Fair Work Act 2009

s.394 - Unfair dismissal

[1] Leigh Priest was employed by Albury Blue Logistics (Albury Blue) from a date in late 2011. His application for unfair dismissal remedy to the Fair Work Commission puts that date at 2 December 2011, whereas the Respondent's response suggests the period of employment was slightly earlier than that, being 24 November 2011.

[2] Albury Blue Logistics is the trading name for the legal entity, the O'Brien No.2 Family Trust as trustee for Mollandhu Pty Ltd. The company operates in the transport industry with a head office in Albury, New South Wales and a warehouse and trucking yard in Laverton North, West Melbourne.

[3] The matters in dispute requiring determination in this decision include whether in all the circumstances Mr Priest was or has been dismissed by Albury Blue Logistics and if so whether any dismissal was an unfair dismissal.

[4] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Priest's application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the relevant time he was dismissed he was a person protected from unfair dismissal (if it is that there was a dismissal); and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[5] I discussed with the parties prior to the commencement of proceedings the form which they should take and recommended to them that, since they were each unrepresented that it may be appropriate for the matter to proceed by way of a determinative conference, both parties accepted that recommendation (s.399 of the Act).

[6] For the reasons set out below, I have found that Mr Priest was unfairly dismissed and that while reinstatement as a remedy is not appropriate, compensation is appropriate to be ordered.

[7] Leigh Priest was initially employed by Albury Blue Logistics in a warehouse/forklift driver role and he was assigned a position of "Metro Supervisor" in mid-2013 which he says carried additional duties and responsibilities to the warehouse/forklift driver role. In return for these additional duties he submits that he was paid a further $80 per week. Beyond this payment Mr Priest was otherwise paid in accordance with the Road Transport And Distribution Award 2010.[1] In September 2017 when the dispute which led to this unfair dismissal application first arose Mr Priest was paid at the rate of $777.86 per week with the Metro Supervisor payment continuing to be $80 per week and in addition to the base payment. These two amounts are shown as separate items on the payslip issued by Albury Blue to Mr Priest, with the base rate being equal to the minimum weekly rate payable under the Modern Award to a Transport Worker Grade 4.

[8] The Laverton North facility is relatively small with there being in September 2017 only four or five employees, including Mr Priest and the Melbourne Depot Manager, Rick Brewer.

[9] It is Mr Priest's case that having been appointed as Metro Supervisor his supervisory duties became part of his job and that he was called upon to continuously perform supervision throughout the approximate four years that he undertook the duties. Mr Priest's case is that the Metro Supervisor position came about when Mr Dean O'Brien, the Company's Business Development Manager, said to him words to the effect of "would you like to run the depot?" Mr Priest put forward that from that point on his duties changed with him being required to receive freight into the depot; to fill out manifests and perform administrative functions; to direct drivers and maximise efficiencies for the yard. For its part Albury Blue put forward that having commenced paying Mr Priest as the Metro Supervisor that function did not become his job or part of his contract of employment and that even though he continued to be paid the $80 per week throughout the period the supervisory duties were somewhat intermittent with supervisory duties only being performed when the Depot Manager was away. Correspondence sent to Mr Priest by the company in September 2017 withdrawing the Metro Supervisor payment tells him that "the allowance you currently receive for the fill in supervisor position will cease as of Wednesday 27th September 2017". (underlining added)

[10] The parties agree that the $80 per week Metro Supervisor payment was made continuously to Mr Priest between the commencement date in mid-2013 and when it ceased in September 2017.

[11] Mr Priest was told in a conference call on 20 September 2017 with Rod McIntosh the HR and Compliance Manager and Rick Brewer the Melbourne Depot Manager that he would no longer receive the Metro Supervisor payment or otherwise be required to perform supervisory duties or be accorded the status which came with that payment. Mr Priest was told in the meeting that another person, newly employed by the company, would now undertake the supervisory duties he had been performing. Mr Priest had been given advance notice of the meeting but had not been told about its subject matter. While the parties do not agree on the precise formulation of the discussion which ensued, they agree that in the course of the conference call Mr Priest was informed that the payment would cease and that his duties would change from that point forward to that of a forklift operator/truck driver. Albury Blue concede that an already determined decision was communicated to Mr Priest rather than him being consulted about a proposed change.

[12] Mr Priest puts forward that after the meeting concluded he undertook his duties for a short time but then left the depot before his shift finished because he was ill as a result of the meeting. After leaving the depot he saw a medical practitioner and obtained a certificate for his absence which was then provided to Albury Blue. This was the first of 5 medical certificates provided by Mr Priest to his employer, with the certificates providing a basis for his absence from employment continuously between the period between 20 September 2017 and 3 November 2017.

[13] On 11 October 2017 Mr Priest commenced an unfair dismissal action in the Fair Work Commission against Albury Blue. The Employer Response in the matter was filed on 24 October 2017 which included an objection on the part of Albury Blue to the matter proceeding on the basis that the Applicant was not dismissed. The matter proceeded in the usual course to a conciliation before a Fair Work Commission conciliator on 2 November 2017, with Albury Blue agreeing to participate in the conciliation, notwithstanding its objection to the jurisdictional base of the application. While not strictly relevant to the determination of this matter it should also be noted that Mr Priest's application was the subject of a jurisdictional decision by Deputy President Clancy on 5 January 2018 which found that there had been no concluded settlement achieved in the conciliation or afterwards and that there was no prohibition on the matter proceeding to determination.[2]

[14] In summary the parties' cases involve the following considerations;

• Mr Priest puts forward that the Metro Supervisor payment became part of his contract of employment and that the change made to that arrangement is a dismissal;

• Albury Blue put forward that there never was a promotion to Metro Supervisor on a permanent basis and that the supervisory duties were a temporary position with an allowance being paid accordingly, albeit continuously, with it following that any decision to remove the allowance was not and could not be a dismissal;

• Mr Priest puts forward that he was never consulted about the prospect of change and was not given an opportunity to respond to the reasons held by Albury Blue for making the change and that the actions of his employer left him embarrassed, demeaned and insulted in having the role taken away without discussion.

• Albury Blue put forward that in making the change to Mr Priest's employment it was prepared to continue with him being an employee, albeit as a forklift operator/truck driver.

[15] The first matter which requires determination in this decision is whether Mr Priest has been dismissed. That term is defined within s.386 of the Act in the following way;

(1) A person has been dismissed if:

• (a) the person's employment with his or her employer has been terminated on the employer's initiative; or

• (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

• (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season;

• (b) the person was an employee:

  • (i) to whom a training arrangement applied; and

  • (ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

• (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

• (ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."

[16] If Mr Priest is found to have been dismissed, the Commission will then be required to consider the provisions of s.387 of the Act, which provides;

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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."

[17] The first matter which requires determination in this decision is whether Mr Priest has been dismissed.

[18] The scheme of s.386 of the Act makes it clear that a demotion in employment which does not involve a significant reduction in an employee's remuneration or duties is not a dismissal within the meaning of the Act. Inferentially, a demotion which involves a significant reduction in remuneration or duties may be a dismissal if it meets one of the criterion within s.386(1).

[19] The decision by Albury Blue to change Mr Priest's employment arrangements are capable of being found to be a demotion. The circumstances of his engagement since at least mid-2013 were that in return for being paid a further amount of $80 per week to the Metro Supervisor, Mr Priest would make himself available either indefinitely or intermittently to perform supervisory and administrative tasks. The evidence does not support a finding that this was a payment or arrangement only for those occasions when the need arose. Instead the evidence before the Commission is that the payment and the attendant readiness to perform supervisory duties extended throughout the whole period for which the payment was made. I am satisfied both that Mr Priest took the arrangement to be an ongoing, permanent part of his employment and that objectively a disinterested observer would form the same conclusion. There is no documentary evidence or persuasive oral evidence before the Commission which supports Albury Blue's contention that this was to be a temporary arrangement only until such time as a permanent solution might be found. The finding may therefore be made that the discussion with Mr Priest on 20 September 2017 amounted to his demotion in employment.

[20] I am also satisfied that the demotion involves a significant reduction in Mr Priest's remuneration or duties. Mr Priest was a low wage worker who at the time of the change to his employment earned $857.86 per week for a 38 hour week. The removal of the $80 per week allowance amounted to a reduction in his weekly wage by slightly more than 9%. Objectively considered, this is a significant reduction to his remuneration. While the evidence does not lead compellingly to the view that the change in his employment arrangements would lead to a significant reduction in his duties, because the evidence is those supervisory duties he performed were somewhat intermittent, it is not necessary that I find both that there was a significant reduction in his remuneration and duties since the section casts the test as the consideration of alternatives.

[21] It is then necessary to consider whether, in all the circumstances what occurred to Mr Priest is a dismissal within the meaning of s.386(1) of the Act which requires consideration of whether there has been termination at the employer's initiative or whether there has been a forced resignation. In relation to the latter element there is no evidence before the Commission that there has been a resignation of any type and so that element does not require further consideration.

[22] There is sufficient evidence to make a finding that Mr Priest's employment with Albury Blue was terminated on the employer's initiative. Firstly, I am persuaded for the reasons set out above, that the Metro Supervisor arrangement had become part of Mr Priest contract of employment by the time of September 2017. He regarded the arrangement as part of his overall employment and up to September 2017 was reasonably entitled to expect that the arrangement would continue into the future. Secondly, the decision by Albury Blue to make a change to Mr Priest's employment arrangements in September 2017 was a unilateral change to the substantial nature of his contract. The Full Bench in Ayub v NSW Trains noted that s.386(1) is concerned with termination of the employment relationship and that the High Court in Visscher v Giudice observed that the termination of an employment relationship and the termination of an employment contract are different concepts, and a wrongful dismissal from employment may not be effective in discharging the contract if the employee elects not to accept the employer's repudiatory breach.[3]

[23] In considering a matter in which an employee provided a resignation letter, later withdrawn, Commissioner Cambridge observed that the "overt action of dismissal" may not be confined yet may still be held to be termination of employment on the employer's initiative:

"[33] The legislative terminology that has been used in various unfair dismissal/termination of employment provisions has been applied with varying levels of success, to circumstances that involved the absence of an overt dismissal. Both the Full Bench Decision and the first instance Decision of Riordan C refer to most of the significant decided cases that have dealt with unfair dismissal claims in circumstances where there was an absence of overt action of dismissal by the employer. Some of the difficulties associated with the construction that has been provided for the particular legislative terminology have arisen from the identification of the distinction that can be made between termination of the contract of employment, and termination of the employment relationship. The distinction between the contract of employment and the employment relationship appears to have been resolved for the purposes of s. 386 of the Act, as confirmed by the Full Bench decision in Khayam v Navitas.[4]

[34] The Full Bench Decision in this matter has provided authoritative guidance on what it described as "the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act."[5] Interestingly, the Full Bench has provided some clarification of a question that has been identified by the authors of the frequently quoted book, Macken's Law of Employment[6] and the following passage from that book is relevant:

"The statutory enhancement in s 386(1)(b) requires that the person was "forced to" resign. What of the situation where the employee resigns as a result of the conduct, or a course of conduct of the employer, but the employee cannot be said to have been "forced" to resign for the purposes of s 386(1)(b)? Can the termination be said to be at the employer's initiative?"[7]

[35] Notwithstanding the guidance that has been provided by the Full Bench Decision, I believe it is important to recognise that a dismissal within what the Full Bench described as the "first limb" of the definition in s. 386 (1) (a) of the Act, without overt action of dismissal by the employer, would not be confined to a resignation that was given in the "heat of the moment" and/or which involved other factors that rendered the resignation as legally ineffective. In my view, there are numerous different circumstances which involve the absence of overt action of dismissal by the employer but which nevertheless, when properly analysed, may be held to have been termination of employment on the employer's initiative.

[36] There are many circumstances where employment comes to an end without any overt action of dismissal by the employer. Putting to one side the end of employment circumstances that arise from uncontested resignation, mutual agreement, frustration, specific contract or task, bankruptcy, et cetera, there are other instances which involve a resignation provided by the employee either verbally or in writing, and which is alleged to have been "forced" because of conduct of the employer. These "forced" resignation circumstances, which are clearly comprehended by s. 386 (1) (b) of the Act, are often described as a "constructive dismissal." As mentioned in the Full Bench Decision[8] the term "constructive dismissal" is not clearly defined either in statute or under common law and it can create confusion.

[37] In my view, the term "constructive dismissal" has become something of a generic description which broadly encompasses any contested circumstance where employment has come to an end without overt action of dismissal by an employer, and excluding other end of employment circumstances that arise from mutual agreement, frustration, specific contract or task, bankruptcy, et cetera. Consequently the term "constructive dismissal" has tended to comprehend a variety of circumstances all of which have the common characteristic of there being an absence of overt action of dismissal by the employer, and many of which, but by no means all, involve an alleged "forced" resignation.

[38] If the term "constructive dismissal" is disregarded, I find it helpful to firstly conceptualise contested termination of employment circumstances into two primary categories; those that involve overt dismissal, and those that do not display any overt dismissal action on the part of the employer. Obviously, the first category involving overt dismissal action requires no further examination, and the circumstances undeniably represent termination of employment on the employer's initiative, and in satisfaction of the terms of s. 386 (1) (a) of the Act.

[39] The second category, termination of employment circumstances without any overt dismissal action on the part of the employer, can encompass a wide variety of circumstances. Once again, putting aside end of employment circumstances that arise from mutual agreement, frustration, specific contract or task, bankruptcy, et cetera, the most commonly encountered circumstances in this category are those that involve what is described as a "forced" resignation. As mentioned above, the "forced" resignation circumstance is clearly contemplated by s. 386 (1) (b) of the Act.

[40] There are two other frequently encountered circumstances which fall within the second category of termination of employment without any overt dismissal action on the part of the employer, but which nevertheless may be found to have been termination of employment on the employer's initiative.

[41] One such circumstance is that of a "heat of the moment" resignation whereby because of special circumstances and/or a combination of other factors, it was unreasonable for the employer to assume that the resignation was genuinely intended. In these circumstances, if an employer accepts the resignation forthwith, and acts upon it, it may be held to be have been a legally ineffective resignation and the actions of accepting the resignation establish that the employment was terminated on the employee's initiative, and in satisfaction of the terms of s. 386 (1) (a) of the Act.

[42] Another frequently encountered termination of employment circumstance which is absent any overt dismissal action on the part of the employer, but which nevertheless may be found to have been termination of employment on the employer's initiative, involves what may be referred to as repudiatory conduct. Circumstances in this category involve the unilateral imposition of a term or terms which are inconsistent with continuation of the employment as was reasonably comprehended by the employment. For instance, if an employer imposed a significant reduction in the number of shifts that had regularly and systematically been part of the employment, the employee could refuse to accept such a significant change as it represented a repudiation of the established terms of the employment."[9] (references in original)"

[24] I concur with these observations. In Mr Priest's case, he was faced with unilateral action on the part of Albury Blue that, reasonably considered, allowed him to consider that his employment (of Metro Supervisor) was being terminated on the employer's initiative. What was being offered instead of the Metro Supervisor employment was demotion involving a significant reduction in remuneration, if not duties.

[25] As result I find that Mr Priest was dismissed within the meaning of s.386 of the Act. It is therefore necessary to consider whether in all the circumstances he was unfairly dismissed for reason of a dismissal having been harsh, unjust or unreasonable.

[26] Determination of whether Mr Priest's dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[27] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way;[10]

"[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced;[11]

• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour);[12]

• it is not necessary to demonstrate "serious misconduct" or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal;[13]

• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss[14] (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee's conduct).[15]" (original references)"

[28] I will deal with each of the criteria within s.387 in turn.

(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)

[29] Mr Priest was dismissed from a position that included him being Metro Supervisor at the Laverton North premises in addition to his wider or original role of forklift operator/truck driver. The reasons advanced by Albury Blue for the dismissal related to how it perceived Mr Priest performance as a supervisor, rather than how he performed the other duties.

[30] Albury Blue do not put forward that the need for a supervisor was no longer there, conceding that part of the reasoning for its change to Mr Priest's employment arrangements was that it wanted a newly engaged employee to take over the supervisory duties that had previously been undertaken by Mr Priest.

[31] The decision to make a change to Mr Priest's employment arrangements had been made by the management group about four or five days before it was communicated to Mr Priest. There had been a discussion amongst the management group about the need to make changes in the Melbourne depot and what the company needed in the way of management support in the future. At the time Albury Blue came to make the change Mr Brewer saw Mr Priest as someone who was substantially out in the warehouse, mostly operating a forklift, with the odd occasion of him jumping into and driving a truck. Mr Brewer held the view that he was undertaking much of the administrative work at the time with Mr Priest only providing some administrative support, especially in relation to a particular software package used by one customer.

[32] The company's managers had also formed the view about Mr Priest over an indeterminate period of time that he did not relate to customers as well as he could and that there had been some circumstances in which Mr Priest had been involved in confrontations with other employees or not handled them as well as he could. Feedback had also been received from customers about Mr Priest's willingness to engage in or follow training they had provided him about their systems or needs. The Albury Blue managers also relied upon criticisms they had of Mr Priest about his lack of leadership qualities as well as concerns held, especially by Mr Brewer, about Mr Priest's timekeeping and preparedness to start work on time. When relating their concerns about a confrontation in which Mr Priest was alleged to have been involved, the company managers put forward that its concerns were regarding his ability to control and supervise the staff group and its belief that because the circumstance had not been controlled as well as it should have that it was their realisation they needed a skilled person in the Laverton North supervisory role.

[33] Despite his employer holding these criticisms of Mr Priest, they were not discussed with him or identified to him as being a motivator for the change in September 2017. Even so, Albury Blue submitted that some elements of its concerns had been the subject of general discussion with Mr Priest over an unidentified period of time. For example, it was submitted that there had been discussion with Mr Priest about the length of time taken with particular tasks or how things in the depot could be located or run. Although there had been general discussion with Mr Priest on these matters, as well as only general identification of the issues in the proceedings before the Commission, the finding is not able to be made either that Mr Priest had been counselled or warned about the implication of the matters. Further, the matters were not identified to him as reasons for its decision in the meeting on 20 September 2017, with him only being informed that the company was entitled to make change to his allowance for the reason that the Metro Supervisor role was not actually part of Mr Priest's ongoing employment arrangements.

[34] The factors relied upon by Albury Blue for removing the Metro Supervisor position from Mr Priest's employment are generalised, non-specific and ultimately not a valid reason for having made the change.

[35] While it may, of course, be said that criticisms of the type advanced by Albury Blue might motivate a change to a person's employment arrangements those criticisms need to be cogent and particularised for a finding that they were a valid reason for what has been found to be a dismissal. Determination of a valid reason involves an examination of whether the reason given is "sound, defensible or well founded", within the overall context of the employment relationship;

"At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ''be applied in a practical, common sense way to ensure that'' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC."[16]

[36] The context of this employment relationship is of a very small depot of a wider business which likely has little industrial or human resources sophistication. The original Metro Supervisor arrangement may not have been documented as well as it could have; and the decision to remove it may not have followed the practices of what may be expected in larger businesses. In these regards, Albury Blue may have been following what it perceived to be the practical processes of a practical business. While that motivation, as well as the realisation they needed a supervisor with greater skill may be reasons of sorts for change, they fail to amount to a gap analysis of the skills required versus the skills delivered by Mr Priest. In that respect the reasons relied upon by Albury Blue for its decision-making were not sound, defensible or well-founded.

[37] As a result there was not a valid reason for Mr Priest's dismissal.

(b) whether the person was notified of that reason

[38] The reasons given to Mr Priest for the change in his employment were basic and did not amount to him being notified of the reasons held by Albury Blue for the changes it made. Instead of being told that the motivation for the changes included perceptions by Albury Blue about his inadequate performance as Metro Supervisor, Mr Priest was told in the meeting on 20 September 2017 merely that Albury Blue were to appoint a Depot Supervisor on a permanent basis and that he would not be required to fill in as a Supervisor going forward. Such was confirmed in the company's correspondence to Mr Priest on 21 September 2017.

[39] Accordingly, the finding must be made that Mr Priest was not notified of the reasons held by Albury Blue about his dismissal from the position of Metro Supervisor.

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

[40] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal.[17] I have not found there was a valid reason for Mr Priest's dismissal.

[41] Albury Blue conceded in the determinative conference that when it came to speak with Mr Priest in the meeting on 20 September 2017 the decision to remove him as Metro Supervisor had already been made by the company.

[42] Mr Priest was not given an opportunity to respond to the reasons held by Albury Blue for his dismissal relating to his capacity or conduct.

(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

[43] Mr Priest was advised on 19 September 2017 that he was required in a meeting with the company's managers on 20 September 2017, but he was not informed of the subject matter to be discussed in the meeting. There was neither an offer by Albury Blue to him to have a support person in attendance or a request by him for the same.

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

[44] Mr Priest had not been warned about the company's perceptions of his unsatisfactory performance as Metro Supervisor before it communicated his dismissal.

(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

[45] Albury Blue indicated in its Employer Response Form that at the time of Mr Priest's dismissal it employed 105 employees. There is nothing before the Commission which would lead to a finding that its size impacted upon the procedures it followed in effecting the dismissal.

(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;

[46] One of the managers who communicated the decision to Mr Priest was Mr McIntosh whose title is "HR and Compliance Manager" who attended the Commission proceedings on behalf of the company. There is nothing before the Commission which would lead to a finding that the absence of dedicated human resource management specialists or expertise in Albury Blue was likely to impact on the procedures it followed in effecting Mr Priest's dismissal.

(h) any other matters that the FWC considers relevant

[47] Relevant for consideration in this matter is that Albury Blue did not consider it was dismissing Mr Priest from employment but rather that it was removing an allowance from him because it no longer required him to undertake the duties otherwise performed by the Metro Supervisor. That much is made clear in the letter provided to Mr Priest on 21 September 2017. The correspondence informed him that he would no longer be required to act as a supervisor in addition to his duties as a forklift operator/local delivery driver. While he would no longer receive the supervisor allowance all other entitlements would remain the same as previously the case.

[48] While I have found that the removal of the $80 per week Metro Supervisor payment amounted to a significant reduction in his remuneration, it is self-evident that Albury Blue had no intention to deprive Mr Priest of the far more significant and ongoing benefit of employment at the rate of $777.86 per week.

[49] The significance of the remunerative aspect of the demotion which took place means that there has been a dismissal, however the question also rises whether, because of the offer of ongoing employment at the lower rate means what occurred was not an unfair dismissal. Such question is a highly contextual one requiring resolution within the special circumstances of the case before the Commission.

[50] In this particular case the demotion would have involved a significant reduction in remuneration brought about through unilateral conduct on the part of Albury Blue which, by his conduct, Mr Priest has chosen not to accept. Even had Mr Priest chosen to accept the unilateral change to his employment conditions I consider that it would be a significant unfairness to him to not make a finding, within the overall facts of his case, that his dismissal was itself unfair. The fact that Mr Priest did not accept the unilateral change neither adds to nor detracts from that situation.

[51] In the overall circumstances of Mr Priest's matter I find that he was unfairly dismissed from the position of Metro Supervisor with that dismissal being unjust because the reasons held by Albury Blue for making the change had not been identified to him prior to the decision being made and because he did not have an opportunity to make correction to the behaviour the company was concerned about.

[52] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are as follows;

"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.

(2) 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."

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

• (a) the continuity of the person's employment;

(b) the period of the person's continuous service with the employer, or (if subsection

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

• (a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement."

(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.

(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

(b) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(c) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(d) 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

(e) 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.

(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.

(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.

(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."

[53] Pursuant to subsection 390(3) of the Act an order for the payment of compensation to a person must not be made unless the Fair Work Commission "is satisfied that reinstatement of a person is inappropriate" and also that the Commission "considers an order for payment of compensation is appropriate in all the circumstances of the case."

[54] Mr Priest's submissions on the subject of the appropriateness of reinstatement in the event that the Commission found his dismissal was unfair are somewhat limited although he did say that the prospect of reinstatement was difficult to consider and that he would be against something like that. The overall context of Mr Priest's submissions to the Commission, written and oral, lead to the view that he considers the requisite trust and confidence would be lacking in a renewed employment relationship.

[55] Albury Blue put forward that they still consider Mr Priest to be an employee of the company and that his position is still there.

[56] The issue of when reinstatement is inappropriate and the related question of the need for trust and confidence between the parties was considered at length by the Full Bench of the Commission in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter.[18] In its decision, the Full Bench held that;

• 'trust and confidence' in this context it that which is essential to make an employment relationship workable, which is "not to be confused with an implied term in a contract of employment of mutual trust and confidence, the existence of which was recently eschewed by the High Court in Commonwealth Bank of Australia v Barker"; and

• While "trust and confidence is a necessary ingredient in any employment relationship, it would be wrong to assume that it is the sole criterion or even a necessary one to determine whether or not reinstatement is appropriate".[19] (references omitted)'

[57] The Full Bench summarised the relevant principles to be followed in assessments of trust and confidence as follows;

"[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

• The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party."[20] (references omitted)

[58] Self evidently Albury Blue did not set out to terminate Mr Priest's employment in total. It does not put forward anything which would suggest that it lacks trust or confidence in Mr Priest's ability to perform the work that would require of him into the future. Despite that the criticism is advanced by the company against Mr Priest in the performance of his supervisory duties would need to be regarded as still live in the event of a reinstatement. Perhaps those criticisms, if cogent and particularised, would be accepted by Mr Priest and acted upon; perhaps they would not come with the likelihood of disciplinary action against Mr Priest then ensuing.

[59] The question of whether it is appropriate to reinstate Mr Priest is something which is finely balanced. As a low-wage employee against whom no substantial criticisms are made in relation to his substantive employment, on one view, and especially from the economic perspective, the best and most compelling remedy for Mr Priest would be to order his reinstatement. Such would secure his economic interests at least for the medium term. Yet demonstrated through his conduct after September 2017, through to the proceedings before the Commission, he plainly does not want reinstatement. Immediately after the conversation on the 20 September 2017 he went to a medical practitioner and obtained medical certificates which authorised, mechanistically at least and to the lowest possible standard of proof, his absence from work until 3 November 2017. The underlying medical condition has never been identified either to his former employer or to the Commission and it is unknown whether the condition identified by the medical practitioner remains extant and an impediment to his reinstatement. Surprise must be expressed that a person who was once employed at the rate of $857.86 per week and who has been continuously unemployed since 3 November 2017 to the date of proceedings before the Commission on 13 March 2018 would not seriously consider the alternative of continuous employment albeit at the lower rate of $777.86 per week while perhaps at the same time maintaining these proceedings. The only explanation must be that Mr Priest simply does not want to return.

[60] While that is likely the case, the question before the Commission is whether reinstatement is appropriate.

[61] In the context of this matter I think it is not. While it may be in Mr Priest's best economic interests, it is doubted that Mr Priest would return even if an order were made, although even that likelihood does not dispose of the question. Mr Priest plainly does not trust Albury Blue to any appreciable extent and expects that what he regards as inappropriate conduct on the part of the company would continue were he to return. There is only slight evidence in this regard and that evidence which is before the Commission stems largely from the conduct of Albury Blue's managers in forming a decision about Mr Priest's future based largely on its impressionistic or anecdotal perspective of his performance. They then made a decision about his future and communicated it to him as one that had already been made without an opportunity for him to respond or reason with them. They did not even tell him why the motivating factors to the decision. It is to be noted that while Albury Blue readily conceded in these proceedings the reasons for its decisions and that the decision had been made prior to its communication to Mr Priest, it did not then put forward that a lesson had been learned and that such conduct would not be repeated in the future.

[62] In the context of Mr Priest's case, stemming partly from Mr Priest's beliefs about Albury Blue as well as the possibility that its poor decision-making processes may be repeated into the future, the Commission is not satisfied in this case that there would be a sufficient level of trust and confidence restored to make the employment relationship viable and productive.

[63] I am satisfied in all the circumstances that it would be inappropriate to reinstate Mr Priest and that instead consideration should be given to an order the payment of compensation.

(a) the effect of the order on the viability of the employer's enterprise

[64] Albury Blue makes no submission that an order of the Commission for compensation may affect the viability of its enterprise. Accordingly, this matter is a neutral consideration in determination of an order for compensation.

(b) the length of the person's service with the employer

[65] Mr Priest's period of employment with Albury Blue was from about November 2011, meaning that he worked for the business for a total period of slightly less than six years by the time his employment ended in September 2017. The length of Mr Priest's service with Albury Blue does not require an adjustment to be made to the proposed compensation order.

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

[66] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to "anticipated period of employment". The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters;

"[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

". . . we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law."

[34] 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." [21] (endnotes omitted)"

[67] In the circumstances Albury Blue failed to recognise that the decision it communicated to Mr Priest was a dismissal and failed to have a valid reason for its decision, being one that was sound, defensible or well founded. It also failed to allow Mr Priest an opportunity to respond to the reasons it held.

[68] The company could have relatively easily ascertained through some basic research or seeking of advice that what it proposed to do to Mr Priest most likely amounted to a dismissal. Similarly, it could have researched or received advice on what was required there to be a valid reason for the decision or procedural fairness in implementing it. Neither are especially difficult or time-consuming matters. Albury Blue could have sought and received pointed advice on the matters which likely would have then charged the managers with further developing their otherwise impressionistic and anecdotal views of Mr Priest into more substantive as well as substantiated criticisms of his performance. The same advice would have given Albury Blue a pathway to put those matters to Mr Priest as considerations for potential change and, failing sufficient change, action upon what may have been by that time a valid reason for the decision.

[69] The timeframe for obtaining and acting upon such advice would, in the scheme of this particular matter, be relatively short, perhaps two to three weeks at most. Given that Albury Blue put forward that the decision Mr Priest would no longer be its Metro Supervisor was made only four or five days before it was communicated to him, it follows that the process of obtaining and acting upon advice would have extended into early or mid-October 2017.

[70] Having considered all of the material before the Commission, together with the demeanour of all parties, and especially that of Mr Priest, it is likely that, even with better justification for the decision as well as better communication of what was intended, Mr Priest would likely not have taken well to what was communicated to him. The assessment is made that, in all probability, Mr Priest would have responded in the same way as he actually did in September 2017 even if the criticisms of his performance or an eventual proposal for demotion were better formed and communicated. That is, Mr Priest would likely not take well to what was put to him and responded both by absenting himself from the workplace on personal leave and then initially neither accepting or rejecting the offer of alternative employment at a lower rate of pay, followed by the ultimate rejection of the proposal at some later date.

[71] In the overall context of this matter the anticipated further period of employment for Mr Priest from 20 September 2017 would likely only be four to six weeks. Given the uncertainties that would be caused by Mr Priest's reaction to the things put to him, the likelihood that he would absent himself from the workplace without firm acceptance or rejection of the company's criticisms and demotion proposal leads to the conclusion that this may be a slightly longer than shorter period. As a result the anticipated period of employment is set at six weeks.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[72] Two matters are relevant to the question of mitigation of Mr Priest loss following his dismissal; the efforts by him to obtain employment since November 2017 as well as the offer made by Albury Blue of continuing employment with the company at a lower rate of pay.

[73] The date of effect of Mr Priest's termination of employment is Wednesday, 27 September 2017, which is the date set out within the correspondence from the company to Mr Priest, dated 21 September 2017. While that is the case, it is to be noted that Mr Priest sought and obtained medical certificates indicating that he was unfit for work in the period up to 3 November 2017. On this basis, it is the period after that time which is relevant for consideration in respect of Mr Priest's efforts to mitigate his loss following his dismissal. In the proceedings before the Commission Mr Priest put forward that those efforts consisted of establishing and maintaining a profile on a jobs website with him submitting his name from employment to about 44 jobs. Those applications had progressed to an interview by the date of proceedings before the Commission. Mr Priest confirmed that the application is the made included non-supervisory positions as well as those requiring supervisory skills. I am satisfied that Mr Priest has, in respect of this consideration at least, taken appropriate steps to mitigate the loss she has suffered following dismissal.

[74] While that is the case, I cannot say the same about the consideration by Mr Priest of the company's offer of continuing employment as a forklift operator's/truck driver at a lower rate of pay that he once enjoyed. Mr Priest asks the Commission to accept that since he has not had any income from any source since 3 November 2017 to the date of the proceedings, a period of 18 weeks, Albury Blue should be accountable for the concomitant loss of income that would have been otherwise received, an amount of over $15,000.

[75] As referred to earlier in this decision Mr Priest went to a medical practitioner on 20 September 2017 shortly after the conversation about the future of his employment. He then provided that medical certificate and other certificates on later dates, the combined effect of which supported his contention that he was unfit for work at least until 3 November 2017. However there is no clear evidence before the Commission either about the condition that prevented Mr Priest from working at Albury Blue before 3 November 2017 or whether it was that the same or another condition which impeded him from working with them after that date. Account is also taken of the fact that Albury Blue endeavoured to communicate with Mr Priest on several occasions by email and phone about his potential return to work and that Mr Priest did not respond to those contacts from the company.

[76] In finality it is likely that Mr Priest was simply unwilling to work for Albury Blue again under any circumstances. The evidence before the Commission does not lead to the view that such unwillingness after 3 November 2017 was reasonably held other than it being connected with a view on his part that the company could not be trusted to not act against him again in the future in the way that it had in September.

[77] Mr Priest could, and should, have given serious consideration to what proposed by Albury Blue, and his failure to reasonably engage with their proposal is a failure on his part to mitigate his actual and future loss suffered because of his dismissal. While it has been observed that is more often the case that while the dismissed employee must seek other employment he or she is not required to accept a position of lower pay or status with the same employer,[22] the circumstances of Mr Priest's case may be distinguished. Until the meeting on 20 September 2017, there were no major wrinkles in the employment relationship. He has not put forward cogent reasons why he can no longer trust Albury Blue, or why consideration should not be given to an alternative position, and he concedes it is work he can do.

[78] It is appropriate in the circumstances because of Mr Priest's failure to mitigate his loss by seriously engaging with the proposal put forward by Albury Blue to make an adjustment to the order for compensation which is made to him. While critical of Mr Priest's actions in this regard, such adjustment should not be punitive or crushing. It is considered appropriate to reduce by $500 the compensation otherwise to be ordered.

(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

[79] Mr Priest has had no employment or income from any sources since leaving Albury Blue.

(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

[80] Mr Priest is not presently in employment or receiving income from any sources.

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

[81] Albury Blue requests the Commission to take account of the fact that Mr Priest was contacted on several occasions about a return to the company at the lower position and that he made no endeavours to make contact with the company about the matter. That matter has already been taken into account in relation to the consideration of Mr Priest's efforts to to mitigate his losses following dismissal. The subject does not require further consideration.

[82] Since the dismissal does not relate to misconduct there is no requirement to make an adjustment to the compensation order for reason of misconduct (s.392 (3))

[83] After consideration of the foregoing issues, I find that Mr Priest was dismissed and that his dismissal was unfair within the meaning of the Act.

[84] I find that reinstatement is not an appropriate remedy in this case.

[85] I find that compensation is appropriate.

[86] The approach by the Fair Work Commission in these matters, and which is followed here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5).[23] Noting that all of the projected period of continued employment has passed, there is no need to make a deduction for contingencies.[24]

[87] I accept that Mr Priest's remuneration at the time the dismissal was $857.86 per week and that in addition to this amount he was entitled to receive a further payment of 9.5% superannuation calculated on the total weekly amount. The Commission's order for compensation will be for a payment of 6 weeks compensation at the rate of $857.86 per week, with a further amount of 9.5% for the purposes of superannuation, from which a deduction will be made in relation to the efforts made by him to mitigate his losses. Calculation of the amount payable is set out in the following table;

1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,

6 weeks projected lost income at the rate of $857.86 per week[2]

[88] The total amount of $5,136 does not exceed the compensation cap applying at the time of dismissal.

[89] An order requiring Albury Blue Logistics to pay Mr Priest the total amount $5136 taxed according to law, is issued in conjunction with this decision. The total will be ordered to be split between a payment directly to him, and a payment to his superannuation account, on his behalf.

[90] In accordance with this decision, and after recalculation to take account of the effect of the deduction for mitigation, the total of $5,136 is to be paid it two amounts. Because of the deduction made in relation to the matter of mitigation, both the amount to be paid directly to Mr Priest and the amount to be paid to his superannuation account differ from the headline amounts shown in the above table. As a result, and after adjustment, a total of $5,136 is to be paid by Albury Blue, comprising of $4,691, less taxation, to be paid directly to Mr Priest, and $445 to be paid to his superannuation account. The order will require the payments to be made within 14 days of the date of this decision.

[1] MA000038.

[2] [2018] FWC 105.

[3] [2016] FWCFB 5500, (2016) 262 IR 60, [24], with reference to Visscher v Giudice [2009] HCA 34, 239 CLR 361 at [53] per Heydon, Crennan, Kiefel and Bell JJ, and Byrne v Australian Airlines Ltd [1995] HCA 24, 185 CLR 410 [ 24], per Brennan CJ, Dawson and Toohey JJ

[4] Saeid Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162, see in particular, paragraph [75].

[5] [2017] FWCFB 3941, [47].

[6] Macken's Law of Employment , [Sappideen et al,] Eighth edition, Lawbook Co. 2016.

[8] Ibid at paragraphs [49] and [50].

[9] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2018] FWC 1074.

[10] Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

[11] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

[12] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]- [7].

[13] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

[14] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

[15] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]- [34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]- [23].

[16] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

[17] Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, 2 February 2000) Print S2679 [41].

[18] [2014] FWCFB 7198

[21] Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

[22] Biviano v Suji Kim Collection (2002), unreported, Print PR915963, [46] - [52].

[23] See Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

[24] Bowden v Ottrey Homes Ibid, at [54]