Stephen Winbank v Laundy Hotels Pty Ltd
[2022] FWCFB 128
•12 JULY 2022
| [2022] FWCFB 128 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Stephen Winbank
v
Laundy Hotels Pty Ltd
(C2022/2968)
| VICE PRESIDENT HATCHER | SYDNEY, 12 JULY 2022 |
Appeal against decision [2022] FWC 1158 of Deputy President Cross at Sydney on 13 May 2022 in matter number C2022/234.
Introduction
Mr Stephen Winbank has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Cross issued on 13 May 2022[1] to dismiss Mr Winbank’s application made under s 365 of the Fair Work Act 2009 (Cth) (FW Act). In his application, Mr Winbank alleged that he had been dismissed by Laundy Hotels Pty Ltd (Laundy) in contravention of Pt 3-1 of the FW Act and sought that the Commission deal with the dispute under s 368. Laundy contended, in response to the application, that it had not dismissed Mr Winbank and that the Commission consequently had no jurisdiction in respect of the application. The Deputy President accepted Laundy’s contention in this respect and dismissed the application on that basis. Mr Winbank contends in his appeal that the Deputy President erred in doing so.
In Coles Supply Chain Pty Ltd v Milford[2] (Milford) a Full Court of the Federal Court determined that it is an objective condition of a valid application under s 365 that the applicant has been dismissed, and any dispute concerning this must be resolved by the Commission in the first instance in order to determine whether it has authority to deal with the matter under s 368. The term “dismissed” in s 365 is defined in s 386(1) to mean (subject to certain exceptions in s 386(2) which are not presently relevant) that a person’s employment with the employer has been terminated on the employer’s initiative or the person has resigned from their employment but was forced to do so because of the employer’s conduct.
Factual background
The evidence at first instance concerning the relevant circumstances of Mr Winbank’s employment with Laundy was somewhat sketchy. Nobody gave sworn evidence. There were a number of documents attached to Mr Winbank’s application, and to Laundy’s response to the application. Mr Winbank filed a number of documents which combined his account of factual matters and his submissions, and attached further various documents including extracts from text message exchanges. Mr Winbank was not cross-examined. Laundy filed two statements of evidence made by Ms Selina Birchall, Head of Human Resources for Laundy, and Mr Shane Richardson, who did not identify his position with Laundy in his statement but who we infer from other material is a senior manager. Neither was cross-examined. Additional facts were asserted from the bar table at the hearing before the Deputy President.
Mr Winbank has attached to his appeal submissions a number of documents or extracts from documents, some of which were before the Deputy President but some of which appear to be new. We will admit the new material as evidence in the appeal because, at least to some extent, it supplements the limited and unsatisfactory evidence adduced at first instance.
From this material, we reconstruct the chronology of events as follows. By way of a letter dated 4 December 2021, Laundy offered Mr Winbank employment in the position of Assistant Manager for the Bayview Hotel, which is located at Woy Woy in the NSW Central Coast region and is close to Mr Winbank’s residence. The letter enclosed an employment contract (contract) which Mr Winbank was requested to sign. The contract provides that Mr Winbank is engaged as a full-time employee in the position of Assistant Venue Manager, commencing on 6 December 2021, subject to a probationary period of six months. Clause 6 of the contract provides that “Your place of work will be specified in Item 7 of Schedule 1 attached to this Agreement or such other places as the Company may reasonably require from time to time”, and item 7 of Schedule 1 refers to “Bayview Hotel or other locations as required”. The contract otherwise provides for an annual salary, full-time hours of work and paid leave entitlements, and permits termination of employment on notice or summarily. The pay period is specified as Monday - Sunday, with payment to occur on the following Wednesday. Clause 17 allows Laundy to suspend Mr Winbank from duties with pay in order for Laundy to investigate any allegations of misconduct or impropriety, but the contract does not provide for suspension or stand down without pay except where Mr Winbank loses a relevant licence required for the performance of work. The contract was signed electronically by Ms Birchall on behalf of Laundy on 4 December 2021, and by Mr Winbank on 12 December 2021.
Mr Winbank commenced working at the Bayview Hotel on Monday, 6 December 2021. He reported to the Hotel Manager, Mr Chris Mills. Mr Winbank was paid pursuant to the contract for the first two pay periods. The last pay he received was on Wednesday 22 December 2021, which included payment for the pay week 13-19 December 2021 and backpay for the pay week 6-12 December 2021.
On 22 December 2021, Mr Mills informed Mr Winbank and other employees by text message that another employee at the Bayview Hotel had tested positive for COVID-19, and told them to undertake a test. It appears from subsequent text messages that Mr Winbank undertook a rapid antigen test, which gave a negative result, but Mr Mills then told him to “…make sure u [sic] go to clinic.” Mr Winbank subsequently had a PCR test. A disagreement then arose between him and Mr Mills that afternoon concerning Mr Winbank’s public health obligations while he awaited the results of his PCR test. Mr Winbank texted Mr Mills to the effect that, when he undertook the PCR test, he was advised by NSW Health that he was a “close contact” and was not allowed to go back to work until he returned a negative PCR test result. Mr Mills disagreed, stating that Mr Winbank was a casual contact, not a close contact, and he was safe to work unless he had symptoms or felt unwell. Mr Mills directed him to start his shift at 5.00 pm. Mr Winbank responded by text as follows:
“I’ve just called them again, spoke to 3 different health workers and they said I can’t attend work until my test comes back negative. If I go to work I’ll get fined and the venue will be fined, they said casual and close contacts need to isolate until a negative test. So I’m not sitting here trying to be difficult they are telling me not to go back to work until my test comes back negative.”
Mr Winbank apparently did not attend for work as directed by Mr Mills. There was a further exchange in which Mr Winbank reported that he had itchy eyes and a dry throat but said he was not sure if it was “anything related” and that he was “more than happy to come to work but they are telling me not to as it’s against the health act”. Mr Mills responded by telling Mr Winbank to stay at home if he had symptoms and he would “send the correct information now”.
Ms Birchall said in her witness statement that Mr Mills contacted her on 22 December 2021 “after receiving a text message from Steve Winbank that he was not returning to work”. She gave the following account of what then occurred:
“I called Chris and I asked Chris why he is not returning and he said he thinks he’s pulling the piss. He said on the day the first staff started positive with COVID at Bayview, Steve went to get tested and hasn’t returned to work. I asked him to contact Steve to find out what is happening. Chris then expressed that Steve came to work scruffy/untidy like he'd been out the night before and was late or just didn't turn up for the Managers meeting.
I said given how understaffed we are perhaps he should call him so that we can assess what to do next. I suggested that we continue to work with him to get us through this period of time. Chris was very frustrated with Steve and the situation. He didn’t want to have Steve back however I expressed that post this conversation I will chat to Danielle, and she could then speak to Arthur about his frustrations. I asked him to wait until I got back to him and to call me once he heard back from Steve re his return to work.
Called Danielle to share this conversation and she said she would speak with Arthur on this so he could chat to Chris.” (underlining added)
We infer from other material that “Arthur” referred to above is Mr Arthur Laundy, who is described in a submission made by Laundy as the owner of the Bayview Hotel, and “Danielle” is Danielle Laundy/Richardson, who is described as being in senior management.
Things between Mr Mills and Mr Winbank took a more acrimonious turn on the morning of 24 December 2021 when the following exchange of text messages occurred between Mr Mills and Mr Winbank:
| Mills: | Steve is there a reason you have missed two of your management shifts. Chris. |
| Winbank: | I’ve been in isolation mate as the health workers told me to isolate, and your aware of that. |
| Mills: | Have you received the email I sent you Tuesday. I had twelve staff in casual contact with [name redacted] like yourself. They all followed health advise and all are classed as casual contact like yourself who are all currently at work. |
| Winbank: | I’ve been advised I’m a close contact after you told me to go to the clinic and get a test, don’t make me out to be a shit human, I’m not the idiot that comes to work after knowing to be around people with covid, I was advised by nsw health. If they went to the clinic and got a test they would have been told to isolate until a negative test. |
| Mills: | Delete my number. |
| Winbank: | Keep going buddy. |
Later that day, Mr Winbank reported to Ms Birchall by text message what had occurred between himself and Mr Mills. In the material before us, the text message is reproduced in two parts in separate documents and it is difficult to tell whether we have the complete message, but it at least included the following:
“Hi Selina today I guess I was sacked by Chris at the Bayview, on Sunday a staff member came to work after knowing she’d been around covid positive people and she tested positive so after working a whole shift with her she’s put everyone at risk, so Chris told me to go to the clinic and they advised me I’m a close contact and under no circumstances attend work I’m…away I assume he probably had a couple of beers by then and then I got a msg saying your shift is at 5, so today I get a message saying Steve you’ve missed two management shifts what is the reason, I reminded him I’m isolating because I’ve been ordered to, the then said delete my number. In all honesty the bloke is not running the Bayview well, I’m not sure if your aware but I feel like he is hiding things from the laundry group. So I guess if there’s another pub I could work at great! If not I’ll guess I’ll look for work.” (underlining added)
Mr Winbank also said in a separate message that he could send Ms Birchall all the text message conversations he had had with Mr Mills. Ms Birchall did not provide any response to these messages, but said in her witness statement that she passed them on to Danielle. Ms Birchall also said that she received a text message from Mr Mills that same day (24 December 2021) asking her to call him, but she did not say whether she did so or, if she did, what was said during the call.
Mr Winbank’s PCR test result was negative, but it is not clear when he was provided with this result. We infer it was before 29 December 2021 because there is a record of Mr Winbank taking another PCR test on that day.
It is apparent that there was a telephone conversation between Mr Richardson and Mr Winbank on 28 December 2021, but there are contradictory accounts of this conversation. Mr Richardson recounted the conversation as follows in his statement:
“I … enquired as to what the situation was and what had occurred. Mr. Winbank proceeded to explain that he had determined he was a COVID19 close contact and had let Mr. Mills know that he was isolating so would not be working but there seemed to be quite some confusion on whether he was meant to or not. Mr Winbank then began to state the Mr. Mills was not fit for the role and he believed he was not a good GM, it was obvious that he and Mr. Mills did not have a good relationship.
I then questioned Mr. Winbank on a number of issues I had been made aware of, notably, being late for shifts, not turning up for a scheduled management meeting and generally not communicating with the venue when these situations had occurred. Mr. Winbank said he had personal issues that had caused these problems but did not provide an explanation for not communicating.
Mr. Winbank then further stated that he did not believe Mr. Mills was capable of running the venue and gave examples of what he did with a couple of situations, one I remembered was how he thinks security should be run, however eventually stating that he did not want to work with Mr. Mills. We talked about how he is an employee at Bayview and that we are a large group with many venues and he was going to think about what he wanted to do and he would give me a call when he wanted to discuss what he wanted to do post his isolation.
I never heard from Mr Winbank again and at no time during my conversation with Mr Winbank did I advise him that he had been dismissed.”
Mr Winbank’s account (contained in a submission sent to the Commission on his iPhone) was as follows:
“…I did reach out through message and email to Shane and Selina in which I ask Selina is there another venue I can work at, she told me to contact Shane and our brief chat between me and Shane he wondered why I borrowed $200 it was because I’d not been paid from the company in over 17 days and I wanted to get a rat test they the venue could not provide me with a rat test when I collected the $200 they had run out. and he also said Chris had said I was always late so I could tell there had been a chat between Chris mills in which he had told Shane who is the operations manager at laundy hotel I was always late and it became clear he was trying to make it look like I was at fault and his adverse reaction was justified I then told Shane on the 28th December via email in which he requested me to email him what was wrong with the Bayview hotel in which evidence will be provided there was no job offer or any talk of me on a roster, he has not contacted me since, Selina also an operations manager has not contacted me since…”
Mr Winbank filed his Form F8 application pursuant to s 365 of the FW Act on 29 December 2021. It does not appear to have been served on Laundy until 18 January 2022. There is no evidence of any further contact between anyone from Laundy and Mr Winbank in this period. On 24 January 2022, Laundy filed its Form F8A response to Mr Winbank’s application. In its response, Laundy contended:
“1.The Applicant's employment was not terminated , he has not received a letter of termination or a separation certificate.
2.The Applicant was advised by head of HR (Selina Birchall) that his employment was not terminated and that we would look for alternate employment for him within the Laundy Hotel Group.
3.The Applicant was advised by Senior Management (Danielle Richardson and Shane Richardson) that his employment was not terminated and that he could work elsewhere within the Group. The Applicant is still registered on Deputy (workplace program) as an employed staff member. See Annexure ‘A’.
4.The Applicant brought this application a day after he was advised that we would look into alternative employment.
5.The Applicant can begin employment immediately at the Twin Willows Hotel at Bass Hill as the Applicant advised he would prefer to work in Sydney.”
At around the end of January 2022, Laundy paid out to Mr Winbank his accrued entitlements.
Finally, Laundy put into evidence an email which Mr Mills sent to Mr Jarrod Kennedy, who represented Laundy at the hearing before the Deputy President, on 14 April 2022. The email stated:
“Steve Winbank 3 week review
Steve was late for his shifts on several occasions Steve attire was untidy shirt not ironed pants not ironed not once but every shift Steve came to start of shift with blood on his pants from the nights previous shift
Also Jarrod the managers have tried calling Steve as he has a full set of master keys to the Bayview, I need those keys back if you could arrange this I would appreciate it, I would also sleep better.”
The decision
In his decision, the Deputy President referred to the adverse action alleged in Mr Winbank’s application[3] and then gave a recitation of the facts, albeit less complete than the account we have given above.[4] He found that, on or about 24 December 2021, Mr Winbank had text messaged Ms Birchall “regarding his experience with Chris Mills and requesting consideration to move to another Hotel”.[5] The Deputy President also referred to the telephone conversation between Mr Winbank and Mr Richardson on 28 December 2021, and reproduced Mr Richardson’s version of this conversation,[6] but made no reference to Mr Winbank’s version of it. The Deputy President then made the following findings and conclusions:
“[18] As noted at paragraphs [6] and [7] above, the adverse action alleged by the Applicant involved the Respondent attempting to unlawfully coerce and bully the Applicant into attending the workplace in contravention of its own publicised standards concerning COVID-19 restrictions. That allegation falls well short of dismissal at the initiative of the Respondent.
[19] Insofar as the Applicant’s assertion that Mr Mills’ text message to the Applicant on 24 December 2021, stating “Delete my number” constituted dismissal, I consider that too falls short of constituting dismissal at the initiative of the Respondent. Considered in context, it was the final text message in a long chain of messages where Mr Mills and the Applicant pressed their different understandings of isolation rules. While that text message expressed Mr Mills’ frustration, it could not amount to communication of termination of employment.
[20] Any doubt the Applicant held regarding his employment status should have been dispelled by his conversations with Mr Richardson and Ms Birchall prior to filing the Application. Indeed, in communications with Ms Birchall on or about 24 December 2021, the Applicant requested consideration of a move to another venue.
. . .
[21] I find that the employment relationship between the Applicant and the Respondent ended due to the Applicant’s non-attendance at work, particularly after the filing of the Application. I therefore find that the Applicant’s employment was not terminated on the initiative of the Respondent, and the Applicant was not dismissed pursuant to s 386(1)(a) of the Act. The Application must therefore be dismissed.”
Appeal submissions
Mr Winbank was self-represented in his appeal, and his notice of appeal and appeal submissions (unsurprisingly) do not identify or articulate his grounds of appeal with precision or clarity. Nonetheless, it is reasonably apparent that he contends that the evidence does not support the Deputy President’s conclusion that he was not dismissed. Mr Winbank submitted that the text messages which passed between himself and Mr Mills on 22 and 24 December 2021, culminating in the “Delete my number” text, the internal criticism of his performance by Mr Mills, and the failure of anyone at Laundy on or after 24 December 2021 to address Mr Mills’ conduct or to assign him work at an alternative location to the Bayview Hotel demonstrate that he was dismissed on 24 December 2021.
Laundy submitted that permission to appeal should not be granted because the meaning of “dismissal” and the application of s 365 is well founded at law, the appeal does not raise any issue of general importance or application with implications beyond this case, there is no diversity of decisions on this topic, the decision under appeal does not manifest injustice nor is it counter-intuitive, and there is no disharmony in the legal principles applied compared with similar decisions. It further submitted that permission should not be granted because Mr Winbank’s submissions merely seek to re-agitate the merits of the matter rather than identify an appealable error.
In relation to Mr Winbank’s grounds of appeal and appeal submissions, Laundy generally submitted that they seek to re-agitate the merits of the matter and do not identify any appealable error, and that it was reasonably open for the Deputy President to reach the conclusion in paragraphs [18]-[20] of the decision. Insofar as Mr Winbank challenged the Deputy President’s reliance on Mr Richardson’s statement concerning the telephone conversation of 28 December 2021 in paragraph [12] of the decision, Laundy submitted that:
· the Deputy President dealt with the issue of whether there was alternative employment available for Mr Winbank at the Twin Willows Hotel at Bass Hill during the hearing;
· it was open for Mr Winbank to seek to cross-examine Mr Richardson at the hearing and he chose not to;
· no appealable error has been identified;
· Mr Richardson’s evidence demonstrates that he informed Mr Winbank that there was potentially an alternative position at Laundy’s other venues;
· Laundy understood that, as at 28 December 2021, Mr Winbank was in isolation; and
· Laundy was unable to advise Mr Winbank of the alternative position at the Twin Willows Hotel because the filing of the application on 29 December 2021 gave Mr Richardson no time to get back to him.
Insofar as Laundy failed to tender any witness statement from Mr Mills, it was submitted that:
· this was addressed by the Deputy President at the hearing when he considered whether a Jones v Dunkel inference should be drawn with respect to the 14 April 2022 email;
· it was not unreasonable for the Deputy President to fail to draw the inference in his decision; and
· Mr Mills’ evidence was not material to the finding that no dismissal had occurred, because that finding was largely the result of the evidence of Mr Richardson and Ms Birchall about the steps taken to “find a solution to the friction” between Mr Mills and Mr Winbank, and the Deputy President also relied on Mr Winbank’s own conduct in requesting to move to another venue after the “Delete my number” text.
Consideration
The question of whether Mr Winbank was dismissed is, as explained in Milford, an antecedent jurisdictional one. As such, it is a question which “allowed for only one correct answer, which was either yes or no”.[7] Accordingly, subject to the prior grant of permission to appeal, if we consider that the answer given to the question by the Deputy President was incorrect, our duty on appeal is to substitute what we consider to be the correct answer. Further, taking into account that there was no sworn witness evidence received by the Deputy President and the matter proceeded on the basis of unsworn and untested statements of fact, contemporaneous records of communication and other documents, and bar table assertions, we do not consider that the Deputy President enjoyed any advantage over us in terms of determining the ultimate inference to be drawn from the evidentiary material before him.
For the reasons which follow, we consider that the Deputy President’s conclusion was incorrect and that Mr Winbank was dismissed by Laundy on or about 24 December 2021.
For the purpose of the first limb of the definition of “dismissed” in s 386(1)(a), a person’s employment has been terminated at the employer’s initiative where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship such that, had the employer not taken the action it did, the employee would have remained in the employment relationship.[8] It is clear in our view that Mr Mills’ “Delete my number” text of 24 December 2021, the failure of any more senior manager to either countermand that text or to assign Mr Winbank to a reasonable alternative work location in an expeditious way, and the cessation of the payment of salary to Mr Winbank, constituted the actions which caused the termination of the employment relationship.
Under clause 6 of the contract, Mr Winbank was required to work at the Bayview Hotel unless subject to a reasonable requirement to work at another location. He was also entitled to the payment of a full-time salary whilst his employment remained on foot. He performed his work, and was paid, in accordance with the contract until 22 December 2021 when, as earlier recounted, he formed the view based on advice from NSW Health that he was not lawfully able to attend his workplace until he received the result of his PCR test. He communicated that to Mr Mills, his designated manager and thus the relevant representative of Laundy in respect of his employment, but emphasised that he was otherwise ready, willing and able to discharge his employment duties. This led to a disagreement with Mr Mills about Mr Winbank’s public health obligations as a COVID-19 “contact” and culminated, unjustifiably, in the “Delete my number” text message.
This text message, on the evidence, can only be reasonably understood as intended to end Mr Winbank’s employment at the Bayview Hotel forthwith. The text itself conveyed in direct terms that Mr Mills was breaking off communications with Mr Winbank (and in fact Mr Mills never communicated with him again) and, indirectly, it conveyed that there could be no workable employment for Mr Winbank at the Bayview Hotel in the future. That Mr Mills intended by this message to end Mr Winbank’s employment at the Bayview Hotel is confirmed by Ms Birchall’s statement that Mr Mills told her on 22 December 2021 that he did not want Mr Winbank back, and by Mr Mills’ email of 14 April 2022 in which he identified that he had held concerns about Mr Winbank’s work performance at the time this occurred. The failure by Laundy to provide any witness statement from Mr Mills to rebut Mr Winbank’s contention that the “Delete my number” text constituted the termination of his employment at the Bayview Hotel gives rise to a Jones v Dunkel inference that such a witness statement would not have assisted Laundy’s case that there was no dismissal.
That Mr Mills had terminated Mr Winbank’s employment at the Bayview Hotel on 24 December 2021 was understood by all involved. Mr Winbank informed Ms Birchall by text message what had occurred on the very same day, and made it clear that he considered that he had been dismissed. Ms Birchall did not even respond to this. There was never any communication from her, Mr Richardson or anyone else from Laundy to the effect that Mr Winbank’s understanding of the position was incorrect and confirming that his employment at the Bayview Hotel was continuing. Nor was there any evidence that Ms Birchall, Mr Richardson or anyone else had countermanded Mr Mills’ actions on 24 December 2021, notwithstanding that at least Mr Richardson and perhaps Ms Birchall as well had spoken to Mr Mills about what had occurred. Notwithstanding Laundy’s contention that the employment of Mr Winbank remained ongoing, it has never been suggested at any time since 24 December 2021 that it remains open for Mr Winbank to return to his job at the Bayview Hotel.
The employment might have continued if, consistent with the contract, Laundy had expeditiously communicated a reasonable requirement for Mr Winbank to work at an alternative location. This did not occur at any time before Mr Winbank filed his application. It was left to Mr Winbank to raise this as a possibility (in his text to Ms Birchall of 24 December 2021), but he was never actually assigned any further work. The Deputy President relied upon the version of the conversation between Mr Winbank and Mr Richardson on 28 December 2021 given in the latter’s witness statement, without taking into account the rather different version given by Mr Winbank, but in any event on any view Laundy did not, consistent with the contract, make a reasonable request that Mr Winbank work at a location rather than the Bayview Hotel.
Finally, and perhaps of most significance, Laundy simply stopped paying Mr Winbank after 24 December 2021. If the employment remained on foot after that date then, under the contract, Laundy was obliged to pay Mr Winbank his weekly salary for the week 20-26 December 2021 on 29 December 2021. However, it did not do so then nor subsequently. Laundy never advanced any explanation for this inconsistency with its case that Mr Winbank had not been dismissed.
The proposition in Laundy’s Form F8 reply to the application of 24 January 2022 that Mr Winbank could “begin employment immediately at the Twin Willows Hotel at Bass Hill” cannot reasonably be considered as constituting any indication that the employment remained on foot as at the time the reply was filed. By this time, Laundy had failed to pay Mr Winbank in accordance with the contract on 29 December 2021 and 5, 12 and 19 January 2022. It had not given any indication since 24 December 2021 that Mr Winbank could return to the Bayview Hotel, nor had it assigned him to any other work location. Laundy had not even attempted to communicate with Mr Winbank since 28 December 2021, almost four weeks before. It could not seriously be thought that Mr Winbank could, under the contract, reasonably be directed to work at the Twin Willows Hotel at Bass Hill since it is approximately 85-90 kilometres by road from the Bayview Hotel and from Mr Winbank’s residence. This proposition must be regarded as entirely self-serving and ingenuine.
Finally, we note that a number of contentions in Laundy’s reply to the application were not supported by any evidence. In particular, neither Ms Birchall, Danielle Laundy/Richardson nor Mr Richardson advised Mr Winbank in terms that his employment was not terminated, and the statements of Ms Birchall and Mr Richardson contained no evidence to this effect. Accordingly, it is not clear on what basis these propositions were included in Laundy’s response.
Because the decision under appeal concerns a jurisdictional question and has had the effect of depriving Mr Winbank of the opportunity to prosecute his application, we consider that it is appropriate to grant permission to appeal. For the reasons above, we uphold the appeal.
Conclusion
We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The decision of Deputy President Cross of 13 May 2022 ([2022] FWC 1158) is quashed.
(4) Matter C2022/234 is remitted to Commissioner McKenna to deal with under s 368 of the FW Act.
VICE PRESIDENT
Appearances:
S Winbank, the appellant, in person.
S Wood, solicitor, for the respondent.
Hearing details:
2022.
Sydney and Melbourne by video link:
7 July.
[1] [2022] FWC 1158
[2] [2020] FCAFC 152, 279 FCR 591, 300 IR 146
[3] [2022] FWC 1158 at [6]-[7]
[4] Ibid at [8]-[15]
[5] Ibid at [11]
[6] Ibid at [12]
[7] Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia [2012] HCA 25, 249 CLR 398 at [31] per French CJ
[8] Mohazab v Dick Smith Electronics Pty Ltd(No 2) [1995] IRCA 625, 62 IR 200 at 205-6
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