10].

8 Ibid [12].

9 Ibid.

10 Ibid [13].

11 Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, (2006) 149 IR 399 at [65].

12 Ibid [68].

13 Ibid [91].

14 Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373.

15 Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

16 Budd v Dampier Salt Ltd (2007) 166 IR 407 at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

17 Streeter v TelstraCorp Ltd (2008) 170 IR 1.

18 Exhibit A3, Witness Statement of Shaun Van Malsen.

19 Fair Work Regulations 2009 reg 1.07(2)(a).

20 Ibid reg 1.07(3)(c).

21 Form F3 - Employer Response Form, item 1.1; see WPA ID: CAEN084937842.

22 Exhibit A8.

23 Form F3, item 3.2.

24 Exhibit A3.

25 Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41].

26 Fair Work Act 2009 (Cth) s 23(1).

27 [2014] FWCFB 7198.

28 Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33]-[34].

29 See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

30 [2014] FWCFB 236.

31 Ibid [12].

32 (1995) 67 IR 316.

33 Ibid, p.328.

34 [2000] AIRC 1151, Print S5109.

35 Ibid [42].

36 Ibid [43].

37 (2013) 229 IR 6, [2013] FWCFB 431.

38 Ibid [53]-[55].

39 Read v Gordon Square Child Care Centre Inc.[2013] FWCFB 762 [83].

40 Ibid.

41 See Exhibit A1, Applicant’s Outline of Argument: merits, [4].

43 Haigh v Bradken Resources Pty Ltd[2014] FWCFB 236 [12]; Read v Gordon Square Child Care Centre Inc.[2013] FWCFB 762 [83].

Printed by authority of the Commonwealth Government Printer

Shaun Van Malsen v Titan Plant Hire Pty Ltd

[2016] FWC 4573

14 JULY 2016