Tessa Smith v Fire Stopping Pty. Limited

Case •

[2024] FWC 1952

•

24 JULY 2024
[2024] FWC 1952

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Tessa Smith
v

Fire Stopping Pty. Limited

(U2024/3199)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 24 JULY 2024

Application for relief from unfair dismissal – whether applicant was dismissed – application dismissed.

Introduction

  1. Ms Tessa Smith was employed by Fire Stopping Pty Ltd (Fire Stopping) in an administrative role. Ms Smith contends that she was unfairly dismissed. Fire Stopping contends that it did not dismiss Ms Smith.

  1. I heard Ms Smith’s unfair dismissal application, by video conference, on 10 July 2024. Ms Smith gave evidence in support of her case. Ms Merilyn Bury, director and shareholder in Fire Stopping, gave evidence for Fire Stopping.

Dismissal

  1. It is appropriate to deal with the jurisdictional question of whether Ms Smith was dismissed within the meaning of the Fair Work Act 2009 (Cth) (Act) before any consideration of the merits of the application.

  1. The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:

“(1)     A person has been dismissed if:

(a)    the person’s employment with his or his employer has been terminated on the employer’s initiative; or

(b)    the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”

  1. The expression “termination at the initiative of the employer” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[1] that is brought about by an employer and which is not agreed to by the employee.[2]

  1. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[3] 

  1. Section 386(1)(b) of the Act concerns the resignation of an employee where the resignation was “forced” by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings.[4] Whether an employee resigned depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.[5]

  1. The test to be applied in determining whether a resignation was “forced” within the meaning of s 386(1)(b) is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.[6] The requisite employer conduct is the essential element.[7]

  1. It is well established that a contract of employment may be frustrated by the failure of a party to provide personal services.[8] Frustration of a contract is determined by an objective test. The relevant test is whether the contract “has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract”.[9] For example, the passing of a sentence of imprisonment on an employee may, depending on matters such as the likely length of absence, frustrate the contract.[10] If a contract of employment is frustrated, it comes “ipso facto to an end” – that is, without any action by the parties to terminate it.[11]

Relevant facts re dismissal

  1. Fire Stopping is a relatively small family-owned and run business. It provides passive fire protection services in buildings, including fire damper rectifications, fire sealing of penetrations, applying fire spray to structural and mechanical settings, and the supply and installation of fire doors and frames. Ms Merilyn Bury and her husband, Mr Greg Bury, own and run the business. Ms Bury is the financial controller and also takes care of human resources issues. Mr Greg Bury has overall responsibility for the administration of the business, including making sure there is sufficient labour and materials to complete each job. Mr Andrew Bury and Mr James Bury are both sons of Ms Bury and Mr Greg Bury. They are both employed as managers in the Fire Stopping business. Mr Andrew Bury is responsible for the construction side of the business and Mr James Bury is responsible for the remediation side of the business. Mr James Bury’s ex wife, Ms Stephanie Bury, works for Fire Stopping in an administrative role. Until recently, Ms Smith also worked for Fire Stopping.

  1. Fire Stopping employs about 25 employees, including members of the Bury family.

  1. Ms Smith commenced working in the Fire Stopping business in about March 2019. She worked as an administrative assistant. Her duties included creating reports and compliance orders, reviewing building penetration tests and audits to create penetration reports for sign-off, and reviewing building installation processes to create statements of installation for sign-off.

  1. Until January 2024, Ms Smith worked part-time (24 hours a week) for Fire Stopping. She contends that she became a full-time employee in about early February 2024. Fire Stopping contends that Ms Smith worked some extra hours for a couple of weeks in February 2024 but she was always a part-time employee.

  1. Ms Smith worked largely from home using her laptop computer. She did not attend Fire Stopping’s office.

  1. Ms Smith contends that she worked autonomously and for most of her work it was “only necessary [for her] to communicate on non-common occasions with Ms Stephanie Bury”,[12] who worked in reception and undertook general administration work for Fire Stopping. However, in her oral evidence, Ms Smith accepted that a lot of the time it was Mr Andrew Bury who instructed her about what needed to be done and sometimes Ms Stephanie Bury provided instructions to her. Ms Smith also explained that she worked in the construction side of the business, not the remediation side.

  1. In about late 2023, Mr Andrew St John’s employment with Fire Stopping came to an end. He was a manager in the construction side of the business. Following Mr St John’s departure, Mr Andrew Bury was promoted from site supervisor to manager and became the only managerial employee in the construction side of the business.

  1. On the weekend of Saturday, 24 February 2024 and Sunday, 25 February 2024, Ms Smith and Mr Andrew Bury were involved in a serious physical altercation with one another. Mr Andrew Bury contends that he was assaulted by Ms Smith. Ms Smith contends that she was the victim of domestic violence by Mr Andrew Bury.

  1. In her witness statement, Ms Smith asserted that she rang Ms Merilyn Bury on Sunday, 25 February 2024 to ask her for help with her relationship with Mr Andrew Bury.[13] Ms Smith also asserted in her witness statement that later on 25 February 2024, Ms Merilyn Bury said to her something like, “stop playing the victim” and “you’re fired”.[14]

  1. Ms Merilyn Bury denies that she spoke to Ms Smith by telephone on 25 February 2024. In support of this denial Ms Merilyn Bury provided a screen shot from her mobile telephone showing all calls made and received by her on 25 February 2024. The screen shot demonstrates that Ms Bury did not speak to Ms Smith by telephone on 25 February 2024.

  1. At the hearing Ms Smith changed her story and asserted that Ms Merilyn Bury sent her a text message on 25 February 2024, stating words to the effect, “You’re fired”. Ms Smith said that she was not able to produce this text message to the Commission because her iPhone stopped working and she was not able to retrieve the message. Ms Smith accepted in her oral evidence that the last time she spoke to Ms Merilyn Smith on the telephone was in about late January 2024.

  1. There is no dispute that Ms Merilyn Bury sent a text message in the following terms to Ms Smith on Sunday, 25 February 2024:

“I’m not well enough to deal with any of this. You two need help. No one can make you guys get help but you both are messing with your children’s lives. Again I cannot help either of you. I’m simply not well enough.”

  1. Ms Merilyn Bury says that this is the only text message she sent to Ms Smith on 25 February 2024. I accept Ms Merilyn Bury’s evidence in this regard.

  1. On Sunday, 25 February 2024, Ms Smith fled her home to her sister’s house in Newcastle.

  1. On Monday and Tuesday, 26-27 February 2024, Ms Smith did not undertake any work for Fire Stopping. She says that was because she was dismissed by text message from Ms Merilyn Bury on Sunday, 25 February 2024. Ms Merilyn Bury denies that she sent any such text to Ms Smith on 25 February 2024, or at any other time. Ms Merilyn Bury believes that Ms Smith did not undertake any work for Fire Stopping on 26 or 27 February 2024 because she had been involved in a violent interaction with Mr Andrew Bury over the weekend (24-25 February 2024) and had taken off to her sister’s house. From the point of view of being Ms Smith’s employer, Ms Merilyn Bury considered that after the weekend of 24/25 February 2024 Ms Smith simply disappeared and Ms Merilyn Bury had no contact with her apart from text messages regarding the return of the company vehicle.[15]

  1. On Tuesday, 27 February 2024, Mr Andrew Bury made a complaint to NSW Police about what he contends was seriously violent conduct on the part of Ms Smith towards himself on the weekend of 24-25 February 2024, including choking, punching and being threatened with a large kitchen knife.

  1. On Wednesday, 28 February 2024, a Senior Police Officer made a provisional apprehended domestic violence order (Violence Order) directed to Ms Smith in relation to the violence which Mr Andrew Bury says he experienced at the hands of Ms Smith in the period from 21 February 2024 until the early hours of Monday, 26 February 2024. Among other things, the Violence Order prohibited Ms Smith from approaching or contacting Mr Andrew Bury or going within 100m of any place where Mr Andrew Bury lives or works. The Violence Order states that Ms Smith must follow the orders contained within it “until it is revoked or a further order made by the Court becomes effective”. It also advised Ms Smith that she was required to attend Gosford Local Court at 9:30am on 11 March 2024.

  1. Ms Smith accepts that she became aware of the Violence Order on 28 February 2024 and it prohibited her, from 28 February 2024, from contacting Mr Andrew Bury or going within 100m of him or any place that he works. Ms Smith denies the conduct alleged against her in the Violence Order. She contends that she was the victim of domestic violence by Mr Andrew Bury on the weekend of 24-25 February 2024.

  1. On 4 March 2024, Ms Merilyn Bury sent a text message to Ms Smith in the following terms:

“The Company car you are using needs to be registered. As you are no longer an employee of the Company you need to return the car in the condition it was supplied to you. Clean and undamaged. Please have this done as soon as possible. Thank you.”

  1. Ms Smith says that she took a screen shot of this text message, with the result that she was able to attach a copy of it to her unfair dismissal application.

  1. Ms Merilyn Bury considered that Ms Smith was no longer an employee of Fire Stopping at the time she sent her text message to Ms Smith on 4 March 2024 because Ms Smith had not performed any work for Fire Stopping since the period from Monday, 19 February to Friday, 23 February 2024 and the Violence Order meant that Ms Smith was no longer able to do her job for Fire Stopping.

  1. On 6 March 2024, Fire Stopping’s accountant sent an email to Ms Smith in the following terms:

“Good Afternoon Tessa

My name is Adrian Sibbick and I am the Company accountant for Fire Stopping Pty Ltd (Fire Stopping).

Im writing to you regarding the Hyundai Santa Fe that is still in your possession. This car is owned by Fire Stopping and is only available for use by the employees of Fire Stopping.

As you have ceased being an employee (26th of February 2024) of Fire Stopping it is now unlawful for you to be using this vehicle. The vehicle is also due to be registered shortly which could mean the vehicle will also be unregistered while in your possession which could cause further issues.”

  1. Ms Merilyn Bury explained that Fire Stopping’s accountant, Mr Sibbick, referred to the date of 26 February 2024 in his email to Ms Smith because Ms Smith did not perform any work for Fire Stopping from Monday, 26 February 2024 onwards.

  1. At the court hearing before the Local Court on 11 March 2024, the Violence Order was set down for final hearing on 11 November 2024. As a result, unless the Violence Order was withdrawn, it would remain in force until at least the hearing before the Local Court on 11 November 2024.

  1. On 20 March 2024, Ms Smith lodged her unfair dismissal application in the Commission. In that application Ms Smith stated that she was told about being dismissed on 4 March 2024 but did not know the exact date when her dismissal took effect. Ms Smith’s unfair dismissal application also stated that she was “sent a text message by Merilyn on the 4th of March stating that as I am no longer employed please return my company vehicle …”

  1. By email dated 15 April 2024, Ms Smith was asked by a staff member of the Commission when her employment ended. Ms Smith replied as follows:[16]

“I was dismissed on the 26th of February according to the accountant telling me I am no longer employed by email, but I didn’t find this out I was fired until the 4th of March by text from the company owner.”

  1. In her witness statement signed and dated 14 June 2024, Ms Smith made the following statement in relation to the Violence Order:[17]

“The police applied for a Provisional AVO against me on Wednesday 28 February 2024. Under that provisional order, I am not allowed to go within 100m of my home or any place that Andrew works. The matter is not listed for a final hearing of the reason and law behind the AVO and false charges by the Court until 4 November 2024.”

  1. At the hearing Ms Smith stated that the Violence Order was dropped and abolished on about 6 June 2024 and in any event before her son’s birthday on 11 June 2024. Given that Ms Smith was back living in her family home at the time of the hearing, I accept that the Violence Order was withdrawn and ceased to have ongoing effect at some point in June 2024.

  1. On the balance of probabilities I do not accept Ms Smith’s evidence that Ms Merilyn Bury sent her a text message on 25 February 2024 stating words to the effect, “You’re fired”. I did not find Ms Smith to be a credible witness. Her version of events changed throughout her evidence and, after careful consideration, I have formed the view that Ms Smith would say whatever she thought would benefit her case. By way of example:

(a)Ms Smith’s witness statement clearly states that Ms Merilyn Bury called her on 25 February 2024 and told her that she was “fired”. At the commencement of her evidence Ms Smith said that the content of her witness statement was true and correct. She also said that she double checked her witness statement (which had been prepared by Clayton Utz through the Redfern Legal Centre) before signing it.

(b)After it was put to her that Ms Merilyn Bury had not called her on 25 February 2024, as evidenced by the screen shot from Ms Merilyn Bury’s iPhone, Ms Smith said, for the first time, that Ms Merilyn Bury had sent her a text message on 25 February 2024 stating words to the effect, “You’re fired”, but she no longer had this text message because her iPhone had stopped working. For some unexplained reason, Ms Smith took a screen shot of Ms Merilyn Bury’s text message on 4 March 2024 and was able to provide it to the Commission, but she did not do so in relation to the “You’re fired” text message sent on 25 February 2024. Ms Smith blamed Clayton Utz for the “error” in her statement concerning the 25 February 2024 telephone call to Ms Merilyn Bury.

(c)Ms Smith’s contention that she received a text message on 25 February 2024 stating that she was “fired” is inconsistent with statements in her unfair dismissal application that she was told about being dismissed on 4 March 2024 and she did not know the exact date when her dismissal took effect.

(d)Ms Smith’s contention that she received a text message from Ms Merilyn Smith on 25 February 2024 stating that she was “fired” is inconsistent with her email to the Commission on 14 April 2024 in which she stated that she was “dismissed on the 26th of February according to the accountant telling me I am no longer employed by email, but I didn’t find this out I was fired until the 4th of March by text from the company owner”.

(e)Ms Smith’s evidence that she did not attend work on Monday or Tuesday, 26-27 February 2024 because she was dismissed by text message on 25 February 2024 is inconsistent with the statement in her unfair dismissal application that she did not know the exact date when her dismissal took effect.

(f)Ms Smith’s evidence that the Violence Order was dropped and abolished on about 6 June 2024 and in any event before 11 June 2024 is inconsistent with paragraph [18] of her witness statement, the content of which is set out in paragraph [36] above.

  1. I found Ms Merilyn Bury to be a credible witness. She answered questions directly and responsively. There were no significant inconsistencies in her evidence. She had a good recollection of the relevant events leading up to Ms Smith’s alleged dismissal. I consider that Ms Merilyn Bury was quite balanced in her evidence, notwithstanding the very difficult circumstances with which she has had to contend in relation to the tumultuous relationship between her son and Ms Smith. Two examples demonstrate this point: (a) Ms Merilyn Bury accepted that Ms Smith performed satisfactorily while she was employed with Fire Stopping[18] and (b) even when she was aware of the serious physical altercation between Ms Smith and Mr Andrew Bury on 25 February 2024, her text message to Ms Smith on that day did not seek to attribute blame and instead implored both Ms Smith and Mr Andrew Bury to get “help” and think of their “children’s lives”.

  1. I do not accept the following evidence given by Ms Smith in her witness statement:[19]

“However, even with the AVO in place, it does not prevent me from performing the duties of my role at Fire Stopping. I did not, and did not need to, work alongside Andrew when performing my duties. I could have continued my job remotely with my laptop and phone and continued work as usual.”

  1. Ms Merilyn Bury denied these contentions. I prefer Ms Merilyn Bury’s evidence over Ms Smith’s evidence in relation to this issue. First, I found Ms Merilyn Bury to be a more credible and reliable witness than Ms Smith. Secondly, Ms Smith accepted in her evidence that a lot of the time it was Mr Andrew Bury who gave her instructions to undertake work. This provides strong support for Ms Merilyn Bury’s evidence that Ms Smith’s “role at Fire Stopping was a secretarial role supporting and working with Andrew Bury”.[20] Thirdly, I do not accept that any other person (apart from Mr Andrew Bury) could have given instructions to, and managed, Ms Smith because (a) since the departure of Mr St John in late 2023, Mr Andrew Bury was the sole managerial employee in the construction side of the business (where Ms Smith worked providing administrative support), (b) Ms Stephanie Bury worked in administration and reception and was not in a position to be able to give instructions to Ms Smith about what needed to be done in the construction side of the business, (c) Mr James Bury worked in the remedial side of the business, whereas Ms Smith worked in the construction side of the business, (d) it was not appropriate or reasonable for Mr Greg Bury to give instructions to, and manage, Ms Smith because he is 73 years old and has poor health, with the result that he cannot get out to site very often, and the relationship between Ms Smith and Mr Greg Bury (and Ms Merilyn Bury) is poisoned by the tumultuous relationship between Ms Smith and Mr Andrew Bury, and (e) I do not accept Ms Smith’s evidence that her predecessor, Adele, reported to Ms Stephanie Bury. I prefer Ms Merilyn Bury’s evidence that Ms Stephanie Bury taught Adele how to use the company’s systems but Adele reported to Mr Andrew Bury, Mr Andrew St John and Mr James Bury. I accept Ms Merilyn Bury’s evidence that “it would simply not be possible for the Applicant to work at Fire Stopping without having direct contact with Andrew Bury”.[21]

Consideration re dismissal

  1. Neither party suggested that Ms Smith resigned from her employment with Fire Stopping.

  1. Ms Smith contends that her employment was terminated at the initiative of Fire Stopping.

  1. Fire Stopping contends that its employment contract with Ms Smith was frustrated by the operation of the Violence Order. Alternatively, Fire Stopping contends that Ms Smith’s employment did not terminate at its initiative.

  1. As to the doctrine of frustration, there is no evidence to support a finding that the terms and conditions of Ms Smith’s employment with Fire Stopping were recorded in writing. For the reasons explained above, I find that Ms Smith was employed in the role of administrative assistant and it was a term of her employment contract that she was required to follow instructions given to her by Mr Andrew Bury as her direct manager. The evidence does not establish the existence of any term in Ms Smith’s employment contract that envisaged her being absent from work, or unable to work, for a considerable period of time due to the operation of a Violence Order. The duties which Ms Smith undertook for Fire Stopping obviously constituted important work which Fire Stopping needed undertaken on an ongoing basis after the Violence Order came into operation on 28 February 2024. By the date of the Local Court appearance on 11 March 2024, at which time the matter was listed for final hearing on 11 November 2024, it was objectively apparent that, absent some intervening conduct (such as the withdrawal of the Violence Order), Ms Smith would not be able to contact or come within 100m of Mr Andrew Bury until at least 11 November 2024. Although the evidence demonstrates that Mr Andrew Bury had been involved in prior violence order proceedings with Ms Smith and had, on one occasion, withdrawn an apprehended violence order against Ms Smith, the evidence does not suggest that, as at early March 2024, it was likely that the Violence Order taken out against Ms Smith would be withdrawn or abolished at any time in the foreseeable future.

  1. In the unique circumstances of this case, I am satisfied that Ms Smith’s contract of employment with Fire Stopping became incapable of being performed because the circumstances in which performance was called for rendered it a thing radically different from that which was undertaken by the contract. The frustrating event in this case was the making and ongoing effect of the Violence Order, not the alleged unlawful conduct which gave rise to the Violence Order coming into force on 28 February 2024. The order prohibited Ms Smith from having any contact or communication with Mr Andrew Bury. For reasons I have already explained, it was not possible for Ms Smith to do her job for Fire Stopping without having any contact or communication with Mr Andrew Bury. This meant that Ms Smith could not fulfil her employment duties under her contract with Fire Stopping on an ongoing basis.

  1. Because Ms Smith’s contract of employment and therefore the employment relationship came to an end by way of frustration of the contract, there was no termination on the employer’s initiative. Accordingly, I find that Ms Smith was not dismissed within the meaning of s 386 of the Act.

Section 387 factors

  1. Even if I had found that Ms Smith was dismissed by Fire Stopping, I would have concluded that the dismissal was not harsh, unjust or unreasonable for the following reasons:

(a)Fire Stopping had a sound, defensible and well-founded reason to dismiss Ms Smith (s 387(a) of the Act). The Violence Order prevented Ms Smith from being able to perform her employment duties on an ongoing basis from 28 February 2024 and, on the evidence, it was not likely that the Violence Order would cease to operate until at least the hearing before the Local Court on 11 November 2024. Fire Stopping needed the work undertaken by Ms Smith to be performed in its business on an ongoing basis. In addition, the tumultuous relationship between Ms Smith and Mr Andrew Bury meant that Ms Smith’s relationship with the owners and directors of the business, Ms Merilyn Bury and Mr Greg Bury, had been poisoned and I consider that it was not tenable for Ms Smith to continue to work in the relatively small family-owned and run business.[22] The existence of a valid reason for termination weighs in favour of a finding that the dismissal was not harsh, unjust or unreasonable.

(b)Ms Smith was not notified of any reason for her dismissal nor was she given an opportunity to respond to any such reason (s 387(b) and (c) of the Act). These matters weigh in support of a conclusion that the dismissal was harsh, unjust and unreasonable.

(c)Ms Smith was not unreasonably refused by Fire Stopping to have a support person present at any discussions relating to her dismissal (s 387(d) of the Act). That is because there were no such discussions. This is a neutral consideration.

(d)No allegations of unsatisfactory performance were made against Ms Smith (s 387(e) of the Act). This is a neutral consideration.

(e)Fire Stopping is a relatively small enterprise and does not have dedicated human resource specialists or expertise (s 387(f) and (g) of the Act). I consider that these matters had an impact on the procedures followed in relation to Ms Smith’s cessation of employment with Fire Stopping, including that Fire Stopping did not communicate with Ms Smith about the impact of the Violence Order on her ability to work for Fire Stopping on an ongoing basis.

(f)As to other relevant matters under s 387(h) of the Act, I accept that Fire Stopping did not afford Ms Smith with procedural fairness in relation to the cessation of her employment. It would have been preferable for Fire Stopping to communicate with Ms Smith about the impact of the Violence Order on her ability to work for Fire Stopping on an ongoing basis. However, any such communication would obviously have been difficult in light of the very fractured relationship between Ms Smith and Ms Merilyn Bury and Mr Greg Bury. Further, in light of the evidence adduced before the Commission in these proceedings, I do not consider it likely that any such discussions would have given rise a different outcome. Another relevant matter is that Ms Smith performed satisfactorily in her role for about five years. This weighs in her favour. Also of relevance is that Ms Smith was not given notice of termination or a payment in lieu of notice. Balanced against this is the fact that even if notice of termination had been given to Ms Smith in early March 2024, she would not have been able to work for Fire Stopping during the notice period (due to the operation of the Violence Order), with the result that Fire Stopping would not have been obliged to make any payment to Ms Smith during her notice period.

(g)Taking into account each of the matters set out in s 387 of the Act, my evaluative assessment is that Ms Smith’s dismissal (assuming there was one) was not harsh, unjust or unreasonable. Ms Smith was involved in a violent altercation with her partner, Mr Andrew Bury. NSW Police saw fit to make the Violence Order. Fire Stopping did not ask for such an order to be made, but its effect was to prevent Ms Smith from being able to do her job for Fire Stopping on an ongoing basis. Fire Stopping needed this work undertaken in its business. Further, the related conflict between Ms Smith and the owners of the business also meant that it was untenable for Ms Smith to keep working in the relatively small family-owned and run business. In my assessment, these matters outweigh the matters which support a conclusion that the dismissal was harsh, unjust and/or unfair.

Conclusion

  1. For the reasons given, Ms Smith was not dismissed and, in any event, the dismissal for which Ms Smith contends was not unfair. Accordingly, the application made by Ms Smith for relief from unfair dismissal is dismissed.


DEPUTY PRESIDENT

Appearances:

Ms Smith appeared for herself
Mr C. Spence, Manager, Workplace Relations of the Master Builders Association of NSW, appeared for Fire Stopping Pty Ltd

Hearing details:

2024.
Newcastle (via video conference)
10 July.


[1] NSW Trains v James[2022] FWCFB 55 at [45]

[2] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

[3] Ibid

[4] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]

[5] Ibid

[6] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)]

[7] Ibid

[8] Walsh v Police Association (2000) 140 IR 58 at [46]

[9] Cooper v ATO[2014] FWC 7551 at [33], applying Davis Contractors Ltd v Fareham UDC (1956) AC 696 at 729

[10] FC Shepherd & Co Ltd v Jerrom [1987] 1 QB 301

[11] Loates v Maple (1903) 88 LT 288 at 291; Rose v Telstra Corporation Ltd Print Q9292 [1998] AIRC 1592; Smith & Kimball v Moore Paragon Australia Limited PR942856 at [48]-[50]

[12] Ex A1 at [7]

[13] Ex A1 at [9]

[14] Ex A1 at [10]

[15] Ex R1 at [7]

[16] Ex A3

[17] Ex A1 at [18]

[18] Ex R1 at [8]

[19] Ex A1 at [20]

[20] Ex R1 at [9]

[21] Ex R1 at [10]

[22] Lumley v Bremmick Pty Ltd Australia[2014] FWCFB 8278 at [13]-[17]

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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NSW Trains v Mr Todd James [2022] FWCFB 55
Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625
Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875