[2017] FWC 4572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Miller
v
Westernport Boat Harbour Pty Ltd T/A Yaringa Boat Harbour
(U2016/15627)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 4 SEPTEMBER 2017

Application for an unfair dismissal remedy.

[1] On 30 December 2016, Mr Wayne Miller made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Westernport Boat Harbour Pty Ltd T/A Yaringa Boat Harbour (Yaringa).

[2] Mr Miller was dismissed from his employment on 14 December 2016 at the initiative of the employer. The dismissal took effect immediately. Mr Miller submits his dismissal was unfair.

[3] Mr Miller named the Respondent to his application as ‘Yaringa Boat Harbour trading as Yaringa Boat Harbour Difau Pty Division’. Yaringa’s Form F3 refers to the employing entity as ‘Westernport Boat Harbour Pty Ltd trading as Yaringa Boat Harbour’.

[4] During the hearing I took submissions from both the Applicant and the Respondent in relation to the name of the correct employing entity. On the evidence before me, I am satisfied that the name of the employer in this matter is ‘Westernport Boat Harbour Pty Ltd trading as Yaringa Boat Harbour’. I have utilized the discretion in s.586 of the Act to amend the application accordingly.

Background and case outline

[5] Yaringa provides services to individuals who have boats moored at the Harbour. In addition to maintaining the Harbour itself and providing security for the boats stored there, the business provides services to boat owners in launching boats when the owners wish to use them and docking these boats when they return to the Harbour.

[6] Mr Miller commenced employment with Yaringa on 26 December 2003 as a casual weekend yard assistant. 1

[7] He commenced full time employment with Yaringa on 8 November 2004 and progressed to the position of weekend manager of operations. 2

[8] Approximately 12 months prior to his dismissal, Yaringa commenced employing new employees with the expectation that those employees would take over the roles of the existing employees when they retired or were no longer able to perform all of their duties.

[9] Yaringa submitted that after the engagement of the new employees Mr Miller’s behaviour and performance became increasingly unsatisfactory.

[10] They submitted that Mr Miller was given numerous warnings regarding his conduct and performance, and was advised that his employment could be terminated.

[11] Mr Miller submitted that at no time did he have any such conversations as alleged by Yaringa. Further, he submitted that he had not been issued with any formal warnings or undergone any disciplinary action.

[12] Mr Miller submitted that he had been dismissed for exercising his right to take sick leave and due to his age. 3

Procedural Background

[13] This matter was conciliated on 7 February 2017 however remained unresolved. The matter was subsequently listed for arbitration before me on 24 April 2017.

[14] To assist the Commission in dealing with the matter more efficiently, the parties were granted permission to be legally represented.

[15] Mark Irving of counsel appeared on behalf of Mr Miller and Alanna Duffy of counsel appeared on behalf of Yaringa.

[16] Mr Miller gave evidence on his own behalf.

[17] The following witnesses gave evidence on behalf of Yaringa:

● Mr Borzecki, Director;

● Ms Borzecki, Assistant Manager;

● Mr McCarthy, Yard Supervisor; and

● Mr Egleston, Weekend Dry Storage Manager.

Preliminary Matters

[18] Section 396 of the Act requires that the following matters be decided before the merits of Mr Miller’s application may be considered:

“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;

(d) whether the dismissal was a case of genuine redundancy.”

[19] There was no contest between the parties in relation to items a, b and d above.

[20] Therefore the issue for me to determine is whether the Respondent is a small business as defined in the Act, whether the dismissal was consistent with the Code and if not, whether the dismissal was harsh, unjust or unreasonable.

Is Yaringa a small business?

[21] At the mention conducted on 18 April 2017, the parties advised that there was no dispute as to whether the Respondent was a small business as defined in section 23 of the Act.

[22] However, at the hearing on 24 April 2017, Mr Miller’s representative raised a concern that at the time of his dismissal Yaringa employed additional part time employees.

[23] As Yaringa had not been put on notice that their status as a small business may be disputed, I issued directions regarding the filing of submissions from both parties.

[24] In their written submissions dated 5 May 2017, Yaringa contended that at the time of Mr Miller’s dismissal they employed 13 employees. A further two employees were engaged as casual employees who were not employed on a regular and systematic basis.

[25] Yaringa provided an analysis of the hours worked by these two employees and submitted that neither had a clear pattern of hours or were engaged on a regular and systematic basis.

[26] In their written submissions dated 10 May 2017, the Applicant’s representatives advised that they had considered the material submitted by the Respondent and conceded that Yaringa was a small business for the purposes of section 23 of the Act.

[27] Based on the material before me, I am satisfied that at the time of Mr Miller’s dismissal, Yaringa was a small business as defined in section 23 of the Act.

Small Business Fair Dismissal Code

[28] Mr Miller was dismissed and paid five weeks’ pay in lieu of notice. The parties agreed that there was not a question of serious misconduct, and as such the ‘summary dismissal’ aspect of the Code is not relevant. 4

[29] For this dismissal to be consistent with the Code:

● The dismissal must have been for a valid reason based on the conduct or capacity of the Applicant;

● The Applicant must have been warned verbally or in writing that he risked dismissal if there was no improvement; and

● The Respondent must have given the Applicant an opportunity to respond to the warning and the Applicant must have been given a reasonable chance to rectify the problem, having regard to the Applicant’s response.

[30] Procedurally, in the discussions where dismissal was possible, the Applicant can have a support person with him.

[31] In determining if the dismissal is consistent with the Code I have considered each of the matters set out in the Code as well as whether the Applicant could have had another person with him in the meeting when he was dismissed.

The cases presented

Submissions of Yaringa

[32] Yaringa submitted that Mr Miller was employed as a Tractor Driver/Dry Storage Operator whose responsibilities were to drive the tractor assisting in launching and docking boats as required by users of the marina.

[33] Approximately 12 months prior to his dismissal, Yaringa commenced employing new employees with the expectation that those employees would take over Mr Miller’s role when he either retired or was no longer able to perform all of his duties.

[34] Mr Miller was advised that he would be secure in his role as long as he continued to meet the physical requirements of the role and was expected to work well with the new employees and assist with their training.

[35] Yaringa submitted that, following the engagement of the new employees, Mr Miller’s behaviour and performance became increasingly unsatisfactory in that he:

● Routinely failed to follow instructions of the new managers and supervisors;

● Failed to follow launching systems giving preferential treatment to favoured customers;

● Was absent from work during working hours without notifying management;

● Criticised the operation and management to customers during working hours;

● Failed or refused to perform tasks as required; and

● Failed and refused to operate machinery in a safe manner by wearing headphones whilst driving a tractor.

[36] Yaringa submitted that despite numerous warnings, Mr Miller’s performance did not improve, and as such he was dismissed.

Evidence of Mr Borzecki

[37] Mr Stefan Borzecki is the Director of Yaringa Boat Harbour.

[38] Mr Borzecki gave evidence that Mr Miller had commenced as a tractor driver and looked after the weekend staff, however was not responsible for the running of the office. As the business had grown rapidly and people were getting older and retiring, Mr Borzecki decided to employ people at a higher level than Mr Miller to run the office as well as the outside yard. 5 Mr Borzecki did not dispute that he had told Mr Miller that he needed to bring in younger employees as it was his expectation that the existing employees, whose current ages ranged between 60 and 64 years, would likely move on in due course.6

[39] He gave evidence that in his role, Mr Miller was required to take direction from both inside and outside staff. He submitted that Mr Miller was a long standing employee and was well aware of the importance of adhering to launching priority and dealing appropriately with other employees and users of the marina. 7

[40] He submitted that approximately twelve months prior to Mr Miller’s dismissal he had a meeting with Mr Miller and other employees about the future of the business. During the meeting he told Mr Miller, who is 62 years of age, and the other employees that they would have a job for life. Mr Borzecki’s evidence was that he may have been a bit loose with his English however his intention was to express that no one was going to lose their jobs. 8

[41] Mr Borzecki had a further conversation with Mr Miller to the effect that he would continue to have a job at Yaringa for as long as he was able to carry out his duties, but that they needed to employ new staff and train them in the operation of the business. He advised Mr Miller that he expected him to assist in training new staff members and bringing them up to speed with the operation of the business. 9

[42] Mr Borzecki gave evidence that after they had this conversation Mr Miller became less reliable in carrying out his duties. 10 His evidence was that:

“Things deteriorated continuously from then. First with the interaction with other staff, the interaction with other customers. It got to the stage in about November where I was the only person left able to actually have a conversation with Wayne. No one else would be – was interested. Some of the staff were even prepared to resign because they couldn’t work with him.” 11

[43] He submitted that he witnessed many of the behaviours stated in [35] above and received numerous complaints about Mr Miller from other employees, particularly in the context of other employees advising him that Mr Miller would not follow their instructions in carrying out launching operations. 12

[44] Mr Borzecki gave evidence that, due to their long working relationship, he knew Mr Miller well and would conduct any discussions about his employment in an informal manner, and typically did not document these discussions. 13

[45] Mr Borzecki gave evidence that from March 2016 to November 2016 upon receiving a complaint about Mr Miller he would catch up with him somewhere on site, advise him of the complaint and say words to the effect that he had to work better with the other staff. Mr Borzecki submitted that Mr Miller’s standard response to such conversations was to shrug his shoulders and say ‘whatever’. 14

[46] Mr Borzecki became increasingly concerned about Mr Miller’s performance leading into their peak season and, in early November, requested that Mr Miller make an increased effort on Saturdays and Sundays whilst he took care of Fridays and Mondays. 15

[47] On three occasions from the period of November 2016 until his dismissal, Mr Borzecki submitted that he spoke to Mr Miller about his performance and conduct, and that Mr Miller responded with ‘whatever’. He submitted that there was no improvement in Mr Miller’s behaviour or conduct. 16

[48] Mr Borzecki gave evidence that on at least one occasion from the period of November 2016 until his dismissal he informed Mr Miller that if his performance did not improve his employment would be terminated, to which he again responded ‘whatever’. 17

[49] On Thursday 1 December 2016, Mr Borzecki reviewed the weather forecast for the weekend and determined that Sunday 4 December 2016 would be a busy day. Accordingly, he determined that they would need to start the day early and have extra staff. 18

[50] On the evening of Saturday 3 December 2016, Mr Borzecki submitted that he noticed Mr Miller having a drink around the barbecue, and heard someone who he believed to be Mr Miller state ‘I will stuff them up tomorrow’. 19

[51] The following day, Mr Borzecki learned that Mr Miller had left a message on the office answering machine advising that he was sick, which he submitted caused enormous problems as he was unable to organise casual staff at 7am on a Sunday. 20

[52] He advised Mr Miller that if he pulled that ‘stunt’ again, being giving Mr Borzecki insufficient time to organise replacement staff, they would have to part ways. 21

[53] Mr Borzecki submitted that Mr Miller could have easily let him know that he was unwell on the prior evening to allow him to organise additional staff, particularly considering that their residences were less than 100 metres apart. 22

[54] He gave evidence that previously if Mr Miller was ill their communication was done on an informal basis. He stated that it was only if employees could not find someone to speak to, or if they lived a long way away, that they would leave a message on the answering machine. 23

[55] However he also acknowledged that there was no written procedure governing how employees were to advise of illness, and further that it would not be expected for Mr Miller to contact him directly at three in the morning should he become unexpectedly ill overnight. 24

[56] The following Sunday, Mr Borzecki gave evidence that again staff attended the premises to discover a message from Mr Miller left on the answering machine advising he would not be attending work. 25

[57] In cross-examination Mr Borzecki conceded that if Mr Miller had woken up in the morning with gout, as Mr Miller had advised, and could not walk then he shouldn’t be coming to work, and if the condition had come on suddenly first thing in the morning then it was acceptable for Mr Miller to leave a message on the answering machine. He also gave evidence that he had been provided with a medical certificate by Mr Miller and, although he questions the legitimacy of some of Mr Miller’s absences, he accepts the legitimacy of the medical certificates. 26.

[58] Mr Borzecki gave evidence that the two incidences ‘were the accumulation of the year’s problems, and if you’re asking me were they the straw that broke the camel’s back, the answer would be probably correctly, yes. I could no longer communicate with Wayne. I can’t now’. 27

[59] Mr Borzecki submitted that as Mr Miller was unwilling to be reliable at all or communicate with them properly, on 14 December 2016 he met with Mr Miller and informed him that because he had been unwilling to improve his behaviour his employment had been terminated. 28

Evidence of Ms Borzecki

[60] Ms Miranda Borzecki is the Assistant Manager at Yaringa. She submitted that she had known Mr Miller for approximately 10 years. 29

[61] She submitted that she had always found him somewhat difficult to work with, in that he was intimidating and not prepared to take instructions from her. She submitted that he would often not respond to radio calls, took his breaks at times that were inconvenient to the team, gave preferential service to customers who were his friends and would accept liability for and attempt to make repairs on boats and trailers without reporting damage to the office. 30

[62] Ms Borzecki submitted that Mr Miller only did the tasks that he wanted to do when it suited him, and that toward the end of his employment she gave up asking him to do any tasks unless absolutely necessary. 31

[63] I found Ms Borzecki to be an honest witness and have taken her evidence into consideration where relevant.

Evidence of Mr McCarthy

[64] Mr Justin McCarthy is a Yard Supervisor working at Yaringa who commenced work as a casual in September 2013. He became Yard Supervisor on 12 January 2015 and supervised three permanent yard hands and casuals including Mr Miller. 32

[65] Mr McCarthy’s evidence was that he attended a meeting in February 2016 with Mr Borzecki, Mr Miller and another employee. His recollection of the meeting differed to Mr Miller’s. Mr McCarthy gave evidence that Mr Borzecki discussed the forward planning for the Harbour and explained that as they were all getting older he needed to employ some younger employees to ensure its future operation. His evidence was that Mr Borzecki had told them during the meeting it would take 2 to 3 years to train the new employees and that their jobs were not under any threat. 33

[66] Mr McCarthy gave evidence that Mr Miller struggled over time to adapt to the changes taking place at Yaringa, had poor communication skills and was unwilling to follow instructions. 34

[67] Mr McCarthy submitted that Mr Miller would regularly leave the site without notifying anyone else, would regularly take extended breaks beyond the time permitted and would carry out personal jobs during work time. 35 Further, he gave evidence that when he attempted to raise these issues with Mr Miller, Mr Miller would become argumentative.36

[68] Mr McCarthy gave evidence that Mr Miller refused to use the company radios which were available to him for site communication and instead used his own personal radio. On occasions when they would attempt to call Mr Miller they were unable to get an answer, which would cause problems during the busy periods. 37

[69] Mr McCarthy’s evidence was that Mr Miller did not conform to taking his lunch during the designated lunch breaks, which were centred on the quiet times of the day, and instead would head off at a time that suited him, which was usually during the busiest period of the day. 38

[70] Mr McCarthy conceded however that whilst Mr Miller was difficult to talk to they managed to conduct a reasonable working relationship over the period of time they worked together. 39

Evidence of Mr Egleston

[71] Mr Charles Egleston is the Weekend Dry Storage Manager at Yaringa, having commenced work in February 2016. 40 I found Mr Egleston was at times not forthcoming with his evidence however I did not take this as Mr Egleston attempting to be evasive.

[72] Mr Egleston’s evidence was that it was his understanding that Mr Miller was responsible for training him in the correct procedures for dealing with equipment and boats, however he was reluctant to do so and passed on very little information. 41

[73] On or around the end of March or beginning of April 2016, Mr Egleston took on the role of Weekend Dry Storage Manager. He submitted that it was at this time that Mr Miller began to express resentment towards him. 42

[74] Mr Egleston’s evidence was that he experienced some frustration with Mr Miller as he would;

● Leave the site during working hours without letting anyone know where he was going;

● Took longer than permitted lunch breaks;

● Took his lunch breaks during the busiest periods;

● Refused to answer the radio;

● Not respond to directions; and

● Wore headphones on the tractor to avoid having to respond on the radio. 43

[75] Mr Egleston submitted that when he attempted to discuss these matters with Mr Miller he would reply to the effect ‘why are you stressing out’ or ‘what are you on about’. Mr Egleston believed that Mr Miller was purposefully undermining him and refusing to communicate or respond to his directions. 44

Submissions and evidence of Mr Miller

[76] Mr Miller submitted that in early 2016 he had a conversation with Mr Borzecki in which he advised him that he was 62 years old instead of 52 years old as Mr Borzecki had thought. 45

[77] After this conversation, Mr Miller submitted that Mr Borzecki’s attitude towards him appeared to change, and he began making comments such as ‘you can retire soon’, ‘you can go for trips or down to your house in Paynesville’ and ‘you can go on trips up the coast’. Mr Miller believed that these remarks were designed to try to push him out of the business. 46

[78] Mr Miller submitted that in February 2016, Mr Borzecki advised himself and two other employees that they were getting older and that he needed to bring in some younger managers. He submitted that he was told that they would be required to train these managers and then move on. 47

[79] Mr Miller submitted that after Mr Egleston was hired, he was demoted from his management position and advised that he was to teach Mr Egleston the role. 48 He submitted he taught Mr Egleston how to drive a tractor, how to back the trailers and launch them down the ramp, to use the punt to punt boats around, to tie up boats properly and how to check on the wet storage boats.49

[80] He gave evidence that he experienced issues with Mr Egleston, such as Mr Egleston:

● Micromanaging him when he was attempting to teach him the job;

● Not allowing him to take short breaks in quiet times to have coffee;

● Dictating the times when he was to take his breaks; and

● Instructing him to drive a forklift without a licence. 50

[81] However Mr Miller submitted that he did not refuse to follow directions from his colleagues and peers, except for the occasions when he was requested to drive a forklift. 51 Mr Miller denied that he was difficult to contact.52

[82] He submitted that he had never been reprimanded nor had any concerns been raised with him, verbally or otherwise, regarding his performance, staff complaints or any other issues Mr Borzecki may have had with him. 53 Mr Miller denies that he had any sort of communication problems and his evidence was that he “got along with all staff”.54

[83] Mr Miller gave evidence that whilst he would usually take his lunch at 2pm, he would go earlier when instructed by Mr Egleston. 55 He gave evidence that the distance to the lunchroom and to his house were roughly the same, with the house being potentially 20 yards further away. He advised that he would often go home for lunch or for morning tea, however that he would always go through the office and advise them of that.56

[84] Mr Miller gave evidence that he brought his own radio to work as sometimes Yaringa’s radios would have flat batteries or they would all be handed out to other employees. He submitted that he was never told not to use his own radios 57 and further that he had no difficulties with the reception on his radio from his home.58

[85] Mr Miller submitted that he did not do any work on his boat on his working days, however on his days off he may. 59

[86] Mr Miller submitted that in late November 2016 he was diagnosed with bronchitis, however still attended work. On Sunday 4 December 2016 his bronchitis had worsened and he called in to work around 3-4am, leaving a message to let the staff know that he was unwell and could not attend. 60

[87] Mr Miller gave evidence that if someone became ill during the night, it was the normal procedure for them to ring up and leave a message on the answering machine. He advised that he often heard such messages when he was working on weekends. 61

[88] The following weekend, Mr Miller submitted that he had a flare up of his gout on Saturday night and was unable to walk on one foot. He attended the doctor on Sunday and received a medical certificate. 62

[89] He submitted that he once again called Yaringa and left a message at around 3-4am, as he had been intending to go to work however was unable to put his foot on the ground once he got out of bed. 63

[90] Mr Miller gave evidence that on Wednesday 14 December Mr Borzecki attended his house at Yaringa and advised him that he was dismissed. He submitted that Mr Borzecki stated ‘you’re finished. I can’t get up in the morning and do the boats in the morning’. Mr Miller advised that he believed Mr Borzecki made this statement as he had taken two weekends off due to illness, however he was provided with no further explanation. 64

Consideration

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[91] Mr Miller submitted that Yaringa had not identified with precision, or at all, what the reason was for his dismissal. He submitted that the immediate and operative reason appeared to be that he had taken personal leave on 12 December 2016 after being warned not to ‘pull that stunt again’ by Mr Borzecki. 65

[92] Yaringa submitted that in the period leading up to his dismissal Mr Miller had become increasingly uncooperative and would not take direction from other staff, both in person and via the radio system in operation of the marina. 66

[93] Mr Borzecki is a small business owner who has been suffering from a serious health condition. Mr Borzecki was managing an aging workforce and further to this the Harbour had grown and become increasingly busy. For those reasons Mr Borzecki sought to make some changes to the way the marina operated.

[94] Mr Miller was a long standing employee, and Mr Borzecki and Mr Miller lived in houses approximately 50 to 100 meters apart. In considering the evidence it is evident that Mr Miller had somewhat of an informal relationship with Mr Borzecki and, being a longstanding employee, he was accustomed to this arrangement. When Mr Borzecki was forced to change the way he operated his business Mr Miller did not adjust to the new style of operation.

[95] Mr Borzecki does not deny making comments to Mr Miller about future retirement plans however there is a factual dispute between the parties as to the context in which these discussions took place. Mr Borzecki’s evidence in this regard is consistent with the evidence of Mr McCarthy. On this matter I accept the evidence of Mr Borzecki.

[96] There is no dispute between the parties that Mr Miller was told by Mr Borzecki that he would be hiring new employees and that Mr Miller was required to train those new employees. It is perfectly reasonable for Mr Borzecki to succession plan for the future operation of the business.

[97] In cross-examination Mr Miller conceded that Mr Egleston’s duties went beyond those of his own. 67 Mr Egleston’s role was to oversee Mr Miller as well as the indoor and outdoor staff. After considering the evidence before me I am not satisfied that Mr Miller was in anyway demoted. I accept that Mr Miller did train Mr Egleston in various parts of the operation; however Mr Egleston’s role was to be much broader in its responsibilities than Mr Miller’s.

[98] It is clear to me the witnesses were experiencing a high degree of frustration over Mr Miller’s conduct. It could not be said on the evidence before me that Mr Miller was compliant in taking instruction from others or a team player.

[99] I found Mr Borzecki to be an honest and credible witness. He gave honest answers even when they did not result in his favour. I accept Mr Borzecki’s evidence that he communicated his concerns about Mr Miller’s performance with Mr Miller in an informal manner over a period of time. This is sometimes typical of small business owners who have longstanding relationships with their employees.

[100] I also found Mr McCarthy to be an honest and reliable witness. I accept the evidence of Mr Borzecki and Mr McCarthy, being that Mr Miller had become increasingly difficult to work with since the February 2016 meeting, and that therefore due to Mr Miller’s attitude and behaviour working with him was becoming untenable.

[101] Whilst I accept that there were ongoing performance issues with Mr Miller, for the reasons I have outlined below, I am not satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code.

Was Mr Miller dismissed for a valid reason based on his conduct or capacity?

[102] Mr Borzecki’s evidence was that Mr Miller’s consecutive absences over two busy weekends were the “straw that broke the camel’s back”. 68 It was therefore the incidents of the two consecutive absences that led to the dismissal. However there is an onus on an employer to comply with the small business fair dismissal code even in the circumstances where there is an informal relationship and especially in circumstances where there are ongoing performance issues. The code is written to ensure fairness to both parties.

[103] I accept the evidence that Mr Miller had changed the way he notified Mr Borzecki of his intention to take time off due to his various medical conditions and that Mr Borzecki had concerns about Mr Miller’s true intentions for taking sick leave on the busiest days of the season. His concerns were based on the premise that in the past Mr Miller would show up for work in similar circumstances.

[104] Although Mr Borzecki’s reasoning is understood it is not accepted to be a reasonable basis for dismissing an employee. Mr Borzecki cannot have it both ways, and Mr Miller did not act in any way that was inconsistent with what was expected of other employees. Mr Miller’s conduct in changing the way he provided notification of his pending absence was consistent with the actions of other employees and the changing nature of the business.

[105] The evidence is, and Mr Borzecki does not dispute, that Mr Miller was in fact suffering from an illness and had provided medical certificates. Mr Borzecki does not dispute the validity of the medical certificates. Regardless as to whether Mr Miller would have in the past worked whilst he was ill, he was entitled to not attend the workplace in those circumstances.

[106] Whilst Mr Borzecki told Mr Miller not to ‘pull that stunt again’, he did not provide any evidence that he informed Mr Miller of a different or more appropriate course of conduct by which Mr Miller should proceed.

Was Mr Miller warned verbally or in writing that he risked being dismissed if his conduct or performance did not improve?

[107] Mr Miller’s evidence was that he was twice called into the office by Mr Borzecki and was instructed to get along with Mr Egleston. Mr Miller maintains that during these discussions he was not warned that if he didn’t he risked being dismissed. 69

[108] Yaringa submitted that from around the beginning of November, Mr Borzecki spoke to Mr Miller about their concerns on at least three occasions and, on at least one of these occasions, warned him that his continued employment was at risk. 70

[109] Yaringa submitted that Mr Borzecki’s evidence as to these matters should be preferred as he was not cross-examined as to these conversations and his evidence is consistent with that given by other staff of Mr Miller becoming increasingly uncooperative and difficult to deal with. 71

[110] Mr Miller disputes that he was provided with these warnings, however submits that even if he accepted the evidence of Mr Borzecki, the alleged warnings would not be sufficient.

[111] He submitted that the first alleged warning was that ‘if he did not pull his socks up (Mr Borzecki) would have no choice but to fire him’. 72

[112] Mr Miller submitted that even if he accepted the evidence of Mr Borzecki that this conversation occurred, it could not be characterised as a warning that identified the relevant aspects of his performance which is of concern to the employer. Instead, he submitted that it was a mere exhortation to improve, which is not sufficient. 73

[113] Further, Mr Miller submitted that this warning gives no opportunity for him to improve his performance or rectify the problem because it is too vague, even when viewed in the whole context of the conversation. 74

[114] I am satisfied that Mr Borzecki had warned Mr Miller to make an effort to get along with other staff members and that if his behaviour continued or “if he didn’t pull his socks up he would have no choice but to fire him”. 75 Quite plainly Mr Borzecki had used words that would clearly indicate to Mr Miller his employment would be at risk if he didn’t make changes to the way he conducted himself.

[115] Mr Miller submits that the warnings provided by Mr Borzecki would not be sufficient as they did not identify the relevant aspects of his performance. In the absence of sophisticated HR speak, I am satisfied that Mr Borzecki, as a small business operator, made it plainly clear to Mr Miller what his concerns were and, on at least one occasion, he informed him that he may be at risk of being dismissed.

[116] I agree with the submission of Mr Miller that the second alleged waning, being Mr Borzecki’s statement that if he pulled ‘that stunt’ again they would have to part ways, could be construed as either a warning not to take sick leave or a warning for calling in sick to the answering machine. 76 Further, I agree with the submission that either construction of this alleged warning would be insufficient, as the first would be a warning against exercising his workplace rights, and the second would be a warning against following a procedure that was acknowledged by Mr Borzecki to be the appropriate course of action.77

[117] Mr Borzecki’s evidence was that the events of the consecutive weekends of absence by Mr Miller were the ‘straw that broke the camel’s back’. In an inadequate way he did tell Mr Miller why he was being dismissed, however he had not at any stage prior to the meeting or at the time of the meeting informed Mr Miller that for the reason of his absences his job was at risk and even if he had, in these circumstances it is not a valid reason for dismissing someone.

[118] Therefore I am not satisfied that the reason Mr Borzecki gave Mr Miller for the dismissal on 14 December 2016 was a valid reason based on Mr Miller’s conduct or capacity to do the job. I am not satisfied that there was or is a reasonable basis to conclude that by Mr Miller taking two consecutive weekends off due to illness had acted in a way that warranted dismissal.

Was Mr Miller given the opportunity to respond to the warning and a chance to rectify the problem?

[119] I have considered the evidence and I am satisfied, on those matters of Mr Miller’s conduct pertaining to communication and his relationship with other employees, Mr Miller had been warned he risked dismissal if he didn’t improve and had an opportunity to respond to Mr Borzecki’s concerns. I accept Mr Borzecki’s evidence that Mr Miller’s attitude in response to Mr Borzecki’s concerns was dismissive.

[120] However, as discussed above I am not satisfied that Mr Miller was dismissed for reasons of his conduct pertaining to communication and his relationships with other employees.

[121] Mr Borzecki on the day of the dismissal had decided to dismiss Mr Miller prior to meeting with him at his house due to Mr Miller’s conduct in taking two consecutive weekends off due to illness at short notice via a message left on the office answering machine. The purpose of the meeting was to inform Mr Miller of the dismissal and the reason for the dismissal. There was no meaningful opportunity for Mr Miller to respond or influence Mr Borzecki’s decision.

[122] Having determined that the dismissal was not consistent with the Code I will now consider if the termination was harsh, unjust and unreasonable.

Harsh, Unjust Unreasonable

Was there a Valid Reason for the dismissal- s.387(a)

[123] For the reasons outlined earlier, I am not satisfied the dismissal was for a valid reason.

Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)

[124] For the reasons discussed earlier I am satisfied that Mr Miller was told he was being dismissed due to being absent from work for two consecutive weekends during busy periods and failing to inform Mr Borzecki personally. These reasons were not a valid reason for termination of employment.

[125] I am satisfied that Mr Miller was given an opportunity to respond to the allegations of prior conduct or performance referred to earlier in this decision. However, he was not given an opportunity to respond to the allegations of conduct that were the reason for his dismissal. Mr Miller was not given an opportunity to respond to these matters in the context of his employment being at risk. The risk to his employment only became explicitly clear at the termination meeting and Mr Miller did not have a meaningful opportunity to respond.

[126] Mr Borzecki went to Mr Miller’s house with the express purpose of dismissing Mr Miller. The meeting began with Mr Borzecki informing Mr Miller that he was being dismissed and then he loosely explained the reason for the dismissal. Mr Borzecki had decided to dismiss Mr Miller before the meeting commenced and Mr Miller had no meaningful opportunity to influence Mr Borzecki.

Unreasonable Refusal of a Support Person – s.387(d)

[127] Mr Miller was not advised that Mr Borzecki would be attending his home in order to dismiss him. He had no opportunity to request a support person even if he had wanted to do so. 78

Warnings regarding Unsatisfactory Performance – s.387(e)

[128] For the reasons discussed earlier I am not satisfied that the reason for the termination was unsatisfactory performance. The weight of Mr Borzecki’s evidence is that the dismissal would probably not have occurred at that time but for the consecutive absences over two weekends during a busy period, and this was the issue raised at the termination meeting.

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)

[129] I am satisfied that the small size of the business and the absence of expertise affected the procedures followed.

Other Relevant Matters – s.387(h)

[130] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any other matters that the Commission considers relevant.

[131] Mr Miller submits that I should also take into consideration the impact of the dismissal on his personal and economic situation, insofar as he has lost his sole source of income and will find it difficult to find suitable alternative full time employment. 79

[132] He also submits that I should take into consideration the availability of alternative disciplinary actions, his strong performance throughout his 13 years of service and the numerous comments made by Mr Borzecki relating to both his age and his taking of sick leave. 80

[133] As stated earlier in this decision there was a degree of informality about the employment relationship given the small size of the business and the nature of the living arrangements of Mr Miller and Mr Borzecki. As part of Mr Miller’s job he was expected to be and was available in most circumstances and there previously existed some flexibility in his working arrangements. This however underlined the informality of the employment arrangements. This is often typical of a small business and tends to reinforce the lack of clear rules and communication in the employment relationship which I consider contributed to some of the misunderstandings between Mr Borzecki and Mr Miller, resulting in a breakdown of a longstanding relationship.

[134] It is also relevant to consider Mr Miller’s personal circumstances in judging whether or not termination of employment was harsh. Mr Miller was employed by Yaringa for a lengthy period of time and is over the age of sixty, which he submits may make future employment prospects extremely limited. However I also note Mr Miller had managed to obtain work shortly after his dismissal.

Finding

[135] The lack of expertise in the small business is not sufficient to outweigh the lack of a valid reason. I have considered this together with the other matters dealt with in s.387 of the Act, and in all the circumstances I am satisfied that the dismissal was unfair in that it was harsh, unjust or unreasonable.

Remedy

[136] The Fair Work Act 2009 (Cth) (the Act) provides the following with respect to remedy:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[137] Mr Miller does not seek reinstatement and submits that it is not appropriate to order reinstatement if it is not sought. 81 Yaringa did not make any submission regarding reinstatement however noted that it was not sought by Mr Miller.82

[138] In all of the circumstances I am satisfied there would be no prospect of re-establishing a productive and cooperative relationship. Where a friendship once existed, the relationship between the parties is now irreparable and I do not consider reinstatement would be appropriate or practical. I find an order for compensation is appropriate.

[139] Section 392 of the Act sets out the criteria to which I must give regard in determining any amount of compensation I might order Yaringa to pay Mr Miller. I will consider each of these in succession below.

[140] In determining the amount of compensation to be ordered, the Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

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.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

The effect of the order on the viability of the employer’s enterprise – s.392(2)(a)

[141] Mr Miller submitted that any order made by the Commission would not materially effect Yaringa’s ongoing viability. 83

[142] There are no submissions or definitive evidence before me that any amount of compensation I might order Yaringa to pay Mr Miller would threaten the viability of Yaringa’s enterprise.

Length of the person’s service with the employer – s.392(2)(b)

[143] Mr Miller had been employed at Yaringa since 26 December 2003 until his dismissal on 14 December 2016. He was therefore a long serving employee of almost 13 years. 84

Remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed – s.392(2)(c)

[144] Mr Miller submitted that he wanted to work until his retirement at age 65. He submitted that he was well settled in the position, having been there for 13 years, lived on the premises and that there was no reason why he would not have continued until retirement. 85

[145] Therefore, Mr Miller submitted that his anticipated period of continued employment is three years. 86

[146] Yaringa submitted that Mr Miller would not have continued to be employed by them for more than a short period as his working relationship with other staff and Mr Borzecki had become untenable. 87

[147] In this decision I have accepted that conduct and performance issues were in existence. It is highly unlikely given those issues that Mr Miller’s employment with Yaringa would have continued for any great length of time. It was clearly only a matter of time before Mr Miller would have been dismissed for those reasons of conduct or performance he had already received warnings for.

[148] Further, Mr Miller had been given notice to vacate his premises by the end of February. 88 I am therefore unable to conclude under those circumstances that Mr Miller would have remained in employment beyond 11 weeks from his dismissal date.

[149] Whilst working at Yaringa, Mr Miller received a base salary of $41,496 per annum, accommodation and boat storage. 89

The value of the accommodation

[150] The value of the accommodation provided to Mr Miller through his employment was contested by the parties.

[151] Yaringa submitted at as per correspondence dated 4 April 2016 and the evidence of Mr Borzecki, the agreed value of the accommodation was $400 per fortnight. 90

[152] They submitted that as section 332 of the Act defines earnings to include the agreed monetary value of non-monetary benefits this is the figure that should be utilised. 91

[153] Mr Borzecki however gave evidence that whilst this would have been a fair estimation of the value of the accommodation when the agreement commenced, based on the rates of other houses in the local area it could currently be valued at up to $400 per week. 92

[154] Mr Miller submitted that section 332 of the Act is not relevant in assessing compensation under section 392 nor remuneration under section 392(2)(c) and 392(6)(a). He submitted that remunerations and earnings have different meanings, and that the evidence of Mr Borzecki should be believed. 93

[155] The evidence before me as to the agreed value of the accommodation between Mr Borzecki and Mr Miller is $400 per fortnight. Therefore Mr Miller was in receipt of accommodation up to the value of $10,400 per annum.

The value of the boat storage

[156] There was conflicting evidence given by the parties in relation to the value of the boat storage Mr Miller was provided with during his employment.

[157] Mr Miller submitted that as he had a 28 foot boat, the cost to keep it at the Harbour would be up to $40 per week. 94 This equates to approximately $2,080 per annum.

[158] Mr Borzecki submitted that for a boat the size of Mr Miller’s he believed the value of the storage was approximately $3,000 per annum. 95

[159] I have taken Mr Borzecki’s evidence into consideration and determine the value of the boat storage to be $3,000 per annum.

[160] I calculate Mr Miller’s annual salary to be $54,896 per annum. Therefore his weekly salary would have amounted to $1,055.69. Had Mr Miller remained in employment for a further 11 weeks he would have been paid $11,612.59.

[161] Mr Miller has been paid 5 weeks in lieu of notice therefore I do not include any additional amount for the period of notice.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal – s.392(2)(d)

[162] Mr Miller submitted that he had sought to find other employment and had been partially successful. 96

[163] He advised that, at the time of the hearing, he was performing odd jobs with the TAC a few days per week, putting out road signs. 97

[164] Yaringa submitted that the evidence Mr Miller had provided in relation to mitigation is insufficient, in that he had only provided evidence about the work he has performed since the dismissal rather than his efforts to find work or further mitigate his loss. 98

[165] In my view the simple fact that Mr Miller had obtained and remained in employment since his dismissal up until the date of the submission on its own demonstrates he has made suitable efforts to mitigate the effects of unemployment, therefore I make no deduction for reasons of absence of attempts to mitigate the loss he has suffered.

The amount of remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation – s.392(2)(e)

[166] I have adopted the approach of the Full Bench of the AIRC in Ellawala v Australian Postal Corporation 99 as follows;

“Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the “anticipated period of employment”. This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the “anticipated period of employment” are deducted. An example may assist to illustrate the approach to be taken.

In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first 12 months after termination (that is $36,000) is deducted from the Commission’s estimate of the applicant’s lost remuneration. Monies earned after the end of the “anticipated period of employment”, 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.”

[167] It was submitted that between December 2016 and April 2017 Mr Miller earned $9,470 in total, being an average of $557 per week. 100 However, Mr Miller provided evidence in the form of his record of his earnings 101 and from those records in the 11 weeks after his dismissal I have calculated those earnings to be a total of $5,317.50.

Any amount of income reasonably likely to be earned during the period between the making of the order and the actual compensation – s.392(2)(f)

[168] At the time of his submission, Mr Miller submits he had total earnings of $9,470. I have considered this requirement in the context of the above. Only the money earned in the 11weeks after the termination of employment ($5,317.50) is deducted from what I estimate to be Mr Miller’s lost remuneration. In the remaining 11 weeks that I have determined Mr Miller would have remained in employment had he not been dismissed by Yaringa he would have earned $11,612.59. This amount less Mr Miller’s income earned over the 11 week period leaves a total compensation amount of $6,295.09.

Any other matter that the FWC considers relevant – s.392(2)(g)

Underpayment of wages

[169] Mr Miller submitted that I should take into consideration the underpayment of his wages throughout his employment. He submitted that he was not paid for overtime and did not receive any loadings for work performed before 7am on Saturdays or work on Sundays. 102

[170] Mr Miller gave evidence that during the high season, which he advised was from September to April each year, he commenced working between 5am and 5.30am 103 and finished between 5.30pm and 6pm on Saturdays and Sundays.104 On Mondays and Fridays he would commence between 6.30am and 7am and finish at 5pm.105 The high and low season was something of a contested issue between the parties, as was Mr Miller’s required starting and finishing times. Mr Miller’s evidence was inconsistent on these matters as he later gave evidence that the high season commenced in November.106

[171] He also gave evidence that all through the year, on every night of the week, part of his duties were to complete a ‘walk around’ of the dock commencing between 7.30pm and 8pm. He submitted that on this walk around he would need to check on the boats, conduct a security check on the pens and lock the boom gates and that this would take between 30 to 45 minutes to complete. 107 Mr Borzecki gave evidence that this was a shared role that he and Mr Miller completed five nights per week between them. He submitted that sometimes they did it together, and sometimes it would not be done.108

[172] Mr Miller gave evidence that his starting and finishing times were recorded on a sign in sheet. 109 However, Yaringa submitted that those start and finishing times were not necessarily what was required of Mr Miller, with Mr Borzecki giving evidence that staff would start at 6am on at most seven or eight days a year, and would only continue past 5pm on few occasions.110

[173] Mr Miller submitted that had he been paid correctly, he would have been entitled to a base salary of $1,074.86 per week instead of the $798 per week he was in fact paid. 111

[174] Mr Borzecki gave evidence that the high season occurred from December to January, finishing on the Australia Day long weekend. 112

[175] Mr Borzecki also gave evidence that the standard operating hours during this period are 8am to 5pm, however on ‘big days’ they would commence at 7am. He submitted that it would be very rare for them to work past 5pm, and that the log sheets would support his contention. 113 Whilst Yaringa did not submit these log sheets as evidence, Mr Miller did not seek to have any order made requiring their production.

[176] Mr Miller submitted a ‘Yaringa Magazine’ clipping from 2009 that stated his normal working hours were “7am Saturday (earlier in peak season)”, “7am Sunday (much earlier in peak season)”, and that he would “at 5pm start closing procedures”. 114 Other than this magazine clipping, Mr Miller did not submit any evidence for consideration of this matter.

[177] Yaringa submitted that their records, which again were not submitted as evidence before this Commission, did not support Mr Miller’s submission regarding the hours he worked. They submitted that between 1 December 2015 and the date of dismissal Mr Miller commenced work before 7am on only twelve occasions and never worked past 5.15pm. 115

[178] In considering all of the criteria of section 392 I have considered the matter of Mr Miller’s starting and finishing times, and whether or not he was paid appropriately for overtime during peak season or whether this was offset by the relaxed arrangements during the down season. These are contested facts, and given the complexities and informal arrangements between Mr Miller and Mr Borzecki there is insufficient evidence before me to determine that there was an underpayment. It should be noted that Mr Miller had access to benefits with his employer on an informal basis, and the value of those arrangements is also a contested fact. I note that issues such as the underpayment or lack of payment of wages are matters outside the scope of my consideration in this matter and the pursuit of those entitlements is a matter for Mr Miller.

Other reasons relevant to my consideration.

[179] Whilst I have based my calculations of Mr Miller’s earnings in the 11 weeks after his dismissal on the pay records provided, Mr Miller advised that some of these records were inaccurate in that he may have been in receipt of additional monies on occasion. 116

[180] I also note that Mr Miller had remained in his accommodation for a period after his dismissal, and therefore was in receipt of that benefit. 117

[181] Although I have found that Mr Miller’s employment would not have continued beyond 11 weeks due to his deteriorating performance, I do not consider there has been any misconduct which would require me to further reduce the amount of compensation.

[182] However, Mr Miller must accept some responsibility for what has happened. I am satisfied that although there was no valid reason for the termination, the employer had reasonable concerns about the conduct of Mr Miller.

[183] For the reasons I have discussed above, I consider the amount of compensation should be reduced by 20% for contingencies.

[184] I do not include any component by way of compensation for shock, distress or humiliation caused by the manner of the dismissal.

Conclusion

[185] Yaringa must pay to Mr Miller the amount of $5,036.07 plus applicable superannuation, less appropriate taxation as required by law.

[186] I take into account that Yaringa is not likely to have budgeted for an order of compensation in these circumstances. I therefore deem it appropriate that the compensation be paid within 30 days from the date of this decision and consequential order. 118 Yaringa is at liberty to apply for a variation to this time period.

COMMISSIONER

Appearances:

M. Irving for the Applicant

A. Duffy for the Respondent

Hearing details:

2017

Melbourne

April 24

Final written submissions:

Applicant 8 June 2017

Respondent 5 June 2017

1 Exhibit A3

2 Exhibit A3

3 PN48

4 PN38 – PN44

5 PN348

6 PN492

7 Exhibit R1 [10]

8 PN351

9 Exhibit R1 [12]

10 Exhibit R1 [13]

11 PN361

12 Exhibit R1 [15]

13 Exhibit R1 [16]

14 Exhibit R1 [17]

15 Exhibit R1 [19]

16 Exhibit R1 [21] – [22]

17 Exhibit R1 [23]

18 Exhibit R1 [25]

19 Exhibit R1 [26]

20 Exhibit R1 [29]

21 Exhibit R1 [31]

22 Exhibit R1 [30]

23 PN359

24 PN530 – PN532

25 Exhibit R1 [33]

26 PN545-PN548

27 PN570

28 Exhibit R1 [35] – [36]

29 Exhibit R2

30 Exhibit R2

31 Exhibit R2

32 Exhibit R3

33 PN726-PN728

34 Exhibit R3

35 Exhibit R3

36 Exhibit R3

37 PN806-807

38 PN821

39 PN796-PN799

40 Exhibit R4

41 Exhibit R4

42 Exhibit R4

43 Exhibit R4

44 Exhibit R4

45 Exhibit A9 [19]

46 Exhibit A9 [20]

47 Exhibit A9 [22]

48 Exhibit A9 [23]

49 PN165 – PN166

50 Exhibit A9 [24] – [27]

51 Exhibit A9 [36]

52 PN266

53 Exhibit A9 [38]

54 PN238

55 PN258 – PN259

56 PN107

57 PN108 – PN109

58 PN111

59 PN114

60 Exhibit A9 [29] – [30]; PN102

61 PN94

62 Exhibit A9 [31]

63 PN105

64 Exhibit A9 [32]

65 Applicant submissions in reply, [2]

66 Respondent closing submissions and submissions on remedy, [2]

67 PN249 – PN250

68 PN570

69 PN245-PN246

70 Respondent closing submissions and submissions on remedy, [3]

71 Respondent closing submissions and submissions on remedy, [4]

72 Applicant submissions in reply, [5]; Exhibit R1 [23]

73 Applicant submissions in reply, [5]; Fastidia Pty Ltd v Goodwin (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) Print S9280 at [44]

74 Applicant submissions in reply, [5]

75 Exhibit R1 [23]

76 Applicant submissions in reply, [6]

77 Applicant submissions in reply, [6]

78 Exhibit A10 [67] – [68]

79 Exhibit A10 [72]; Ricegrowers Co-operative Limited v Schliebs (unreported, AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001) Print 908351 [26]

80 Exhibit A10 [72]

81 Applicant submission on remedy, [1]

82 Respondent closing submissions and submissions on remedy, [5]

83 Exhibit A10, [78]

84 Applicant submission on remedy, [4]

85 Applicant submission on remedy, [14]

86 Applicant submission on remedy, [14]

87 Respondent closing submissions and submissions on remedy, [8]

88 PN130

89 Applicant submission on remedy, [6]

90 Exhibit A4, PN524

91 Respondent closing submissions and submissions on remedy, [12]

92 PN524 – PN527

93 Applicant submissions in reply, [15]

94 PN157

95 Transcript PN528 – PN529

96 Applicant submission on remedy, [7]

97 PN86 – PN87

98 Respondent closing submissions and submissions on remedy, [8]

99 Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109

100 Applicant submission on remedy, [8]

101 Exhibit A1

102 Applicant submission on remedy, [10]

103 PN168; PN182 - PN184

104 PN178

105 PN181; PN185 - 186

106 PN233

107 PN188 – PN190

108 PN412

109 PN175

110 PN355-PN358

111 Applicant submission on remedy, [11]

112 PN353

113 PN355

114 Exhibit A2

115 Respondent closing submissions and submissions on remedy, [11]

116 PN307

117 PN131

118 PR595799

Printed by authority of the Commonwealth Government Printer

Wayne Miller v Westernport Boat Harbour Pty Ltd T/A Yaringa Boat Harbour

[2017] FWC 4572

4 SEPTEMBER 2017

DECISION