s.394 - Unfair dismissal

Application for relief from unfair dismissal - not genuine redundancy - dismissal not consistent with small business fair dismissal code - valid reason - no procedural fairness - unfair dismissal - superannuation contribution ordered.

• [1] Steeline is a national steel manufacturing, distribution, and installation business. Jesse Wilson was the Branch Manager of Steeline's Grafton retail business and was employed by FNW Grafton Pty Ltd (FNW Grafton). Mr Wilson was issued with a termination letter dated 22 October 2024 which referred to the Grafton branch closing and stated Mr Wilson's Branch Manager position was redundant. The termination letter identified a dismissal date of 19 November 2024. There was some confusion about the effective date of the dismissal because Mr Wilson was absent from work and receiving workers' compensation payments at the time of his dismissal. FNW Grafton argued Mr Wilson's termination letter erroneously identified 19 November 2024 as the effective date of the dismissal. FNW Grafton argued Mr Wilson's employment ended on 1 November 2024 when the Grafton store closed. FNW Grafton argued Mr Wilson needed an extension of time to file this unfair dismissal application because it was filed on 4 December 2024, which was not within 21 days of the dismissal taking effect on 1 November 2024. I rejected that argument after hearing from the parties in a decision delivered on transcript on 26 February 2025. I found Mr Wilson's employment ended on 19 November 2024 in accordance with the date identified in the termination letter.

• [2] There was also confusion concerning whether FNW Grafton is a small business employer within the meaning of s.23 of the Fair Work Act 2009 (FW Act). FNW Grafton indicated on its Form F3 employer response that it had four employees when Mr Wilson was dismissed. Mr Wilson argued that there are associated entities of FNW Grafton which collectively employ 15 or more employees. Blake Burgess is the owner and director of FNW Grafton. Mr Wilson provided ASIC records for FNW Inverell Pty Ltd, which is owned and directed by Mr Burgess. Mr Burgess is also the owner and director of FNW Industries Pty Ltd and FNW Brisbane Pty Ltd. The ASIC records show that another company, Steeline Members Pty Ltd, may also be relevant. This issue is significant to a broader dispute regarding whether Mr Wilson is entitled to a redundancy payment from FNW Grafton. That issue turns on whether FNW Grafton and its associated entities had less than 15 employees when Mr Wilson was dismissed.[1]

• [3] I do not have sufficient evidence to conclusively determine whether FNW Grafton and its associated entities had less than 15 employees when Mr Wilson was dismissed. Even if the other companies are associated entities of FNW Grafton, I do not have evidence before me about how many employees each company had when Mr Wilson was dismissed. For the purposes of this decision, I will assume that FNW Grafton was a small business, and I will consider whether Mr Wilson's dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC).

• [4] I recommend that Mr Burgess seeks legal advice about whether there are any associated entities of FNW Grafton. Mr Burgess may be exposing FNW Grafton and its associated entities to commercial risk if redundancy entitlements have not been paid to Mr Wilson in circumstances where FNW Grafton and its associated entities had 15 or more employees when Mr Wilson was dismissed. It appears highly likely the businesses identified above are associated entities within the meaning of s.50AAA of the Corporations Act 2001 given Mr Burgess' positions within the various entities.

• [5] On 11 April 2025 I held a hearing regarding the following issues via video:

• whether Mr Wilson's dismissal was consistent with the SBFDC;
• whether Mr Wilson's dismissal was a case of "genuine redundancy";
• whether Mr Wilson was unfairly dismissed by FNW Grafton; and
• what remedy, if any, should be ordered to Mr Wilson.

Mr Wilson represented himself at the hearing. Mr Burgess represented FNW Grafton.

• [6] Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the SBFDC;

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

• [7] As identified above, I have previously determined that Mr Wilson's dismissal took effect on 19 November 2024 in accordance with the date identified in his termination letter. That means the application Mr Wilson filed on 4 December 2024 was made within 21 days of his dismissal taking effect.

Was Mr Wilson a person protected from unfair dismissal?

• [8] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

• [9] Mr Wilson commenced employment on 11 September 2017. There is no doubt he had completed the minimum employment period, which I assume to be 12 months for a small business employer in this case.

• [10] Mr Burgess accepts the General Retail Industry Award 2020 (Retail Award) covered Mr Wilson's employment with FNW Grafton. Mr Wilson's earnings of $1,280 gross per week also mean his annual rate of earnings is below the high-income threshold.

• [11] I find Mr Wilson was a person protected from unfair dismissal.

• [12] I find Mr Wilson's dismissal was not consistent with the SBFDC because FNW Grafton failed to notify him of the reason for dismissal and did not provide him with an opportunity to respond to the reason for dismissal, prior to making the decision to terminate his employment. Mr Burgess accepts that no communication occurred with Mr Wilson before he was provided with the termination letter. However, Mr Burgess argues FNW Grafton was not able to communicate with Mr Wilson as he was absent from work and receiving workers' compensation payments due to an anxiety disorder. I accept Mr Wilson's absence presented some challenges for FNW Grafton in relation to discussing the closure of the Grafton store with Mr Wilson. However, this did not prevent FNW Grafton from sending the termination letter to Mr Wilson. There is no evidence that Mr Wilson's condition meant that FNW Grafton was not able to communicate in writing with Mr Wilson. FNW Grafton could have communicated the reason for Mr Wilson's dismissal in writing prior to making its final decision. FNW Grafton could also have used that correspondence to provide Mr Wilson with an opportunity to respond in relation to the reason for dismissal. I consider that FNW Grafton's failure to take these steps means Mr Wilson's dismissal was not consistent with the SBFDC.

• [13] Mr Wilson accepts his job was not required to be performed by anyone because of operational changes within FNW Grafton, namely the closure of the Grafton store. Mr Wilson also accepts it was not reasonable for him to be redeployed within FNW Grafton or an associated entity. It appears any associated entities operate businesses that are not based in Grafton.

• [14] Mr Wilson argues his dismissal was not a case of "genuine redundancy" because FNW Grafton did not comply with the consultation obligations in the Retail Award. I accept that argument. The closure of the Grafton store was a "major change" which was "likely to significantly effect" employees such as Mr Wilson. Clause 34 of the Retail Award required FNW Grafton to take the following steps in relation to the closure of the Grafton store:

• give employees notice of the change;
• discuss the change, the effect of the change, and measures to avoid or reduce adverse impacts of the change, with the employees;
• commence the discussions as soon as practicable after the decision to close the Grafton store was made; and
• give employees all relevant information about the change in writing.

• [15] FNW Grafton did not provide evidence to establish it took any of the steps outlined above. Mr Burgess' reference to his father attending the store to discuss its closure during oral submissions is purely hearsay and is not sufficient to establish what occurred, given this is a contested issue. Mr Burgess' father could have given evidence about what steps he took. That evidence is also inconsistent with emails sent by two other employees who say there was no discussion about the closure of the Grafton store prior to the dismissals being communicated. There is no dispute that none of the steps identified above were taken in relation to Mr Wilson. I do not consider Mr Wilson being absent from work due to anxiety justifies or explains FNW Grafton's failure to comply with the consultation obligations in the Retail Award.

• [16] I find that Mr Wilson's dismissal was not a case of "genuine redundancy" because FNW Grafton failed to comply with the consultation obligations in the Retail Award.

• [17] Given my findings above in relation to the initial matters, I am required to consider the merits of Mr Wilson's unfair dismissal application.

• [18] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

• [19] I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[2]

Was there a valid reason for dismissal related to Mr Wilson's capacity or conduct?

• [20] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[3] and should not be "capricious, fanciful, spiteful or prejudiced."[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]

• [21] Mr Wilson was dismissed because of the closure of the Grafton store that he managed. I consider the closure of the Grafton store constitutes a valid reason for Mr Wilson's dismissal. The reason was "sound, defensible, and well founded."

• [22] However, s.387(a) of the FW Act refers to a valid reason "related to the person's capacity or conduct." The valid reason for dismissal was not related to Mr Wilson's conduct. The more complicated question is whether the valid reason related to Mr Wilson's capacity. The Full Bench in DA v Baptist Care SA stated the following regarding the meaning of "capacity" in s.387(a) (endnotes omitted):

"... goes beyond the physical or skill capacity of the employee and encompasses situations where the employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job. Where an employee cannot perform the inherent requirements of their job and there is no reasonable scope for the employee to be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee's capacity."[6]

• [23] The Full Bench in Pettifer v MODEC Management Services Pty Ltd[7] found that there was a valid reason related to capacity where a labour hire employee was prevented from performing work at the relevant site via a prohibition imposed by the host company. There is at least one Full Bench decision that indicates operational changes leading to a position becoming redundant is not a reason for dismissal related to the employee's "capacity."[8]

• [24] The authorities appear to draw a distinction between a lack of capacity that is related in some way to action or inaction by the employee, such as losing a licence or qualification or being banned from a site, and a situation where the employee's job has simply become redundant due to an operational decision of the employer. The former involves a reason related to capacity within s.387(a) of the FW Act. The latter does not involve a reason related to capacity but is an "other relevant matter" for the purposes of s.387(h) of the FW Act.

• [25] I find there was not a valid reason for Mr Wilson's dismissal related to his conduct or capacity. I consider this is a neutral factor. I will take account of the valid reason for dismissal as an "other relevant matter."

Was Mr Wilson notified of the reason for dismissal?

• [26] Proper consideration of s.387(b) requires a finding to be made as to whether Mr Wilson "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[9]

• [27] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[10] and in explicit[11] and plain and clear terms.[12]

• [28] Mr Wilson was not notified of the reason for his dismissal before it was communicated to him in his termination letter.

• [29] This factor weighs in favour of finding the dismissal was unjust and unreasonable.

Was Mr Wilson given an opportunity to respond to the valid reason?

• [30] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[13]

• [31] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[14] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[15]

• [32] Mr Wilson was not provided with an opportunity to respond to the reason for dismissal before he received his termination letter on 22 October 2024.

• [33] This factor weighs in favour of finding that Mr Wilson's dismissal was unjust and unreasonable.

Did FNW Grafton unreasonably refuse to allow Mr Wilson to have a support person present to assist at discussions relating to the dismissal?

• [34] This is a neutral factor given there were no genuine discussions relating to the dismissal before it was communicated to Mr Wilson.

Was Mr Wilson warned about unsatisfactory performance before the dismissal?

• [35] Mr Wilson was not dismissed due to unsatisfactory performance. This factor is neutral.

To what degree would the size of FNW Grafton's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [36] I accept FNW Grafton is a small business when considered as an isolated legal entity and that this substantially impacted the procedures that were followed in effecting Mr Wilson's dismissal. I consider this factor reduces the weight that should be given to the procedural fairness issues in the overall assessment of unfairness.

To what degree would the absence of dedicated human resource management specialists or expertise in FNW Grafton's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [37] I accept the absence of dedicated human resource specialists had a substantial impact on the procedures that were followed in effecting Mr Wilson's dismissal. I consider this factor reduces the weight that should be given to the procedural fairness issues in the overall assessment of unfairness.

• [38] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [39] The valid reason for dismissal is a relevant matter that weighs against finding that Mr Wilson's dismissal was unfair.

• [40] I have made findings in relation to each matter specified in s.387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[16]

• [41] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Wilson was unjust and unreasonable because he was not notified of the reason for his dismissal, and he was not provided with an opportunity to respond to the reason for dismissal. I consider the complete lack of procedural fairness makes the dismissal unfair, despite the existence of a valid reason for dismissal (albeit not one which was strictly related to Mr Wilson's conduct or capacity) and despite finding that the size of FNW Grafton's business and a lack of specialist staff contributed to the procedural shortcomings.

• [42] I find Mr Wilson was unfairly dismissed.

• [43] Mr Wilson does not seek reinstatement. I find reinstatement is inappropriate. FNW Grafton no longer operates the Grafton store that Mr Wilson worked in.

Is an order for payment of compensation appropriate in all the circumstances of the case?

• [44] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, "[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one..."[17]

• [45] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[18]

Compensation - what must be taken into account in determining an amount?

• [46] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Mr Wilson in lieu of reinstatement including:

(a) the effect of the order on the viability of FNW Grafton's enterprise;

(c) the remuneration that Mr Wilson would have received, or would have been likely to receive, if Mr Wilson had not been dismissed;

(d) the efforts of Mr Wilson (if any) to mitigate the loss suffered by Mr Wilson because of the dismissal;

(e) the amount of any remuneration earned by Mr Wilson from employment or other work during the period between the dismissal and the making of the order for compensation;

(f) the amount of any income reasonably likely to be so earned by Mr Wilson during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the Commission considers relevant.

• [47] I consider all the circumstances of the case below.

Effect of the order on the viability of FNW Grafton's enterprise

• [48] I have no evidence about the viability of FNW Grafton. It is possible the business has ceased operating now that it does not operate the Steeline store in Grafton. I consider this is a neutral factor to the assessment of compensation.

• [49] Mr Wilson was employed for over seven years. Mr Wilson was a long-term employee. I consider this factor weighs in favour of a higher compensation order.

Remuneration that Mr Wilson would have received, or would have been likely to receive, if he had not been dismissed

• [50] As stated by a majority of the Full Court of the Federal Court, "[i]n determining the remuneration that the employee would have received, or would have been likely to receive... [the Commission must] address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination."[19]

• [51] Taking all the evidence into account, I find Mr Wilson would likely have remained employed with FNW Grafton for a further three weeks if he had not been unfairly dismissed. This is the "anticipated period of employment."[20] I consider three weeks is an appropriate estimate of how long it would have taken for FNW Grafton to properly consult with Mr Wilson and other employees about the closure of the Grafton store.

• [52] Mr Wilson was paid $1,280.00 gross per week. I calculate the remuneration Mr Wilson would have been likely to receive working for FNW Grafton for three weeks from 19 November 2024 until 10 December 2024 to be $3,840.00 gross plus superannuation.

Efforts of Mr Wilson to mitigate loss suffered because of the dismissal

• [53] Mr Wilson must provide evidence that he has taken reasonable steps to minimise the impact of the dismissal.[21] What is reasonable depends on the circumstances of the case.[22]

• [54] Mr Wilson was not fit to work during the anticipated period of employment due to an anxiety disorder.

• [55] I find no deduction should be made for a failure to mitigate loss.

Amount of remuneration earned by Mr Wilson from employment or other work during the period between the dismissal and the making of the order for compensation

• [56] Mr Wilson received workers' compensation payments during the anticipated period of employment. Mr Wilson accepted during the hearing that he did not lose any income during the three-week period after his employment ended. However, I assume Mr Wilson did not receive the benefit of superannuation contributions during the anticipated period of employment because workers' compensation payments are not treated as "ordinary time earnings" if the employee is not performing work.[23]

Amount of income reasonably likely to be so earned by Mr Wilson during the period between the making of the order for compensation and the actual compensation

• [57] Given the anticipated period of employment has finished, I do not need to take this into account.

• [58] Neither party submitted that there were any other relevant matters.

• [59] As noted by the Full Bench, "[t]he well-established approach to the assessment of compensation under s.392 of the FW Act... is to apply the "Sprigg formula" derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[24] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[25]."[26]

• [60] The approach in Sprigg is as follows:

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

Step 2: Deduct monies earned since termination. Workers' compensation payments are deducted but not social security payments. The failure to mitigate loss may lead to a reduction in the amount of compensation ordered.

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.

• [61] I have estimated that Mr Wilson would have remained employed by FNW Grafton for three weeks until 10 December 2024.

• [62] The remuneration Mr Wilson would have received, or would have been likely to have received, from his dismissal on 19 November 2024 until 10 December 2024 is $3,840.00 gross plus superannuation payments of $441.60.

• [63] Only monies earned since termination for the anticipated period of employment are to be deducted.[27]

• [64] Mr Wilson received his regular income of $1,280 gross per week during the anticipated period of employment through workers' compensation payments. I assume Mr Wilson did not receive the benefit of superannuation contributions. That means Mr Wilson missed out on $441.60 in superannuation contributions.

• [65] For the reasons outlined above, I have not applied a deduction for failing to mitigate loss given Mr Wilson's circumstances.

• [66] Superannuation payments of $441.60 remain after Mr Wilson's earnings are deducted.

• [67] I now need to consider the impact of contingencies on the amounts likely to be earned by Mr Wilson for the remainder of the anticipated period of employment.[28]

• [68] Mr Wilson's anticipated period of employment ended on 10 December 2024. I therefore do not need to make a deduction for contingencies.

• [69] I do not need to consider taxation because the remuneration lost only constitutes superannuation contributions.

Compensation - is the amount to be reduced on account of misconduct?

• [70] If I am satisfied that misconduct of Mr Wilson contributed to the employer's decision to dismiss_,_ I am obliged by s.392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.

• [71] I am not satisfied that Mr Wilson engaged in misconduct. No deduction is required to be made for misconduct.

Compensation - how does the compensation cap apply?

• [72] Given Mr Wilson's rate of earnings, a compensation cap of $33,280 plus superannuation applies in accordance with s.392(6) of the FW Act.

• [73] Having applied the formula in Sprigg, I am nevertheless required to ensure that "the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case."[29]

• [74] The application of the Sprigg formula has resulted in an outcome where Mr Wilson would be awarded superannuation contributions of $441.60.

• [75] I am satisfied that the level of compensation is appropriate.

• [76] Given my findings above, I will make an order[30] that FNW Grafton must pay superannuation contributions of $441.60 into Mr Wilson's nominated fund within fourteen (14) days of the date of this decision.

[1] "Small business employers" are excluded from the obligation to pay redundancy pay under the NES: s.121(1) of the FW Act.

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

[3] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[5] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[6] DA v Baptist Care SA [2020] FWCFB 6046, [28].

[7] [2016] FWCFB 5243.

[8] For example, UES (Int'l) Pty Ltd v Leevan Harvey [2012] FWAFB 5241, Acton SDP and Bissett C, [33].

[9] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[10] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[11] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[13] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[14] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[15] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

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

[17] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

[18] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

[19] He v Lewin [2004] FCAFC 161, [58].

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

[21] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

[22] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

[23] 'List of payments that are ordinary time earnings', Australian Taxation Office (Web Page, 5 November 2024) .

[24] [1998] AIRC 989; (1998) 88 IR 21.

[25] [2013] FWCFB 431.

[26] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].

[28] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].

[29] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].

[30] PR786411.

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