Wayne Hammond v Kildarius Pty Ltd T/A John Patrick Prestige Cars

[2018] FWC 5703

[2018] FWC 5703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Hammond
v
Kildarius Pty Ltd T/A John Patrick Prestige Cars
(U2018/4662)

COMMISSIONER SAUNDERS NEWCASTLE, 11 SEPTEMBER 2018

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – application dismissed.

[1] Mr Wayne Hammond was employed by Kildarius Pty Ltd trading as John Patrick Prestige Cars Pty Limited (John Patrick Prestige Cars) as a full-time Detailer from 27 February 2017 until his dismissal on 3 May 2018. John Patrick Prestige Cars asserts that Mr Hammond’s dismissal was a genuine redundancy within the meaning of s 389 of the Fair Work Act 2009 (Cth) (Act). Mr Hammond denies that his dismissal was a genuine redundancy and contends that his dismissal was harsh, unjust and unreasonable.

[2] I decided that it was appropriate to hold a hearing rather than a determinative conference in this matter. In making that decision, I had regard to the fact that a hearing would be the most effective and efficient way to resolve this matter. The hearing was conducted on 23 August 2018 in Port Macquarie. Mr Hammond gave evidence in support of his case, as did Mr Mark Boscassi, Detailer. John Patrick Prestige Cars adduced evidence from Mr Toby Patrick, General Manager, and Mr Douglas Way, Used Car Sales Manager.

Initial matters to be considered

[3] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Mr Hammond’s application.

[4] There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mr Hammond’s application was made within the period required in s.394(2) of the Act;

(b) Mr Hammond was a person protected from unfair dismissal; and

(c) John Patrick Prestige Cars was not a “small business employer” as defined in s 23 of the Act, so the Small Business Fair Dismissal Code does not apply to the dismissal.

[5] In relation to the fourth initial matter which I am required to consider, there is a dispute between the parties regarding whether Mr Hammond’s dismissal was a genuine redundancy. Accordingly, I must decide whether Mr Hammond’s dismissal was a case of genuine redundancy within the meaning of s 389 of the Act before I consider the merits of the application.

Genuine redundancy

[6] Section 389 of the Act defines genuine redundancy as follows:

“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.”

[7] “Associated entity” has the meaning given by s.50AAA of the Corporations Act 2001 (Cth).

The employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise (s 389(1)(a))

[8] It is necessary to determine whether John Patrick Prestige Cars no longer required Mr Hammond’s job to be performed by anyone because of changes in the operational requirements of John Patrick Prestige Cars’s enterprise. 1

[9] A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. 2 Where there has been a reorganisation or redistribution of duties, the question is whether the employee has “any duties left to discharge”.3 If there is no longer any function or duty to be performed by that person, their job becomes redundant.4 For example, an employer may redistribute all the tasks done by a particular person between several other employees, resulting in the person’s job no longer existing.

[10] An employee’s job may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees. 5 The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.6

[11] The reference to “changes in the operational requirements of the employer’s enterprise” in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to improve efficiency, productivity, sales, revenue or some other aspect of performance. The operational circumstances of a business which may give rise to a redundancy will reside in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee’s job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer’s enterprise.

[12] Mr Hammond submits that his dismissal was not a genuine redundancy because his former job was still required to be performed. In particular, Mr Hammond contends that he was offered a casual role by John Patrick Prestige Cars with identical duties and identical work hours. Mr Hammond also submits that his dismissal was not a genuine redundancy because the real reason for his dismissal was the fact that he took sick leave in the period leading up to the termination of his employment. I do not accept these arguments, for the following reasons.

[13] First, John Patrick Prestige Cars sells cars at two car yards in Port Macquarie. One car yard sells new cars and quality second hand vehicles (Prestige Yard). The other car yard, which is located about a kilometre down the street from the first car yard, sells second hand vehicles (Second Hand Car Yard). Mr Hammond worked in the Second Hand Car Yard during his employment with John Patrick Prestige Cars. Mr Hammond’s duties as a Detailer primarily consisted of detailing second hand motor vehicles, including vacuuming seats, washing cars, degreasing engine bays and underbodies, removing and replacing roof linings and seats, buffing, polishing and finishing vehicles, touching-up paint, and undertaking general yard duties. I accept evidence given by Mr Patrick and Mr Way that a decision was made in about 2018 to restructure the business of John Patrick Prestige Cars. In particular, it was identified that technicians employed by John Patrick Prestige Cars were being overworked, in light of an increased demand for service and repair work, and the workload for Detailers was not as high as it had been. 7 As a result, three apprentices were employed by John Patrick Prestige Cars in about early 2018 to assist the technicians and to undertake some car washing from time to time.8 Consequently, John Patrick Prestige Cars did not need as many full-time Detailers employed in its business. This led to the decision to make the following three positions redundant:

• the position of a full-time trainee Detailer was made redundant. The letter of termination provided to this employee referred to the fact that he was still in his “6 month probation period” and nominated the reasons for termination as “Dissatisfactory Work Ethic” and “Business restructure within the Detailing Dept”. I accept the evidence given by Mr Patrick that the restructure was the primary reason for dismissing this employee; 9

• the position of a full-time Detailer, Mr Mark Boscassi, was made redundant. Mr Boscassi did not have a clear recollection of the date when he was informed of the restructure. I accept evidence given by Mr Way that the restructure was communicated to Mr Boscassi in early May 2018. 10 Mr Boscassi was offered, and accepted, an alternative role as a casual employee with John Patrick Prestige Cars.11 However, before Mr Boscassi commenced in the role of a casual employee, he was offered, and accepted, a full-time role with John Patrick Prestige Cars, washing vehicles serviced by John Patrick Prestige Cars.12 This opportunity only arose because another employee who had been working in that position was dismissed for misconduct.13 The position in which Mr Boscassi is now employed (washing cars which have been serviced) is different from his former position of Detailer; and

• Mr Hammond’s position of full-time Detailer was made redundant.

[14] John Patrick Prestige Cars made its decision to select these three Detailers for redundancy and retain other full-time Detailers on a ‘last on first off’ basis. 14 Two of the full-time Detailers retained after the restructure had worked for John Patrick Prestige motors for about six or seven years in one case and about four to five years in another case.15

[15] The full-time positions of Detailer occupied by Mr Hammond, Mr Boscassi and the trainee did not survive the restructure put in place by John Patrick Prestige Cars in April and May 2018. 16 That is so regardless of the fact that John Patrick Prestige Cars still needed detailing work undertaken, albeit to a lesser extent after the restructure. After the restructure, such detailing work was undertaken by other employees.

[16] Secondly, Mr Hammond was offered casual employment by John Patrick Prestige Cars as a Detailer when his full-time role as a Detailer was made redundant. I am satisfied that the casual role did not involve “identical duties and identical hours”, as contended by Mr Hammond. I accept Mr Way’s evidence that the duties of the casual Detailer offered to Mr Hammond differed from his full-time Detailer role in that the casual role would have involved the washing of cars already presented for sale on the lot and some detailing of cars, whereas the full-time role involved primarily detailing cars. 17 I also accept the evidence given by Mr Patrick and Mr Way that Mr Hammond was told he would, as a casual employee, be given notice each week as to what his hours of work would be for the following week, notwithstanding Mr Hammond’s evidence, which was denied by Mr Patrick and Mr Way, that he was told he would “still be working a 38 hour week”. My reasons for preferring the evidence of Mr Patrick and Mr Way over that given by Mr Hammond in relation to this issue are (a) the consistency of the evidence given by Mr Patrick and Mr Way, (b) the fact that the letter given to Mr Hammond and dated 2 May 2018 referred to the fact that he would “be informed of the hours you are required to work as a casual employee verbally via your acting manager”, and (c) guaranteeing Mr Hammond 38 hours work each week would have been inconsistent with John Patrick Prestige Cars’s objective to give more flexibility in the hours to be worked by Detailers. For example, John Patrick Prestige Cars wanted to be able to increase the hours to be worked by Detailers in busy periods and notify casual employees that they would not be required to work during periods of rain.

[17] Thirdly, as to the argument that the real reason for Mr Hammond’s dismissal was the sick leave he took in the period leading up to the termination of his employer, there is no doubt that Mr Hammond was injured at work on 11 April 2018; he was absent from work as a result of that injury until 30 April 2018, during which time he received paid sick leave. Mr Hammond contends that on Friday, 27 April 2018, he provided Mr Way with another medical certificate and had a conversation with Mr Way in words to the following effect:

Mr Hammond: “The Doctor still says I’m not allowed to drive and I can’t perform my work duties.”

Mr Way: “John’s not happy about the time you’ve been having off. He’s getting cranky about it. We will get someone to come pick you up from home and drive you here if we have to.”

Mr Hammond: “The Doctor says I can’t work because of my eye.”

Mr Way: “I’ll give the certificate to Robin [payroll officer] but John is not going to be happy about it.”

[18] Mr Hammond says that, as a result of his discussion with Mr Way on 27 April 2018, he formed the view that both Mr Way and Mr John Patrick, the owner of John Patrick Prestige Cars, were unhappy about his continued absence from work due to his injury, so he decided over the weekend to return to work the following Monday, despite his injury. On Monday, 30 April 2018, Mr Hammond returned to his usual duties at work and was told during that day that he would be required to attend a meeting on the following day.

[19] Mr Way denies telling Mr Hammond that Mr John Patrick was not happy about the time Mr Hammond had been taking off work due to his eye injury. Mr Way says that he offered to drive Mr Hammond to work because Mr Hammond told him that he was fit to work but was still unable to drive as a consequence of his eye injury.

[20] The medical certificate Mr Hammond provided to Mr Way and dated 27 April 2018 did not indicate that Mr Hammond was fit for pre-injury duties, but nor did it indicate that he either had no current work capacity or that he had capacity for some type of employment. It appears as though Mr Hammond’s treating doctor forgot to complete this part of the medical certificate. However, under the heading “Management Planned for this Period” Mr Hammond’s medical practitioner states: “Reviewed by Dr Luke Northey and Dr Justin Game on 18/04/2018 – good improvement, expect full recovery in 1 week”. It is ambiguous as to whether the “1 week” time period was intended to be from the date of the review on 18 April 2018, or from the date of the medical certificate (27 April 2018). In my view, the context of the review taking place on 18 April 2018 and the expected full recovery in “1 week” suggests an expected full recovery within “1 week” of 18 April 2018. In any event, on Monday, 30 April 2018, Mr Hammond did return to his “usual duties at work”. 18

[21] I accept that Mr Hammond honestly believed that he was being targeted for dismissal as a consequence of taking sick leave. It is not surprising that he formed such a view, having regard to the fact that he was told on his first day back at work about a meeting he had to attend the following day to discuss a restructure. At that meeting, Mr Patrick and Mr Way accept that Mr Hammond asked whether the restructure or offer of casual employment was connected to the fact that Mr Hammond had taken time off due to an injury. Mr Patrick informed Mr Hammond that his injury was not a factor in the decision to restructure or to offer Mr Hammond a casual role. Mr Patrick also informed Mr Hammond that the decision regarding the need to restructure had been made some days ago but 1 May 2018 was the first opportunity to discuss the changes with Mr Hammond.

[22] I accept the evidence given by Mr Way and Mr Patrick that a number of employees of John Patrick Prestige Cars have taken periods of paid sick or personal leave and have been retained in their employment and not treated detrimentally as a result. One such employee is Mr Boscassi, who was absent on sick leave for about one week in 2018, yet was retained after the restructure and then offered full-time employment. 19 The trainee Detailer who was dismissed in 2018 on the grounds of redundancy was bitten by a spider at work, but he only had a few hours off work to see his doctor and was paid for this time.20 Another full-time Detailer employed by John Patrick Prestige Cars had about two weeks off work in 2018 because his wife required medical treatment;21 he has retained his job with John Patrick Prestige Cars.

[23] Having considered all of the evidence in relation to this issue, I am satisfied on the balance of probabilities that the real reason for the termination of Mr Hammond’s employment was the redundancy of his full-time position of Detailer, and I accept Mr Patrick’s evidence that Mr Hammond’s period of paid sick leave prior to his dismissal was not an operative part of the reason for his dismissal. The timing of the communications to Mr Hammond in early May 2018 was unfortunate, given their close proximity to his absence on paid sick leave. However, I accept Mr Patrick’s evidence that the reason Mr Hammond was informed of the restructure on 1 May 2018 was because that was the first opportunity available to discuss the matters with Mr Hammond. The fact that the positions of two other full-time Detailers were made redundant at the same time as Mr Hammond supports the bona fides of the reason for dismissal contended for by John Patrick Prestige Cars.

[24] I find that Mr Hammond’s recollection of his conversations with Mr Way and Mr Patrick in relation to the restructure and his dismissal has been coloured by his strong belief that his dismissal may have been linked to his absence from work on sick leave. 22 I prefer the evidence of Mr Way and Mr Patrick to that of Mr Hammond in relation to such conversations, including those referred to in paragraphs [17] to [19] above. The evidence of Mr Way and Mr Patrick in relation to these conversations is, to some extent, supported by the contemporaneous letters to Mr Hammond dated 30 April 2018 to 3 May 2018. For example, (a) the 2 May 2018 letter given to Mr Hammond stated that he would “be informed of the hours you are required to work as a casual employee verbally via your acting manager”, which is consistent with the evidence given by Mr Patrick and Mr Way as to what Mr Hammond was told in their meeting with him concerning his hours of work as a casual employee, and (b) the 2 May 2018 letter stated that Mr Hammond had been offered casual employment and “accepted this offer”, which is consistent with the evidence given by Mr Patrick and Mr Way that Mr Hammond did say in the meeting on 1 May 2018 that he would accept the offer of casual employment. Further, Mr Patrick and Mr Way gave direct answers to the questions put to them and were not shaken during their cross examination.

[25] Fourthly, I do not accept Mr Hammond’s contention that there were 30 cars needing to be detailed at the time he was dismissed on the grounds of redundancy on 3 May 2018. I accept Mr Way’s evidence that Mr Hammond, in his role as Detailer, was not privy to which cars were to be reconditioned and which were to be sent to wholesale. I also accept Mr Way’s evidence that “cash flow” would “not permit 30 cars to be sitting out the back of our dealership unattended to”. 23

[26] For the reasons set out above, I am satisfied that John Patrick Prestige Cars no longer required Mr Hammond’s job to be performed by anyone because of changes in the operational requirements of John Patrick Prestige Cars’s enterprise.

Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s 389(1)(b))

[27] For there to be a genuine redundancy within the meaning of s 389 of the Act, John Patrick Prestige Cars must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.

[28] There is no dispute between the parties and I am satisfied that Mr Hammond was covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award) during his employment with John Patrick Prestige Cars.

[29] Clause 8 of the Vehicle Award imposes consultation obligations on an employer in particular circumstances. Clause 8.1 provides as follows:

“8. Consultation

8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[30] I am satisfied on the evidence that John Patrick Prestige Cars made a definite decision in April 2018 to introduce major changes in organisation or structure that were likely to have significant effects on employees. That decision was to restructure the business in the manner described above.

[31] Pursuant to clause 8.1 of the Vehicle Award, John Patrick Prestige Cars was required to:

(a) notify Mr Hammond of the definite decision to introduce such changes;

(b) as soon as practicable after the definite decision was made, discuss with Mr Hammond and his representatives, if any, the introduction of the changes, the effects the changes were likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees;

(c) give prompt consideration to matters raised by Mr Hammond and/or his representatives in relation to the changes; and

(d) provide in writing to Mr Hammond and his representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees.

[32] I am satisfied that, in accordance with clause 8.1(a) of the Vehicle Award, John Patrick Prestige Cars notified Mr Hammond on 1 May 2018 of its definite decision to introduce changes. In particular, this notification was provided to Mr Hammond orally in the meeting on 1 May 2018.

[33] At the meeting on 1 May 2018, Mr Way and Mr Patrick discussed with Mr Hammond the major changes in organisation or structure that were likely to have significant effects on employees. I am satisfied that those discussions took place as soon as practicable after the definite decision was made to restructure the business and addressed the introduction of the changes, the effects the changes were likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees. In particular, Mr Way and Mr Patrick discussed with Mr Hammond the fact that they needed to restructure the business in light of shifts in the market, the resultant need to employ fewer full-time Detailers, and measures such as offering casual employment to mitigate the adverse effects of the changes on employees. 24

[34] I am satisfied that Mr Way and Mr Patrick were willing to listen to any comments or suggestions made by Mr Hammond in connection with the restructure and they gave prompt consideration to matters raised by Mr Hammond in relation to the changes. In particular, Mr Hammond raised a concern about whether the restructure was in any way connected to his recent absence from work on sick leave and he was assured that the restructure was not in any way related to his sick leave, his work ethic or his ability. Mr Hammond also asked how much he would be paid if he accepted casual employment and what changes would be made to his entitlements. Mr Way and Mr Patrick provided that information to Mr Hammond. It is also the case that Mr Hammond requested, and was given, the opportunity to take the offer of casual employment home to discuss with his wife.

[35] Finally, I am satisfied that John Patrick Prestige Cars provided in writing to Mr Hammond all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees. Such written notification was provided to Mr Hammond by way of letters dated 30 April 2018, 2 May 2018 and 3 May 2018.

[36] Based on the facts and matters set out in paragraphs [32] to [35] above, I am satisfied that John Patrick Prestige Cars complied with its obligations under the Vehicle Award to consult with Mr Hammond about the redundancy of his job.

Was it reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer (s 389(2))

[37] For the purposes of section 389(2) of the Act, the Commission must consider whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding. 25 The word “redeployed” in section 389(2) of the Act should be given its ordinary and natural meaning, which is to “transfer to another job, task or function”.26

[38] If an employer wishes to rely on the “genuine redundancy” exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee. 27

[39] Whether it would have been reasonable in all the circumstances for the person to be redeployed directs attention to the circumstances which pertained when the person was dismissed. 28 However, the circumstances leading up to the time at which the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.29

[40] In determining whether redeployment would have been reasonable a number of matters may be relevant, including:

(a) whether there exists a job or position or other work to which the employee can be redeployed; 30

(b) the nature of any available position; 31

(c) qualifications required to perform the job; 32

(d) the employee’s skills, qualifications and experience. The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining; 33 and

(e) the location of the job in relation to the employee’s residence and the remuneration which is offered. 34

[41] Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. 35

[42] It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment “in all the circumstances”, it is not possible to establish binding or decision rules concerning the application of section 389(2) of the Act in all cases; the circumstances of each particular case must be considered. 36

[43] I am satisfied that it would not have been reasonable in all the circumstances for Mr Hammond to be redeployed within John Patrick Prestige Cars’s enterprise, or an enterprise of an associated entity of John Patrick Prestige Cars, for the following reasons:

(a) John Patrick Prestige Cars offered Mr Hammond a role as a casual Detailer. I accept that was the only potentially suitable and available position in the Prestige Yard or the Second Hand Car Yard for Mr Hammond;

(b) John Patrick Prestige Cars operates a retail business known as “TGM”, selling four wheel drive accessories. I accept the evidence given by Mr Patrick and Mr Way that there were no potentially suitable and available position in TGM for Mr Hammond at the time of his dismissal;

(c) the evidence disclosed that there were no potentially suitable and available positions in any other part of John Patrick Prestige Cars’s enterprise; and

(d) there is no dispute that John Patrick Prestige Cars did not have any associated entities at the time of Mr Hammond’s dismissal.

Conclusions

[44] I am satisfied that Mr Hammond’s dismissal was a case of genuine redundancy within the meaning of s 389 of the Act, with the result that Mr Hammond was not unfairly dismissed. I therefore dismiss Mr Hammond’s unfair dismissal application.

COMMISSIONER

Appearances:

Mr Keizer,solicitor, on behalf of Mr Hammond

Ms Soliven, on behalf of John Patrick Prestige Cars

Hearing details:

2018.

Port Macquarie.

23 August.

Printed by authority of the Commonwealth Government Printer

<PR700279>

 1 Section 389(1)(a) of the Act

 2   Jones v Department of Energy and Minerals (1995) 60 IR 304 (Jones) at 308 per Ryan J; applied in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488;(2010) 196 IR 32 (Ulan Coal 1) at [17]

 3   Ibid

 4   Ibid

 5   Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404-5

 6   Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 at [27] per Hamberger SDP

 7   PN465; PN605

 8   PN234-5; PN466-8; PN533-5

 9   PN591; PN631

 10   PN410

 11   PN311

 12   PN312 – PN323

 13   PN414

 14   PN408

 15   PN407

 16   PN418

 17   PN419; PN494; PN499

 18   Ex A1 at [28]

 19   PN338 – PN360

 20   PN387-9

 21   PN394 – PN400; PN557-9

 22   PN482; PN493

 23   Ex R1 at [3(m)]; PN416-7

 24   PN63-68; PN83; PN152-4; Ex A1 at [29]; Ex R1 at [3(g)]; Ex R2 at [3(e)]

 25   Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714; (2014) 240 IR 130 (TAFE) at [36]

 26   Ibidat [25]

 27   Ibid at [36]-[37]; Teterin & Ors v Resource Pacific Pty Limited t/a Ravensworth Underground Mine[2014] FWCFB 4125; (2014) 244 IR 252 (Teterin) at [28]-[29]

 28   TAFE at [24] & [35]; Ulan Coal Mines Ltd v Honeysett[2010] FWAFB 7578; (2010) 199 IR 363 (Ulan Coal 2) at [28]

 29   Bhalla v Welltech Total Water Management[2014] FWC 7565 at [55]

 30   Ulan Coal2 at [28]

 31   Ibid at [28]

 32   Ibid at [28]

 33   Ibid at [28] & [34]

 34   Ibid at [28]

 35   Ibid at [34]

 36   Teterin at [35]