Tony Podesta v Catering Equipment Discounters Pty Ltd
[2020] FWC 3816
•31 JULY 2020
| [2020] FWC 3816 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tony Podesta
v
Catering Equipment Discounters Pty Ltd
(U2020/734)
DEPUTY PRESIDENT BOYCE | SYDNEY, 31 JULY 2020 |
Application for an unfair dismissal remedy — dismissal not a case of “genuine redundancy” — no valid reason for dismissal — Respondent did not file or serve any documentary evidence in proceedings beyond a profit/loss statement — reason for dismissal based upon “things” that transpired between former owner of the Respondent’s business and employee — the wife of the former owner of the Respondent’s business demanded the Applicant be dismissed — no procedural fairness in effecting dismissal — compensation awarded.
Introduction
[1] On 23 January 2020, Mr Tony Podesta(Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of his Application, the Applicant claims that he was dismissed from his employment with Catering Equipment Discounters Pty Ltd (Respondent) on 6 January 2020, and that his dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).
[2] On 4 February 2020, the Respondent filed a Form F3 with the Commission (Response). By way of that Response, the Respondent claims that the Applicant was dismissed because the Respondent suffered a financial loss in the year prior and, as such, redistributed all of the Applicant’s duties to the Respondent’s directors. According to the Respondent, the Applicant had no duties left to perform. Put another way, I take it that the Respondent raises a jurisdictional objection to the Application on the basis that the Applicant’s dismissal was a case of “genuine redundancy”.
[3] The matter was programmed for hearing, and directions were issued to the parties concerning the jurisdictional objection, and the merits of the Application.
[4] The Applicant complied with the directions set, and duly filed his material by the deadlines set.
[5] However, the Respondent did not file, nor at any time seek to rely upon, any further material in this matter (save for a profit/loss statement that was provided to the Commission pursuant to an order to produce documents). The entirety of the Respondent’s case is limited to the brief assertions made in its Response, the profit/loss statement, and oral submissions made at the hearing. That was a choice the Respondent chose to make, however, the Respondent cannot escape the consequences of that deleterious conduct when findings based upon the evidence before the Commission need to be made.
[6] On 19 May 2020, I held a hearing (by telephone) regarding the jurisdictional objection and substantive application. Mr Colin Dorber (Industrial Advocate, Employee & Executive Protect) appeared for the Applicant. Mr Daniel Feller (Director) appeared for the Respondent. Permission for Mr Dorber to represent the Applicant was not opposed. I granted permission for the Applicant to be represented generally by Mr Dorner in these proceedings. I did so having had regard to the criteria in s.596 of the Act, specifically noting that the matter would be conducted more efficiently with the assistance of an experienced representative on behalf of the Applicant.
[7] Having considered the submissions and materials before me, I have determined that the Applicant’s dismissal was not a case of genuine redundancy. Further, I consider that the Applicant’s dismissal was unfair, and that compensation is the appropriate remedy in the circumstances. I provide my reasons for this determination following.
Background
[8] Given the Respondent did not file any witness statements or documentary evidence in these proceedings, and noting that I consider Mr Feller’s cross-examination of the Applicant at the hearing of no assistance to the determination of the issues in this matter, the only evidentiary materials I have had regard to are those that were tendered by the Applicant. The Applicant’s evidence relevantly discloses the following facts:
(a) The Applicant is a resident of greater Sydney and, at the time of providing his witness statement, was 59 years of age. The Applicant has worked in marketing and sales for the better part of his life.
(b) In December 2016, the Applicant approached Mr David Feller and asked if he could start up a new chemical company for him and his son, Mr Daniel Feller. The Applicant was familiar with the Feller family, having worked for various (seemingly related) corporate entities under their control (Feller Group) between 1991 and 1996, and 2000 to 2002.
(c) The Applicant was initially engaged by the Respondent as an independent contractor. However, once the Respondent’s newly established business became profitable, the Applicant successfully negotiated to become an employee of the Respondent in January 2017. The Respondent held the position of National Sales and Marketing Manager, with his duties pertaining to purchasing, sales, installation of equipment, and deliveries, amongst other things.
(d) In 2017, Mr David Feller transferred control of the Feller Group to his sons, Mr Harrison Feller and Mr Daniel Feller. The Applicant says that he worked closely with Mr Harrison Feller and Mr Daniel Feller from that time, and that he otherwise had a positive and productive working relationship with both.
(e) At or about that same time, Mr David Feller was married to Mrs Feller. The Applicant says that Mrs Feller became aware that Mr David Feller no longer “owned” any of the corporate businesses (as she had been reading Mr David Feller’s emails). Mr David Feller then asked the Applicant to “set up” a company for Mrs Feller. The Applicant established a business known as “Fresco Coffee”, which was “handed over” to Mrs Feller to manage. However, after a period of three months, the business was “handed back” to the Applicant to “restart”, as Mrs Feller had “done nothing” with that business.
(f) In early December 2019, Mrs Feller confronted the Applicant in the Applicant’s office. The Applicant says that during this exchange Mrs Feller was “screaming” and “abusing” him, and said words to the effect of, “You have no respect for me or David”. The Applicant asked Mrs Feller several times to leave his office.
(g) Following that exchange, Mr David Feller came into the Applicant’s office and said words to the following effect:
“Tony, I'm going to have to let you go. I'm in a no-win situation. [Mrs Feller is] going to leave me if I don't let you go, and I have to let you go. What happened on Saturday unfortunately has led to this position”.
(h) The Applicant says that he had been “doing things” with Mr David Feller prior to the confrontation between the Applicant and Mrs Feller. Whatever those “things” were, they had been disclosed in email correspondence between the Applicant and Mr David Feller. The Applicant says that Mrs Feller must have read those emails (unbeknownst to him), which is what prompted her to confront the Applicant in his office and voice her displeasure about those “things”. In the absence of evidence to the contrary, I am prepared to draw an inference (for the purposes of these proceedings) consistent with the Applicant’s foregoing evidence.
(i) On 6 January 2020, the Applicant attended a meeting with Mr David Feller and Mr Daniel Feller. During that meeting, Mr Daniel Feller provided a letter to the Applicant. That letter states, inter alia, that the Applicant’s employment is terminated due to “financial difficulties and a need to reduce costs” (Termination Letter). Further, the Termination Letter discloses that the Applicant was to be paid a notice period of two weeks (amount unspecified), outstanding wages and entitlements (amount unspecified), and redundancy pay of four weeks (to the value of $6923.08). Mr Daniel Feller then instructed the Applicant to take his belongings from the office, and leave immediately.
(j) The Applicant says that he was neither given any prior notice as to the purpose of that meeting, nor provided with the opportunity to bring a support person. Further, the Applicant says that he was never consulted about his imminent termination.
(k) As mentioned above, the Respondent produced a certified profit/loss statement (extracted for the Respondent) as at 31 December 2018 and 31 December 2019. That profit/loss statement shows a shortfall in profit (for that 12 month period) in the amount of $39,093.00.
(l) The Applicant says that he was the only employee of the Respondent at the time of his dismissal. However, the Respondent is but one corporation in the Feller Group. The Applicant says that there are approximately 20 employees in the Feller Group. Further, the Applicant says that the Feller Group businesses are all operated from a single location, and that the Applicant regularly performed work for different entities across the Feller Group on an as-needed basis.
Relevant law regarding a genuine redundancy
[9] Section 385 of the Act qualifies a claim for unfair dismissal:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[10] Before the Commission can consider issues of harshness, etc, sub-section 396(d) of the Act requires that the Commission decide whether the dismissal was a case of genuine redundancy:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[11] Section 389 provides the statutory definition as to what qualifies as a genuine redundancy:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer”.
[12] In view of s.389 of the Act, and for the Commission to be satisfied that the matter was a genuine redundancy, there are three questions that need to be answered:
(a) Was the Applicant’s job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise?
(b) Did the Respondent comply with any obligation in a modern award that applied to the employment to consult about the redundancy?
(c) Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise, or an associated entity of the Respondent?
Consideration — issue of genuine redundancy
[13] A person’s dismissal is a case of genuine redundancy if the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.
[14] The words “changes in the operational requirements of the employer’s enterprise” are not defined by the Act. However, these words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy.1 The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:
“1547 Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.
1548 The following are possible examples of a change in the operational requirements of an enterprise:
…
the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists”.
(emphasis added to highlight relevance)
[15] As I understand it, the Applicant’s case is that the Respondent has not genuinely restructured its business to improve efficiency. Instead, the purpose of the restructure (if there even is one) was only to remove the Applicant from the Respondent’s employment, motivated by the interpersonal issues that had arisen between the Applicant and Mrs Feller.
[16] In the absence of evidence to the contrary (and finding that the Applicant was an otherwise honest and forthright witness), I cannot accept the Respondent’s bare assertion that it engaged in a restructure “because of” changes in the operational requirements of the Respondent’s enterprise.
[17] The Respondent has not made any submissions, let alone provided any evidence, as to what the restructure was for. The filing of a profit/loss statement, without additional context, is not evidence to meet the burden of proof that falls upon a Respondent to make out the jurisdictional carve-out under s.389(1)(a) of the Act.
[18] The words “changes in the operational requirements” need to be satisfied on the balance of probabilities. In my view, on the evidence, it is more probable that the Applicant’s employment was terminated because it was more convenient to the Feller family (namely Mr David Feller) to appease Mrs Feller’s desire for the Applicant to be terminated (i.e. as opposed to a means to lower the Respondent’s overheads, or increase its profits). The latter reasoning would satisfy s.389(1)(a). The former, however, does not, because it is not resulting from a genuine business operational need. Instead, it is solely the consequence of souring marital relations, and issues that fall outside of “operational requirements”.
Jurisdictional objection dismissed
[19] Given that I find that s.389(1)(a) has not been satisfied, I do not need to have regard to s.389(1)(b) or (2) of the Act. The Respondent’s jurisdictional objection in respect of “genuine redundancy” is dismissed.
Consideration — issue of unfair dismissal
[20] With the Respondent’s jurisdictional objection having been dismissed, the question I now need to answer is whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant”.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[21] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”. 2 Further, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.3
[22] Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination. 4 The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.5
[23] Where a dismissal relates to an employee’s capacity (i.e. where the reason is associated or connected with the ability of an employee to do their job), 6 and there is a dispute as to whether the employee possessed the requisite capacity to perform their job, it is for the Commission to resolve that disputed issue as a matter of fact.7
[24] I have already found that the real reason for the Applicant’s dismissal was so that Mr David Feller could appease his wife’s desire to see the Applicant’s employment terminated. Mrs Feller appears to have wanted this outcome because of “things” that Mr David Feller and the Applicant had been engaging in.
[25] Neither the Respondent, nor the Applicant, have disclosed in these proceedings what these “things” were. Whatever such “things” may have been, they are beside the point. The reason for the Applicant’s dismissal — being that Mr David Feller had to “choose” between on on-going relationship with his wife, or the termination of the Applicant’s employment — is not a valid reason to terminate an employee’s employment. Such a reason does not go to the Applicant’s conduct or capacity to perform his role. Indeed, it is a reason that can be described “capricious”.
[26] In the facts and circumstances of this case, my finding that there was not a valid reason for the Applicant’s dismissal leans strongly towards a conclusion that the dismissal was unjust and unreasonable.
Was the Applicant notified of the valid reason? Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct? Was the Applicant warned about unsatisfactory performance before the dismissal?
[27] If there is no valid reason for dismissal, then s.387(b), (c) and (e) have no application.8 Given that I am of the view that there was not a valid reason to justify the Applicant’s dismissal, these factors do not require consideration.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[28] As noted by the Full Bench of the Fair Work Commission, “[s.387(d)] is not concerned with whether or not the employee was informed that he or she could have a support person present”.9
[29] I note that the Applicant was not given any notice as to the purpose of the meeting on 6 January 2020. The sudden manner in which this meeting was held effectively denied the Applicant an opportunity to arrange for a support person to be present. Regardless, and with a view to the circumstances as a whole, I find this factor to be a neutral consideration.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[30] Whilst the Act recognises that “small business are genuinely different in nature both organisationally and operationally”, 10 it does not follow that such an employer’s procedures in effecting a dismissal can be entirely devoid of fairness. Further, the absence of a dedicated human resource management specialist does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment”.11
[31] Even taking into account the entirety of the Feller Group, these related entities amount to a relatively small operation. Nonetheless, the fact that the Feller family operate a smaller sized business does not absolve the Respondent from affording procedural fairness to the Applicant (which it did not). I therefore consider this factor to be one leaning towards a finding that the dismissal was harsh and unjust.
What other matters are relevant?
[32] Neither party made submissions as to other relevant matters for me to consider, nor am I aware of any. I therefore do not take into account any other matters.
Was the Applicant’s dismissal was harsh, unjust or unreasonable?
[33] In view of my findings above, I find that the Applicant’s dismissal was harsh, unjust and unreasonable.
Remedy
[34] The Applicant does not seek reinstatement, nor do I consider it appropriate. The issue thus turns to whether compensation should be awarded and, if so, its quantum.
[35] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement:
“392 Remedy—compensation
…
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant”.
[36] I turn to consider these factors, noting that the ‘Sprigg’ formula is to be applied to arrive at an appropriate amount of compensation,12 but if this yields a figure that is excessive or inadequate, then the considerations in s 392(2) may be revisited.
Effect of an order on the viability of the Respondent’s enterprise
[37] There is no evidence that a compensation order would have an adverse effect on the Respondent’s viability. I note that the profit/loss statement shows that the Respondent remains profitable. This criterion therefore warrants no reduction.
Length of the Applicant’s service
[38] The length of the Applicant’s service is just shy of 36 months (his prior engagements with the Feller Group notwithstanding). This is a relatively short period of employment, though not insubstantial.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
[39] As stated by a majority of the Full Court of the Federal Court in He v Lewin:13
“In determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination”.14
[40] The Applicant says that he had a “verbal agreement” with the Feller family (Mr David Feller) that he would continue his employment until retirement. I take it that the Applicant means that he would have continued his employment for a further six years. The Respondent provided no evidence to the contrary. I therefore consider that, but for the dismissal, the Applicant would have continued in his employment with the Respondent for a further six years.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
[41] The Applicant says that since his dismissal he has started his own business, but that this business is not likely to become profitable for a further 12 months. Otherwise, the Applicant has not disclosed any other effort to obtain gainful employment. I am satisfied that the Applicant has taken reasonable steps to mitigate his loss, especially where the Respondent has not advanced or relied upon any evidence to the contrary.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
[42] There is no evidence that the Applicant has received any income since his dismissal.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
[43] Given the Applicant’s age and seniority, as well as the general imposition of the COVID-19 pandemic on the employment market, in my view, the Applicant is unlikely to have secured employment at a rate of remuneration equal to that which he received whilst working for the Respondent (during the period between the making of this order for compensation and the actual compensation).
Shock, distress etc. disregarded
[44] I confirm that, as required by the Act, the lost remuneration amount to be ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the Applicant by the manner of her dismissal.
Calculation of compensation
[45] As noted by the Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries: 15
“[t]he well-established approach to the assessment of compensation under s.392 of the [Act] … is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket [(Sprigg)]. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages”.16
[46] The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost);
Step 2: Deduct monies earned since termination;
Step 3: Discount the remaining amount for contingencies; and
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
[47] I will now consider the calculation of compensation following the methodology in Sprigg.
[48] First, there is the question of the estimated remuneration that the Applicant would have received had he not been dismissed. I note that whilst I consider that the Applicant would have remained employed with the Respondent until his retirement (around six years away), the maximum amount I can award the Applicant is six months (26 weeks). By way of written submission, the Applicant asserts that his annual income was $95,192.00. By way of the Response, however, the Respondent says that the Applicant’s annual income was $90,000.00. On balance, I take the Respondent’s figure to be the true figure, as this total is supported by the weekly amount disclosed in the Termination Letter. To that end, I take the Applicant’s gross weekly earnings to be $1730.77 per week, which for six months gives a total gross figure of $45,000.02 ($1730.77 x 26).
[49] Next, it is necessary to deduct monies earned by the Applicant since his dismissal. The Applicant has been paid a “redundancy” payment to the value of $6,923.08. He was also paid two weeks’ notice, being a figure of $3,461.54 ($1730.77 x 26). I deduct these amounts from $45,000.02, leaving a new total gross figure of $34,615.40.
[50] There is no evidence that Applicant has earned any income since his dismissal on 6 January 2020.
[51] I am not aware of any evidence or other issue giving rise to a reduction to any compensation to be ordered on the basis of contingencies or the vicissitudes of life (see Roos v Winnaa Pty Ltd).17 I therefore apply no reduction due to these matters.
[52] I have considered the impact of taxation on the gross amount of $34,615.40, however, I do not consider it necessary for me to specify a post-tax amount.
Conclusion
[53] In view of my reasons and findings above, orders will be made to the following effect, to be published separately in due course:
(a) The Respondent’s “genuine redundancy” jurisdictional objection is dismissed.
(b) The Respondent is to pay to the Applicant the gross sum of $34,615.40 (subject to applicable taxation as required by law), by way of electronic funds transfer into the Applicant’s nominated bank account.
(c) The Respondent is to pay into the Applicant’s nominated superannuation fund the sum of $3,288.46 (i.e. 9.5 percent of $34,615.40).
(d) Orders (b) and (c) above must be complied with within 21 days of the date of the above orders being made.
DEPUTY PRESIDENT
Appearances:
Mr Colin Dorber (Industrial Advocate, Employee & Executive Protect) appeared for the Applicant.
Mr Daniel Feller (Director, Catering Equipment Discounters Pty Ltd) appeared for the Respondent.
Hearing details:
A hearing was held by telephone on 19 May 2020.
Printed by authority of the Commonwealth Government Printer
<PR721152>
1 Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488 at [15] (Boulton J, Drake SDP, and McKenna C), citing R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511.
2 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371 at 373.
3 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
4 Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836 at [7].
5 King v Freshmore (Vic) Pty Ltd Print S4213 [2000] AIRC 1019 at [23] to [24].
6 Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031 at [14].
7 See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075; CSL Limited v Chris Papaioannou[2018] FWCFB 1005
8 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Gordon Square Child Care Centre Inc[2013] FWCFB 762 (Acton DP, Deegan C and Gregory C) at [46] to [49].
9 Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835 at [84].
10 Williams v Top Image Hair Design[2012] FWA 9517 at [40].
11 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C) at [21].
12 See: Ellawala v Australian Postal Corporation (AIRCFB, Print S5109, 17 April 2000) at [33]; and see Bowden v Ottrey Homes Cobram and District Retirement Villages Inc[2013] FWCFB 431.
13 (2004) 137 FCR 266.
14 Ibid at [58].
15 [2016] FWCFB 7206 at [16].
16 Ibid at [16], citing Sprigg v Paul’s Licensed Festival Supermarket (1988) 88 IR 21 and Bowden v Ottrey Homes Cobram and District Retirement Villages[2013] FWCFB 431.
17 [2018] FWCFB 7394, at [36] and [37].
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