Vernon Free v The National Zoo & Aquarium

[2021] FWC 6142

[2021] FWC 6142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vernon Free
v
The National Zoo & Aquarium
(U2021/5771)

DEPUTY PRESIDENT DEAN CANBERRA, 15 OCTOBER 2021

Application for an unfair dismissal remedy – valid reason – dismissal not unfair – application dismissed.

[1] Mr Vernon Free was employed with The National Zoo & Aquarium (NZA or the Respondent) in 2014 as a Maintenance Worker on a casual basis. On 26 September 2018, he began his role as a full-time Irrigationist in the Horticulture Team, and his employment with NZA was terminated on 30 June 2021 for reasons of misconduct.

[2] The hearing was conducted by video on Tuesday, 28 September 2021. Mr Free was self-represented and Ms C Blunt from Employsure appeared with permission for NZA.

[3] For the reasons set out below, I find that Mr Free’s dismissal was not unfair, and I have decided to dismiss the application.

Background

[4] The Respondent is a zoo and wildlife lodge based in the Australian Capital Territory.

Incidents on 10, 11 and 12 January 2021 resulting in a Written Warning

[5] On or around 12 January 2021 NZA became aware of allegations of misconduct against Mr Free. Specifically, it was alleged that Mr Free had engaged in the following behaviour:

•  Copying staff members into emails in circumstances where they were not connected to the discussions; and

•  Referring to his supervisor as “junkie looking stranger trash” amongst many other inappropriate comments; and

•  Swearing at his supervisor, Mr Brett Marcus, and challenging him to a physical altercation on 11 January 2021.

[6] Following this, the Respondent’s General Manager, Mr Paul Whitehorn, investigated the allegations and carried out a formal disciplinary process with Mr Free. During the disciplinary meeting on 18 January 2021, Mr Free admitted the allegations and was unable to provide a reasonable explanation.

Incident on 19 January 2021 resulting in a Final Written Warning

[7] On or around 19 January 2021, NZA became aware of further allegations of misconduct against Mr Free. Specifically, it was alleged that Mr Free had engaged in the following behaviour:

•  Referring to certain managers of the Respondent as a “paedophile ring” in an email; and

•  Unauthorised absence from work without supporting evidence.

[8] Following this, Mr Whitehorn and Ms Rebecca Scott, the Executive Manager of Wildlife Operations, investigated the allegations above and carried out a formal disciplinary process with Mr Free. During the disciplinary meeting on 27 January 2021, Mr Free admitted sending such an email but stated that he did not regret his actions and said he would continue to send emails of this nature. Additionally, NZA alleged that Mr Free also refused to accept wrongdoing for his unauthorised absence, commenting that he did not think this was a problem.

Incident on 5 February 2021 resulting in a Letter of Concern and Verbal Warning

[9] On or around 5 February 2021, NZA became aware of further allegations of misconduct against Mr Free. Specifically, it was alleged that Mr Free had been copying staff members into emails in circumstances where they were not connected to the email discussions, in addition to making inappropriate comments within these emails.

[10] On or around 5 February 2021, Mr Russell Jackson, NZA’s Executive Manager, had a discussion with Mr Free regarding these allegations. During this discussion, Mr Jackson spoke with NZA about his behaviour and requested that he only include relevant stakeholders on emails. Following the above discussion, Mr Jackson issued Mr Free with a letter of concern and a verbal warning:

“Dear Vernon

Letter of Concern

Further to our discussion held on 5th February 2021, I am writing to underline my concerns and confirm the outcome of that discussion.

As you are aware the topic of our conversation was around use of email, specifically copying in other individuals or teams unnecessarily (as there is no connection to the matter at hand). I have raised this with you on several occasions and while there had been improvement for a short while you had reverted to including others in on email when it was not necessary. It is a reasonable direction that we request you only include relevant stakeholders on emails so as to ensure the efficiency and productivity of all.

This letter is to be treated as confirmation that I have discussed my concerns with you and that you are expected to make every effort to address the shortcomings that have been identified.

This letter confirms that you have been formally issued with a verbal warning which forms part of the Company’s disciplinary process. This letter will be kept in your personnel file and is considered to be a reasonable written management instruction.

It is essential that your use of email improve to the required standard. You are a valued member of the team and without consistency our business and your personal development will not grow. I hope you understand the need for me to set out my concerns in writing.

If you have any enquiries in relation to this matter, please contact me on [redacted].

Yours sincerely

Russell Jackson
Business Manager”

Incidents on 12 and 14 June 2021 and Termination

[11] In or around June 2021 it was brought to NZA’s attention that Mr Free had again potentially engaged in misconduct.

[12] On 10 June 2021, Ms Julie Mylchreest, NZA’s Work, Health and Safety Officer, sent an invitation via email to all staff members for a toolbox meeting about the new drug and alcohol policy in the workplace.

[13] It was alleged that, on 12 and 14 June 2021, Mr Free responded to Ms Mylchreest’s email, in a non-sensical and inappropriate manner, copying in several members of staff.

[14] It was further alleged that Mr Free also made a number of false accusations against NZA with no supporting evidence. Specifically, that Mr Free made the following statements in his emails:

“No thanks I have most probably spilled more than everybody combined has consumed whatever the substance. Have had plenty of tests and prefer to have a female watch me piss instead of a bloke.”; and

“It’s bad enough being racially profiled by inbreds in our workplace”; and

“Well if it prevents people like Russell and Paul from throwing defenceless animals into the companies enclosures that house predators like they did between the 6 and 7 of the 11th 2018. When they put a kangaroo in the dingo enclosure. It could only be a good thing for the NZA to have everyone drug and alcohol tested on a regular basis.”

[15] On 22 June 2021, Ms Scott wrote to Mr Free regarding the above allegations and invited him to attend a disciplinary meeting:

“Dear Vernon

Invitation to disciplinary meeting

The purpose of this letter is to formally advise you that an allegation of misconduct has recently been brought to our attention.

It is alleged that on the 12th and 14th June 2021 you engaged in inappropriate behaviour in the workplace. Specifically, it is alleged that you responded to an email sent by the WHS Officer in a non sensical and inappropriate manner. It is alleged that you made a number of false accusations against the Employer with no supporting evidence. This is in breach of your employment obligations to act in the best interests of the Employer and not undermine management authority. Such conduct has the potential to adversely impact the reputation, viability and profitability of the Employer.

If proven, this misconduct may result in a written warning, a final written warning or the termination of your employment.

Prior to any decision being made, and to enable a full and detailed investigation of this matter, we request your attendance at a disciplinary meeting which has been specifically convened to provide a suitable opportunity for you to respond to this allegation.

This disciplinary meeting is to be conducted at 11.30am on 23 June 2021 at The Hub.

You are expected to make every effort to attend this meeting and are placed on notice that the Company reserves the right to make a determination in your absence if you fail to attend this meeting for whatever reason.

I will have sole responsibility for the conduct of this meeting, together with any resulting decision which is to be made.

You are of course welcome to bring a support person to this meeting should you choose.

All matters and information relating to this allegation are confidential and you are directed not to discuss them with any other person without my express prior consent. Any failure by you to maintain confidentiality may lead to disciplinary action.

If you have any enquiries in relation to this matter, please contact me on [redacted].

Yours sincerely

Bec Scott
Executive Manager
Wildlife & Operations”

[16] On 22 June 2021 Mr Free responded to the First Invitation via email. Mr Free stated the following:

“I am not interested in any discipline meetings. Yeah I respond to emails so what. I didn’t turn up for work off my face with supporting evidence so what”

[17] Mr Free failed to attend the disciplinary meeting on 23 June 2021.

[18] On 24 June 2021 Mr Jackson sent Mr Free a second invitation to a disciplinary meeting scheduled for 29 June 2021:

“Dear Vernon

Invitation to disciplinary meeting

The purpose of this letter is to advise of the Company’s proposed action should you not agree to meet with us to respond to the below allegation of misconduct.

Allegation:

It is alleged that on the 12th and 14th June 2021 you engaged in inappropriate behaviour in the workplace. Specifically, it is alleged that you responded to an email sent by the WHS Officer in a non sensical and inappropriate manner. It is alleged that you made a number of false accusations against the Employer with no supporting evidence. This is in breach of your employment obligations to act in the best interests of the Employer and not undermine management authority. Such conduct has the potential to adversely impact the reputation, viability and profitability of the Employer.

On 22 June 2021 you sent an email to Bec Scott to advise that you “are not interested in any discipline meetings”.

While we have provided you with sufficient time to prepare to respond to the allegation, we wish to provide you an opportunity to reconsider attending the meeting to respond. We ask that you contact us no later than 4.00 pm on Monday 28 June 2021 to confirm if you will attend the meeting or not. If you will attend a meeting we will reset this to be held at 10:00am on Tuesday 29th June 2021 at Bec’s office in the Aquarium. Alternatively please provide a full written account detailing your response to the forementioned allegations via return email by 4pm on Monday 28th June 2021.

Our initial letter did note that any failure to attend the disciplinary meeting may result in the Company making a decision in your absence. We advise that this will be case if you do not attend on Tuesday 29th June 2021 or provide a written response by 4:00pm, Monday 28th June 2021. To recap, the outcome may result in a written warning, a final written warning or the termination of your employment.

If you have any enquiries in relation to this matter, please contact me on [redacted].

Yours sincerely

Russell Jackson
Executive Manager”

[19] On 26 June 2021 Mr Free responded to the Second Invitation via email. He stated the following:

“I am not interested in discipline hearings”

[20] Mr Free failed to provide his response to the allegations in writing and did not attend the second scheduled disciplinary meeting on 29 June 2021.

[21] On 30 June 2021, Ms Scott wrote to Mr Free and informed him that his employment was being terminated for misconduct due to an escalation of warnings. The termination letter provided:

“Dear Vernon

Confirmation of Termination

We refer to our letter concerning an allegation of misconduct dated Tuesday 22 June 2021 enclosing an invitation to a disciplinary meeting for the purposes of allowing you an opportunity to respond to this allegation.

You subsequently refused to attend this disciplinary meeting by way of a return email on 22 June 2021 to Bec Scott, stating that you “are not interested in any discipline meetings”.

As such, a further letter was sent on Thursday 24 June 2021 to again outline the allegation of misconduct and invite you to a disciplinary meeting for the purposes of allowing you an opportunity to respond to this allegation or provide a written response.

You again advised that you would not be attending the meeting by way of return email on 24 June 2021 to Russell Jackson, stating you are “not interested in discipline hearings” and they “achieve nothing for anybody”.

The allegation, together with our findings, are noted following:

It is alleged that on 12 and 14 June 2021 you engaged in inappropriate behaviour in the workplace. Specifically, it is alleged that you responded to an email sent by the WHS Officer in a non sensical and inappropriate manner. It is alleged that you made a number of false accusations against the Employer with no supporting evidence. This is in breach of your employment obligations to act in the best interests of the Employer and not undermine management authority. Such conduct has the potential to adversely impact the reputation, viability and profitability of the Employer.

You were advised that any failure to attend the disciplinary meeting may result in the Company making a decision in your absence.

We remind you of the previous warnings you received on 19 January 2021, 27 January 2021 and 19 February 2021. These previous warnings were regarding unprofessional, offensive and aggressive conduct. In view of the above findings and prior warnings for the above misconduct we have considered terminating your employment.

As you failed to attend the disciplinary meeting, the Company has made a decision in your absence.

In the circumstances, and for the reasons as outlined above, we maintain the view that it is appropriate that your employment should be terminated due to an escalation of warnings.

We therefore advise you that your employment is terminated effective immediately on today’s date, 30 June 2021.

You are not required to work out your notice period and will be paid notice in lieu. Your outstanding and accrued (if any) entitlements will be paid on 1 July 2021

A separate letter will confirm the amount and components of that payment.

Please contact us if you wish to discuss further.”

[22] Mr Free was paid his outstanding entitlements including five weeks’ pay in lieu of notice.

The Case for Mr Free

[23] Mr Free submitted that the alleged misconduct was for responding to a WHS email in an inappropriate manner and making a number of false accusations against the employer with no supporting evidence undermining authority failing to attend a disciplinary meeting. Additionally, he added that the alleged misconduct was related to previous warnings regarding other allegations.

[24] Mr Free’s evidence was that he did not attend the second scheduled disciplinary meeting on 28 June 2021 because there would be a table of people like a court room. 1 Further, Mr Free stated that he didn’t respond to the allegations in writing because he didn’t think there was anything to respond to, and he had no idea what the allegations were.2

[25] Mr Free stated the NZA did not speak to him at all about his behaviour towards others. 3 Further, it was Mr Free’s evidence that the employer didn't meet with him or talk to him about the alleged misconduct, but the wildlife manager handed him an envelope and said he wasn't in trouble. Additionally, Mr Free stated that he wasn't given the opportunity to respond to the reasons for his dismissal, and he was immediately escorted off the premises by two wildlife managers. However, in the hearing, he conceded that the warnings and formal letters clearly stated further misconduct may result in the termination of employment.4

[26] Mr Free’s evidence was that he believed the main reason for his dismissal was an incident where a kangaroo got in the dingo enclosure. 5 Mr Free stated that if management had done their job, it wouldn’t have come to any of this. 6

[27] Mr Free confirmed that he did take days off here and there due to wet weather and workplace disagreement. He stated that he wanted his job back with backpay from the day of termination, and has made no attempt to look or find any other work since termination.

The Case for the Respondent

[28] Evidence was given by the following persons:

a. Mr Russell Jackson;

b. Mr Paul Whitehorn;

c. Mr Brett Marcus; and

d. Ms Rebecca Scott.

[29] NZA submitted that over the course of his employment, Mr Free’s behaviour in the workplace was problematic, and by June 2021 his behaviour and demeanour had deteriorated to such an extent the working relationship was no longer tenable. In particular, Mr Jackson gave evidence that over the course of the working relationship, he found Mr Free's behaviour to be unpredictable. He stated that Mr Free performed his work tasks well, but he would become inappropriately involved with management, in that he would often send strange and insulting emails to members on the management team. Mr Jackson stated that these emails would often come in clusters, and sometimes they wouldn't hear from Mr Free for a while, and then all of a sudden he would be back to sending inappropriate emails. 7 This was corroborated by Mr Whitehorn and Mr Marcus, who both stated that they found Mr Free’s behaviour to be difficult and problematic.8

[30] It was submitted by NZA that Mr Free was spoken to regarding this behaviour on a number of occasions over the course of his employment, and each time he admitted to the behaviour, but failed to acknowledge wrongdoing.

[31] NZA submitted that Mr Free’s employment was terminated for a valid reason in relation to his conduct. Further, NZA submitted that not only did Mr Free’s misconduct occur, but he admitted to the misconduct occurring in his submissions and witness statement.

[32] NZA contended that Mr Free’s conduct was serious enough to justify dismissal. NZA submitted that Mr Free was subject to prior written warnings about his inappropriate behaviour and aggressive comments towards other employees. Despite multiple opportunities to improve his conduct, NZA submitted that he continued to engage in misconduct and disregard NZA’s formal warnings.

[33] NZA submitted that Mr Free was provided with sufficient opportunity to reply to the allegations, to provide a valid reason and/or to apologise for the behaviour.

[34] NZA issued the First Invitation and Second Invitation to Mr Free, detailing the allegations and scheduling two separate disciplinary meetings. NZA submitted that Mr Free refused to participate int he disciplinary process and failed to attend either of the scheduled disciplinary meetings.

[35] NZA contended that Mr Free did not respond to the allegations in writing. Mr Free did not alleviate NZA’s concerns that the behaviour was inappropriate and that continuing the engagement was untenable. NZA submitted that had Mr Free wished to respond in a way that did not further escalate the incident, he could have done so.

[36] NZA submitted that they chose to terminate Mr Free’s employment on 30 June 2021, after putting the issues of concern to him in writing on 22 June 2021 and 24 June 2021. NZA submitted that Mr Free failed to attend either of the scheduled disciplinary meetings and elected not to provide a response to the allegations in writing.

[37] Further, NZA’s submission was that Mr Free was invited to bring along a support person to the scheduled disciplinary meetings in both the First Invitation and the Second Invitation, but chose not to attend either meeting and thus the issue of unreasonable refusal of a support person does not arise for consideration.

[38] NZA submitted that Mr Free’s ongoing attitude towards others, his inappropriate and unprofessional behaviour in the workplace and his aggressive comments towards other members of the team were the reasons for initiating the disciplinary process with Mr Free.

[39] NZA contended that that the dismissal was proportionate in the circumstances, and further discussions with Mr Free would not have been appropriate as staff members no longer felt comfortable working with him. NZA further submitted that the numerous prior conversations and warnings provided to Mr Free had no effect in changing his behaviour. Overall, NZA concluded by submitted that continuing to employ Mr Free was simply untenable and terminating Mr Free’s employment was the only appropriate step for NZA.

Consideration

[40] There is no dispute and I am satisfied that Mr Free is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.

Was the dismissal unfair?

[41] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

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.

[42] There is no dispute that Mr Free was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[43]  Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[44] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 9as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[45] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 10

Valid reason - s.387(a)

[46] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 11 and should not be “capricious, fanciful, spiteful or prejudiced.”12 However, 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.13

[47] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred. 14 The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it.15

[48] Further, the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason. 16

[49] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[50] It is well settled that the employer bears the onus of establishing the misconduct upon which it relies to demonstrate a valid reason for the dismissal.

[51] I am satisfied on the evidence that NZA took appropriate steps to provide Mr Free with details of the alleged misconduct and afford him an appropriate opportunity to respond to those allegations. Mr Free was invited to attend a disciplinary meeting on 23 June 2021 with a support person. After his refusal to participate, NZA rescheduled the disciplinary meeting for 29 June 2021 to allow Mr Free another opportunity to be heard and rebut the allegations. Mr Free again declined to attend. He was informed on both occasions that failure to attend the disciplinary meeting would result in the Respondent making a decision that may include the termination of his employment.

[52] I accept the evidence adduced by NZA that Mr Free repeatedly exhibited inappropriate and unprofessional behaviour in the workplace and directed aggressive comments to other members of his team, and that he failed to modify his attitude and behaviour despite prior warnings. This was demonstrated by the email correspondence Mr Free sent to NZA personnel in which he was dismissive and disrespectful.

[53] I am satisfied and find that NZA had a valid reason for the termination of Mr Free’s employment. It is incumbent on an employee to act with respect and courtesy in their dealings with others in the workplace. Mr Free’s behaviour was unacceptable in a workplace which has been compounded by his lack of contrition. Further, his refusal to attend the disciplinary meetings constitutes a failure to follow lawful and reasonable direction which provide a valid reason for the dismissal.

[54] In all the circumstances, I find that NZA had a valid reason to dismiss Mr Free and the reason was sound and defensible.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[55] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 17 in explicit terms18 and in plain and clear terms.19 In Crozier v Palazzo Corporation Pty Ltd20 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 21

[56] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern. 22 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.23

[57] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Free before his dismissal was effected.

[58] As evident from the material provided, it is clear that Mr Free was notified of the reason for his dismissal and was given an opportunity to respond to the reason.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[59] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[60] I am satisfied that there was no refusal of a support person throughout the process leading to Mr Free’s dismissal.

Warnings regarding unsatisfactory performance - s.387(e)

[61] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[62] I am satisfied that the size of NZA and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal, and this consideration is neutral.

Other relevant matters - s.387(h)

[63] I do not consider there are any other relevant matters that have not already been considered.

Conclusion

[64] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Free was not unfair. Accordingly, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

V Free, on his own behalf.
C Blunt, for The National Zoo & Aquarium.

Hearing details:

2021.
By video:
September 28.

Printed by authority of the Commonwealth Government Printer

<PR734968>

 1   Transcript at PN143.

 2   Transcript at PN144.

 3   Transcript at PN118.

 4   Transcript at PN120.

 5   Transcript at PN61.

 6   Transcript at PN64.

 7   Witness Statement of Russell Jackson at 10.

 8   Witness Statement of Paul Whitehorn at 7; Witness Statement of Brett Marcus at 7.

 9 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

 10   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 11   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 12   Ibid.

 13   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 14   Edwards v Giudice (1999) 94 FCR 561.

 15   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

 16   Miller v University of New South Wales (2003) 132 FCR 147.

 17   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 18    Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 19   Previsic v Australian Quarantine Inspection Services Print Q3730.

 20 (2000) 98 IR 137.

 21   Ibid at 151.

 22   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

 23   RMIT v Asher (2010) 194 IR 1, 14-15.