s.394 - Unfair dismissal

• [1] Mr Ibrahim Elmobayed has applied to the Commission for an unfair dismissal remedy pursuant to s 394(1) of the Fair Work Act 2009 (Cth) (Act). Mr Elmobayed alleges he was unfairly dismissed from his casual employment with the respondent, The Trustee for Tarocash Trading Trust.

• [2] The respondent objects to the application on the basis that Mr Elmobayed was a casual employee and is not a person protected from unfair dismissal pursuant to s 382 of the Act. The respondent submits that if it is wrong about this, the dismissal was not otherwise unfair.

Is Elmobayed a person protected from unfair dismissal?

• [3] Mr Elmobayed commenced employment with the respondent as a casual retail sales assistant in May 2023.[1] While Mr Elmobayed was not engaged to perform any shifts for the respondent after 29 December 2024, it is not in dispute that Mr Elmobayed was dismissed by the respondent with effect on 21 March 2025[2] when the respondent informed Mr Elmobayed that he would not be offered any further shifts.

• [4] The respondent's state manager, Mario Rosa gave evidence that the respondent's policy is to offboard casual employees who have not received shifts for more than four weeks. Mr Rosa said that Mr Elmobayed had not been rostered for any shifts for approximately three months immediately prior to his dismissal. Mr Rosa sent Mr Elmobayed a text message, followed by a telephone call on 21 March 2025,[3] advising him that he was being "let go" due to "inactivity."[4]

• [5] Mr Rosa said that over the course of his employment, Mr Elmobayed worked "varying" shifts per week; at times he would work "four shifts in a week, at times he would two, sometimes one, sometimes none." Mr Rosa's evidence is broadly consistent with Mr Elmobayed's evidence that he routinely worked casual shifts on Thursday and Friday evenings and on the weekend, outside the hours he performed in his full-time role with another employer.

• [6] Mr Elmobayed contends that he was recorded in the respondent's system as a "permanent casual." While there is no evidence before the Commission demonstrating this (or what it means), I note that this evidence was not contradicted by the respondent. The respondent does not rely upon any documentary material recording Mr Elmobayed's hours of work in the period between May 2023 and 27 June 2024. Rather, the respondent relies upon a payroll report that sets out the shifts that Mr Elmobayed worked from 27 June 2024 to the effective date of his dismissal.[5] The respondent's payroll report demonstrates as follows:

(1) Mr Elmobayed worked casual shifts between 27 June and 30 June 2024 (inclusive)

(2) In July 2024, Mr Elmobayed worked 12 casual shifts as follows:

(a) 4 July to 7 July 2024 (inclusive)

(b) 11 July to 14 July 2024 (inclusive)

(c) 19 July 2024

(d) 21 July 2024

(e) 27 July to 28 July 2024 (inclusive)

(3) In August 2024, Mr Elmobayed worked 4 casual shifts as follows:

(a) 10 August to 11 August 2024 (inclusive)

(b) 18 August 2024

(c) 25 August 2024

(4) In September 2024, Mr Elmobayed worked no shifts.

(5) In October 2024, Mr Elmobayed worked 3 casual shifts as follows:

(a) 3 October 2024

(b) 6 October 2024

(c) 20 October 2024

(6) In November 2024, Mr Elmobayed worked 5 casual shifts as follows:

(a) 8 November 2024

(b) 22 November to 23 November 2024 (inclusive)

(c) 28 November to 29 November 2024 (inclusive)

(7) In December 2024, Mr Elmobayed worked 4 casual shifts as follows:

(a) 20 December 2024

(b) 27 December to 29 December 2024 (inclusive)

(8) In January 2025, Mr Elmobayed worked no shifts.

(9) In February 2025, Mr Elmobayed worked no shifts.

(10) In March 2025 in the period prior to the dismissal, Mr Elmobayed worked no shifts.

• [7] The respondent submits that the payroll report demonstrates that Mr Elmobayed's employment in this period was ad hoc and sporadic and that his hours of work differed from month to month. Mr Elmobayed contends that the payroll report is incomplete as it does not address the period of his employment between May 2023 and 27 June 2024 during which he submits that he regularly worked as a permanent casual. I accept Mr Elmobayed's contention that the evidence does not provide a complete picture of the shifts worked over the entirety of Mr Elmobayed's employment with the respondent as a casual employee.

• [8] Section 390(1)(a) of the Act provides that the Commission must, relevantly, be satisfied that a person was protected from unfair dismissal at the time of being dismissed before it may make an order in the person's favour for an unfair dismissal remedy.

• [9] Section 382(a) relevantly provides that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment with their employer of at least the minimum employment period. Section 383 sets out the meaning of minimum employment period. Relevantly, s 383(a) provides that the minimum employment period, in respect of an employer which is not a small business employer, is 6 months ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal.

• [10] Section 384 of the Act relevantly provides as follows:

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; ...

• [11] The term regular casual employee as used in s 384(2)(a)(i) is defined by s 12 of the Act. It provides:

regular casual employee: a national system employee of a national system employer is a regular casual employee at a particular time, if at that time:

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a regular and systematic basis.

• [12] Section 22 of the Act defines the terms service and continuous service in the following way:

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee's continuous service with his or her national system employer, but does not count towards the length of the employee's continuous service.

• [13] It is not in dispute that the respondent is not a small business employer for the purposes of s 383(b) of the Act. It follows that Mr Elmobayed must have completed a minimum employment period of at least six months with the respondent pursuant to s 383(a) in order to be a person protected from unfair dismissal.

• [14] The Full Bench of the Commission in Shortland v The Smiths Snackfoods Co Ltd[6] (Shortland) said that continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements.[7] Gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee's period of continuous service.[8]

• [15] I am satisfied that Mr Elmobayed's employment with the respondent was continuous in the period between May 2023 to 21 March 2025 when he was informed by Mr Rosa that there will be no further engagements. This period therefore constitutes Mr Elmobayed's period of continuous service. However, as a casual employee, only periods of Mr Elmobayed's service that meet the requirements of s 384(2)(a)(i) and (ii) count towards Mr Elmobayed's period of employment for the purposes of s 384 of the Act.

• [16] In Yaraka Holdings Pty Ltd v Giljevic,[9] the court determined that it is the engagement that must be regular and systematic, not the hours worked pursuant to such engagement.[10] It said that the term regular is to be construed liberally, as some form of repetitive pattern, rather than being used as a synonym for "frequent" or "often," and that systemic does not mean "predictable."[11] The Commission has consistently applied Yaraka Holdings to s 384(2)(a), including in the Full Bench decisions of Chandler v Bed Bath N' Table[12] and Bronze Hospitality Pty Ltd v Janell Hansson.[13]

• [17] The period of regular and systematic employment must coincide with a reasonable expectation of ongoing employment, in order for the relevant period of service to count towards the period of employment under s 384(2)(a)(ii).[14] For the purposes of this provision, the question is whether during his period of service as a casual employee, Mr Elmobayed had a reasonable expectation of ongoing employment on a regular and systematic basis. In Bronze Hospitality Pty Ltd v Janell Hansson[15] the Full Bench made the following observations about this test, which were upheld by the Federal Court:[16]

It will be recalled that s.384(2)(a) states that a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

We make some observations about the construction of s.384(2)(a)(ii). First, 'during' can mean either 'throughout the course of' or 'at a point in the course of'. In our view, the first of these meanings is intended. The sub-provision is an exception to an exception; a period of casual service does not count, unless two requirements are met. Both of these requirements concern states of affairs that can develop over time. This context points to the word 'during' connoting a continuous period, rather than a point in time. Further, the alternative construction would mean that a casual employee need only have a reasonable expectation of continuing employment for any fleeting period in the course of the casual employment. There is no apparent rationale that would support this being the intended meaning. Finally, we note that the explanatory memorandum to the Fair Work Bill states simply that 'service as a casual employee does not count towards the period of employment unless it was on a regular and systematic basis and the employee had a reasonable expectation of continuing engagement on a regular and systematic basis.' This wording is consistent with the interpretation we favour, and inconsistent with a 'point in time' meaning. The effect of this is that a particular period of service as a casual employee only 'counts' in respect of periods when the casual employment was regular and systematic and the employee had a reasonable expectation of continuing employment.

• [18] I consider the views of the Full Bench remain applicable to s 384 of the Act, despite amendments to the provision after the above decision was issued. Further, the Federal Court in Bronze Hospitality Pty Ltd v Janell Hansson (No 2)[17] said as follows in relation to the reasonableness component of s 384(2)(a)(ii):

The ordinary meaning of the words of s 384(2)(a)(ii) requires that the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis. If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is true that the word 'reasonable' is generally used in the law to import an objective standard: Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord Hoffmann). But the FWA does not limit the matters that may be taken into account in determining whether the expectation is reasonable. Certainly, the shorter the period of employment, generally the harder it will be for the employee to establish that he or she reasonably relied on a pattern of work, if that is the basis of his or her reasonable expectation. But the reasonableness of the expectation depends on all the circumstances...

• [19] I find that Mr Elmobayed was a regular casual employee of the respondent within the meaning of s 12 of the Act from May 2023 to December 2024. The evidence before the Commission, including the oral evidence of Mr Rosa and Mr Elmobayed, is sufficient to satisfy me that Mr Elmobayed's employment as a casual employee in this period was regular in the sense of being sufficiently repetitive. Further, Mr Elmobayed's employment can be described as systematic - that is, arranged pursuant to an identifiable system because his employment was the subject of a roster system involving Mr Elmobayed indicating in advance his availability to work and then working in accordance with a roster subsequently prepared and communicated to Mr Elmobayed by the respondent. It follows that for the purposes of s 384(2)(a)(i) of the Act, Mr Elmobayed's employment during this period was as a regular casual employee.

• [20] I also consider, in respect of s 384(2)(a)(ii), that Mr Elmobayed had a reasonable expectation of continuing casual employment with the respondent on a regular and systematic basis during this period. This expectation arose from the fact that it is not in dispute that, pursuant to a roster system, he was employed most weeks to work hours variously between Thursday and Sunday.

• [21] From 29 December 2024, there was a change in the frequency or pattern of Mr Elmobayed's casual engagements, and he was not assigned any further casual shifts. I find that in respect of this period, Mr Elmobayed's employment was not regular and systematic. I am also unable to see how a continuing expectation of employment (regular and systematic or otherwise) could have been reasonably held by Mr Elmobayed after December 2024. Accordingly, I am not satisfied that Mr Elmobayed had a reasonable expectation of ongoing employment for the purposes of s 384(2)(a)(ii) of the Act after 29 December 2024.

• [22] Irrespective of the circumstances after 29 December 2024, the preceding analysis demonstrates that Mr Elmobayed's service as a casual employee in the period between May 2023 and December 2024 counts towards his period of employment, having satisfied the requirements in s 384(2)(a)(i) and (ii) of the Act. This is sufficient to dispose of the respondent's jurisdictional objection. As the Full Bench in Shortland said:[18]

It is clear from the language of s 384(2) that an employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee's period of employment only if the requirements in s 384(2)(a)(i) and (ii) are met.

• [23] Taking into account the period between May 2023 and December 2024, Mr Elmobayed has exceeded the six-month minimum employment period in s 383 of the Act. It is not the case that it is only the six months immediately before the dismissal in which the requirements of s 384(2)(a)(i) and (ii) must be satisfied.[19] I am satisfied that, having met the minimum employment period, Mr Elmobayed is a person protected from unfair dismissal within the meaning of s 382 of the Act.

• [24] In addition to being satisfied that Mr Elmobayed was protected from unfair dismissal, for the purposes of s 396 of the Act, I am satisfied that the application was made within 21 days of the dismissal taking effect; the Small Business Fair Dismissal Code was not contended and does not apply to Mr Elmobayed's dismissal; and there is no contention that the dismissal arose by way of redundancy and so it was not a case of genuine redundancy. I proceed therefore to consider the merits of Mr Elmobayed's unfair dismissal application.

• [25] Mr Rosa gave evidence that the respondent held concerns about Mr Elmobayed's conduct. Mr Rosa said that by the time his employment ceased, Mr Elmobayed had performed casual shifts across multiple stores in light of issues that the respondent contends arose with Mr Elmobayed's behaviour. These behavioural or conduct issues were described in general terms in the respondent's material and, in summary, involved the following:[20]

(1) At the Craigieburn store: The respondent contends that Mr Elmobayed displayed a rude and aggressive attitude, engaged in intimidatory conduct involving colleagues and made inappropriate and sexual remarks to team members.

(2) At the Watergardens store: The respondent contends that Mr Elmobayed almost got into a fist fight with a colleague and used foul language. It also contends that Mr Elmobayed's attitude and behaviour made other team members feel uncomfortable.

(3) At the Essendon store: The respondent contends that complaints were received from team members regarding Mr Elmobayed's aggressive demeanour, the demeaning manner in which he spoke to his colleagues and his conduct in discussing personal topics that made other team members feel uncomfortable.

(4) At the Plenty Valley store: The respondent contends that customer complaints were received regarding Mr Elmobayed's pushy behaviour and making them feel uncomfortable.

(5) Mr Rosa also gave evidence that he received complaints by two team members regarding Mr Elmobayed's conduct at the 2024 Christmas party.

• [26] The respondent relies upon email and text message extracts which raise, in broad terms, the sorts of concerns about Mr Elmobayed's conduct described above. These emails and text messages appear to be authored by Mr Elmobayed's area managers and colleagues but for the most part, these documents are not dated. The authors of these materials did not attend the Commission to give direct evidence about any of these matters and accordingly, the evidence has not been tested, including through cross examination. It follows that I place limited weight on the content of these documents.

• [27] Mr Rosa's evidence was that in the latter period of 2024, Mr Elmobayed only covered "emergency shifts" and in 2025, was not rostered at all. Mr Rosa said that this is because the team did not feel comfortable working with him. Mr Rosa said that after three months where Mr Elmobayed was not utilised as a casual employee, and in circumstances where the respondent's policy is to remove casual employees from its books if they are not actively performing casual shifts, he decided to terminate Mr Elmobayed's employment. Mr Rosa said that he spoke to Mr Elmobayed to explain that his dismissal was due to his prolonged absence from work.[21]

• [28] Mr Elmobayed's position, in summary, is that the respondent dealt with him in a disrespectful way and also disrespected his brother who was a customer in store involving the approval procedure for making family purchases. Mr Elmobayed contends that he raised concerns with the respondent about these matters but they were not addressed, nor were they escalated in the manner sought by Mr Elmobayed.[22] Mr Elmobayed said these circumstances commenced from February 2024.[23]

• [29] In deciding whether the dismissal was unfair I am required to take into account the matters in s 387 of the Act. I find that there was no valid reason for the dismissal related to capacity or conduct (s 387(a)).[24] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination:[25]

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

• [30] The evidence before the Commission falls short of establishing the conduct concerns held by the respondent and set out at paragraph [25]. There is no direct evidence of any of these matters before the Commission. In the absence of any of the respondent's witnesses attesting to their direct experiences with Mr Elmobayed's alleged conduct, the contentions cannot be meaningfully assessed and are therefore rejected.

• [31] Nor do I regard the contentions regarding customer complaints regarding Mr Elmobayed to be sufficiently specific so as to characterise Mr Elmobayed's conduct as inappropriate. The customer complaints are not before the Commission and Mr Rosa's evidence goes no further than describing Mr Elmobayed's conduct as pushy, which made at least two customers feel uncomfortable. In the absence of evidence that supports this contention, I am not satisfied that the respondent's concerns as to Mr Elmobayed's conduct in this respect are made out.

• [32] In light of these conclusions, I am not satisfied that the respondent has established that there was a valid reason for the dismissal related to Mr Elmobayed's capacity or conduct. Mr Elmobayed was not, therefore, notified of such a reason[26] (s 387(b)).[27] He was not given an opportunity to respond to such a reason for the dismissal[28] (s 387(c)).[29] There was no unreasonable refusal of a support person on the evidence[30] (s 387(d)). I find that Mr Elmobayed was not warned about poor performance because in general terms, the respondent's position is that Mr Elmobayed's sales performance was not in issue[31] (s 387(e)). The considerations in ss 387(f) and (g) carry little weight in this matter.

• [33] Section 387(h) concerns any other relevant matters. In this case, the respondent has a practice of offboarding casuals on its books who have not performed shifts in four weeks. In Mr Elmobayed's case, he had not performed a casual shift for the respondent for nearly three months immediately prior to his dismissal. The respondent submits that Mr Rosa was following company practice, and its casual contracts of employment provide it with a discretion not to offer casual employees any further engagements.[32] The respondent also contends that Mr Elmobayed was warned about the respondent's concerns regarding his conduct,[33] but no written warnings are before the Commission.

Is the Commission satisfied that the dismissal was harsh, unjust or unreasonable?

• [34] I have made findings in relation to each matter specified in s 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[34]

• [35] I have earlier concluded that the evidence does not establish that there was a valid reason for Mr Elmobayed's dismissal relating to his conduct or capacity, and Mr Elmobayed was not notified of that reason, nor given an opportunity to respond to it. The reason provided to Mr Elmobayed for his dismissal related to the respondent's policy of dismissing casual employees who were not active in its system. Offboarding inactive casual employees is not, in general terms, an inappropriate exercise for an employer to take in managing its casual workforce. However, in this case the material before the Commission demonstrates that the reason that Mr Elmobayed was not rostered to work arises from the concerns that the respondent held about his conduct.[35] These conduct concerns have not been established to the requisite standard as amounting to a valid reason for Mr Elmobayed's dismissal. Taking all of these matters into consideration, on balance I find that the dismissal was unfair within the meaning of s 385 of the Act.

• [36] As to remedy, I find that reinstatement to a casual role with the respondent is inappropriate. The respondent's position is that its rosters are full[36] and it is not apparent that there are casual roles to which Mr Elmobayed can be reinstated. In any event, reinstatement is not sought by Mr Elmobayed.[37] Rather, he seeks financial compensation.[38]

• [37] The Commission must not order compensation unless it is appropriate (s 390(3)). In assessing compensation, the Commission is required by s 392(2) of the Act, to take into account all of the circumstances of the case. I consider these circumstances in the analysis that follows. I do so by reference to the long-established methodology for assessing compensation in unfair dismissal cases as outlined by the Full Bench in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[39] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

• [38] The consideration commences with an assessment of the remuneration that Mr Elmobayed would have received, or would have been likely to receive, had he not been dismissed (s 392(2)(c)). This requires an estimation of Mr Elmobayed's anticipated period of employment;[40] that is, how long he would have remained in employment but for the dismissal, and the remuneration he would have received, or been likely to receive, during that period.[41] There is an element of speculation in this counterfactual task as it involves an assessment of what would have been likely to happen in the future had Mr Elmobayed not been dismissed.

• [39] As noted by the Full Court of the Federal Court in He v Lewin,[42] in determining the remuneration the employee would have, or would have been likely to receive, the Commission is required to give its attention to an actual state of facts:[43]

In determining the remuneration that the employee would have received, or would have been likely to receive, the Commission is required to give its attention to an actual state of facts... In each case, it is necessary for the Commission to address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.

• [40] Mr Elmobayed said that he believes that he would have continued to work for the respondent for the next five years or longer.[44] However, the actual state of affairs is that Mr Elmobayed had not performed any shifts for the respondent for nearly three months, and prior to that, had worked only "emergency shifts" for the respondent due to the respondent's concerns about his conduct. While these concerns have not been established to the requisite state of satisfaction in the Commission, it is conceivable that absent the dismissal occurring when it did, the respondent may have taken other steps to address its concerns about Mr Elmobayed's behaviour. It is similarly conceivable that had the respondent not implemented its workplace policy and dismissed Mr Elmobayed for "inactivity," Mr Elmobayed may have remained an inactive casual on the respondent's books.

• [41] Noting the speculation that arises in respect of this task, on balance, I am not persuaded that Mr Elmobayed would have remained in employment for a five-year period beyond 21 March 2025 as he contends. Rather, having regard to all of the circumstances of the case, if Mr Elmobayed had not been dismissed, I do not consider it likely that he would have undertaken any further casual shifts for the respondent at all. It follows that that for the purposes of step 1 in Sprigg, I do not consider that Mr Elmobayed - a casual with no guaranteed hours - would have been rostered to work any further casual shifts had the respondent not terminated his employment when it did. In these circumstances, I am not satisfied that there is any identifiable loss to compensate in this case. This is because the remuneration Mr Elmobayed would have received, or have been likely to have received, if the respondent had not terminated his employment is zero.

• [42] In all of the circumstances of this case, I am satisfied that there is no identifiable loss to compensate when the formula in Sprigg is applied and taking into account the matters in s 392(2) of the Act.

[1] Exhibit 5 (Applicant's outline of arguments: merits) at [1a]-[1c]; Respondent's outline of arguments: merits at [1a]-[1c]

[2] Applicant's outline of arguments: merits at [3a]-[3b]; Respondent's outline of arguments: merits at [3a]-[3b]

[3] Respondent's outline of arguments: merits at [3d]

[5] Exhibit 1 (respondent's payroll report)

[6] [2010] FWAFB 5709

[9] Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6; 149 IR 339

[12] Chandler v Bed Bath N' Table [2020] FWCFB 306 at [11]

[13] Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 1099 at [24]

[16] Bronze Hospitality Pty Ltd v Janell Hansson (No 2) [2019] FCA 1680

[18] [2010] FWAFB 5709 at [12]

[19] See the discussion in Mr John Attard v Port Phillip City Council [2022] FWC 2057 at [53]- [62]

[21] Respondent's document list; Exhibit 5 (Applicant's outline of argument - merits) at [3c]

[22] Applicant's outline of argument - merits at [6d]

[23] Exhibit 3 (Applicant's statement of evidence); Exhibit 4 (bundle of documents attached to Applicant's document list)

[24] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371; Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681

[25] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23]-[24]

[26] Respondent's outline of arguments: merits at [3e]

[27] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55]

[28] Respondent's outline of arguments: merits at [3f]

[29] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1 at 7; Central Queensland Services Pty Ltd v Tara Odgers [2020] FWCFB 304 at [42]; Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]; Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429 at [19] and [21]; Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at [75]

[30] Applicant's outline of arguments: merits at [6b]

[31] Respondent's outline of arguments: merits at [5a]

[34] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]- [7]

[35] Respondent's outline of arguments: merits at [5a], [5d], [6a], [6b]

[37] Applicant's outline of argument: merits at [7b]

[39] Print R0235; [1998] AIRC 989; (1998) 88 IR 21. This approach was articulated in the context of the Fair Work Act 2009 (Cth) in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431; 229 IR 6 and Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 at [16] (Double N Equipment Hire)

[40] See Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) (Ellawala) at [34]

[41] He v Lewin [2004] FCAFC 161; 137 FCR 266 at [58]

[42] He v Lewin [2004] FCAFC 161; 137 FCR 266

[44] Applicant's outline of argument: merits at [7c]

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