s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - multiple jurisdictional objections raised - Applicant alleged to not have met the minimum employment period - Applicant not dismissed within the meaning of section 386 of the Act - dismissal alleged to be a case of genuine redundancy - Applicant found to have been dismissed - dismissal found to not have been a case of genuine redundancy - consultation obligations not followed - jurisdictional objections dismissed - merits of the application considered - valid reason found - application dismissed.

• [1] Mr Jason Argent (Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from P&C Excavations Pty Ltd t/a Rail Lines Australia (the Respondent) was harsh, unjust or unreasonable. The Respondent denies these allegations and further asserts the application cannot succeed because of several jurisdictional objections. These objections include that Mr Argent has not met the minimum employment period and has not been dismissed within the meaning of the FW Act as his termination was a case of Genuine Redundancy.

• [2] Directions were initially issued for the filing of submissions and evidence in relation to the threshold issue of whether Mr Argent had completed the minimum employment period. At a hearing on 6th August 2025 for reasons set down below, I determined Mr Argent had completed the minimum employment period and was entitled to have his merits application determined. Subsequent directions were issued for the filing of evidence and submissions, and a hearing was scheduled for 6th of October in Melbourne.

• [3] I have found that the termination of Mr Argent's employment was not harsh, unjust or unreasonable after considering all the material and evidence presented by both the Applicant and the Respondent in this case. For the reasons set out below, this application is dismissed.

• [4] Mr Argent works as a machine operator on the Tie Gang servicing Victoria Rail Lines (V/Line Gang) maintenance and construction needs across the Victoria as required. He is an experienced machine and plant operator who has been performing work on the Tie Gang since around 2013.[1]

• [5] Mr Argent's father also worked on the V/Line gang, and he has had a long association with this work and what it involves. Put simply, the work involves travelling around the State replacing railway sleepers and associated track maintenance for 6 to 8 months from around March each year. V/Line allocates work on a preferred tender basis. The Respondent has been a preferred tenderer for some time. Being a preferred tenderer is not a guarantee of work. V/Line requires preferred tenders to submit quotes for work in the year ahead towards the end of each calendar year. Work orders to preferred tenders are generally confirmed in early January or February and work commences from around March.[2]

• [6] Mr Argent has performed work as a casual employee for several preferred tenders who have been allocated work on the V/Line. He has generally worked on a seasonal basis, commencing employment when work commences and ending employment when work ends for the season. On occasion he has performed work on an ongoing casual basis. Because of the seasonal and varied nature of the work, Mr Argent has an established practice of being mobile and flexible to follow the work with his wife and family, using periods of non-work as leave supplemented by industry income maintenance schemes.

• [7] Mr Argent first undertook work for the Respondent in December 2017. He worked 10 days as a casual and was provided with an employment separation certificate when his engagement ended. He worked on the same basis for 2 weeks in 2019. In 2023, he worked for the Respondent for approximately 10 months and a further 9 months in 2024. At the end of 2024, Mr Argent was provided with an employment separation certificate. He was also provided a work vehicle which he continued to have custody and use of until he ended his employment in April the following year.

• [8] Mr Argent recommenced performing work for the Respondent on 11 March 2025 at Swan Hill. The work he performed was that of a machine operator on a scarifier machine. He continued to perform this work until the day he was terminated. On 24th of April, Mr Argent received a phone call from Mr Fusca informing him that he was being dismissed and that he was to finish up the following day and leave his work vehicle on site. He argues he was given no notice or valid reason for his dismissal, was not provided an opportunity for consultation or redeployment and that he has been unfairly dismissed. He seeks compensation for this injustice.[3]

• [9] The Respondent disputes Mr Argent has been unfairly dismissed, and further, that he is not able to have his application determined because he has not completed the minimum employment period. Mr Argent argues he has been unfairly dismissed and that he is entitled to bring his case to the Commission for determination.

• [10] Section 382 of the 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 that the high-income threshold.

• [11] It is not in dispute that Mr Argent is a casual employee and that the minimum employment period is 6 months as prescribed by s 383 of the Act. Nor is it in dispute that Mr Argent was re-employed by the Respondent in March 2024 after a previous period of 10 months' service ended at the end of 2023.

• [12] The Respondent's position is that this is what occurred again. That Mr Argent's period of seasonal employment ended at the end of 2024. Because of this, it is their position that Mr Argent has not completed the required minimum period of employment as a casual to be protected from unfair dismissal.

• [13] Mr Argent argues that this is not the case. His position is that at the end of 2024 he understood he would be recommencing employment with the Respondent in early 2025. That this was communicated to him by representatives of the Respondent and further that he was provided continued access to the company motor vehicle on this basis.

• [14] The period of employment is defined in section 384 of the Act as follows:

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

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

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

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

• [15] The test of determining whether Mr Argent's period of service as a casual employee counts as continuous service is simply whether or not during the period of at least 6 months prior to the dismissal he was an employee on a regular and systematic basis and had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.[4]

• [16] In the present case, there is no dispute Mr Argent worked regular and systematic hours up until the end of the 2024. In proceedings, Mr Argent gave clear and convincing evidence he understood and expected he continued to be in a casual employment relationship with the Respondent at the end of 2024 and would be recommencing the performance of work sometime in early 2025.

• [17] This is what in fact occurred. I accept his evidence and find it more persuasive than that of the Respondent. Mr Fusca's evidence that he provided Mr Argent ongoing access and custody of his company motor vehicle for the period between the end of 2024 and early 2025 when work recommenced on the V/Line because it was convenient supports Mr Argent's version of events.

• [18] On this basis, I am satisfied Mr Argent was a casual employee engaged on a regular and systematic basis, who had a reasonable expectation of continuing this employment and has completed the minimum employment period of 6 months. I am, therefore, satisfied he is a person protected from unfair dismissal. Having been so satisfied, I now turn to consider whether Mr Argent has been unfairly dismissed.

• [19] Mr Argent's submissions that he was unfairly dismissed are clear and concise. In support of these submissions Mr Argent provided sworn evidence to the Commission and was assisted by his wife in proceedings.

• [20] Mr Argent's argument is that he has been working for the Respondent as a casual on an ongoing basis for over 12 months. He is a skilled and experienced machine operator. His work with the Respondent has primarily been operating the scarifier machine on the V/Line Tie gang. On occasion, he has competently operated other machines and submits he has capacity to continue to do so. Mr Argent also has experience as a skilled welder and panel beater with significant competence in vehicle, machine maintenance and repairs.

• [21] Mr Argent's evidence is that on the evening of April 24th, he received a phone call from the Respondent's director, Mr Fusca, advising him that he was to finish up the next day. That he was shocked by this information. That he was given no prior notice or warning that the work was ending, that he was no longer going to be required or that there were any issues with his performance or conduct. Furthermore, that he was provided with no opportunity for a discussion or any form or consultation. Simply, that he was told to finish up and leave his vehicle on site.

• [22] Mr Argent argues his termination was unfair in that he was not provided any notice, any reason, and was denied procedural fairness and any opportunity for a conversation or consultation. Further identifying this unfairness is compounded by his age and that he has worked on the Tie gang for an extensive period. In addition, he rejects any suggestion his termination was a case of a genuine redundancy because the vehicle he was operating continued working.

• [23] The Respondent's principal, Mr Fusca, was diagnosed with significant health issues during the time between Mr Argent finishing work and these proceedings. In these circumstances, he was granted leave to be legally represented in proceedings. Mr Fusca's representative relied on both written and oral submissions in proceedings to support their position. Mr Fusca also provided sworn evidence to the Commission.

• [24] Mr Fusca's evidence is that he is a preferred tenderer for V/Line work but that his only guarantee for work is when he is allocated job specific contracts that he then takes steps to perform. This includes allocating the necessary machines, equipment, full time and casual employees to each job as required. He accepts Mr Argent recommenced working for him in early 2025 as a casual and that he engaged Mr Argent to work as a machine operator.

• [25] Mr Fusca's evidence is that on the 22nd of April he received an email and telephone call from V/Line representatives stating that from April 28th they no longer required him to supply two of his machines at Ballarat.[5] Because of this, he submits he had no choice but to decide to put off two employees because he could not pay employees when there was no work for them to do and he was not being paid for them to be engaged. Between April 22nd and 24th, Mr Fusca considered his position and the options available to him. Eventually, he determined to end Mr Argent's and another employee's engagement. At around 7:00am on the 24th of April, Mr Fusca says he called Mr Argent and made him aware of this decision and the reasons for it, including that there was nowhere else in the business where he could be redeployed.

• [26] Mr Fusca's evidence is that he told Mr Argent his casual employment would end at the end of work the following day and made him aware the company could have another job coming up in Mildura and that he would be offered employment there. He argues he did not consider Mr Argent was dismissed, rather that he had just ended another casual engagement. Adding, he informed Mr Argent he needed him to return is company vehicle the following day and offered him assistance with transport home.

• [27] Mr Fusca's evidence is that he made this decision because Mr Argent was a casual employee. That he wanted to keep his full-time employees on board and reallocated one of them to operate the machine vacated by Mr Argent at the end of April 25th. Mr Fusca accepts that the machine Mr Argent was operating continued to work on the Ballarat job for some weeks after April 28th, submitting he had no machines working on the job before the end of May. And thereafter, no machines working until another job commenced at the Mildura line a month or so later.

• [28] Mr Fusca accepts that he had no issues with Mr Argent's performance or conduct and that he did not consult with him about his decision to end his engagement. He conceded that he did not have a fulsome awareness of Mr Argent's capacity to perform work welding or fixing machines on track, adding he already engaged other full-time employees to perform these tasks. In short, his evidence is that he considered Mr Argent a casual operator he engaged to work on the V/Line tie gang as required and that he made the decision to end his engagement because he was forced to reorganise his business because V/Line no longer needed him to provide two machines. Adding, his consideration of machines and operators was limited to general competency, not specialised operators, on specific machines.

• [29] Based on Mr Fusca's evidence, the Respondent's position is firstly that Mr Argent has not been dismissed within the meaning of s.386 of the FW Act and that what occurred on the 24th and 25th of April is an ending of a casual employment contract. In the alternative, they argue Mr Argent's termination was a genuine redundancy within the meaning of the Act. Finally, submitting that on this basis there was a valid reason for dismissal and that Mr Argent has not been unfairly dismissed.

• [30] I have considered all the relevant evidence and submissions of the parties in this case. Much of this evidence is not in contest or not significant to the matters that I am required determined.

• [31] It is not in contest that Mr Argent is a skilled and experienced operator with a passion for working on the V/Line tie gang. It is work that he has done for a considerable period and was done by his father before him. Mr Fusca has no issues or concerns with Mr Argent's work. He has worked for him on a casual basis on several occasions since 2018. He considers him to be a skilled and competent casual operator who can be relied on to perform machine work on the V/Line tie gang when required. Mr Fusca has engaged Mr Argent on this basis.

• [32] Both Mr Argent and Mr Fusca have endeavoured to provide honest and considered evidence to the Commission to the extent of their ability and recollection. Mr Argent's evidence is clear that he was engaged by the Respondent as a casual operator, on short jobs and for periods of varying length.[6] He accepts that this has been his experience working on the V/Line tie gang for the Respondent or other preferred tenderers as employers. Further, accepting it was not unusual for his work to end when work was no longer available and that he had no expectation his employment was going to continue indefinitely.[7]

Was Mr Argent Dismissed within the meaning of the FW Act

• [33] I accept the evidence establishes Mr Argent was clearly a casual employee engaged on an intermittent and as needed basis by the Respondent. I do not, however, accept what occurred at the end of April 2025 was not a termination at the initiative of Mr Fusca within the meaning of the Act. The Respondent suggests in the circumstances of this case where the history of the relationships is intermittent, had previously stopped, restarted and remained "on foot", the Commission should conclude this is what occurred in April 2025. That Mr Argent was not dismissed by Mr Fusca on April 24th within the meaning of the Act.

• [34] I have considered these submissions and the authorities referred to by the Respondent, including Navitas[8] that support this position. However, the evidence in this case does not support this conclusion.

• [35] Mr Argent is clear that he was told by Mr Fusca he was ending his employment on April 25th. I accept this evidence and prefer it to that of Mr Fusca. Mr Fusca's version of events is considerably less clear. Ultimately, however, he accepts he made it clear to Mr Argent he was no longer required from the end of shift on April 25th.[9]

• [36] I am satisfied that in taking this action, Mr Fusca was terminating Mr Argent's employment within the meaning of s.386 the Act. I am further reinforced in this conclusion by the Respondent's F3 response form that clearly confirms Mr Argent was dismissed, and his termination was a case of genuine redundancy.[10]

• [37] Having been satisfied that Mr Argent was dismissed within the meaning of the FW Act, I now turn to consider the Respondent's position that Mr Argent's dismissal was a case of genuine redundancy within the meaning of the Act.

• [38] Section 389 of the Act, titled "Meaning of Genuine Redundancy" provides:

(1) A person's dismissal was a case of genuine redundancy if:

(a) The employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(b) The enterprise of an associated entity of the employer.

Award or Enterprise Agreement Coverage - Consultation Obligation

• [39] Neither the Applicant or Respondent made any submissions on whether Mr Argent's employment was covered by a relevant agreement or award. Ultimately, the application of a modern award is a matter of fact to be determined by the Commission. In the present case, Mr Argent was working as a machine operator in the construction and maintenance or V/Line track. Variously, his employment is within the coverage of the Rail Industry Award 2020[11] or the Building and Construction General On-site Award 2020.[12]

• [40] Both these modern awards contain an obligation for employees to be consulted in the event of redundancy. It follows that I am satisfied Mr Argent had a right to be genuinely consulted about potentially being made redundant relevant to the provisions in s.389(1)(b), which I will discuss further below.

• [41] The Respondent's position is Mr Argent was made redundant because of changes in the operational requirements of the business following V/Lines notification it no longer required two of its machines onsite after the 28th of April. Because of this reality, Mr Fusca had to reorganise his workforce to cater for the number of machines he was now being contracted to provide. He took a few days to make this decision and, ultimately, on 24th of April advised Mr Argent he would be ending work at the close of business the following day. Mr Fusca is clear that he made this decision to make Mr Argent redundant because he was a casual employee, hired on an as-needs basis because who was no longer needed because the machine he was on could continue to the operated by other full-time employees.

• [42] Mr Fusca accepts he did not consult Mr Argent about this decision and submits there was no utility in consultation occurring as he had no opportunities for redeployment because he already had more manpower than machines. Further, accepting he was not fully aware of Mr Argent's prior employment experience and that he gave Mr Argent no more than 24 hours' notice of his dismissal.

• [43] Mr Argent argues that he was not consulted about being made redundant. That he was not provided redeployment or alternative employment opportunities. That he was provided less than 24 hours' notice he was to lose his job. That he was more skilled and qualified than other people who remained employed. Adding finally, that his position was not genuinely redundant because the machine he was on continued to be operated after he was dismissed.

• [44] To determine whether Mr Argent's redundancy was genuine the question to determine is whether the Respondent no longer required the Applicant's job to be performed by anyone because of the operational requirement of the business. In Jones v Department of Energy and Minerals,[13] Ryan J stated when describing when a redundancy may take place:

"However, it is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other position, including newly created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs when the duties of a single, full time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the reorganisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position, becomes redundant."

• [45] I accept the evidence of the Respondent in this regard. I accept the clear evidence in this case is that V/Line advised the Respondent it no longer required two of its machines on the Ballarat job after the 28th of April. This evidence is supported by the copy of V/Lines communication to Mr Fusca.[14]

• [46] In proceedings, Mr Fusca found it challenging recalling which machines were booked off and which continued to operate on site. I attribute these difficulties to both his pre-disclosed health condition and the organisational perspective he brought to his business. Mr Fusca thought in terms of operators for machines, not specific operators on specific machines. He further gave consistent evidence the only reason he had to reorganise his business was because he was told to book off two machines from 28th April by V/Line. His consistent evidence was also that because of this decision he determined he had to lay off two employees and did so, one of which was Mr Argent.

• [47] While at times confused, the evidence of Mr Fusca identified above was clear and consistent. I accept this evidence as an accurate version of events. I also accept that the only reason Mr Fusca made Mr Argent redundant was because of the operational needs of his business.

• [48] Mr Fusca does not argue he consulted in any way with Mr Argent in relation to his decision. He maintains he called Mr Argent at around 7:00am on the 24th of April to tell him he was finishing up the following day. This evidence is supported by telephone records, and I accept it.[15]

• [49] Mr Fusca suggests that despite the obligation to consult in the relevant modern award applying to Mr Argent's work in the circumstances of this case there was no opportunity for redeployment or any other utility in consultation. I do not accept this to be the case.

• [50] While I accept that as a casual employee, Mr Argent is not entitled to any payment of redundancy pay because of s.117(4) of the Act, my assessment of the evidence in this case is that Mr Argent was entitled to be consulted about the potential for his position to be redundant, and he was not.

• [51] I further consider that had Mr Argent been properly informed of Mr Fusca's decision and the reasons for it, it is not inconceivable that a different outcome would have been possible. Mr Argent may well have taken a period of leave as he had done previously and resumed work on the Mildura job when it was confirmed.

• [52] By not complying with his obligation to genuinely consult, Mr Fusca is unable to claim his decision to terminate Mr Argent was a case of genuine redundancy within the meaning of the Act. I do not accept this be the case. Because of this finding, I now turn to consider whether Mr Argent was unfairly dismissed.

Was Mr Argent's Dismissal Harsh, Unjust or Unreasonable

• [53] Section 387 of the Act provides for the criteria for consideration whether a dismissal was harsh, unjust or unreasonable:

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."

• [54] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter[16] and now turn to each of these criteria below.

s.387(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)

• [55] In order to be a valid reason, the reason for the dismissal should be "sound, defensible, or well founded"[17] and should not be "capricious, fanciful, spiteful or prejudiced."[18] 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.[19]

• [56] The reasons given for the termination of the Applicant's employment are that this was a case of genuine redundancy. I have not been satisfied that this is the case. Despite this finding however, I am satisfied that the only reason that Mr Argent was dismissed was because of the notification Mr Fusca received from V/Line and the consequential decision he had make to reorganise his business. I accept that this was nothing other than a sound, defensible and well-founded reason. This finding weighs against a finding that the dismissal was harsh, unjust or unreasonable.

s.387(b) Whether the person was notified of that reason

• [57] Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[20]

• [58] 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,[21] in explicit,[22] plain and clear terms.[23]

• [59] In the circumstance of this case, I am satisfied Mr Argent was made aware by Mr Fusca that his employment would be ending the following day because of the operational needs to his business. Mr Fusca was advised on the 22nd of April that he had to book off two machines. Two days later, he advised Mr Argent he would no longer required from the end of the following day. While more notice would have been ideal and Mr Argent believes he was provided less than 24 hours' notice, the evidence is clearly the case that Mr Fusca notified him of the reason he was being dismissed.

• [60] I find this factor weighs in favour of the Respondent.

s.387(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

• [61] This factor is not relevant to the facts of this case as the reason for dismissal did not relate to Mr Argent's capacity or conduct.

s.387(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

• [62] This factor is not relevant to the facts of this case. It is not contended, however, that a request of the Applicant for a support person was made and unreasonably refused.

s.387(e) If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal

• [63] As this dismissal did not relate to unsatisfactory work performance, this factor is not relevant to the circumstances of this case and its determination.

s.387(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 s.387(g) - Whether the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise impacted on the procedures followed

• [64] The Respondent is not a small business. While I accept Mr Fusca is the principal management representative and owner of the business, I do not accept this presents any reason why the size of his business was likely to impact the procedures he followed in dealing with Mr Argent.

• [65] I am satisfied the absence of dedicated human resources management expertise was a factor impacting the procedures that Mr Fusca followed. I do not, however, conclude these factors were determinative in the circumstances of this case such that they should be weighed for or against either party. For Mr Fusca, the key determinative in his capacity to consider his position and response was the notice he was provided by V/Line they no longer needed his machines. For Mr Argent, he was plainly provided little more than 24 hours that his job was going to end.

• [66] I, therefore, consider factors (f) and (g) to be neutral.

s.387(h) Any other matters that the FWC considers relevant

• [67] Neither party brought any other relevant matters to my attention I consider relevant to this case. I, therefore, consider this a neutral factor.

• [68] For the reasons set out above, I have found that Mr Fusca was dismissed within the meaning of the Act. I have not been satisfied his dismissal was a case of genuine redundancy because the consultation obligations in the relevant modern award were not complied with. I have considered whether Mr Argent was unfairly dismissed and made findings in relation to each matter specified in s.387 of the Act as relevant and given each due weight in determining whether the termination was harsh, unjust or unreasonable. I am satisfied this is not the case.

• [69] Accordingly, as I have found that Mr Argent's dismissal was not harsh, unjust or unreasonable, the application is dismissed.

[1] Applicant's Submissions dated 8 September 2025, Witness Statement of Jason Argent dated 8 September 2025, Digital Court Book ('DCB') p.3-10.

[2] Witness Statement of Peter Fusca dated 25 August 2025, DCB p.122-124

[3] Witness Statement of Jason Argent dated 8 September 2025 at [16] - [20], DCB p.8-9.

[4] Harrison Smith v City of Stonnington [2013] FWC 978 at [20]- [21] and Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic [2010] FWA 2078.

[5] Witness Statement of Peter Fusca dated 25 August 2025 at [31], DCB p.125,184.

[6] Transcript of Proceedings on 6 October 2025 at PN221.

[8] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162.

[13] [1995] IRCA 292; (1995) 60 IR 304.

[14] Annexure I, Supplementary Witness Statement of Peter Fusca dated 2 October 2025, DCB p.184.

[15] Ibid, Annexure J at record [730], DCB p.205.

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

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

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

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

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

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