Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Jurisdictional objection on grounds of genuine redundancy - Modern Award did not apply - Redeployment dealt with unreasonably - Not satisfied that it would not have been reasonable in the circumstances to redeploy the Applicant - Dismissal not a case of genuine redundancy - Dismissal unfair - Reinstatement not appropriate - Compensation awarded.

[1] Mr Paul Dale (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Marky Industries Pty Ltd (the Respondent). The Respondent objects to the application on the basis that it asserts that the dismissal was a case of genuine redundancy (the Objection). It is not in dispute that Mr Dale is a person protected from unfair dismissal. Mr Dale's application was made within the time required in s.394(2) of the Act. The Respondent is not a small business. After considering the views of the parties and assessing the matters in dispute I determined to conduct a hearing.

[2] The background can be briefly stated. The Respondent's business is manufacturing products for a range of industries specialising in composite materials. Mr Dale commenced employment with the Respondent on 4 May 2017 in the position of Business Development Manager with an annual wage of $75,000 per annum. Mr Dale was promoted to the position of General Manager on 28 June 2018 with a consequent increase in salary to $104,000 per annum. The Respondent tendered a position description for the position of General Manager and asserted that Mr Dale performed the duties set out in that position description. Mr Dale maintains that there was no position description for the General Manager position and that his role with the Respondent required that he work on the factory floor in a "hands on" supervisory capacity. Mr Dale further maintains that he was covered by the Manufacturing and Associated Industries Award 2010 (the Award). Mr Dale's wife Angela (Mrs Dale) also works for the Respondent in the role of Production Head and was promoted to that role at the same time as the events which led to the Applicant's dismissal occurred.

[3] While there are some inconsistencies in the evidence about the timing of certain events and the process that was followed by the Respondent, it is clear that at or around the end of February 2019, the Respondent determined that the role of General Manager was no longer required and that Mr Dale would be offered an alternative role. It was first proposed that Mr Dale would be offered a position entitled Production Support and later a later a role entitled Technical Training Manager. After refusing the role of Technical Training Manager on 4 March 2019 Mr Dale states that he was informed on 8 March that both the position of General Manager and the Technical Training Manager positions were redundant and his employment would be immediately terminated. Mr Dale maintains that the consultation process required by the Award was not undertaken and the redundancy was not genuine. Mr Dale further maintains that he was not actually undertaking the role of General Manager as set out in the position description and was working in a hands-on role on the factory floor, and that this role still exists. Mr Dale seeks reinstatement.

[4] The Respondent contends that Mr Dale's employment was terminated on 8 March 2019 because the employer no longer required his role of General Manager to be undertaken by anyone. The Respondent further contends that no award applied to Mr Dale's employment and that if an award did apply the Respondent complied with consultation obligations. The Respondent also contends that it complied with redeployment obligations by attempting to locate an alternative role which the Applicant vehemently rejected and that at the time of the dismissal on 8 March 2019, there were no vacant roles that the Applicant could be redeployed to.

[5] A conciliation conference before a Staff Conciliator occurred on 13 May 2019 but the matter was not resolved. Directions were issued to the parties to file submissions and evidence in relation to the Objection and the substantive merits of the matter. A further Member Assisted Conciliation Conference was conducted prior to Hearing, and again the matter was not resolved by agreement. The matter was listed for hearing before me to determine the jurisdictional objection and the merits of the application.

[6] The Respondent sought permission to be legally represented at the hearing. The Applicant filed a Form F1 Application in which the Applicant objected to the Respondent being granted permission to be represented by a lawyer at Hearing. The Applicant also filed a Form F51 Application for an order requiring a person to attend before the Commission (Form F51) and Form F52 Application for order for production of documents etc to the Commission (Form F52).

[7] On 12 July 2019, I caused my Associate to correspond with the parties indicating that I had decided not to grant the orders sought by the Applicant in the Form F51 and Form F52 given that the Respondent had not filed its material at that time and there was a possibility that the Respondent would call the person to whom the notice to attend was directed. Further, I considered that the Form F52 sought the production of documents which if they did exist would probably be tendered by the Respondent in its material. Alternatively, if such documents did not exist, the Respondent could not properly be required to create them by way of a notice to produce. The material filed by the Respondent included a witness statement from the person subject of the Applicant's attendance notice and file notes of the kind requested by the Applicant in the Form F52.

[8] The matter was set down for Mention/Hearing to deal with the question of whether the Respondent would be given permission to be legally represented. After hearing from the parties I granted permission for the Respondent to be represented by a lawyer on the basis that I was satisfied that the matter raised a jurisdictional objection which is a matter of some complexity and I was satisfied that it would enable the matter to be dealt with more efficiently taking that complexity into account.

[9] The matter was then listed for hearing of the jurisdictional objection and merits. At the Hearing the Applicant represented himself. The Respondent was represented by Mr S Mackie, of Counsel, instructed by HR Law. At the Hearing, the Applicant expressed concerns for his person personal safety and that of his wife.[1] At one stage the Applicant asserted that I had disregarded his concerns. I made it clear to the Applicant that his allegations were serious and that if he wished to raise an issue concerning a threat to him by any person associated with the Respondent he should do so in the hearing and give details of such allegations. In response to questions from me, the Applicant did not suggest that anything had occurred on the day of the hearing or otherwise to cause concern for his safety. Accordingly, I have not had regard to these assertions.

[10] At the hearing the Applicant gave evidence on his own behalf. Evidence on behalf of the Applicant was also given by his wife, Mrs Angela Dale, who is also employed by the Respondent and states that her position is Production Head. The Applicant filed a witness statement on behalf of Mr Malcolm Campbell. Mr Campbell was not present at the hearing for cross-examination and I have not had regard to that statement consistent with what I had previously told the parties during Mentions of the matter, about the requirement for witnesses to attend.

[11] Evidence for the Respondent was given by Mrs Krystyna Nikolas Financial Controller and part owner of the Respondent who provided three witness statements.[2] Evidence for the Respondent was also given by Mr Martin Nikolas, Managing Director and part owner.[3]

[12] Mrs Nikolas' evidence as set out in her three witness statements was somewhat inconsistent. In summary Mrs Nikolas said that from 25 November 2004 until about 28 October 2014, the Respondent engaged a General Manager. In early 2013, a position description was drafted for that role. The person filling that role ceased employment in late 2015 at which point the duties of General Manager were absorbed by Mr and Mrs Nikolas.

[13] The Applicant commenced employment with the Respondent on 4 May 2017 in the position of Business Development Manager with an annual salary of $75,000. As previously stated, the Applicant was promoted to the position of General Manager on 28 June 2017 with a salary increase to $104,000 per annum. Ms Nikolas tendered a copy of the position description for the General Manager role drafted in early 2013 and maintained that this was the role filled by the Applicant. Ms Nikolas also said that the General Manager's role included tasks as required by the shareholders which included helping on the production line. Mrs Nikolas estimated that Mr Dale spent about ten hours per month helping on the production line.

[14] Mrs Nikolas said that in February 2019, the Respondent had an operating loss of $306,000 for the months of January and February. In a supplementary witness statement, Mrs Nikolas said that the operating loss was the result of the purchase and wages costs being 98.67% of sales in January and 73.75% of sales in February 2019 when the percentage should have been 60% for each month. After having a discussion with her husband and co-owner Mr Nikolas it was decided that the "most logical" step was to remove the position of General Manager and again absorb the duties between Mr and Mrs Nikolas.

[15] Mr and Mrs Nikolas were also considering other changes to the organisational structure. On 28 February 2019 Mr and Mrs Nikolas met with Mrs Dale and offered her a new position of "Production Head" with a salary of $2,000 per week. At that time, Mrs Dale was employed in the role of Production Quality Support with a salary of $1,400 per week. Mrs Nikolas said that they believed that Mrs Dale had the management and organisational skills necessary to fill the role of Production Head. Mrs Nikolas states that she showed Mrs Dale an organisational chart with the position of General Manager removed. In her first statement Mrs Nikolas said that the position identified for Mr Dale was "Technical and Training Manager" and that it was proposed that Mr Dale would retain his salary and report to Mr Nikolas. In her further witness statement Mrs Nikolas said that on 28 February she and Mr Nikolas met with Mrs Dale. The subject of the meeting was Mrs Dale assuming the role of Production Head and the decision about the removal of the General Manager's role. Mrs Nikolas said that the approached Mrs Dale first as they wanted her assistance to deal with Mr Dale.

[16] Mrs Nikolas said that at this meeting, she showed Mrs Dale an organisation chart which depicted Mrs Dale in the position of Production Head and Mr Dale as "Production Support", reporting to Mrs Dale in her new position of Production Head.[4] Mrs Nikolas states that Mrs Dale was happy about assuming the role of Production Head but said that Mr Dale would not accept that he would be reporting to her and that the position of Production Support was not at the level of Mr Dale's skill set. Mr Nikolas confirmed that at the meeting the role of Production Support for Mr Dale was discussed with Mrs Dale. It is clear that Mrs Dale left the meeting with a copy of a proposed organisational structure showing: the removal of the General Manager's role; Mrs Dale in the position of Head of Production; and Mr Dale in the position of Production Support reporting to Mrs Dale.

[17] Mrs Nikolas said that she and Mr Nikolas decided to offer Mr Dale a position entitled Technical and Training Manager, a role which had not previously existed within the Company. It is not clear from Mrs Nikolas' evidence when that decision was made but I assume that it was after the meeting with Mrs Dale and before 4 March 2019 when Mr Dale discussed that position with Mr and Mrs Nikolas by telephone.

[18] Mr Nikolas states that on 28 February 2019, after the meeting with Mrs Dale, he requested that Mr Dale attend a meeting with him to discuss the Company restructure and his position with the Company. There is a conflict in the evidence about what was discussed at this meeting. Mr Nikolas said that during this meeting he offered Mr Dale the position of Technical and Training Manager. Mr Nikolas states that he was going to discuss the new position and organisation structure and provide a draft organisation chart and position description for the Technical and Training Manager position but was unable to do so because Mr Dale stormed out of the meeting stating that he was not going to accept a "demotion".

[19] Mr Nikolas said that he also spoke to Mr Dale about looking through the personnel file of another employee, and then apologised for asking about this. Mr Nikolas said that he raised the issue because Mr and Mrs Dale knew the salary of that employee and he could not understand the source of their knowledge.

[20] At some point between 28 February and 4 March 2019, Mrs Nikolas caused a position description for a role of Technical and Training Manager to be developed and an organisation chart containing this position. That organisational chart did not contain a position of General Manager. On 4 March 2019 Mrs Nikolas gave these documents to Mrs Dale to take home for discussion with Mr Dale. Given the earlier version of the organisational chart proposing a position for Mr Dale entitled Production Support, it is probable that the organisational chart and position description for the Technical Services Manager was not prepared until after 28 February 2019 and that this position was not discussed with Mr Dale on 28 February 2019 when he met with Mr Nikolas. On the evening of 4 March 2019 Mr Dale telephoned Mr Nikolas and there was a discussion about the proposed changes. Mr Nikolas placed the telephone on loudspeaker for this discussion so that it could be heard by Mrs Nikolas. The evidence of Mr and Mrs Nikolas is that during this discussion Mr Nikolas offered Mr Dale the position of Technical and Training Manager and Mr Dale refused the position calling it a "demotion" before hanging up on Mr Nikolas.

[21] Mr and Mrs Nikolas' evidence is that following the discussion on 4 March 2019 they decided to withdraw the offer of the Technical and Training Manager position as they believed that it would be better if employees were trained at TAFE. Their evidence is that there was a meeting on 8 March 2019 during which Mr Dale was informed that the role of General Manager was no longer required and that there were no alternative roles for him. Mr Nikolas also states that Mr Dale was informed that the Company had undergone a restructure and that he and Mrs Nikolas had taken back the duties and responsibilities of the General Manager position. Mr Dale was further informed that they had decided to remove the offer of the Technical Training Manager position because employees would be better off being trained at TAFE. Mr Dale was asked to return the factory key, telephone and car keys and after some discussion about the return of Mr Dale's items he returned the items requested by Mr and Mrs Nikolas.

[22] Mrs Nikolas stated in her evidence that there were no positions to redeploy Mr Dale to at the point his position was made redundant. Under the original restructure, Mr and Mrs Nikolas were looking to put Mr Dale into the position of Production Support. Mrs Dale had moved to the position of Production Head on 28 February and was paid an increased wage rate for that role from 21 February 2019. Following the discussion with Mrs Dale on 28 February 2019 it had been decided not to have a Production Support role on the basis that Mrs Dale had advised that Mr Dale would not accept it. It was subsequently decided to offer Mr Dale the position of Technical and Training Manager, a role which he also refused. Mr and Mrs Nikolas then decided to outsource all training.

[23] Mrs Nikolas also said that on or around 31 March 2019 the Company advertised a role for a Composite Specialist/Technician. That role did not exist within the Company on 8 March 2019. The position is a technical one and the person who was successful holds technical qualifications and experience in silicone application. Mr Dale was not employed when the role was created and does not hold the qualifications in any event. The position of General Manager no longer exists in the Company and all of the duties performed by Mr Dale are now performed by Mr or Mrs Nikolas or other employees.

[24] Under cross-examination Mrs Nikolas said she could not recall giving the Applicant a position description for the General Manager position. Mrs Nikolas agreed that the Applicant was expected to undertake duties as required by the shareholders and said that she was not aware of "auxiliary tasks" that Mr Nikolas required the Applicant to undertake. Mrs Nikolas maintained that a big percentage of the time Mr Dale spent on the factory floor was organising work through the factory and the day to day operations of the factory. Mrs Nikolas maintained that Mr Dale's parameters as General Manager were to have wages and purchases at 60% of sales. There were monthly meetings which Mr Dale attended to consider whether forecasts had been met.

[25] Mr Nikolas was also cross-examined by Mr Dale. Mr Nikolas maintained that he did not trust Mr Dale and that two production people had been lost to the business because Mr Dale "drove them out." This was notwithstanding that Mr Nikolas also agreed that one of those persons had obtained a higher paying position at another company. Mr Nikolas agreed that at the meeting on 28 February 2019 he told Mr Dale that he could not have him as General Manager any more and that he had not mentioned redundancy. Mr Nikolas maintained that he did not have an opportunity to discuss these matters further because Mr Dale stormed out of the meeting. Mr Nikolas said that Mr Dale stated that he would not accept a demotion but did not recall whether Mr Dale also stated that he was not refusing the new role. In response to the proposition that he had not consulted with Mr Dale about the redundancy or the new role, Mr Nikolas said this was because Mr Dale stormed out of the meeting on 28 February 2019 and hung up on Mr Nikolas during the telephone discussion on 4 March 2019.

[26] The Respondent submits that the role of General Manager is no longer required to be done by anyone because of changes in the Respondent's operational requirements. Mr and Mrs Nikolas have dispersed the duties undertaken by the General Manager between them. The Respondent also submits that the Applicant accepts this is the case and therefore the Commission can be satisfied that the role of General Manager is gone. The Respondent also submits that there were attempts to redeploy the Applicant which were rebuffed.

[27] The Respondent also submits that as General Manager, Mr Dale was not covered by an Award and in particular, disputes that the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) covered the Applicant in the role of General Manager. If a consultation obligation does arise, the Respondent submits it has complied with that obligation as a result of the discussions on 4 March 2019 and the provision of written information, being the organisation chart, also on 4 March 2019. The Respondent cannot force the Applicant to engage in consultation but rather must provide the opportunity.

[28] As to redeployment, the Respondent submits that the issue of redeployment is to be determined at the time of dismissal. At the time of dismissal the position of Production Head was filled by Mrs Dale, and the Applicant was not suitable for this position. The position of Production Support (which was previously filled by Mrs Dale) was removed. It was submitted that it would not be reasonable to have given the Applicant his wife's job as Mrs Dale was capable of performing her job. The position of Technical Training Manager did not come into existence because the use of an external training provider allowed the Respondent to meet its obligations. No other vacant positions existed at the time. The position of Composite Specialist/Technician did not exist as at 8 March 2019, and in any event the Applicant did not have the CAD skills necessary for the role. Further, the Applicant had refused the role of Technical Training Manager or to otherwise accept any form of demotion.

[29] It is also submitted that the position of Composite Specialist Technician advertised on 31 March 2019 requires the person to design and develop vacuum silicon membrane systems, utilise CAD to draw accurate drawings, meeting with clients in relation to such products and to provide quotes. The Applicant had no experience with CAD drawings and limited experienced in the system of a silicone membrane.

[30] In conclusion, the Respondent submits that if the Commission was to find that consultation was required and did not occur, it does not automatically follow that the Applicant was unfairly dismissed. The Commission should also find that if redeployment did not occur this was not as a result of lack of effort on the part of the Respondent. It was further submitted that if the dismissal was unfair, the relationship had broken down and redeployment or reinstatement was not an option. In this regard, the evidence was said to establish that working relationships could not be re-established and there is no role to which the Applicant could be reinstated.

[31] Accordingly, if the dismissal is found to be unfair, the remedy should be compensation to cover a period of consultation which reasonably would have been three days. Further, it was submitted that regard should be had in assessing compensation to the fact that the Applicant was paid four weeks' redundancy pay and two weeks' payment in lieu of notice on termination of his employment.

[32] The evidence on behalf of Mr Dale can be summarised as follows. Mrs Dale's evidence about her meeting with Mr and Mrs Nikolas on 28 February 2019 is that Mr Nikolas told her that they needed her help regarding Mr Dale and that he and Mr Nikolas were "butting heads". Mrs Dale said that Mr Nikolas then asked her how she thought that Mr Dale would go working under her and offered Mrs Dale the position of Production Head and told her that Mr Dale would be offered the position of Production Support. Mrs Dale states that her response was to advise that the role of Production Support was beneath Mr Dale's experience and that his skills and experience should be used in a technical and training role. Mrs Nikolas then stated that Mr Dale would need to leave his office and sit with other managers and Mrs Dale responded by stating that this was unnecessary. Mrs Nikolas agreed that Mr Dale could remain in his office short term and that said this would be reviewed at a later time.

[33] Mrs Dale said that Mrs Nikolas asked her to consider the proposal overnight and not to tell Mr Dale about what had been discussed. Mrs Dale said that she would not be able to keep the information from Mr Dale and that Mr and Mrs Nikolas should discuss it with him straight away. Mrs Dale also said that Mrs Nikolas said that she was not able to sit in a meeting with Mr Dale as she had to do the pays. Mrs Dale asked that Ms Avery come into the meeting to discuss how to address the restructure with Mr Dale and suggested that Ms Avery should be in the meeting with Mr Nikolas and Mr Dale. Mrs Dale then left the meeting after asking Ms Avery to place a folder containing information about the job offers on her desk as she did not wish Mr Dale to see that she had this information. Mrs Dale said that she could not face Mr Dale and went outside and burst into tears. Mrs Dale remained outside while Mr Dale met with Mr and Mrs Nikolas.

[34] Mr Dale's evidence about his meeting with Mr Nikolas on 28 February 2019 was that it occurred at 3.00 pm. Mr Dale said that Mr Nikolas told him that he could no longer have Mr Dale as General Manager because they were "butting heads". Mr Dale also said that Mr Nikolas asked him a number of times during the meeting what they were going to do, and Mr Dale responded by stating that he did not know what Mr Nikolas was going to do. Mr Dale said that redundancy was not mentioned during the discussion. At some point during the meeting, Mr Nikolas changed the subject and told Mr Dale that Mrs Nikolas was not happy about Mr and Mrs Dale going through her filing cabinet. Mr Dale left the meeting and returned with Mrs Dale to discuss the allegation. At this point, Mr Nikolas said that he had already apologised for making the allegation. Mr Dale said that Mr Nikolas had not apologised and that the fact he was sitting there lying about it to Mr Dale's wife was "overwhelming".

[35] Mr Dale said that he left the meeting and got into his car and drove for hours not really knowing what he was doing. Mr Dale then parked his car and rang Mrs Dale who told him about the meeting that she had attended that day with Mr and Mrs Nikolas including that she had been given a draft organisation chart showing Mr Dale in a position of Production Support. Mrs Dale said that she asked how Mr Dale would react to being demoted to a role under her and told Mr Dale that Mr and Mrs Nikolas had asked her not to discuss the matter with him. Mr Dale drove home at around 11.00 pm and a few days later went to a medical centre and was examined by a doctor who diagnosed him with "psychological shock". Mr Dale did not make a WorkCover claim but went on sick leave until 8 March 2019. That medical certificate tendered by Mr Dale is dated 3 March 2019 and states:

"This is to confirm that I have examined Paul Dale today and I confirm that he will be unfit for work/school/usual activities from 01/3/19 to 07/3/19."[5]

[36] Mr Dale said that on 4 March 2019 Mrs Dale came home with information about the role of Technical and Training Manager and a new organisation chart. Mrs Dale was not told that the role of General Manager was being made redundant. Mrs Dale said that when she showed Mr Dale the organisational chart he pointed to the fact that the Technical and Training Manager position did not have any employees reporting to it. Mr Dale said that he telephoned Mr Nikolas and told him that he would not accept a demotion. According to Mr Dale, Mr Nikolas kept interrupting him and stating that if he rejected the demotion he was rejecting the new role. Mr Dale maintained that he did not reject a new role but did reject a demotion. Mrs Dale who also gave evidence about this telephone discussion confirmed that Mr Dale stated to Mr and Mrs Nikolas that he was not rejecting the new role or any other role but was not accepting the demotion. Mrs Dale said that Mr and Mrs Nikolas stated that if he was rejecting the demotion he was also rejecting the new role.

[37] Mr and Mrs Nikolas' version of the phone call is that they attempted to discuss the new role of Technical and Training Manager with Mr Dale but he refused the position and hung up the phone. Ms Nikolas said that during the call she also apologised to Mr Dale again for raising the personnel file issue.

[38] Mr Dale states that he returned to work on 8 March 2019 and requested a meeting with Mr Nikolas. The meeting occurred at 12.00 pm and was also attended by Mrs Nikolas. Mr Campbell attended as Mr Dale's support person. During that meeting, Mr Nikolas informed Mr Dale that his role as General Manager was redundant and that the role of Technical and Training Manager was also redundant. Mr Dale was also told that as he had refused other roles his employment would be terminated immediately.

[39] Mr Dale said that he attempted to explain his diagnosis of psychological shock and was fobbed off. Mr Dale also said that he was given no opportunity to discuss the redundancy and was told the decision had been made. Mr Dale collected his personal effects, handed in his car keys and left the premises with Ms Avery who was to take him home. Mrs Dale collapsed in the carpark and Mr Dale telephoned their son to ask him to pick them up.

[40] The Applicant maintained in his oral evidence that as General Manager he worked at the direction of Mr Nikolas, who required him to spend as much time on the factory floor as possible. The Applicant's role as General Manager was very hands on, with the Applicant estimating that about 90% of his time was spent on the floor. In relation to the document created by Mrs Nikolas setting out the general responsibilities and authority of the position of General Manager,[6] the Applicant went through each of the duties and maintained that he did not perform 17 out of 20 of those duties and responsibilities.[7] The Applicant gave evidence as to his duties in response to a question from me, as follows:

"Well what did you do if you didn't do any of those things, Mr Dale?---I provided a list of what I did. I worked on the floor every day.

Right?---Training, supervising the staff and working hands on, on the tools.

Right. That list you provided is in your second statement?---It is."[8]

[41] The list provided by the Applicant in his witness statement is said to be a list of duties performed in his "training role". It is a list of manufacturing and quality assurance related duties. The Applicant states that the significance of this list is that it shows that he was required to train employees in all aspects of manufacturing in the Respondent's business.[9] The Applicant also provided an additional list of manufacturing related tasks and stated that he was required to perform those tasks and organise and supervise other staff performing those duties. The significance of that list is said to be that it shows Mr Dale was required to "work hands on the factory floor".

[42] The Applicant accepted that he continued to perform the duties of a Business Development Manager[10] and he was the only person in the Respondent's organisation with a direct line to each of the Respondent's four departments.[11] The Applicant initially disagreed with the proposition that given his experience it would make sense for the Respondent to place him in a key managerial position.[12] The Applicant subsequently did accept that he has the skills to be a manager[13] and that it would make sense to hire him as a manager[14]. The Applicant accepted that the role of General Manager was a high status role[15] and a key role[16]. The Applicant then resiled from this concession, maintaining his position that the General Manager is not a key member of the Respondent's team.[17]

[43] Under cross-examination, the Applicant accepted that his old duties had been dispersed among other employees and that there is no-one employed by the Respondent performing the role of General Manager. The Applicant also said that the duties of the General Manager set out in the position description described what a person in that role should do, but were not done because the organisation is "dysfunctional".[18] In relation to his claim for reinstatement, the Applicant said that he had skills and experience that would be of benefit to the Respondent and that he and his wife could improve the business. In response to the proposition that he was helping the respondent despite themselves, Mr Dale said that this is what he has been doing for the past two years.[19] In response to the proposition that he was getting paid to perform the role of General Manager Mr Dale said that he was getting paid to perform other duties required by the shareholders and that they kept him busy on the factory floor so that he could not do any of the duties in the General Manager role.[20] Mr Dale said that he was not important to the business and agreed that he was paid $104,000 per annum "to be no-one important".[21]

[44] Mr Dale maintained that he did not manage any employees but was unable to explain Mrs Dale's evidence that one of his concerns was that in the proposed role of Training and Technical Manager, Mr Dale would not be responsible for any employees. Mr Dale disagreed with the proposition that his evidence on this point was inconsistent. Mr Dale also maintained that as General Manager he was only responsible for the employees working on the hand tools. [22] Mr Dale had the following exchange with Counsel for the Respondent:

"You'd agree that those are qualifications and abilities necessary to do this role? We can break it down if you like but - - -? --- Look, I see you're going over the same thing again. I did not do these tasks. I was never spoken to about any KPIs.

Mr Dale, I put it to you that these were your duties and just because you weren't doing them, that just means you weren't doing your job well. It doesn't mean you shouldn't have been doing them? ---- I agree with you. So some performance management would have been done at some stage, I suppose."[23]

[45] Mr Dale agreed that he was shown an organisation chart on 28 February 2019 with his name in a role entitled Production Support. Mr Dale also agreed that he was shown another organisational chart on 4 March 2019 which showed his name in the role of Technical and Training Manager. Mr Dale further agreed that neither chart had the position of General Manager in the structure and it appeared from those documents that this is what Mr Nikolas wanted to do with the business. In response to a question about whether getting rid of a role results in redundancy, Mr Dale said that his understanding of redundancy is that the role has disappeared from the organisation. In response to a question from me, Mr Dale agreed that prior to the termination of his employment, an organisational chart for the Respondent would have shown him in the position of General Manager, regardless of the duties he was performing.

[46] Mr Dale maintained that he did not refuse the Technical and Training Manager role but said that he refused a demotion and agreed that he hung up on Mr and Mrs Nikolas because he tried to tell them over and over again that he was refusing a demotion rather than the role. According to Mr Dale, Mr and Mrs Nikolas told him that if he refused the demotion he was refusing the role. Mr Dale asserted that he then told Mr and Mrs Nikolas that he would work in the role of Technical and Training Manager "under protest". Mr Dale agreed that he had not included this information in any of his material filed in the Commission and said that this is because he has not previously been involved in proceedings before the Commission. Mr Dale had the following exchange with me:

"THE DEPUTY PRESIDENT: What did you understand was the demotion? Because look, you can agree or disagree with this proposition, you've sat here most of the last of the - the best part of an hour telling me although I had the title of general manager I wasn't really, I was just doing what I was told by the directors, going out on the factory floor, being hands on and I would have swept the floor if it was part of the role, I think was one of the - - -? --- I did sweep the floor.

Yes, okay. So you've been making the point for the past hour at least I wasn't - I was the - as I understand your evidence is I was the general manager in name only because I didn't actually manage anything. I just did what I was told and went around the factory floor and did what the management told me? ---- That's exactly correct.

So what was the demotion associated in your mind with the technical manager's role? --- Well I suppose - - -

They changed the name of the role? --- My concern was that they were putting me into a role to move me on, to annoy me, to move me on.

You've said, 'I'm not accepting a demotion'. I'm asking you, I'm giving you an opportunity to explain to me what in your mind about a role that said technical manager was a demotion, in circumstances where it seems that's what you were doing. Going around the factory, helping people out, training them, doing whatever. What about the role was a demotion in your mind, to cause you to say that? Because you've maintained that's what you said. 'I'm not accepting a demotion'. You've maintained that consistently. So I want you to explain to me what you meant by that? ---- I can only say that I probably was hanging on to a title that I believed I deserved but wasn't - - -

That you didn't do? --- That I didn't do, correct. I'm sorry, that's all I have to offer you, it's - - - "[24]

[47] Mr Dale agreed that he was upset when he left the meeting on 28 February 2019 but maintained that this was because he was accused of looking through Mrs Nikolas's filing cabinet. Mr Dale maintained that he had a panic attack on that date because of the accusation about the filing cabinet rather than the loss of his position as General Manager. Mr Dale also agreed that he was upset when he telephoned Mr Nikolas on 4 March 2019. In response to the proposition that if he had been offered the Technical and Training Manager role on 8 March 2019 he would have refused it for the same reason as his earlier refusal - that he was not accepting a demotion - Mr Dale said: "I don't know". In response to a question about what role he was seeking to be reinstated to, Mr Dale said he sought reinstatement to the Training and Technical Manager role and would take that role.[25]

[48] Mr Dale was also cross-examined about his relationship with Mr Nikolas. In response to the proposition that the relationship was poor, Mr Dale said it was "unusual". Mr Dale agreed that he had negative issues with Mr Nikolas and that his conversations with Mr Nikolas on 28 February and 8 March had ended with tensions between Mr Dale and Mr Nikolas. Mr Dale also agreed that he claimed to have been diagnosed with psychological shock after the conversation of 28 February 2019 and that Mrs Dale had collapsed in the carpark after the meeting on 8 March 2019. Mr Dale also had the following exchange with Counsel for the Respondent and with me in relation to reinstatement:

"This case has only made your relationship with Mr Nikolas worse hasn't it? --- I wouldn't know.

You wouldn't know. I suggest you don't trust - I rephrase that. You don't - you wouldn't trust Mr Nikolas would you? You don't have a trusting relationship with him? ---- No, I've never considered that before this moment. I have a professional relationship in the business.

Do you trust Mr Nikolas? Do you trust Mr Nikolas? --- I'd have to give that some consideration.

Not sure? --- I mean I operate in a professional manner in the business.

This is the person that - I'll move on. You don't have confidence in him. If he was your boss you wouldn't be confident that he would do right by you are you? --- Well it hasn't appeared that he has in this case, no.

I suggest you can't work with Mr Nikolas. It is not a functional working relationship? --- Look, if you're heading down the track that there's no prospect of reinstatement, let's just say there's no prospect of reinstatement. If that's what you want to hear, that's easy, let's just do that.

THE DEPUTY PRESIDENT: Mr Dale, you're not - don't do this I'm just going to say it for the hell of it so I can get out of here. This is an important aspect of your case. If you're not seeking reinstatement then you've automatically limited yourself if you win this case to compensation, that's it. The compensation is limited to how long you would have likely stayed in employment plus another of other factors. How long you would have likely stayed there is a significant factor. So before you answer the question, think it through? ---- Okay, yes.

Because you're not represented, so I'm just, you know, but I'm coming - I'm rapidly thinking you think the whole place is dysfunctional and you don't have a good relationship, but before you just say just to get out of here I'm going to concede that point, that's the implication of conceding it? --- So if you could ask that question again, I'll come up with an answer. If you just ask the question again, I'll give you an answer.

MR MACKIE: You and Mr Nikolas do not have and cannot have a functional working - I'll rephrase that. You and Mr Nikolas do not have a functional working relationship? ---- We do not have at the moment. We have had ups and downs the whole time we've been there but I've never had a major issue with him until the 28th.

If you were reinstated you would not have a functional relationship with him? --- I think probably with a little bit of mediation we could most certainly achieve a functional relationship."[26]

[49] In relation to income earned from other sources following the termination of his employment Mr Dale said that he has his own business and had this business while he was working for the Respondent although it was not trading at that time. Mr Dale has had this business for 25 years. Since ceasing employment with the Respondent, Mr Dale has worked for his own business providing his labour to other businesses on a subcontract basis. Mr Dale has earned an amount of $7,392 from this activity.

[50] Mrs Dale was also cross-examined. Mrs Dale agreed that she accepted the position of Production Head effective from 28 February 2019 and that her pay was increased from $1,400 per week to $2,000 per week effective from 21 February 2019. Mrs Dale agreed that she had stated that the role of Production Support was beneath Mr Dale's experience but disagreed that she had stated that he would not accept a role that reported to her.

[51] Mr Dale submitted that:

"My point of view on the jurisdictional issue is that I was covered by an award. My point of view on non-genuine redundancy is that I was not consulted about redundancy. I was not given the opportunity to provide any input and I was not given the opportunity to be redeployed within the business. That's it."[27]

[52] In his "Applicant's Outline of argument: objections" in response to the question about whether the Applicant believes that the Respondent no longer required the job to be done by anyone, the Applicant stated:

"Roles have been dispersed among other employees and Job (sic) advertisements have been placed for some of my roles. I believe the employer is claiming my role to be as in their job description but in fact was a completely different role."

[53] Further, in response to the question as to whether the Applicant agrees that there have been changes to the Respondent's operational requirements, the Applicant submitted:

"The business is expanding and taking on new work and employment (sic) new people continuously"

[54] The Applicant accepted that in referring to "roles" he meant "duties"[28] and that the duties of the General Manager have been dispersed amongst other employees. The Applicant further accepted that there was no longer an employee with the title of General Manager or person doing the Applicant's old job.[29]

[55] However, the Applicant does not agree that the Respondent no longer requires his job to be done by anyone because of the changes to the operational requirements of the business. The Applicant submitted:

"No job description was supplied for either of the roles I was employed for Business Development Manager or General Manager. These roles were merged when I took the role of General Manager. My role of General Manager was far different to the role as described on their Job (sic) description. Martin Nikolas set roles and tasks to be performed by me which were mainly centred around being on the factory floor directly supervisor and training and working with the other employees. The role of General Manager may not be required however the job that I performed on a daily basis is required."

[56] The Applicant submits that it would be reasonable for him to be redeployed stating:

"I first started in the composites industry in 1981 and have worked in this industry ever since both hand (sic) on and in management roles ranging from technical manager to state sales manager and business owner I am competent in all roles at [the Respondent]. During my time at [the Respondent] I have performed all roles on the factory floor. The employer has advertised for staff for positions which I have applied for without success which consist of many of my previous roles."

[57] In addition, the Applicant submitted:

"My employer failed to consult with me regarding the redundancy. I was simply informed that I was being made redundant.

My employer would not allow redeployment because they insisted that by refusing a demotion that I was refusing all other roles."

[58] Mr Dale took issue with Mr Nikolas' evidence that at the meeting on 28 February Mr Nikolas intended to give Mr Dale a copy of the organisational chart and position description for the Technical and Training Manager role, pointing to the fact that these documents were not prepared until after that meeting. Mr Dale also maintained he was offered the Production Support role at that meeting and not the Technical and Training Manager role and that he repeatedly told Mr and Mrs Nikolas that he was only rejecting a demotion and was not rejecting any roles they offered him. Mr Dale had the following exchange with me during his evidence:

"When you say you were rejecting a demotion, what do you say you were rejecting? --- I had never been offered a redundancy. I had never been told my position was being made redundant. I was offered a role of production support which was with considerable less duties and responsibilities, although the pay rate was going to be the same. So I rejected the demotion and - - -

Well it seems like a lot of the management role that the company says you were performing, you say you weren't performing? --- That's correct.

So what were they - why was it a demotion not to be the general manager when you weren't performing a lot of what I would put to you are probably general manager's responsibilities? --- Well the demotion was - sorry, the role of production support was considerably lower than the role I was performing, even though I wasn't performing the roles of a general manager."[30]

[59] At some time prior to the Applicant's dismissal, the Applicant states that Mr and Mrs Nikolas discussed with the Applicant and his wife dismissing Mr Campbell. The Applicant states that he and his wife convinced Mr and Mrs Nikolas to extend Mr Campbell's probation period, which would then expire in February 2019, but that Mr Campbell's performance did not improve. The Applicant submits that this is significant because it is evidence that the owners were considering dismissing Mr Campbell just prior to deciding to dismiss the Applicant. The Applicant also submits that he should have been redeployed into this position of Production Head rather than Mrs Dale.

[60] On the 3 March 2019, which the Applicant states was a Monday but was in fact a Sunday, the Applicant was issued a medical certificate. That medical certificate is dated 3 March 2019 and states:

"This is to certify that I have examined Paul Dale today, and I confirm that he will be unfit for work/school/usual activities from .01/3/19. to .07/3/19. inclusive."

[61] The Applicant states that of the necessary experience required for the Composites Specialist/Technician role, he satisfies all requirements but one, being that he cannot produce accurate drawing utilising CAD software. The Applicant applied for this position but did not receive a response from the Respondent. The Applicant states this is significant because the position was advertised nine working days after he was purportedly made redundant. It is a role that the Applicant could have been redeployed into although the Applicant has conceded that at the time of the purposes redundancy and up to the time of hearing in this matter he did not have the abilities to perform that role.[31] The Applicant maintained under cross-examination that he could have undertaken the role with "minimal" CAD training.

[62] Section 389 of the Act deals with genuine redundancy and provides as follows:

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

(a) the person's 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."

[63] In Ulan Coal Mines Limited v Honeysett and Others[32] (Honeysett) a Full Bench of the Commission observed in relation to s. 389 of the Act that if a dismissal is a case of genuine redundancy the employer has a complete defence to an unfair dismissal application and aspects such as the fairness of the selection procedure for redundancy cannot be challenged under the unfair dismissal provisions of the Act.

[64] An employer seeking to rely on the genuine redundancy exclusion would ordinarily be expected to adduce evidence as to the following matters:

• That the employer no longer required the dismissed employee's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise;

• Whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

• Whether there was a job or position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all of the circumstances to redeploy the dismissed employee. [33]

[65] These matters are generally within the knowledge of the employer seeking to establish the exclusion. Where an employee leads evidence that the dismissal is not a case of genuine redundancy, the employer's evidence needs to be sufficient to rebut any evidence from the dismissed employee to the contrary.

[66] Turning to s. 389(1) of the Act, where the duties performed by a person in a particular role or position are no longer required to be performed by anyone because of changes in the employer's operational requirements, the role or position is redundant within the meaning in that provision. In determining whether this is the case, it is necessary to draw a distinction between the employee's job and the employee's duties.[34] A dismissal may be a redundancy within the meaning in s. 389(1)(a) of the Act in a number of circumstances including where:

• the duties remain and operational changes result in fewer employees being required to perform those duties;[35]

• all or some aspects of an employee's duties are performed by someone else as a result of operational change;[36]
• structural change has eliminated the need for specific duties or the employer has found another way to have those duties performed;[37]

• there is a significant change to skills required or the accountabilities or autonomy of a position;[38] or

• termination of employment for a structural reason such as the employer has no suitable assignment for a person with particular qualifications and experience or because of the introduction of technological change.[39]

[67] A dismissal for cause is not a redundancy. Where there is no change in operational requirements for example due to restructuring, reorganisation, change to a role, change to the composition of a workforce or a reduction in employees, and a dismissed employee can show that he or she was simply exited from the business and replaced with another person performing the same or substantially the same duties, a dismissal may not meet the definition in s. 389(1)(a).

[68] Consultation for the purposes of s. 389(1)(b) of the Act is required to be meaningful and not merely an afterthought. Consultation after an irrevocable decision has been made is not sufficient to meet the requirements of the provision,[40] and the employer is required to give the employee a bona fide opportunity to influence[41] or persuade the decision maker.[42]

[69] If an employee whose position is said to be redundant is not covered by a modern award or enterprise agreement, then there are no consultation obligations for the purposes of s. 389(1)(b) of the Act and it is not necessary for the employer to establish that the employee was consulted about the redundancy in order to rely on the genuine redundancy defence to an unfair dismissal application.

[70] In relation to redeployment, s. 389(2) of the Act provides an exception to the circumstances in which a person's dismissal will be a case of genuine redundancy within the meaning in s. 389(1) of the Act.[43] If s. 389(2)(a) is enlivened, a person's dismissal will not be a case of genuine redundancy even if the person's employer no longer requires the job to be performed by anyone because of changes in the operational requirements of the employer's enterprise and any relevant consultation obligations have been met.

[71] As a Full Bench of the Commission noted in Appeal by Technical and Further Education Commission T/A TAFE NSW[44] (Pykett) the circumstances that enliven the exception are that: "it would have been reasonable in all the circumstances for the person to be redeployed within... the employer's enterprise."[45] The use of the past tense in s. 389(2) directs attention to the circumstances which pertained at the time the person was dismissed. The Full Bench in that case also held that the term "redeployed" should be given its ordinary meaning, including "transfer to another job, task or function."[46]

[72] In Honeysett[47] a Full Bench of Fair Work Australia (as the Commission was then known) held that it was open to the Commissioner who dealt with the matter at first instance to find that it would have been reasonable in all of the circumstances to redeploy persons who had been dismissed on the basis of evidence that:

• entities associated with the employer had vacancies for jobs which were potentially suitable for the dismissed employees;

• there was no evidence that redeployment from Ulan to those mines would have any impact on operational efficiency; and

• there was no evidence that the dismissed employees would have been unwilling to be redeployed to another mine, notwithstanding that some of the employees had not followed up on vacancies at other mines which the Company brought to their attention.[48]

[73] The Full Bench in Honeysett went on to state that:

"It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer's enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations."[49]

[74] In Pykett, the issue for determination was whether in deciding that redeployment was reasonable, the Commission was required to identify a specific position to which the employee should have been redeployed. The Full Bench in Pykett stated that Honeysett is authority for the proposition that for the purposes of s. 389(2)(b) it is sufficient that the Commission identifies a suitable job or position to which the employee could be redeployed and that the Commission must then determine whether redeployment would have been reasonable in all of the circumstances. The Full Bench in Pykett also stated that Honeysett is not authority for the proposition that it is always necessary to identify a particular job or position to which the dismissed employee could have been redeployed and went on to hold that:

"For the purposes of s. 389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all of the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding."[50]

[75] The Full Bench further observed that the evidence in relation to whether there was a job or a position or other work to which it would have been reasonable to redeploy the dismissed employee would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee. In Pykett it was found that it is erroneous to focus on the inadequacy of the employer's redeployment policy without making a finding that there was a job, a position or other work to which the dismissed employee could have been redeployed, and that such a finding is a necessary step in determining whether it would have been reasonable in all the circumstances for the dismissed employee to have been redeployed within the employer's enterprise.

[76] In relation to the steps taken by an employer to identify a role for the purposes of considering whether redeployment would be reasonable, a Full Bench observed in MacLeod v Alcyone Resources Ltd T/A Alcyone[51] that:

"To avoid doubt, we note as a matter of principle that the availability of a more junior role into which the employee could have been redeployed could provide a basis for a finding that a redundancy was not genuine or a dismissal was harsh, unjust or unreasonable_._"[52]

[77] It is clear from the cases that in order to enliven s. 389(2) of the Act it is not sufficient for the Commission to simply find that an employer failed to consider redeployment of the dismissed employee within its enterprise or the enterprise of an associated entity. It is also necessary for the Commission to be satisfied that there was a job, role, position or work that could have been performed by the dismissed employee and having made that finding to then determine that it would have been reasonable in the circumstances for the dismissed employee to be redeployed. It is not necessary that a specific job role or position is identified for the purpose of determining whether the person could have been redeployed. It is sufficient if there is work that the person could have done. Consideration of the next question of whether redeployment was reasonable involves questions of suitability including the skills and competence of the employee, the training that would be required and factors associated with the job such as remuneration and location. It may also involve an assessment of whether the dismissed employee would have been willing to accept redeployment.

[78] It is possible in a particular case that the Commission may be satisfied that a person's job is redundant on the basis that the employer no longer requires the job to be performed by anyone because of changes in its operational requirements, but at the same time may not be satisfied that dismissal is a case of genuine redundancy within the meaning in s. 389 of the Act on the basis that the employer has not complied with a relevant obligation to consult or because the Commission finds that it would have been reasonable for the employer to have redeployed the dismissed employee. The result in such a case is that the employer does not have a complete defence to an unfair dismissal application in relation to the dismissal resulting from the redundancy. The dismissal then falls to be considered under the criteria in s. 387 of the Act which are in the following terms:

(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."

[79] Considered against the criteria in s. 387(a) of the Act, a dismissal on the basis of operational requirements that meets the description in s. 389(1)(a) of the Act, may be found to be a dismissal for a valid reason. Failure to consult a dismissed employee may not render a dismissal unfair, if the dismissal is for a valid reason and it is found that consultation would not have negated the operational reasons for the dismissal or led to any other substantive change and the employee would have been dismissed in any event.[53] Even if failure to consult in such cases renders a dismissal unfair, the remedy may be limited to compensation for a reasonable period for consultation to have occurred.[54] Similar considerations may arise in circumstances where s. 389(2) of the Act is enlivened, however, consideration of whether a dismissal is unfair on the basis of failure to redeploy may involve a fine balance, because of the way the provision is framed and the matters that are required to be assessed.

Was the dismissal a case of genuine redundancy?

[80] I turn first to consider whether the dismissal was a case of genuine redundancy. I am satisfied on the basis of the evidence that the Respondent no longer required the Applicant's job to be performed by anyone due to changes in its operational requirements. In this regard I accept that Mr and Mrs Nikolas decided that they no longer required the role of General Manager to be filled by anyone and that they intended to divide the duties associated with that role between them. While the organisational structure was fluid at the time this decision was made, this was in the context of attempting to define a new and different role for Mr Dale. The constant feature in the organisation chart was that the role of General Manager had been removed and this remained the position at the time that Mr Dale's unfair dismissal application was heard.

[81] Somewhat unusually the Applicant attempted to conduct his case on the basis that as he was not actually performing most of the listed duties in the position description for the General Manager's role, that there was a position remaining in the Respondent's business that he was filling. I reject that proposition as an argument of form over substance. Regardless of the actual duties the Applicant was performing or how closely those duties aligned to the position description for the General Manager's role, the fact remains that the Respondent was paying a salary of $104,000 per annum to Mr Dale to perform a role entitled General Manager. Whatever duties were being performed by Mr Dale were no longer to be reposed in a position with that title and were to be dispersed among either Mr and Mrs Nikolas or other employees of the Respondent.

[82] The evidence of Mr and Mrs Nikolas was that the duties in the position description for the General Manager role were performed by Mr Dale and that the decision was made that they would assume those duties in their respective capacities as Chief Executive Officer and Chief Financial Officer. If as asserted by Mr and Mrs Nikolas, Mr Dale was performing the duties of General Manager in accordance with the position description, then a decision to disperse the duties in that position description between Mr and Mrs Nikolas resulted in the General Manager position becoming redundant.

[83] If as Mr Dale asserts, he was performing duties on the factory floor, then Mr and Mrs Nikolas were entitled to conclude that they wanted to restructure the business by abolishing whatever role Mr Dale was occupying while performing those duties and to define a different role that more accurately reflected the duties actually being performed by Mr Dale. Such a process would also result in the General Manager's role becoming redundant.

[84] On the basis of Mr Dale's evidence about his duties, either the Production Support role or the Technical and Training Manager role more accurately reflected the duties actually being performed by Mr Dale. In my view what occurred was that a decision was made to abolish the General Manager's role and to disperse some of those duties to Mr and Mrs Nikolas while establishing a different role for Mr Dale incorporating some of the General Manager's duties and other technical and training duties which he was already performing.

[85] Regardless of the actual duties being performed by Mr Dale, the General Manager's role was redundant on the basis that it was removed from the organisation. The Respondent did not wish to have a person in that role regardless of the precise duties that were being performed by Mr Dale as the incumbent. Accordingly, Mr Dale's role was redundant and as the person occupying that role, the Respondent needed to deal with Mr Dale accordingly.

[86] It is apparent from the evidence that the manner in which the Respondent dealt with Mr Dale left much to be desired. Even allowing for Mr Dale's reaction to the news about the General Manager's role being abolished, there was no meaningful attempt to consult Mr Dale about the redundancy. This is a matter to which I will return. However, for the purposes of the genuine redundancy objection, an obligation to consult only arises if a modern award applied to Mr Dale's employment.

[87] I have concluded that a modern award did not apply to Mr Dale's employment for the following reasons. By virtue of s. 47(1)(a) of the Act a modern award applies to an employee if the modern award covers the employee. Further by virtue of s. 47(3) a reference in the Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment. Section 48 of the Act provides that a modern award covers an employee if it is expressed to do so.

[88] It is well established that the approach to considering whether an award covers an employee is to apply the principle purpose test. This involves assessing the nature of the work performed by the employee to ascertain the principle purpose for which the employee was employed. This is more than a mere quantitative assessment of the time spent performing certain duties.

[89] Notwithstanding Mr Dale's efforts to down play his role with the Respondent and to portray himself as essentially a leading hand who occasionally swept the factory floor, I do not accept that the principle purpose of his employment was to perform work covered by the Manufacturing and Associated Industries and Occupations Award, or any other award. The fact that Mr Dale's role as General Manager was hands on, reflects the nature of the manufacturing work that was being undertaken by the Respondent and this is not a sufficient basis to find that he was covered by the Award.

[90] Mr Dale's evidence about the work that he performed and his duties and responsibilities as General Manager, was not convincing. At times Mr Dale's evidence strained credibility. Mr Dale appeared to want it both ways - on the one hand that he was working on the factory floor training employees and assisting in the production of products and on the other hand that the role of Technical and Training Manager which was offered to him would constitute a demotion. In particular Mr Dale's insistence that he was not important in the Respondent's business and that no staff reported to him was at odds with his insistence that the Technical Training Manager role would be a demotion. It is also at odds with Mrs Dale's evidence that Mr Dale's issue with the Technical and Training Manager role would be that no staff would report to him. The impression I gained is that Mr Dale was bent on establishing that he was covered by the Award for the purposes of advancing his unfair dismissal case rather than because he genuinely believed in the validity of this assertion.

[91] In my view the fact that a General Manager in a manufacturing enterprise employing approximately 70 persons would spend a considerable period of time on the factory floor, is entirely consistent with a role that is responsible for ensuring that staff achieve production goals and with numerous other duties in the General Manager's position description tendered by Mrs Nikolas. Regardless of whether or not he had been given that position description, Mr Dale occupied a position entitled General Manager and it axiomatic that he was managing aspects of the Respondent's business. A person in such a role paid a salary of $104,000 per annum is not covered by the Manufacturing and Associated Industries and Occupations Award. The fact that Mr Dale's pay slip had a box that said "Award" which included a reference to the "Manufacturing Award" does not alter the principle purpose test or change the application of the test or the outcome. Even if my conclusion on this point is wrong, it does not alter the outcome given my findings in relation to whether it would have been reasonable in all of the circumstances to redeploy the Applicant within the Respondent's enterprise.

[92] It is well established that the Commission must be satisfied that there was a job, position or work that could have been performed by a dismissed employee in order to determine whether redeployment was reasonable in all of the circumstances. In relation to whether it would have been reasonable in all of the circumstances for the Respondent to redeploy the Applicant within its enterprise I make the following findings. On the Respondent's own evidence there were at least two positions into which Mr Dale could have been redeployed: Production Support and Technical and Training Manager. Position descriptions for both of these positions had been written in a manner that was specifically tailored for Mr Dale. Clearly these were positions into which the Respondent could have redeployed Mr Dale. The question is whether it was reasonable in all of the circumstances for the Respondent to redeploy Mr Dale into either of those positions or some other position. Essentially the Respondent's case in relation to redeployment is that it made reasonable attempts to redeploy the Applicant and he unreasonably refused to take up options for redeployment.

[93] In my view, consideration of whether it would have been reasonable in all the circumstances to redeploy an employee for the purposes of deciding whether an employer has a complete defence to an unfair dismissal application on the basis of genuine redundancy, also requires consideration of context in which redeployment is being proposed or considered. In circumstances where there are redeployment options identified at the point the employee is dismissed, relevant context may include the nature of the redeployment options and the manner in which they are discussed with, or communicated to, the employee concerned.

[94] In the present case the manner of communicating the removal of Mr Dale's position as General Manager from the Respondent's enterprise and the redeployment options, was appalling. Mr and Mrs Nikolas communicated the redeployment options in an unreasonable manner and in my view the Respondent should not be permitted to rely on Mr Dale's reaction to that unreasonable conduct as a basis for asserting that it would not have been reasonable in all of the circumstances to redeploy Mr Dale.

[95] The unreasonable conduct of Mr and Mrs Nikolas commenced with the decision to communicate with Mr Dale through his wife, who was also employed by the Respondent in a less senior position to that held by Mr Dale. This was not an appropriate manner to communicate about such a significant issue and it placed unnecessary stress on Mrs Dale which contributed to an outcome whereby Mr Dale was not able to be redeployed.

[96] There was a lack of clarity about how the redeployment options were communicated to Mr Dale. The first proposal was for a role of Production Support, in which Mr Dale would have been required to report to his wife. It appears that this proposal was communicated through Mrs Dale on 28 February 2019 in circumstances where Mr Nikolas had a meeting with Mr Dale on the same date. The second proposed redeployment option for a new role of Technical and Training Manager was also communicated through Mr Dale's wife rather than through a direct discussion between Mr and/or Mrs Nikolas and the Applicant. Given Mr Dale's status as General Manager, it would not have been reasonable to redeploy him to a role as Production Support even if his salary was maintained.

[97] It may have been reasonable to redeploy Mr Dale to the position of Technical and Training Manager. The duties set out in the position description for this role are aligned with the duties that Mr Dale said that he performed. However, the position description for that role was not prepared until after the initial discussions with Mr and Mrs Dale on 28 February 2019. A reasonable approach in circumstances where a person of Mr Dale's seniority was to be offered another position would have involved providing him with a position description, an explanation of the new role and a period of time to consider his response. It would have been preferable for this to have occurred in a face to face meeting between Mr or Mrs Nikolas and Mr Dale.

[98] Instead, a copy of the position description for the Technical and Training Manager position was provided to Mr Dale via his wife. This followed an earlier offer of the unsuitable Production Support position which was also conveyed to Mr Dale via his wife. Mr Dale made contact with Mr Nikolas by telephone and it was not unreasonable in those circumstances for Mr Dale to become upset about the situation. Mr Dale then took a period of sick leave and rather than allowing for some time for Mr Dale to return to work and for a proper discussion to take place, Mr and Mrs Nikolas took a unilateral decision to simply withdraw the offer of the Technical and Training Manager role.

[99] Before a proper discussion had been conducted about redeployment, Mr Dale was informed on 8 March 2019 upon his return to work after a period of sick leave, that the offer of redeployment to the position of Technical and Training Manager had been withdrawn. There is no evidence of any urgency about the need to resolve the matter and in my view the time frame in which the discussions about redeployment options occurred was also unreasonable. It is also the case that within 13 days of the Applicant's dismissal the Respondent advertised a position of Composites Specialist/Technician/Boat Builder. The role involved some specialist tasks and Mr Dale's evidence is that with minimal training on CAD equipment, he would have been able to fill this role. The salary for the role is advertised as $80,000 to $100,000 per annum. The upper end of the salary band is marginally below the $104,000 annual salary that was paid to Mr Dale during his employment with the Respondent. Mr Dale's evidence about his ability to undertake this role with a small amount of training was not contested by the Respondent.

[100] Although I have doubts as to whether Mr Dale would have accepted any role that did not bear the title of General Manager, in circumstances where consideration of redeployment was handled in an unreasonable manner, I do not accept that the Respondent has discharged the onus in s. 389(2) of the Act. I am unable to be satisfied that the it would not have been reasonable in all of the circumstances for the Applicant to be redeployed within the Respondent's enterprise. Accordingly, I find that Mr Dale's dismissal does not fall within the definition of a genuine redundancy in s.389 of the Act and the jurisdictional objection to Mr Dale's unfair dismissal application fails. It is therefore necessary to consider whether Mr Dale's dismissal was unfair when assessed against the criteria in s. 387 of the Act.

[101] The reason for Mr Dale's dismissal was not related to his capacity or conduct and s. 387(a) of the Act is not relevant to whether the dismissal was unfair. Mr Dale held the position of General Manager with the Respondent and a decision was made that this position was no longer required and the duties associated with the position would be dispersed to the co-owners of the business who respectively held the positions of Chief Executive Officer and Chief Financial Officer. The position of General Manager was not replaced and no longer exists. If a finding on this point is necessary then I am satisfied and find that there was a valid reason for Mr Dale's dismissal.

[102] Mr Dale was not dismissed on the basis of his capacity or conduct and the criterion in s. 387(b) in relation to notification of the reason for dismissal is also not relevant. If a finding on this point is necessary, then I am satisfied and find that Mr Dale was notified of the reason for his dismissal in the meetings about his position being made redundant on 28 February and 8 March 2019. In relation to s. 387(c) as Mr Dale was not dismissed on the grounds of his capacity or conduct, it is not necessary to consider whether she was given an opportunity to respond to allegations or had been warned about matters relating to his capacity and conduct.

[103] In relation to s. 387(d) of the Act, Mr Dale attended the meeting of 8 March 2019 with a support person. No unfairness arises on this basis. With respect to s. 387(f) and (g) of the Act the Respondent is a medium sized enterprise and does not have dedicated human resources management specialists. I have had regard to the size of the enterprise and the likely impact of the absence of such specialists on the manner in which Mr Dale's dismissal was dealt with.

[104] There are other relevant matters in relation to whether Mr Dale's dismissal was unfair which I have considered pursuant to s. 387(h). As previously noted, Mr Dale's dismissal was due to redundancy. The fact that I have found that it was not a genuine redundancy as defined in s. 389 of the Act does not alter the fact that the dismissal was a bona fide redundancy in the sense that the Respondent no longer required the job of General Manager to be performed by anyone because of changes in its operational requirements. The duties associated with the job of General Manager were reallocated to other employees. The owners of the Respondent were entitled to take the decision to remove the General Manager's position and to dismiss Mr Dale. The owners of the Respondent were also entitled to decide not to proceed with the new role that they had been considering as an option for the redeployment of Mr Dale. There is no evidence that there was some ulterior reason for these decisions or that the Respondent was simply setting out to dismiss Mr Dale and to disguise the dismissal as a redundancy.

[105] However, there are aspects of the dismissal which indicate unfairness. There was a failure to have any meaningful discussion or to consult Mr Dale about the decision to remove the General Manager's position from the organisation and the implications of this decision for him. Notwithstanding that there was no Award requirement to do so, this is a relevant consideration in deciding whether Mr Dale's dismissal was unfair. The manner in which the decision about the termination of his employment was conveyed to Mr Dale was inappropriate particularly insofar as Mr and Mrs Nikolas abdicated their responsibility to have a discussion with Mr Dale by requesting that his wife convey relevant information to him. The effect of involving Mrs Dale had a significant effect on her. Mrs Dale's uncontested evidence is that she was so distressed by the events that led to Mr Dale's dismissal that on 8 March 2019 she collapsed in the Respondent's car park in the presence of another staff member. Mrs Dale should not have been placed in this position and her distress can only have impacted adversely on Mr Dale and his ability to deal with events as they unfolded.

[106] As a result the discussion of redeployment options was totally inadequate. Mr Dale was absent from work on sick leave. Further, an option for redeployment was withdrawn before Mr Dale could properly consider it and there was a position available only 13 days after Mr Dale was dismissed that Mr Dale could possibly have filled. None of these matters were discussed with Mr Dale before he was dismissed. For the reasons set out above, it would be unfair to allow the Respondent to rely on Mr Dale's reaction to its own inappropriate conduct as an excuse for failing to properly discuss redeployment options with Mr Dale.

[107] Because of the manner in which the redundancy was effected, Mr Dale was unable to properly consider opportunities to mitigate the loss of his employment including opportunities for redeployment. While there was no award requirement to consult about these matters, the fact that the dismissal does not come within the general redundancy exception in s. 389 of the Act means that it falls to be considered under s. 387 and failure to consult can be a relevant consideration for the purposes of s. 387(h).

[108] In all of the circumstances I am satisfied that the dismissal was unfair. It was harsh because of the consequences for Mr Dale and unreasonable because of the manner in which it was effected and the failure to consider redeployment. The fact that Mr Dale was paid the minimum statutory redundancy entitlements does not preclude a finding that his dismissal was unfair or a remedy being granted.

[109] Given that I have found that the dismissal was unfair it is necessary to consider the question of remedy. As required by s. 390 of the Act I am satisfied that Mr Dale is a person protected from unfair dismissal and that he was unfairly dismissed. I am also of the view that Mr Dale should have a remedy for his unfair dismissal. I turn now to consider the remedy that should be granted.

[110] Mr Dale seeks reinstatement. Reinstatement is the primary remedy for unfair dismissal. Compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate. In the circumstances of this case I do not accept that reinstatement is appropriate for the following reasons. Notwithstanding my findings about the unfairness of Mr Dale's dismissal I am satisfied that the reason for dismissal was redundancy and that the redundancy was bona fide. I am also satisfied that the position held by Mr Dale no longer exists and that the option for the Technical and Training Manager position did not eventuate. The Commission cannot order an employer to reinstate a person to a position that does not exist or to create a position. Mr Dale has been paid a statutory redundancy payment and there is no position to reinstate him to.

[111] I have also had regard to the evidence about the relationship between the Applicant and Mr and Mrs Nikolas. That evidence establishes that the relationship was strained before the dismissal. During the hearing, Mr Dale made unsubstantiated allegations about his personal safety being threatened by Mr Nikolas which appeared to be irrational given that Mr Dale's wife was sitting outside the hearing room talking to Mrs Nikolas while waiting to give her evidence and that she still worked for the Respondent at the time the application was heard. I am satisfied - after observing the interaction between Mr Dale and witnesses for the Respondent during the hearing - that the employment relationship is irretrievable.

[112] I have made the necessary findings that are prerequisite to awarding compensation. In relation to the assessment of compensation, s. 392 of the Act provides as follows:

(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

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

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

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

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

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

(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:

(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."

[113] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul's Licensed Festival Supermarket.[55] That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;[56] Jetstar Airways Pty Ltd v Neeteson-Lemkes[57] and McCulloch v Calvary Health Care (McCulloch).[58]

[114] In McCulloch¸ the Full Bench considered, in some detail, the question of how a contingency discount should be applied to the calculation of the remuneration the dismissed person would have received, or would have been likely to receive, if the person had not been dismissed. The Full Bench pointed out in McCulloch that a deduction for contingencies is applied to prospective losses, or losses occasioned after the date of the hearing. The Full Bench also noted that at the time of the hearing any such impact on the earning capacity of the dismissed person between the date of dismissal and hearing will be known, and a finding can be made on the basis of whether the dismissed person's earning capacity has in fact been affected during the relevant period.

[115] I turn now to the particular criteria I am required to consider in deciding the amount of compensation to be awarded to Mr Dale for his unfair dismissal.

The effect of the order on the viability of the Respondent - s. 392(2)(a)

[116] There is no evidence that an Order for compensation will have any impact on the viability of the Respondent. The Respondent was represented by Counsel. Submissions were made on behalf of the Respondent to the effect that if the dismissal was found to be unfair compensation would be the appropriate remedy. While a very minimal amount was suggested, there was no submission that any amount awarded by the Commission would affect the viability of the Respondent.

Length of the Applicant's service - s. 392(2)(b)

[117] The Applicant was employed by the Respondent for a relatively short period - less than two years. I have had regard to this period of employment in calculating compensation. In my view it is a period of employment that supports the making of an order for compensation albeit for a modest amount.

Remuneration the Applicant would have or would likely have received - s. 392(2)(c)

[118] This consideration requires an assessment of how long the Applicant would have remained in employment but for his dismissal. In the circumstances of this case I am satisfied that the Applicant would not have remained in employment for a lengthy period. In reaching this conclusion I have considered that the Applicant's position was abolished. The Applicant's evidence about his role as General Manager and his insistence that he was not carrying out most of the duties of this role was not credible. Further, the Applicant's evidence about his reaction to the offer of the Training and Technical Manager position was incongruous. On one view the position description appeared to reflect the tasks which the Applicant maintained he was performing in the General Manager role. Further, the Applicant maintained that he was not supervising any senior staff in his role as General Manager. At the same time, Mrs Dale said that he would take issue with the fact that the Technical and Training Manager role as proposed had no-one reporting to it. While Mr Dale disputed this, his belief that the role was a demotion was not reasonable and had no rational basis.

[119] Notwithstanding the Respondent's failure to consult and to have reasonable discussions about redeployment opportunities I am of the view that the Applicant would not have accepted redeployment and would have viewed any alternative position as a demotion. The Applicant effectively said as much when he was unable to provide any cogent explanation about why he considered that the Technical and Training Manager role was a demotion particularly when he knew that the offer included maintenance of his salary.

[120] The Applicant also changed his position in response to questions from me that he would have accepted the Technical and Training Manager position "under protest" in circumstances where he had not referred to this in his evidence. This evidence was not convincing and I do not accept it. The Applicant also stated in his oral submissions that but for this dismissal he would not have remained in the Respondent's employment for very long.[59] In my view this was an appropriate concession. I also doubt that any amount of discussion would have resulted in Mr Nikolas creating a position for the Applicant once he had decided to withdraw the offer of the Technical and Training Manager position. Further, I am satisfied after observing Mr Dale give his evidence and his irrational insistence that this position was a demotion, that Mr Dale would not have accepted any position that did not have the title "General Manager".

[121] Doing the best that I can, I have concluded that Mr Dale would have remained in employment with the Respondent for a period of no more than four weeks from the date of his dismissal. By that point details of opportunities for redeployment could have been discussed albeit I doubt that any such role would have eventuated. For the reasons I have set out above, I am of the view that it is more probable than not that Mr Dale would have viewed any alternative position as a demotion and left employment in any event.

[122] In that four week period, Mr Dale would have earned an amount of $8,000 based on his annual salary of $104,000, and would have received an amount of $760 in superannuation contributions.

The Applicant's efforts to mitigate loss - s. 392(2)(d)

[123] I am satisfied and find that the Applicant made reasonable attempts to mitigate his loss by activating a business that he had owned for some time and contracting his services to other companies. I make no deduction from the amount of compensation I have decided to award on this basis.

The amount of any remuneration earned since dismissal - s. 392(2)(e)

[124] At the point this application was heard, Mr Dale had earned an amount of $7,392 in his contracting business. There is no evidence about the period of time in which Mr Dale earned this money and he was not cross-examined about the matter. Given the quantum of compensation I have awarded I make no deduction from the amount of compensation I have decided to award on this basis.

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

[125] Given the period over which I have assessed compensation, no adjustment to the amount of compensation is warranted on this basis.

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

[126] It is relevant that Mr Dale was paid two weeks in lieu of notice and an amount of six weeks wages for redundancy. In the circumstances of this case I do not intend to make an adjustment to the compensation awarded to Mr Dale on the basis of these amounts because the amount of compensation I have awarded represents a reasonable time for discussions about the redundancy and redeployment to have occurred and the end result would have been that Mr Dale's employment would have been terminated for reasons of redundancy and he would have been entitled to the statutory minimum payments in any event.

[127] This consideration is not relevant in the present case.

[128] In summary I find as follows:

1. An order for the payment of compensation would not affect the viability of the Respondent's business (s.392(2)(a)).

2. The length of the Mr Dale's service favours the making of an order for compensation and no diminution of any amount that might otherwise be determined is warranted because of this circumstance (s.392(2)(b)).

3. The remuneration that the Mr Dale would have been likely to receive, but for his dismissal, is $8,000 in wages and $$760 in superannuation contributions (s.392(2)(c)).

4. I make no deduction for contingencies

5. I make no deduction on account of a failure to mitigate loss (s.392(2)(d)).

6. I make no deduction for remuneration earned since dismissal (s.392(2)(e)).

7. I make no deduction for income likely to be earned during the period between the making of the order and the actual compensation (s.392(2)(f)).

8. I make no deduction for payment in lieu of notice or redundancy payments made to Mr Dale.

9. I make no deduction for misconduct (s.392(3)).

10. It is not necessary to cap the amount payable to Mr Dale.

[129] I have taken into account all of the circumstances of the case and all of the matters I am required to take into account pursuant to subsections 392(2), (3) and (5). I am satisfied that it is appropriate to order that the Respondent pay the Applicant compensation in the amount of $8,000 less tax according to law and $760 in superannuation contributions. This amount will be payable within 7 days of the date of this decision. An Order to this effect will issue with this Decision.

[2] Exhibit R1 - Statement of Krystyna Nikolas filed on 27 May 2019; Exhibit R2 - Further Statement of Krystyna Nikolas filed 10 June 2019; and Exhibit R3 - Supplementary Statement of Krystyna Nikolas dated 16 July 2019.

[3] Exhibit R6 - Witness Statement of Martin Nikolas dated 16 July 2019.

[9] Exhibit A2 - Statement of Paul Dale.

[32] [2010] FWAFB 7578.

[33] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 at [36].

[34] Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488.

[36] Johnston v Blue Circle Southern Cement Pty Ltd [2010] FWA 5149 at [44].

[37] Margolina v Jenny Craig Weightloss Centres Pty Ltd [2011] FWA 5215 at [6].

[38] Monks v John Holland Group Pty Ltd [2012] FWA6453 at [47].

[39] Acworth v Boeing Australia Ltd [2007] AIRCFB 730 at [23].

[40] Masawan v Escada Textilvertrieb T/A Escada [2011] FWA 4239 at [19] citing CFMEU v Newcastle Wallsend Coal Company Ltd (1998) IR 202.

[41] Siriwardhana v FDGH Pty Ltd t/as Caltex Fitzroy North [2013] FWC 5609 at [18].

[42] Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frith & Associates [2014] FWCFB 1276at [35].

[43] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 at [22].

[44] [2014] FWCFB 714.

[46] Ibid at [24] - [25] and see Ulan Coal Mines Pty Ltd v Honeysett and Others [2010] FWAFB 7578.

[47] [2010] FWAFB 7578 at [31].

[50] [2014] FWCFB 714 at [36].

[51] [2014] FWCFB 1542.

[53] Maswan v Escada Textilvertrieb (t/as ESCADA) [2011] FWA 4239 at [39].

[54] UES (Int'l) Pty Ltd v Harvey (2012) 215 IR.

[55] (1998) 88 IR 21.

[56] [2013] FWCFB 431.

[57] [2014] FWCFB 8683.

[58] [2015] FWCFB 2267.

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