Stephen Pyther v Riviera Taxis & Hire Cars Pty Ltd
[2020] FWC 1893
•17 AUGUST 2020
| [2020] FWC 1893 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephen Pyther
v
Riviera Taxis & Hire Cars Pty Ltd
(U2019/14259)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 17 AUGUST 2020 |
Application for an unfair dismissal remedy – small business employer – summary dismissal for serious misconduct - compliance with Small Business Fair Dismissal Code – application dismissed.
[1] This decision concerns an application by Mr Stephen Pyther (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth)(Act).
[2] I have determined that Mr Pyther’s summary dismissal was consistent with the Small Business Fair Dismissal Code. The reasons for this decision follow.
Context
[3] On or around 12 February 2018, Mr Pyther commenced his employment as General Manager of Riviera Taxis & Hire Cars Pty Ltd (Respondent). He earned $60,000 per annum 1 and was responsible for administering the Respondent business and its subsidiary companies.2 In this role, Mr Pyther reported to Mr Mick Donnelly (Company Secretary).
[4] On 5 December 2019, Mr Pyther was dismissed without notice by reason of serious misconduct.
[5] On 18 December 2019, Mr Pyther made this application alleging that he was unfairly dismissed.
[6] As the matter did not resolve after two attempts at conciliation, a program was set for determination and the exchange of materials in advance. Mr Pyther filed two witness statements, 3 the Respondent filed one witness statement and both parties filed an outline of submissions and submissions in closing.
[7] I decided that it was appropriate to hold a determinative conference rather than a hearing, having regard to the views of the parties and as the most effective and efficient way to resolve this matter. The determinative conference was conducted, by telephone, on 9 April 2020. The Respondent sought permission to be represented by a lawyer, which was not opposed and was granted pursuant to s.596 of the Act. Mr Pyther gave evidence on his own behalf and Mr Donnelly gave evidence for the Respondent.
When can the Commission order a remedy for unfair dismissal?
[8] Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[9] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[10] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
[11] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.
Has Mr Pyther been dismissed?
[12] A threshold issue to determine is whether Mr Pyther has been dismissed from his employment.
[13] Section 386(1) of the Act provides that Mr Pyther has been dismissed if:
(a) Mr Pyther’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) Mr Pyther has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[14] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[15] There was no dispute and I find that Mr Pyther’s employment with the Respondent terminated at the initiative of the Respondent on 5 December 2019. I am therefore satisfied that Mr Pyther has been dismissed within the meaning of s.385 of the Act.
Initial matters
[16] Section 396 of the Act sets out four matters which I am required to decide before the merits of Mr Pyther’s application may be considered.
[17] There is no dispute between the parties and I am satisfied that:
(a) Mr Pyther’s application was made within the period required in s.394(2) (s.396(1)(a));
(b) Mr Pyther was an employee, who had completed a period in excess of 12 months’ employment for a business with fewer than 15 employees, 4 the sum of his earnings was less than the high income threshold and therefore he is a person protected from unfair dismissal within the meaning of s.382 (s.396(1)(b)); and
(c) This was not a case of genuine redundancy (s.396(1)(d)).
[18] There was a dispute between the parties about an initial matter which I am required to consider, specifically whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(1)(c)). Accordingly, I must decide that question before I decide the merits of the application. 5
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[19] Section 388 of the Act provides that 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.
[20] It was not disputed and I find that the Respondent was a small business employer within the meaning of s.23 of the Act at the relevant time, having fewer than 15 employees (including casual employees employed on a regular and systematic basis). 6
[21] It is therefore necessary to consider whether the Respondent complied with the Small Business Fair Dismissal Code in relation to the dismissal.
Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?
[22] The Code applies to small business employers with less than 15 employees. A person is not unfairly dismissed if the dismissal is consistent with the Code and immediately before dismissal or at the time notice of the dismissal is given, whichever is earlier, the employer is a small business employer. I have already found that the Respondent was a small business employer at the relevant time.
[23] The Code declared by the Minister pursuant to s.388(1) of the Act relevantly provides as follows:
“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.”
[24] In Pinawin v Domingo 7, the Full Bench considered whether, in the context of a summary dismissal under the Code, the Commission had to be satisfied that the serious misconduct which was the basis for the dismissal actually occurred:
‘[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. The circumstances include the experience and resources of the small business employer concerned.
…
[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo’s conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well …’
[25] Another Full Bench of the Commission more recently examined the summary dismissal part of the Code in detail in Ryman v Thrash Pty Ltd 8and concluded as follows:
‘[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates the following way:
(1) If a small business employer has dismissed an employee without notice – that is, with immediate effect – on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectivity speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.’
[26] The definition of “serious misconduct” at Regulation 1.07 is as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
[27] Mr Pyther was dismissed without notice by the Respondent on 5 December 2019. Consequently my role in this matter is to determine whether the employer genuinely held a belief that the employee had committed an act of serious misconduct, sufficiently serious to justify immediate dismissal and whether that belief was, objectively speaking, based on reasonable grounds. It is not necessary to determine whether the serious misconduct did in fact occur or that the employer was correct in the belief that it held.
The evidence
[28] The termination letter, sent by email to Mr Pyther on 5 December 2019, said as follows:
“Effective at COB today Dec 5th 2019 your employment will end without notice for the reason of serious misconduct. The two cases of misconduct were –
1. By your own admission in a meeting with Michael Donnelly this Tuesday Dec 3rd, you failed to take any steps at all towards carrying out the lawful and reasonable instruction given to you on Nov 28th to prepare parts of the task of extending the companies operating range. This caused serious risk to profit and your employer’s business through being ill prepared for the extension or unable to extend and therefore damaging the relationship with their dispatch partner.
2. On Friday Nov 29th you stated that the second network affiliation fee could not be proven legal as it hadn’t been tested in court. Prior to that on the 17/11 you threatened “I require written evidence from you that clearly legitimises the affiliation fees.” and “If I don’t receive this clear evidence from you by Thursday (21/11/19) you will leave me with no other option except to advise the Drivers that they will no longer be required to pay the affiliation fees.” This was despite clear explanation of the legitimacy of the fee and was another serious threat to your employer’s profits and business through risking the fee income as well as the admin relationship with the affiliated network and associated admin fee income. That relationship risk was clear regardless of following through with said threat or not.” 9
[29] The first “case” of misconduct related to a decision by the Respondent to expand its operations in the Lakes Entrance region. The evidence about the context was as follows:
• In or around October 2019, the Respondent decided to expand its operations into the Lakes Entrance region.
• On 30 October 2019, Mr Donnelly told Mr Pyther of the decision to expand and directed Mr Pyther to make the necessary arrangements to ensure it could commence operating by the end of November 2019. Mr Pyther said he immediately raised his concerns about the expansion decision, specifically in terms of the “logistics and financials”. 10
• On 6, 13 and 21 November 2019, Mr Pyther raised with Mr Donnelly that he was unhappy with the decision to expand into Lakes Entrance. Mr Pyther perceived the expansion risked a turf war in the local area and was concerned about the state of Mr Donnelly’s personal finances. 11
• Mr Donnelly considered Mr Pyther’s concerns but made the decision to “press on” with the expansion. 12
• On another occasion (12 November 2019), Mr Pyther raised concerns about logistics in a meeting with the dispatch partner (13CABS) and the result was a delay of the expansion, until 9 December 2019. However the intention was to commence pre-Christmas for commercial reasons and Mr Pyther agreed to undertake the necessary preparation as instructed for a 9 December 2019 start. 13
• Mr Donnelly’s responses to Mr Pyther’s concerns included “this is the only way forward” and that the business was both financially and commercially committed and a withdrawal was not an option. 14 On 19 November 2019, Mr Donnelly gave a written direction that Mr Pyther focus his efforts on preparing for the expansion to be operational by Mr Pyther’s requested date.15 Again, on 27 November 2019, Mr Donnelly confirmed in writing that the dispatch partner was ready and the expansion must proceed as planned and gave specific directions for Mr Pyther to prepare accordingly and to start on 9 December 2019.16
[30] The second “case” of misconduct referred to in the termination letter related to the Respondent’s practice of charging a second network affiliation fee to its drivers. The evidence about the context was as follows:
• The second network affiliation fee was a fee for participating in a second network and, according to Mr Donnelly, participation was optional. 17 The structure was already in place prior to Mr Pyther’s commencement. The fee was worth around $40,000.00 per annum in income to the business.18
• On 11 September 2018, Mr Pyther queried the practice of charging the fee. Mr Donnelly responded by directing Mr Pyther that there was to be no change to the second network affiliation fees, which Mr Pyther accepted was a clear direction. 19
• Subsequently, there were “many conversations” between Mr Pyther and Mr Donnelly about this issue, in which Mr Donnelly conveyed his view that this was “essential business income and without it the company would ‘go bust’”. 20 Mr Donnelly provided various written responses, including his justification for the practice of charging the fee.21
• On 17 September 2019, in an email to Mr Donnelly, Mr Pyther stated that the collection of the fee was “illegal and must be stopped”; referenced s.162L of the Transport (Compliance and Miscellaneous) Act 1983 (Vic) (Transport Legislation) in support of this claim; gave an ultimatum that unless written evidence “that clearly legitimises the affiliation fees” was provided by 21 November 2019 Mr Pyther would advise the drivers that they are no longer required to pay the affiliation fees; and concluded that the directors needed to step down from their roles and proposed an alternate director. 22
• Mr Pyther’s evidence was that, after he sent the 17 November 2019 email, 23 he conducted an investigation into the legality of the second network affiliation fee that the Respondent charged its drivers and formed a view that the fee was most likely contrary to the implied conditions of the taxi driver bailment agreement.24 Mr Pyther accepted he is not a lawyer and did not engage a lawyer as part of his investigation to provide advice about the operation of the Transport Legislation.25 Mr Pyther was not aware the provision of concern (s.162L) was repealed on 8 July 2019.26
• On 19 November 2019, Mr Donnelly provided further written explanation of and justification for the practice of charging the fee. In this response, Mr Donnelly stated that the loss of the income from this fee would put “the entire operation in jeopardy”. 27
[31] On the afternoon of Friday, 29 November 2019, there was a meeting between Mr Donnelly, Mr B. Donnelly and Mr Pyther which included discussion about the affiliation fee. Mr Pyther insisted the issue needed to be tested in a court. The meeting came to an end as Mr Pyther said he was going home. 28
[32] On Tuesday, 3 December 2019, there were further discussions between Mr Pyther, Mr Donnelly and Mr B. Donnelly. Mr Donnelly explained again the operation of the affiliation fee. 29 When asked if the business was ready to commence expansion on 9 December 2019, Mr Pyther said “no” and recommended a further three month delay. Mr Pyther said, in cross examination, that he was being sarcastic when he said this; Mr Donnelly’s evidence was sarcasm did not accord with his impression of the remark at the time.30 When asked whether he was prepared to manage the cabs going into the expanded region, Mr Pyther said “No, you will have to fire me” and Mr Donnelly said “No, I don’t want to do that. I want you to follow the instructions I’ve given you”. Mr Pyther confirmed that he was refusing a direction.31 The discussions concluded late in the afternoon. Mr Donnelly said he would prepare a draft letter to 13CABS to explain the situation, which he duly did.32
[33] In evidence before the Commission, Mr Donnelly said that he had hoped to reconcile with Mr Pyther even after his 17 November 2019 email as evidenced by his request for Mr Pyther’s commitment to follow his direction to have the business ready for the expansion (given in the 27 November 2019 email and again in the 3 December 2019 meeting). It is not contentious that Mr Pyther’s commitment to follow the direction was not forthcoming. Mr Donnelly described the process for deciding to terminate his employment as follows:
• Mr Donnelly took the next day (4 December 2019) to consider the Responent’s options and ways to progress with Mr Pyther as an employee refusing to follow lawful and reasonable instruction. Upon reflecting on the 17 November 2019 email, and the statements made by Mr Pyther on 29 November 2019, Mr Donnelly also viewed the ultimatum about the affiliation fee as a serious “threat”. He considered these were serious and imminent risks to the business. In the course of his considerations Mr Donnelly consulted the “Fair Work” website and discussed the matter with Mr B. Donnelly. 33 He also had regard to Mr Pyther’s proposed draft letter to 13CABS (prepared following the 3 December 2019 meeting) which Mr Donnelly considered to be of no assistance.34
• Prior to the start of business on the morning of 5 December 2019, Mr Donnelly attended the workplace and advised Mr Pyther of his dismissal. At Mr Pyther’s request, a support person was arranged and attended the discussion. 35
• Later on 5 December 2019, a termination letter was sent to Mr Pyther’s personal email address.
• On 12 December 2019, Mr Pyther’s entitlements were paid out (calculated up to and inclusive of 5 December 2019). 36
[34] In cross examination it was directly put to Mr Pyther, and he accepted, that:
• At the time of his dismissal, the business was in a “terrible” financial state. 37
• In his role as General Manager, he was responsible for implementation of strategic decisions made by the directors of the business such as ensuring the drivers paid the second network affiliation fee, but it was not his job or concern as General Manager to unilaterally make a decision to stop charging the affiliation fee or to raise the issue with the drivers. 38
• Whilst his counsel may have been sought, Mr Pyther accepted that he was not responsible for making decisions about whether to expand into a new territory. 39
• Mr Pyther understood the pre-Christmas target date for the expansion was due to advertising expenditure and its commercial commitment with the dispatch partner; and further that the income generated from the affiliation fee was important to the business, that Mr Donnelly considered it essential business income. 40
Consideration
[35] In this case, Mr Pyther’s dismissal occurred with immediate effect, on the ground of serious misconduct. His dismissal is therefore to be considered under the “Summary Dismissal” part of the Small Business Fair Dismissal Code, in accordance with the Pinawin principles.
[36] The Respondent documented its reason(s) for dismissal in the letter signed by Mr B. Donnelly and given to Mr Pyther on 5 December 2019. Mr Donnelly, as the responsible manager who consulted with Mr B. Donnelly on the decision, reiterated those reasons and expanded on the Respondent’s considerations in evidence before the Commission. I found Mr Donnelly to be a credible witness, responsive to the Commission’s questions and consistent in his accounts. I accept Mr Donnelly’s evidence that, at the time of the dismissal, the Respondent genuinely held the belief that Mr Pyther’s conduct constituted both a failure to follow, and a threat not to follow, its reasonable and lawful directions. Further, it was the Respondent’s genuine belief that Mr Pyther’s conduct in these respects presented a serious and imminent risk to the Respondent’s income, profitability and commercial relationship with 13CABS which was sufficient to justify immediate dismissal within the meaning of Regulation 1.07(2)(a) and (b)(ii).
[37] It falls to determine, objectively, whether the Respondent’s belief was based on reasonable grounds. Mr Pyther was the General Manager responsible for administering the business and reported to Mr Donnelly in this role. He acknowledged that it was not his role to make decisions about the strategic direction of the business such as regions for expansion or to stop the affiliation fee. I find that, at the relevant times, Mr Pyther was acutely conscious of the precarious financial state of the business and, even if he did not agree, he understood Mr Donnelly’s view of the importance of the Lakes Entrance expansion and affiliation fee to the business and its survival.
[38] Mr Pyther had reasonably been granted some delay in order to have the logistics of the expansion ready by 9 December 2019. Regardless of whether he was speaking sarcastically on 3 December 2019 when he said he had “done nothing” to prepare for the Lakes Entrance expansion, I consider that objectively Mr Pyther’s refusal to be ready by 9 December 2019 was clear and of itself presented a serious and imminent risk to the business which had invested both financially and commercially in the proposed expansion.
[39] I accept that Mr Pyther’s ultimatum proposing to stop charging the affiliation fee in the absence of “evidence” of its legitimacy was due to expire on 21 November 2019 and had since past. However, it is not contentious that Mr Pyther had continued to refuse to accept the Respondent’s explanations and, on 29 November 2019, stated the matter needed to be tested in a court. On the evidence before the Commission, the fee was optional or voluntary and the provision of the Transport Legislation which underscored Mr Pyther’s concern had been repealed many months prior. When considered objectively, Mr Pyther’s concerns about the fee were without foundation.
[40] Prior to his conduct in the 29 November 2019 and 3 December 2019 meetings, Mr Pyther had raised issues or concerns, received responses and would otherwise appear to have carried on with his job as directed. It was his conduct in these final meetings that objectively constituted a serious and imminent risk to the business as contemplated by Regulation 1.07. Indeed, even as of 3 December 2019, Mr Donnelly was still attempting to obtain Mr Donnelly’s commitment that he would follow the direction to proceed with the expansion which was not forthcoming. There is no evidence and nor was it argued that Mr Pyther subsequently sought to withdraw this refusal. The Respondent properly took the opportunity the very next day, on 4 December 2019, to consider all of the information before it and the implications of Mr Pyther’s conduct. The critical conduct was admitted. Mr Pyther was aware that the consequence of his refusal to follow directions on 3 December 2019 may be dismissal (having responded to the request with “no, you will have to fire me”). The termination decision was delivered, face to face, on the morning of 5 December 2019. In all of the circumstances and on the evidence before the Commission, I find that a reasonable process was undertaken and that the Respondent reached a reasonable conclusion.
[41] Although Mr Pyther contended that he was not correctly paid during the course of his employment, I have made no findings about those matters for the purposes of determining this unfair dismissal application. In this regard, Mr Pyther’s claims concerning underpayment are properly to be pursued in a court of competent jurisdiction and ultimately a court would need to reach its own conclusions on those matters. 41
[42] For the above reasons, Mr Pyther’s summary dismissal was consistent with the Small Business Fair Dismissal Code. Accordingly, I am not required to consider the merits of Mr Pyther’s application. The application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR718190>
1 Transcript of Hearing at PN199 and PN200.
2 Transcript of Hearing at PN307.
3 The witness statement of Mrs Pyther, his wife, was not sought to be relied upon or admitted in evidence, see Transcript of Hearing at PN1101-1104.
4 Applicant’s Outline of Argument (Objections) at 3a and 3b and Transcript of Hearing at PN218.
5 TIOBE Pty Ltd T/A TIOBE v Cathy (Yaqin) Chen [2018] FWCFB 5726 at [24].
6 Applicant’s Outline of Argument (Objections) at 3a and 3b and Transcript of Hearing at PN218.
7 [2012] FWAFB 1359.
8 [2015] FWCFB 5264.
9 Attached to F2 – Application; Transcript of Hearing at PN1023.
10 Applicant’s Witness Statement at page 10; Transcript of Hearing at PN550.
11 Transcript of Hearing at PN621 and 622.
12 Accepted in cross examination, see Transcript of Hearing at PN556.
13 Transcript of Hearing at PN577 and PN578; Applicant’s Witness Statement at page 11.
14 See, for example, Applicant’s document 51.
15 Ibid; Applicant’s documents 45 and 46.
16 Applicant’s documents 50 and 51.
17 Applicant’s document 46; Transcript of Hearing at PN1115, PN1119.
18 Mr Donnelly’s Witness Statement at paragraph 2; Applicant’s document 46.
19 Transcript of Hearing at PN395 and 401; Applicant’s document 19.
20 Applicant’s Witness Statement at page 8.
21 See, for example, Applicant’s document 19 and Transcript of Hearing at PN1127.
22 Applicant’s document 45.
23 Transcript of Hearing at PN478 at PN490.
24 Transcript of Hearing at PN254.
25 Transcript of Hearing at PN261 and PN265.
26 By Amending Act No.63 of 2017; Transcript of Hearing at PN277 and PN279.
27 Applicant’s document 46.
28 Applicant’s Witness Statement at page 13.
29 Transcript of Hearing at PN1127.
30 Transcript of Hearing at PN1133.
31 Transcript of Hearing at PN944; Applicant’s Witness Statement at page 13; Mr Donnelly’s Witness Statement at paragraph 5.
32 Transcript of Hearing at PN1163
33 Transcript of Hearing at PN1178.
34 Transcript of Hearing at PN1163.
35 Applicant’s Witness Statement at page 13.
36 Mr Donnelly’s Witness Statement at paragraph 7.
37 Transcript of Hearing at PN425.
38 Transcript of Hearing at PN280 and PN285.
39 Transcript of Hearing at PN334.
40 Transcript of Hearing at PN287 and PN317; PN417 and 419.
41 Michael White v Superior Facilities Pty Ltd [2020] FWC 3035 at [41].
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