Tong Van Nguyen v Prestige Automotive Services Pty Ltd atf Ahchow Family Trust T/A Prestige Roadside

[2019] FWC 3907

[2019] FWC 3907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tong Van Nguyen
v
Prestige Automotive Services Pty Ltd atf Ahchow Family Trust T/A Prestige Roadside
(U2018/1937)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 12 JUNE 2019

Application for an unfair dismissal remedy – small business fair dismissal code – summary dismissal.

[1] This decision concerns an application by Mr Tong Van Nguyen (Applicant) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). The Applicant began working with Prestige Automotive Services Pty Ltd atf Ahchow Family Trust T/A Prestige Roadside (Respondent) as a roadside assistance mechanic on 9 May 2016. His employment ended on 5 February 2018. The Applicant submitted that he was unfairly dismissed and seeks compensation.

[2] Following a jurisdictional hearing on 17 July 2018 and 11 September 2018, the Commission concluded that the Applicant was an employee of the Respondent (and not a contractor). 1 The matter was subsequently allocated to me for determination of the merits.

[3] The matter proceeded by way of Hearing on 17 April 2019 which, noting evidentiary conflicts and the role of an interpreter, I considered that it would be the most effective and efficient way to proceed. 2 The Applicant gave evidence in support of his own application. Mr Ross Ahchow, Director gave evidence for the Respondent.

[4] The Respondent is contracted to provide emergency mechanical roadside assistance to the customers of roadside assistance providers. The Applicant worked night shift and attended call-out jobs allocated to him by the Respondent. Initially, the Applicant performed call-outs for customers of Allianz Global Assist (AGA). In around July 2017, Mr Ahchow formed the view that the Respondent was not receiving sufficient business from AGA alone. Between in or about July and November 2017, the Respondent was successful in obtaining additional contracts with other roadside assistance providers including Aussie Wide Assist and Digicall Assist (Digicall).

[5] As contracts with the new trading partners were secured, Mr Ahchow held discussions with his workforce regarding the need to service the additional customers in order to secure the Respondent’s future viability. The Applicant said that one such discussion took place with him on 3 October 2017. 3

[6] During a night shift that commenced on 21 January 2018, the Applicant said that he performed four call-out jobs for Digicall customers and this had delayed him attending call-outs for AGA customers in a timely way. He said that he had begun receiving complaints from AGA and felt compromised because Mr Ahchow had represented to AGA that the Applicant was employed to work solely for AGA’s customers. The Applicant said that he felt like a victim of Mr Ahchow’s deception to AGA 4 and thought it was a “stealthy way of doing business.”

[7] At around 2:00 am on 22 January 2018, the Applicant telephoned AGA and requested to speak with a supervisor regarding four jobs he had been tasked to complete for Digicall during that shift. During business hours on 22 January 2018, Mr Lawrence, National Manager of AGA, returned the Applicant’s call. The Applicant explained to Mr Lawrence that he was required to perform call-out jobs for Digicall and Aussie Wide Assist. He said that Mr Ahchow had directed him to wear a jacket to cover the AGA logo on the shirt he wore during his shift. The Applicant subsequently emailed to Mr Lawrence a written summary identifying the call-out jobs he had completed for Digicall. The Applicant said that he felt supported by Mr Lawrence and believed that “AGA would assist me to find alternative employment if I were to stop working for Mr Ahchow.” 5

[8] On 29 January 2018, Mr Ahchow and the Applicant met and the Applicant “was instructed to accept call-outs from the other roadside assistance providers.” 6 The Applicant said that he would only perform call-out work for AGA customers.7 Mr Ahchow said he agreed to raise the Applicant’s stand-by fee and reduce his shift length and believed that this “resolved” all of the Applicant’s issues.8 The Applicant said words to the effect that if Mr Ahchow wanted to contract with more providers, that was his decision.9 Mr Ahchow understood from this meeting that the Applicant had agreed to comply with the direction. However, the Applicant said that he thought that Mr Ahchow understood that he would not comply.10

[9] On or about 30 January 2018, Mr Ahchow said that he was visited by Mr Lawrence of AGA. 11 Mr Lawrence said to Mr Ahchow that he believed that the Respondent was breaching its contract with AGA by performing work for other trading partners. Mr Ahchow conceded that this was correct and queried how Mr Lawrence became aware of this. Mr Lawrence said that the Applicant had informed him. AGA subsequently issued the Respondent with a breach notice, which had the effect of terminating AGA’s contract with the Respondent.

[10] During a shift on 2 February 2018, the Applicant was directed to attend a job for Digicall and completed it without complaint. In Mr Ahchow’s view, the Applicant had accepted that it was necessary for him to perform work for the customers of other trading partners and had acted consistently with Mr Ahchow’s understanding of their discussion on 29 January 2018 and their “varied agreement.” 12 However, the Applicant said that he completed the job because it was only located 3 km away from his location at the time.

[11] During a shift on 5 February 2018, the Applicant was directed to attend a further Digicall job at around 3:00 am. The Applicant did not attend the job and on his own evidence,“just ignored”it. Mr Ahchow was contacted by the end customer who said that no-one had attended to assist. 13Mr Ahchow telephoned the Applicant’s mobile phone but the Applicant did not answer his call. Mr Ahchow checked the GPS tracker in the Applicant’s vehicle and discovered that the vehicle was stationary in Springvale. This caused Mr Ahchow to worry that the Applicant was injured or required assistance. Mr Ahchow drove to the location identified by the GPS while repeatedly dialling the Applicant’s mobile telephone but receiving no answer.14 When Mr Ahchow reached the Applicant’s vehicle, Mr Ahchow found the Applicant sitting inside the stationary car.15 The Applicant gave evidence that as he sat in his van he received 6 or 7 telephone calls from Mr Ahchow, which he “just ignored.”

[12] Except where indicated below, what next occurred is not in dispute. Mr Ahchow and the Applicant both exited their vehicles. The Applicant said to Mr Ahchow words to the effect of,“I told you, I don’t do Digicall work.”Mr Ahchow responded with words to the effect of, “The job still needs to be done.” The Applicant was then directed to sit in the passenger seat of Mr Ahchow’s car while Mr Ahchow attended to the Digicall job.

[13] Neither Mr Ahchow nor the Applicant said anything further as Mr Ahchow drove to the location of the Digicall job. Mr Ahchow completed the work while the Applicant remained seated in the car. On Mr Ahchow’s version of events, shortly after he had completed the Digicall job himself, the Applicant said to him words to the effect of, “Does this mean I’m sacked?” 16 Mr Ahchow said that he cannot recall his exact response, but he believes that he responded with “yes” or words to the effect of “I suppose it does.”

[14] On the Applicant’s version of events, when Mr Ahchow got back into the car after he completed the job, Mr Ahchow said to him, “I will take you home” to which the Applicant said, “Does this mean I’m sacked?” and Mr Ahchow responded, “Yes.”

[15] The parties agree that the Applicant then requested a separation certificate confirming that he no longer worked for the Respondent. In the business hours that followed, Mr Ahchow provided the Applicant with a Termination Letter and collected the company motor vehicle from the Applicant’s residence, which the Applicant had driven home. 17 The Termination Letter18 stated as follows:

“Dear Tong,

Termination of Agreement

The agreement between Tong Nguyen and Prestige Automotive Services Pty Ltd is terminated in accordance with Clause 11.1 of the agreement.

Yours sincerely,

Ross Ahchow”

[16] The Applicant said that he understood that he was summarily dismissed on 5 February 2018. 19 However, Mr Ahchow advanced two alternative arguments. He said that he did not dismiss the Applicant, but rather the employment ended by mutual consent, because he believed that the Applicant no longer wished to work with the Respondent. In the alternative, Mr Ahchow said that he terminated the employment with immediate effect as the Applicant was unwilling to perform his contract.20

[17] Mr Ahchow provided the Applicant with the Termination Letter, which referred to termination “of the agreement,” being the independent contractor agreement between the parties dated 4 May 2016 (Contractor Agreement). 21 Clause 11.1 of the Contractor Agreement relevantly provides:

“11.1 The Company may terminate this Agreement with immediate effect by giving written notice to the Contractor if:

…

(c) any permitted employee, agent or sub-contractor of the Contractor is guilty of serious misconduct which affects the provision of the Services;

(d) the Contractor repudiates this Agreement;

…

(h) the Company has reason to believe that the Contractor or the Principal may have committed an action that might bring the Company into disrepute;

…

(j) the Head Contract is ended for any reason.”

When has a person been unfairly dismissed?

[18] 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 the Applicant been dismissed?

[19] A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act sets out when a person has been dismissed. It includes both a termination “on the employer’s initiative” and a resignation forced by the conduct of the employer. Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[20] The Commission earlier concluded that the Applicant was an employee within the meaning of s 386(1)(a) of the Act, however no express finding was made as to whether there was a dismissal. 22

[21] While the Applicant opened the dialogue by asking the question, “Does this mean I’m sacked?” it was open to Mr Ahchow to say no, if he did not intend to bring the Applicant’s employment to an end. Instead, Mr Ahchow said “yes”or“I suppose it does.” This is a positive statement of Mr Ahchow’s intent to end the employment. Furthermore, the Termination Letter invokes clause 11.1 of the Contractor Agreement, which provides for termination with immediate effect by “the Company” by“giving written notice to the Contractor…” The Respondent’s reliance upon this provision of the Contractor Agreement is, in my view, further evidence of intentional conduct by the Respondent that had the result of bringing the employment to an end with immediate effect.

[22] Accordingly, I am satisfied for the purposes of s 385(a) of the Act that the Applicant has been dismissed.

Initial matters to be considered

[23] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. I am satisfied of three of the four matters referred to in ss 396(a)-(d), as follows:

(a) the application was made within the 21 day period required by s 394(2) (s 396(a));

(b) the Applicant was protected from unfair dismissal for the purposes of s 382 of the Act. It is not in dispute and I find that the Applicant’s annual rate of earnings was less than the high income threshold 23 and he completed the minimum employment period24 (s 396(b)); and

(c) the employment did not end for reasons of redundancy and so it was not a case of genuine redundancy (s 396(d)).

[24] The fourth matter that I must be satisfied of under s 396 is whether the dismissal was consistent with the Small Business Fair Dismissal Code (Code). 25

[25] Section 388(2) of the Act provides that a person’s dismissal was consistent with the 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.

[26] The definition of a “small business employer,” for the purposes of s 388(2)(a) of the Act is in s 23. It provides that “A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.”

[27] The Respondent said that it employs less than 15 employees. 26 The Applicant relied upon a document titled “Weekly KPI Report” which listed the names of 11 drivers and said this was evidence that the Respondent had 11 employees.27 Mr Ahchow said that this document was not an accurate reflection of his workforce at the time of the Applicant’s dismissal on 5 February 2018 because it represented work performed between 2 September 2016 and 8 September 2016. Mr Ahchow instead relied upon a roster document for the period between 29 January 2018 and 18 March 2018,28 which also listed 11 drivers (whom Mr Ahchow conceded were employees, for relevant purposes). In addition to the 11 rostered drivers, Mr Ahchow said that both he and his son were employees, which meant that the Respondent had 13 employees at the time of the dismissal.

[28] The Applicant argued that Mr Ahchow’s daughter was also an administrative employee of the Respondent. While this argument is seemingly supported by the evidence, 29 Mr Ahchow refuted this and submitted that even if his daughter was regarded as an employee, this would take the total number of employees at the time of the dismissal to 14.

[29] It is apparent from the material before me that the Respondent had fewer than 15 employees at the time of the Applicant’s dismissal. The Applicant has not led any evidence to contradict this view. Accordingly, I find that the Respondent was a “small business employer” at the time of the Applicant’s dismissal. It is therefore necessary to consider whether the Respondent complied with the Code in relation to the dismissal.

Small Business Fair Dismissal Code

[30] The Code provides:

“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.”

[31] A Full Bench of the Commission in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 30 concluded that the “Summary Dismissal” section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in regulation 1.07 of the Fair Work Regulations 2009.31 The Full Bench said:

“[38] We therefore consider that the “Summary dismissal” section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in reg.1.07.

[39] To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:

“[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.

[40] Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.

[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 in 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, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.” 32

(emphasis added)

[32] The Summary dismissal section of the Code was considered by a Full Bench of the Commission in Grandbridge Limited v Mrs Diane Wiburd. 33 The Full Bench said that the proper inquiry is “whether at the time of the dismissal the employer genuinely believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The Code focusses attention on the employer’s belief which must be based on reasonable grounds, not on whether the employee’s conduct as a matter of fact and law justified immediate dismissal.”34

[33] The Respondent dismissed the Applicant without notice on 5 February 2018 for serious misconduct. The fact that the dismissal was without notice is evidenced by the content of the Termination Letter and the parties’ shared understanding. 35 I do not consider that the summary nature of the dismissal was affected by the Applicant’s subsequent conduct in driving the company motor vehicle home on 5 February 2018 to unload his tools and wash it, and nor was this argued.

[34] There are two grounds of dismissal. The first is a breach of confidentiality, causing irreparable damage to the business. 36 The second is a refusal to perform allocated work,37 including a refusal to answer calls to discuss the issue.38 The fact that the dismissal was effected for serious misconduct is not in dispute39 and both grounds are capable of falling within the definition of serious misconduct in regulation 1.07. I am satisfied that the dismissal therefore requires consideration under the Summary dismissal section of the Code.

[35] The application of the Summary dismissal section of the Code firstly involves a determination as to whether the Respondent genuinely held a belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal. Each ground of dismissal is considered below.

Breach of confidentiality

[36] On or about 30 January 2018, Mr Ahchow learned that the Applicant had advised AGA that the Respondent was working for competitor businesses (disclosure). The Respondent argued that the disclosure amounted to a breach of confidence, taken to destroy the Respondent’s business, and was therefore punishable by immediate dismissal.

[37] Notwithstanding this view, Mr Ahchow took no action to discuss the disclosure with the Applicant at any time prior to the dismissal. Rather, Mr Ahchow gave evidence that after he learned of the disclosure, he formed the view that it “was an error of judgment” by the Applicant and concluded that “I won’t take any action against him. So I kept it to myself.” Subsequently, Mr Ahchow continued to direct the Applicant to perform work, at least during the Applicant’s shift on 2 February 2018 and on the day of dismissal, 5 February 2018.

[38] I accept Mr Ahchow’s evidence that he learned of the disclosure on or about 30 January 2018, but decided not to address the disclosure with the Applicant because he saw it as an error of judgment. However, Mr Ahchow’s decision in this respect, coupled with the ongoing allocation of work to the Applicant after learning of the disclosure, cannot be reconciled with the holding of a belief that the disclosure was sufficiently serious to justify immediate dismissal.

[39] Accordingly, I am not satisfied that the Respondent believed the disclosure to be sufficiently serious to justify immediate dismissal. The evidence gives rise to a different inference, namely that it was only after the Applicant refused to comply with the Respondent’s direction to perform the Digicall job on 5 February 2018 that a view was formed that the employment relationship should be terminated.

Refusal to perform allocated work

[40] The second ground of dismissal is the Applicant’s refusal to perform allocated work and to answer telephone calls from Mr Ahchow to discuss the issue. It is not in dispute that the Applicant refused to perform the Digicall job on 5 February 2018. On his own evidence, the Applicant parked the company motor vehicle and ignored both the job and the 6 or 7 telephone calls from Mr Ahchow that followed. I accept this evidence.

[41] Mr Ahchow said that the Applicant’s refusal to carry out the Digicall job, which in his view was a reasonable request, amounted to insubordination and justified instant dismissal. I accept that Mr Ahchow held this view, having observed the Applicant’s refusal to perform the work first-hand. I also note Mr Ahchow’s swift response to bring the employment to an end after completing the Digicall job himself.

[42] I am therefore satisfied that the Respondent genuinely believed that the Applicant had engaged in conduct sufficiently serious to justify immediate dismissal. Given this finding, it is necessary for me to consider whether Mr Ahchow’s belief was based on reasonable grounds. This includes consideration of whether Mr Ahchow made proper inquiries or investigated the Applicant’s conduct prior to the dismissal. It is not necessary for the Commission to decide whether or not Mr Ahchow was correct in his belief. Nor does the Commission need to focus attention on whether the Applicant’s conduct justified immediate dismissal as a matter of fact and law.

[43] As is apparent from the facts of this matter, Mr Ahchow was directly involved in the events leading up to the dismissal and the matters on 5 February 2018 giving rise to the decision to terminate the employment. 

[44] I accept Mr Ahchow’s evidence that he issued the Applicant with a direction at a meeting on 29 January 2018. That direction required the Applicant to provide services to all of the Respondent’s clients and not to withhold his labour if the work was for one of the new trading partners. Mr Ahchow said that he believed the Applicant had agreed to comply with this direction and considered that the Applicant was “good on his word and he would accept the reality that to continue in business, he would have to do work for other clients since he was employed by [the Respondent].” Shortly after the direction was given, on 2 February 2018, the Applicant performed a mechanical call-out for a Digicall customer, thereby lending support to Mr Ahchow’s view that the Applicant had accepted the direction under their “varied agreement.”

[45] When Mr Ahchow received a complaint, in the early hours of the morning on 5 February 2018 that a Digicall call-out had not been attended to, he took immediate steps to investigate the circumstances. He telephoned the Applicant and drove to his location. That investigation resulted in an exchange in which the Applicant said to Mr Ahchow, “I told you, I don’t do Digicall work.” I accept Mr Ahchow’s evidence that he received this statement as an admission by the Applicant as to his refusal to comply and as an express statement by the Applicant that he would repeat this conduct. 40

[46] Following his refusal to perform the work, the Applicant asked Mr Ahchow, “Does this mean I’m sacked?” Mr Ahchow said that he thought this statement showed that the Applicant recognised the impact of a refusal to perform his job, and I accept this evidence. Consistent with this, at the Hearing the Applicant said that he did not need to ask Mr Ahchow what he was being dismissed for because it made sense to him, given that he has known Mr Ahchow for some time. The Applicant said,“I just didn’t want to do the job he wanted me to do.”

[47] The fact that the Applicant wilfully refused to perform the Digicall job against the Respondent’s direction is not in dispute. Having regard to this evidence and the steps that Mr Ahchow took upon receiving the telephone complaint on 5 February 2018, I am satisfied that Mr Ahchow had sufficient information before him as to the Applicant’s conduct, the relevant circumstances surrounding it and the Applicant’s response to it so as to have properly investigated the matter before terminating the Applicant’s employment.

[48] I therefore find that Mr Ahchow’s belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal was, objectively speaking, based on reasonable grounds. 

[49] Having considered whether the dismissal of the Applicant was consistent with the Code for the purposes of s 396(c) of the Act, I am satisfied that it was.

Conclusion

[50] Given my finding at [49] above, the Applicant cannot have been unfairly dismissed by virtue of the operation of s 385(c) of the Act. The Respondent was a small business employer at the time of the dismissal and the Applicant’s dismissal, in relation to his refusal to perform allocated work, was consistent with the Code.

[51] The application for relief from unfair dismissal is therefore dismissed. An order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

T. Nguyen, Applicant

R Ahchow, Respondent

Hearing details:

2019.

Melbourne.

17 April.

Printed by authority of the Commonwealth Government Printer

<PR709059>

 1   [2019] FWC 93.

 2   Section 399(1) of the Act.

 3   Exhibit 2 at p.2; Exhibit 3 at p.2.

 4   Exhibit 2 at p.2-3; Exhibit 3 at p.2-3.

 5   Exhibit 2 at p.3; Exhibit 3 at p.3.

 6   Exhibit 13 at 4c, p.8.

 7   Exhibit 2 at p.3; Exhibit 3 at p.3.

 8   Exhibit 7 at p.6.

 9   Exhibit 9.

 10   Exhibit 2 at p.3; Exhibit 3 at p.3.

 11   Exhibit 9; Exhibit 13 at 4e, p.9.

 12   Exhibit 7 at p.6; Exhibit 9; Exhibit 14.

 13   Exhibit 13 at 4e, p.9.

 14   Exhibit 14.

 15   Exhibit 9.

 16   Exhibit 14.

 17   Exhibit 5 at 4d.

 18   Exhibit 2 at p.5.

 19   Exhibit 2 at p.3; Exhibit 3 at p.3.

 20   Exhibit 7 at 3.2.

 21   Exhibit 2.

 22   See [2019] FWC 93 at [5], [10], [13], [20] and [46].

 23   Exhibit 5 at 2b.

 24   Exhibit 12.

 25   Section 396(c) of the Act.

 26   Exhibit 16; Exhibit 12 at 3i, see also Exhibit 13 at 3i.

 27   Exhibit 6.

 28   Exhibit 17.

 29   See Exhibit 10, which refers to Mr Ahchow’s daughter as a “current employee of the Respondent.”

 30   [2015] FWCFB 5264.

 31 Ibid at [38].

 32   Ibid at [39]-[41].

 33   [2017] FWCFB 6732.

 34 Ibid at [14].

 35   Exhibit 5 at 3c; Exhibit 13 at 3c.

 36   Exhibit 16; Exhibit 13 at 4a.

 37   Exhibit 16; Exhibit 13 at 4a.

 38   Exhibit 7 at 3.1, p 5; Exhibit 13 at 4b; Exhibit 16 at 5.

 39   Exhibit 5 at 3c and Exhibit 16 at 5.

 40   Exhibit 13 at 4f, p.9