Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] On 14 August 2023, Mr Sean Fitzpatrick (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by Drewmaster Pty Ltd (the Respondent) on 7 August 2023.

• [2] The Respondent dismissed 125 employees around the time of the Applicant's dismissal. Of those 125 employees, 47 employees made unfair dismissal applications which were allocated to me. Four of those matters have proceeded to hearing.

• [3] The Applicant was employed by the Respondent as an electrician, from 6 April 2021. He was subsequently promoted to head electrician until the date of his dismissal.

• [4] The Applicant's employment was covered by the Building and Construction General On-Site Award 2020.

• [5] The Applicant was dismissed by way of Termination Letter, dated 9 August 2023, which stated:

We are aware that you attended the Palmer Coolum Resort ("Company") site this morning and attended a toolbox meeting near the site office.

At this meeting, Management was informed that the work force including yourself did not intend on working the required site hours. We note that you did not voice any opposition to this.

All workers onsite are paid far in excess of the award wage.

At this stage, we also advise you that a substantial site investigation is underway including fraud, theft and other matters of dishonesty.

As the investigation has uncovered a large amount of dishonesty and theft, work on the site must be in accordance with normal industry work time. No decision has been made by Management as yet to report the matter to police.

Unfortunately, we have no other choice but to terminate your employment, effective today, for refusing to carry out your duties as directed. We are very disappointed by this and the actions of all construction employees. The Company will write to you in respect of all your accrued leave entitlements as soon as possible. It is the Company's intention to pay all leave entitlements as soon as possible.

Please accept this letter as notice of termination of your employment. Your employment will now finish as of Monday 7th August 2023.

• [6] The matter was heard in Brisbane on Thursday, 30 November 2023. The Applicant was self-represented at the Hearing. The Respondent was represented by Mr Thomas Browning, Legal Counsel, Drewmaster Pty Ltd.

• [7] The Applicant gave evidence on his own behalf at the Hearing. Mr Benjamin Wood, Acting General Manager of the Respondent, gave evidence for the Respondent at the Hearing.

• [8] The relevant sections of the FW Act relating to an unfair dismissal application are:

"396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

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

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

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

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

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(b) to establish procedures for dealing with unfair dismissal that:

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union  [1971] AR (NSW) 95.

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

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

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

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

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

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

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

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

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee's period of employment with the new employer.

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

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

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

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

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

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

• [9] The Applicant filed an outline of submissions in these proceedings, which was taken to be his witness statement.

• [10] The Applicant submitted that he was initially employed by the Respondent as a full-time electrician, and after 6 months was appointed to the role of head electrician until the date of his dismissal.

• [11] The Applicant submitted that on 4 August 2023, he received an email at 4:04pm stating the Respondent would be changing employees' hours of work. The Applicant submitted that the Respondent advised it would be implementing 1 hour lunch breaks, however, he was never consulted or invited to provide his views on the matter. The Applicant submitted that the email outlining employees' new hours was the only correspondence he received in this regard.

• [12] The Applicant submitted that on 9 August 2023, he arrived at work as he normally would at 5:20am, signed in at the gate on the Tanda system, with security at gate 2 and was let onsite. The Applicant submitted that he went to his office at HR where Mr John Waldie, the new Site Manager, asked him how he got on to site. The Applicant said that he told Mr Waldie that he signed in and security let him on site. The Applicant said that Mr Waldie then called Mr Ben Wood, who advised him to get security to escort the Applicant off site as he "should not be there". The Applicant advised that he had not received a termination letter at this point and was not provided any explanation as to why he had to leave site.

• [13] The Applicant submitted that later that day, at 11:13am, he received his termination letter via email. He submitted that 5 minutes after that correspondence, he received a further email offering for him to reapply for his job.

• [14] The Applicant submitted that he then received a phone call on 14 August 2023, from the Site Supervisor, Ashely Wagner, "from direction of John (site manager) to ask if I was coming back as my knowledge of the job was needed". The Applicant responded that he would not be returning at that stage. The Applicant submitted that if he was under investigation for severe misconduct, "why would Drewmaster re hire me".

• [15] As to the contents of his termination letter, the Applicant submitted that it stated he attended a prestart meeting on 9 August 2023, and that he did not intend to work the required site hours. The Applicant submitted, however, that the site meeting actually took place on 8 August 2023 and he was in fact not on site that day as he was on personal leave with his sick son. The Applicant noted that he had lodged that leave on Tanda on 7 August 2023. The Applicant submitted that he never refused to work the new hours, and further, that he was not consulted about any changes or provided any explanation as to why the hours had changed.

• [16] The Applicant submitted that the reasons for his dismissal were then changed in an email from Mr Wood on 25 August 2023, in which the Applicant was advised that he had been terminated on the grounds of serious misconduct. He submitted the reasons appeared to be further changed in the Respondent's response to his unfair dismissal application, in which it made an allegation that the Applicant had not been on site for 64 days, which was then changed to 103 days but had still been paid for all of those days.

• [17] The Applicant noted that in response to these allegations, he had requested his Tanda records from the Respondent. He submitted, however, that when provided with this information it was in the form of an Excel Spreadsheet and not a printout of the actual Tanda records. The Applicant submitted that many of the days he has been accused of not working, or not logged in/out are completely false. The Applicant submitted that he was working at properties for the Respondent in Figtree Pocket and Hope Island on various dates where no Tanda machines were present, therefore the Tanda system records are flawed. The Applicant relied on and filed his phone records, as well as signed prestart documents, and emails from former 'WHSO' for Drewmaster, Mr Jesse Cross, stating that he had received the Applicant's prestart meeting documents weekly and explaining where they had been stored on site. The Applicant noted that the Respondent failed to produce the prestart documents for 2023, stating they could not locate the documents.

• [18] The Applicant submitted that all of his emails were sent onsite through the Respondent's server and IP address, demonstrating that he was onsite on days he has been alleged as not being at work.

• [19] The Applicant submitted that if he was allegedly not performing his full time hours or was not on site, he had never been approached or contacted about this issue, despite his nearly 3 years employment with the Respondent. The Applicant submitted that if his hours had allegedly not lined up with the Tanda entries, he should have been consulted or questioned about this discrepancy.

• [20] The Applicant submitted that he worked off site on various occasions with expenditure request forms submitted for those dates. He again relied on phone records showing calls from phone towers including at Fig Tree Pocket and Hope Island. The Applicant submitted that if he was alleged to have not signed in on his days working off site, the Respondent never contacted him to check on his safety.

• [21] In relation to the days he was said not to be onsite, the Applicant relied on his phone records showing calls pinking on a phone tower at Point Arkwright, which he submitted is the Optus tower closest to the Respondent's site. The Applicant submitted that he lives 45 minutes away from Mt Coolum, therefore, there was no way his phone would be using that tower other than him being onsite.

• [22] The Applicant submitted that the Tanda system used at the Respondent's site was continually glitching, not loading and cutting in and out. The Applicant also submitted that the wifi the tablets were connected to at the Respondent's site had a weak signal and constantly cut out. The Applicant submitted that most days, when he was logging out, the Tanda app would 'buffer' for some time. He stated that he finished at 3pm and would have to leave to pick his children up from school and daycare, therefore he did not have time to wait while the system buffered. The Applicant submitted that on the evidence before the Commission, the Tanda system is not be a reliable source of evidence.

• [23] The Applicant submitted that his dismissal was unfair and that all allegations against him were false. The Applicant submitted that throughout his employment with the Respondent, he attended work with a mind set and work ethic to get the Resort up and running and that he did his best to try and achieve this outcome.

• [24] The Applicant noted that his contract provided that if he was terminated he would received 2 weeks' notice and 2 weeks' remuneration, but he received nothing.

• [25] The Applicant submitted that his dismissal has caused him stress, anxiety and financial burden. The Applicant submitted that he has struggled to pay rent and support his young family which has caused him constant worry.

• [26] The Applicant submitted that he struggled to obtain work, despite his nearly 20 years' experience as an electrician, due to potential employers seeing that he had previously been working for the Respondent. The Applicant submitted that his employment at the Resort has "tarnished [his] name".

• [27] The Applicant submitted that he has had to start his own business in order to support his family. However, he submitted that he has not worked a full week since his termination, and did not have any work for the first 4 weeks immediately following his termination.

• [28] Further, the Applicant noted that the Respondent has threatened to sue him for money allegedly owed by him for the days he was allegedly not on site. The Applicant submitted that he has this "hanging over [him]" and that he sees this as a threat.

• [29] The Respondent submitted that the Applicant was appointed as the head electrician under a services contract with the Respondent, to provide electrical and related services in connection with the refurbishment of Palmer Coolum Resort (the "Project"). The Respondent submitted that the Project is a significant undertaking and involves the refurbishment of 180 accommodation rooms spread over approximately 45 individual buildings as well as a number of ancillary buildings, including central lounge areas, dining spaces and conference rooms. The Respondent submitted that in that role, the Applicant was a senior member of the management team, and noted that the General Manager of the site, Mr James McDonald, while diligent, was not experienced in construction and certainly not of the scale that was being undertaken on the site.

• [30] The Respondent submitted that it attempted to be cost conscious, implementing a Purchase Approval Form System (PAF System) to minimise the costs associated with the Project. The Respondent submitted that the Applicant was aware of the PAF System and its purpose.

• [31] The Respondent submitted that in all of the circumstances, the dismissal of the Applicant was not harsh, unjust or unreasonable.

• [32] The Respondent submitted that Regulation 1.07 of the Fair Work Regulations 2009 sets out the meaning of "serious misconduct" providing:

"(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(ii) the reputation, viability or profitability of the employer's business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment."

• [33] The Respondent submitted that section 117 of the FW Act provides that an employer must not terminate an employee without sufficient notice or payment in lieu of notice. However, section 123 of the FW Act provides that the requirement of section 117 does not apply to employees terminated for serious misconduct.

• [34] The Respondent submitted that as an employee of Drewmaster, "it is trite that the Applicant had implied contractual duties of good faith and loyalty". Further, it submitted that, given the Applicant's senior position in the business, the Applicant owed a higher fiduciary duty to the Respondent.[1] The Respondent submitted that employees other than senior executives and officers may owe the business a fiduciary duty, depending on the circumstances.[2] It submitted that the more senior the employee, the more likely that the obligations will be fiduciary in character. Employees of relative seniority within an organisation (such as employees with managerial responsibilities) will owe fiduciary duties to their employer.[3]

• [35] The Respondent cited the decision in Warman International Ltd v Dwyer,[4] in which the High Court observed that the stringent rule that the fiduciary cannot profit from his trust is said to have two purposes:

(1) that the fiduciary must account for what has been acquired at the expense of the trust, and

(2) to ensure that fiduciaries generally conduct themselves "at a level higher than that trodden by the crowd".

The objectives which the rule seeks to achieve are to preclude the fiduciary from being swayed by considerations of personal interest and from accordingly misusing the fiduciary position for personal advantage or to the employer's detriment.[5]

• [36] The Respondent submitted that the Commission is entitled to, and should, take into account facts which were not known by the Respondent at the time of the dismissal but otherwise justify the termination of the Applicant.[6]

• [37] The Respondent submitted that the Applicant, in that position of trust as head electrician, before being terminated, evinced to the new builder that he:

"a. either directed or allowed for the destruction of Drewmaster's property without faithfully advising Drewmaster on the extent to which the minimum level of refurbishment that was necessary to complete the works;

b. either directed or allowed unnecessary destruction and demolition work; and

c. was responsible for incurring additional and unnecessary expenses for the Respondent."

• [38] The Respondent submitted the evidence is that, during the time that the Applicant was employed by the Respondent, the Applicant was responsible for, and involved in, the "completely unnecessary (and excessive) and unauthorised stripping out of villas of their electrical services".[7]

• [39] Further, the Respondent submitted that the Applicant directly caused and was responsible for physical damage to the Respondent's pool pump room, such damage causing financial detriment to the Respondent.

• [40] The Respondent submitted that during the time that the Applicant was employed by the Respondent, the Respondent's pool pump room had been "completely vandalised and totally stripped for no apparent reason".[8] The Respondent submitted that, on the evidence of Mr Waldie, all of the existing pipework, pumps and electrical main switchboards are no longer usable as they have been smashed, or have not been securely stored for reuse. The Respondent submitted the evidence is that these valuable materials could have been reused, and the purchase of replacement materials was an entirely unnecessary expense.

• [41] The Respondent submitted that the report by the Resort's electrical engineer reviewing the electrical services the Applicant was responsible for at the Respondent's Ned Kelly, Copacabana and Captain Table structures, highlights that the wiring behind electrical switchboards at each of these structures were needlessly cut away.[9]

• [42] The Respondent submitted that on 9 August 2023, the Applicant was dismissed during a meeting conducted by Mr Waldie.

• [43] The Respondent submitted that following the Applicant's termination, an audit was undertaken of the Applicant's email accounts and PAF requests. The Respondent relied on the evidence of Mr Wood that the PAF system provided a framework that:

"a. Encourages and enforces accountability when purchasing;

c. Generally achieves the best price and competitive supply for products;

d. Minimises exploitation by staff of preferential supply arrangements; and

e. Provides current task information and pricing to allow an accurate decision for expenditure to be made or not made."

• [44] The Respondent submitted that the audit undertaken by the Respondent revealed a number of serious matters concerning the Applicant's conduct.

• [45] The Respondent submitted that during his employment with the Respondent, the Applicant, as the head electrician, was able to make PAF requests. The Respondent submitted that on or about 30 November 2022, the Respondent's purchasing officer received approval for a PAF from the General Manager for the purchase of "electronic programmable signs for the village square". The Respondent submitted that the approval listed the Applicant as the requestor of the purchase. However, the Respondent submitted that the Applicant raised with the purchasing officer that he had not requested the purchase to which the purchasing officer replied "No we put your name down instead of Ryan's to see if it would get approved and it worked. Thanks big boi".[10] The Respondent submitted that it has been unable to locate any evidence that the Applicant informed the General Manager that his name had been used fraudulently for this purchase.

• [46] The Respondent submitted that employees in supervisory or management positions are under a duty to report serious breaches of duty by other employees,[11] however, the Applicant failed, without any justification whatsoever, to report this serious breach of duty by the other employee (the purchasing officer) to the Respondent.

• [47] Further, the Respondent submitted that the Applicant, without the Respondent's knowledge or consent, manipulated his privileges in respect of the PAF in order to create a bias of preferential supplier treatment to the financial detriment of the Respondent. The Respondent submitted that it is apparent from the review of the Applicant's PAF requests to the procurement officer that the Applicant did not take the PAF system seriously. It submitted that the Applicant routinely submitted a single quote for a supplier called Rexel and persistently and consistently continued to do so in flagrant disregard of reminders issued by the Respondent of the requirement to submit three quotes.

• [48] The Respondent submitted that as the head electrician, the Applicant bore responsibility for procuring quotations for the installation of lighting for tennis courts owned by the Mineralogy Group. It submitted that on the evidence, on 8 February 2023, the Applicant sent to Mr Pawsey, the former Builder for the Resort, a quote from Rexel to supply the lighting for the tennis courts. Also, on 8 February 2023, the Applicant delivered to Mr Pawsey another 3 quotes from Rexel with different layout options.

• [49] The Respondent submitted that on 14 February 2023, the Applicant sent to Mr Pawsey an updated version of the first Rexel quotation. On 22 February 2023, the purchasing officer employed by the Respondent informed the Applicant that given the value of the quotations, the 3 quotations could not all be from the same company. Then, on 28 February 2023, the Applicant received an email from the Assistant Manager for Rexel stating:

You should have 3 quotes now for the tennis lights. Any questions just let me know

• [50] The Respondent submitted that the references to Ideal and ANL Direct were to emails received by the Applicant dated 24 February 2023 and 26 February 2023 respectively. The Respondent submitted that the only conclusion to be drawn from the Applicant's conduct is that upon being rejected by the Respondent's purchasing officer and being requested to obtain three quotations from three different companies, the Applicant then conspired with the Assistant Manager of Rexel to source two further quotations that were more expensive than Rexel's revised price of 14 February 2023, to the financial detriment of the Respondent.

• [51] As an additional concern, the Respondent submitted that on the evidence before the Commission, the Applicant also started and conducted his own business as an electrician, in breach of and contrary to his fiduciary and other duties of good faith and loyalty and fidelity to the Respondent. The Respondent submitted that the Applicant conducted his own business whilst at work with the Respondent and used his work email with the Respondent to conduct that business.

• [52] The Respondent submitted that the deceitful nature of the Applicant's conduct over an extended period was in no way compatible with the employment relationship and constituted serious misconduct. The Respondent noted that the Commission has previously determined that even the smallest lies can justify summary dismissal as it goes to the heart of duty owed in the employment relationship.[12]

Notification of the reason and opportunity to respond

• [53] The Respondent submitted that the termination letter notified the Applicant for the reason for his dismissal, and the Applicant was not precluded from any opportunity to respond.

• [54] The Respondent submitted that there is no evidence that during the dismissal meeting, Mr Waldie or any representative of the Respondent, refused or prevented the Applicant from having a support person present.

• [55] The Respondent submitted the evidence is that the Applicant was reminded a number of times about his unsatisfactory performance and practices. By way of example, the Respondent submitted that the Applicant routinely submitted a single quote from Rexel and persistently and consistently continued to do so in flagrant disregard of reminders by the Respondent of the requirement to submit three quotes.

• [56] As to these matters, the Respondent submitted that "[t]he material before the Commission is not determinative in respect of this integer".

• [57] The Respondent submitted that it is not aware of any other relevant matter to be brought to the notice of the Commission.

• [58] The Respondent submitted that in respect of the "Overpayments Issue" (as defined in the Employer's Response), the Respondent is in the process of preparing a civil claim against the Applicant, seeking orders (non-exhaustively):

"a. that the Applicant pay to the Respondent an amount equal to the overpayments for debt or as monies paid and received; and

b. interest pursuant to section 58 of the Civil Proceedings Act 2011 (Qld)."

• [59] The Respondent submitted that proceeding will be commenced within the relevant limitation period prescribed by the Limitation of Action Act 1974 (Qld). The Respondent respectfully submitted that the Magistrates Court of Queensland is the appropriate jurisdiction for those matters to be ventilated.

• [60] In response to the 'extra paid 30 minute break' issue, the Applicant submitted that this contention by the Respondent was simply not true. The Applicant submitted that he had a 15 minute paid 'smoko' break and a 30min unpaid lunch break. He submitted that his hours of work were 0530 - 1500 Monday to Thursday, being 9.5 hrs per day, and 0530 - 1130 on Fridays, being 6 hrs for which he submitted he had a 15 minute paid break.

• [61] The Applicant submitted that on site there was no signing in and out for lunch so was, therefore, unsure how the Respondent "[came] up with this information and accusation".

• [62] In response to the 'Pool Plant Room', the Applicant submitted that the plant room was un-serviced and unmaintained for over 8 years prior to his employment with the Respondent. He submitted that all equipment was left in an open room with the pool chemicals, the switchboards had no segregation for this entire period, the walls seeped water, there was a slice cut out of the concrete slab for water to run out as there was so much water in the room. The Applicant submitted that he did not instruct anyone to remove equipment, rather, previous site managers had instructed labourers to clean out and remove all pool equipment.

• [63] The Applicant submitted that as for the switchboards, the 'DSB 1' with non-essential written in permanent marker (the Applicant submitted photos in support of these submissions) was in the photographed state before he was employed by the Respondent. The Applicant submitted that it was the old board that supplied the previous spa attached to the pool. The Applicant submitted that he was hardly able to open doors, and he had to "pry them open as they were so corroded from the environment, with no usable parts inside and with a corroded shell".

• [64] The Applicant submitted that he was instructed to remove this equipment, and in his professional opinion this was needed, as the Respondent had added a new spa and was also adding a kids paddle pool/park which would require a new switchboard.

• [65] The Applicant submitted that the electrical mains for this board are fed from the main substation across from the Village Square and is locked and tagged out and clearly labelled. He submitted that as for the second Village Square sub main switchboard, all tenancies that were run from this board were completely demolished and, as instructed by site supervisors, the wall that the board was on was also being demolished and the soil dug out for drainage from the above tenancy.

• [66] The Applicant submitted that before the switchboard was removed, he reviewed and tested the state of the switchboard and found the doors to be corroded and very hard to operate, and corrosion on the switchboard chassis. The Applicant also found that internal components had been removed at some stage prior to his employment, including bus bars and CTs. The Applicant submitted that the 'knife' switches, which are the main switches for this style of switch board, for each tenancy, were corroded and unable to be pulled in and out to operate in a safe manner. The Applicant submitted that in his professional opinion, this switchboard would be unsafe and unreliable to use and would need replacing. The Applicant reiterated that the board was fed from the main switchboard under Ned Kellys restaurant and was locked and tagged out.

• [67] In response to the 'JB HI Signage (electronic programable signs)' issue, the Applicant submitted that his name was used fraudulently on a PAF request; he did not request or raise this quote or PAF. The Applicant submitted that this was done by Mr Ryan Mensink. The Applicant submitted that the issue regarding 'not raising this with management' was not true, as on the day that the Applicant was notified via email from the purchasing officer, he, at his earliest available time, spoke in person with Mr Mensink and Mr McDonald, who he stated were his "direct highest management". The Applicant said that he advised both men that he was very upset about his name being used to purchase equipment that he did not request. The Applicant submitted that he was assured that it would not happen again and that it was a lapse in judgment on Mr Mensink's part.

• [68] As to the issue raised regarding 'preferential treatment of the supplier Rexel', the Applicant submitted that since the start of his employment with the Respondent, he did use multiple wholesalers as evidenced on invoices, including MM Electrical, Sherriff Electrical, L&H Noosaville and Rexel. The Applicant submitted that due to a number of requests without business secured, MM Electrical had advised him that they would not be dealing with the Respondent any longer. The Applicant submitted that he then used L&H Noosaville, Sherriff Electrical and Rexel. He submitted that on the majority of occasions that he would request a quote from L&H Electrical, it would take them up to 3 weeks to get back to him, however, he did continue to use them for some time. The Applicant submitted that Rexel, L&H Noosaville and Sherriff Electrical were his main wholesalers; however, he submitted that issues eventually arose regarding Sherriff Electrical, including invoices not being paid by the Respondent. The Applicant submitted that Rexel always got back to him in a timely manner and helped out at any stage of construction. He submitted that this is how Rexel ended up being utilized so often, not because of preferential treatment.

• [69] In relation to the issue of '3 quotes for tennis lights' the Applicant submitted that he obtained 4 quotes himself, all emailed to him directly, being:

• [70] The Applicant submitted that the email from Rexel stating "you should have 3 quotes now" has been misunderstood. The Applicant submitted that he had spoken to Rexel in regards to needing a 3rd quote as he had already sought 2 other quotes from Ideal and vibe lighting, and was waiting for the quote from Rexel. The Applicant submitted this is why the Rexel email stated "Hi mate you should have 3 quotes now".

• [71] The Applicant did not believe that he showed a bias towards using Rexel, as he used many other wholesalers throughout his time with the Respondent. The Applicant submitted that there was tennis court lighting purchased before he started with the Respondent, which was no longer being utilised, and he was trying to use as much of this lighting as possible to minimise cost. The Applicant submitted that this stock still existed at the time of his termination.

• [72] In response to the allegations of the Applicant conducting his own business, the Applicant submitted that the only time he performed electrical work of his own was outside of the Respondent's working hours, including weekends and after work. The Applicant submitted that this did not conflict with any work for the Respondent, and any paperwork was done on his 'smoko' or lunch breaks. The Applicant conceded that the work was done on the Respondent's laptop, however, he submitted he did not believe this would satisfy serious misconduct. He submitted that he would not have done anything to jeopardize his position with the Respondent.

• [73] The Applicant maintained that for all of the above reasons, there was no valid reason for his dismissal and his dismissal was harsh.

• [74] The Applicant submitted that he applied for multiple jobs following his dismissal, with no success.

• [75] I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses.

• [76] It is not in dispute, and I find, that the Applicant is protected from unfair dismissal, submitted his application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.

• [77] When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[13] is of significance:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

• [78] In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[14] held:

"The above extract is authority for the proposition that a termination of employment may be:

• unjust, because the employee was not guilty of the misconduct on which the employer acted;  
• unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or  
• harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct".

• [79] Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[15] said:

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

• [80] I now turn to the criteria for considering harshness as provided in s.387 of the Act.

• [81] The meaning of the phrase "valid reason" has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[16]

"In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee's capacity or performance or based on the operational requirements of the employer. ...

In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound,  defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them.  The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly...".

• [82] In Rode v Burwood Mitsubishi,[17] a Full Bench of the Australian Industrial Relations

"... the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason."

• [83] In Qantas Airways Ltd v Cornwall (Cornwall)[18] the Full Court of the Federal Court of Australia said:

"The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved."

• [84] I am satisfied that no criticism can be levelled at the Applicant in relation to the removal of any of the existing electrical installation.

• [85] I was previously employed as an electrical fitter/mechanic in the electricity distribution network. The photographic evidence provided by the Applicant showed electrical equipment in a very poor state of disrepair, which was not operable or likely to fail if put back into service. Further, based on the evidence of the Applicant, the Respondent is extremely lucky that a serious injury or death has not occurred on the site. To have exposed and live electrical busbars and wiring in an open switchroom is very dangerous. I have taken this into account.

• [86] Further, the report on the electrical installation tabled by the Respondent is of little probative value. The electrical engineer who wrote the report was not called by the Respondent to support his report. I certainly had questions to ask in relation to his conclusions. I'm confident the Applicant did as well. I have taken this into account.

• [87] I am confused and perplexed by the statement and evidence of Mr Waldie. There is absolutely no accusation or evidence of the Applicant ordering equipment that was not installed on the Resort, yet Mr Waldie refers to the statement of Mr Wood and then makes a generalised and scurrilous accusation which has no relevance to Mr Wood's statement. Mr Waldie then denied any knowledge or understanding of what the paragraph meant. Obviously, Mr Waldie did not prepare his own statement even though he testified that the contents of his statement were true and correct. I find that Mr Waldie is not a witness of credit. I have taken this into account.

• [88] The Applicant is accused of providing preferential treatment to one electrical supplier over another two, in breach of the PAF. I am not convinced that this accusation has been proven. I accept that the verbiage used in an email by one of the suppliers is unusual, but I do not read into it the level of conspiracy suggested by the Respondent. The fact that one of the electrical wholesale companies is an associated entity of another wholesaler is not unusual or uncommon in the construction industry. Indeed, the new builder undertaking the renovations at the Resort, is an associated entity of the former builder and the Resort itself. I have taken this into account.

• [89] I am satisfied that the Respondent's Tanda system did not function in the manner hoped by the Respondent. I do not regard the records of attendance to be accurately recorded by that system. Further, the Applicant also worked off site at other properties owned by Mr Palmer. The Applicant's unchallenged evidence is that his time sheets were filled in accurately. This notion is supported by the Applicant's removal of his signature at the Pre Start or toolbox meetings that he did not attend. These forms had been electronically signed by the Applicant prior to the attendance sheet being produced. I have taken this into account.

• [90] The Applicant admitted that he was running his own electrical contracting company, as a sole trader, performing electrical work either after hours or on his day off. I am satisfied and find that this secondary employment was not in conflict with his principal role with the Respondent. However, the Applicant accepted under cross-examination that, on occasions, he was sending quotes and invoices to his customers using his company computer during work time. I have taken this into account.

• [91] The Respondent submitted that the Applicant has breached his implied duty in his contract of employment to act in good faith. The comments of Mr Wood's that all employees must be focussed on their job 100% of their workday are irrational and impractical. Every employee converses with their colleagues or thinks about other issues going on in their lives during their workday. However, running a secondary business using company time and equipment, without the knowledge of the employer, is different to talking to your colleague about the footy whilst having a breather. As the head electrician on site, the Applicant had a responsibility to set the appropriate ethos for his department. This did not occur. As a result, I am satisfied that the Respondent had a valid reason to terminate the Applicant.

• [92] The Applicant was notified by email that he was terminated for refusing to carry out his duties as directed. The Respondent provided further reasons in their second Form F3 submitted by the Respondent on 3 October 2023. I have taken this into account.

• [93] It is settled law that the Respondent can rely on information that is gained after a dismissal in justifying its decision to dismiss. In this case, the Applicant was dismissed for refusing to work the new site hours being introduced by the Respondent. This claim was factually incorrect. The Applicant was never consulted as to his views on the new site hours, nor did he attend the site meeting on 8 August 2023. On 25 August 2023, the allegation changed to termination for serious misconduct, based on the Tanda system records. This allegation then changed from 63 days off site to 103 days off site. Further, that the Applicant allowed for the destruction and removal of perfectly operational electrical equipment. These accusations were also incorrect. Finally, even though the Applicant started his own electrical contracting company whilst employed by the Respondent and undertook activities for that company during work hours, the Applicant was never given an opportunity to respond to any allegations prior to being terminated. I have taken this into account.

• [94] The Applicant was not given an opportunity to respond to the allegations. The Respondent's submission that the Applicant had an opportunity to respond during the meeting with Mr Waldie is simply fanciful. An employee is entitled to be given the allegations of concern in writing and given an opportunity to in writing. This process may take up to a week or two if the applicant seeks their own legal advice. The Applicant was not given this opportunity. Relevantly, a Full Bench of the former Australian Industrial Relations Commission held in Crozier v Palazzo Corporation Pty Limited[19] (when considering a termination under the former Workplace Relations Act 1996):-

"[75] Section 170CG(3)(c) provides that the Commission must have regard to "whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee". For the reasons we have set out in relation to s.70CG(3)(b) we think that the "opportunity to respond" referred to in s.170CG(3)(c) is a reference to any such opportunity which is provided before a decision is taken to terminate the employee's employment."

Section 387(d) - Any refusal of a support person

• [95] The Respondent did not conduct any meetings with the Applicant, so this matter is not relevant.

Section 387(e) - Unsatisfactory performance

• [96] The Applicant was not dismissed for unsatisfactory performance.

Section 387(f) - Size of Employer

• [97] It is not in dispute that the Respondent and its related entities are a large and well-resourced organisation. I have taken this into account.

Section 387(g) - Dedicated HR specialists

• [98] The Respondent terminated its 'on-site' HR specialist with its other employees. The Respondent's in-house lawyer conducted the Commission proceedings. I have taken this into account.

Section 387(h) - Any other matter

• [99] From the quotes and invoices submitted by the Respondent, it would appear that the Applicant's secondary business was basically nothing more than an avenue to stop doing "love jobs" for friends or acquaintances for nothing. The majority of the jobs were quite small and only a few hours' work, but others were quite extensive, including one quote on 12 January 2023 for almost $10,000 and 30 hours of work. No invoice exists for this quote so I assume that the Applicant did not perform this work. I accept that the sending of quotes or invoices on the work computer would take no more than a few minutes here or there. From 13 October 2022 to 26 April 2023, the Applicant sent a total of 10 emails, made up of either quotes or invoices. Based on the information in these emails, including quotation numbers, invoice numbers and dates, the Applicant may have averaged 1 or 2 small jobs every few weeks. This amount of outside work is not surprising for an electrician with a young family who only works 4.5 days every week in their principal employment. I have taken this into account.

• [100] I have taken into account that the Applicant was personally asked to come back to work a few days after being terminated on the basis that he was needed. Such behaviour by the Respondent indicates that the Applicant's termination was an error. The fact that the Applicant did not accept the invitation of re-employment is unsurprising. I have taken this into account.

• [101] In conducting his own business, the Applicant made no attempt to hide that he was employed by the Respondent. The quotes and invoices that he sent to clients contained a separate covering email which identified his employer and his role. If the Applicant wanted to act in a clandestine manner, he would have removed his identification from these emails. I have taken this into account.

• [102] The Applicant has sent 10 emails over a 6-month period. Whilst I accept that the Applicant should have sought permission for this activity, the question remains whether the Applicant's conduct constituted serious misconduct. I do not accept that the Applicant's conduct in sending 10 emails over a 6-month period satisfies the definition of serious misconduct contained in the FW Act. I have taken this into account.

• [103] I accept that double insulated electrical cable is durable, safe and has a long life of functionality when installed correctly and appropriately, away from hazards and dangerous situations. The same can be said for electrical switchgear and switchboards. However, haphazard installation or the presence of corrosive materials such as water and chemicals dramatically affects this scenario and makes the electrical installation a life threatening hazard. The Applicant has 20 years' experience as an electrician. Based on the Applicant's verbal and photographic evidence, I am prepared to accept the Applicant's views on the integrity of the identified components of the electrical installation. I have taken this into account.

• [104] I accept the unchallenged evidence of the Applicant that he was not responsible for the malicious damage of some of the electrical equipment complained about by the Respondent. These decisions were taken before the Applicant was the electrical supervisor. It would be unfair for the Applicant to be held accountable for the decisions of others. I have taken this into account.

• [105] Regarding the unchallenged evidence of the Applicant, I note that in the Full Bench decision of INPEX Australia Pty Ltd v The Australian Workers' Union,[20] it was stated that:-

"[29] The Commission is not a court. It is not bound by the rules of evidence.6 It is required to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities.7 But when the Commission makes a finding of fact, it must proceed by reference to rationally probative material. 8 That material may include, inter alia, evidence or, in an appropriate case, submissions. For example, it may be appropriate for a finding of fact to be made on the basis of an unchallenged submission made by one party, particularly when the other party is legally represented."

• [106] Further, a Full Court of the Federal Court of Australia stated in Ashby v Slipper[21] that:-

"The second aspect, critical to this appeal, relates to the weight or cogency of the evidence: that is, as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection."

• [107] I accept the unchallenged evidence of the Applicant that he raised his concerns about a colleague using his name to order an electronic sign with Mr McDonald, the General Manager.

• [108] The Applicant appears to be an intelligent and skilful electrician. His actions as the head electrician in relation to the ordering of goods appears normal based on my experience in the electrical contracting industry. It is not unusual for contractors to have preferred wholesalers or for wholesalers to offer additional discounts to loyal customers. It is also not unusual for wholesalers to take themselves off tender lists if they are not winning enough work or having trouble being paid by the customer. It is obvious that this practice was condoned by the Applicant's superiors who signed off on his PAFs, even though it may have been a breach of the Respondent's policy.

• [109] Having studied the photos submitted at the Hearing and contained in the Engineers Report, I accept the evidence of the Applicant that the state of the identified electrical equipment was obsolete and inoperable. In my opinion, it was also very dangerous.

• [110] However, it is not in dispute that the Applicant was running his own electrical contracting business whilst at work. I accept that this business was not in conflict with the Applicant's role with the Respondent, but the evidence shows that he spent some of the Respondent's time in conducting this business by sending quotes and invoices during work hours and utilising the Respondent's computer and email server. This practice cannot be condoned.

• [111] However, the actions of the Respondent in terminating the Applicant are disproportionate to the gravity of the Applicant's misconduct. Of all of the allegations that have been submitted by the Respondent to justify the Applicant's termination, I find that the only one that can be sustained is in relation to his private business. I do not accept that the Applicant's business is in competition with that of the Respondent. As far as I know, the Respondent does not have an electrical contractors license. I accept the evidence of the Applicant that he would not have involved himself in this activity if he thought that it would jeopardize his employment with the Respondent. The Applicant has lost a job worth $135,000 per year, by running a side business with a miniscule profit margin which involved a few hours of work per week.

• [112] As a result, despite my earlier finding that the Respondent had a valid reason to terminate the Applicant, based on the fact that the Applicant was denied any semblance of procedural fairness and that the level of misconduct was minor compared to the consequence of his termination, adopting the obiter from the High Court in Byrne and a Full Bench of the Commission in AMH, I find that the termination of the Applicant was harsh.

• [113] I am satisfied and find that the Applicant was unfairly dismissed.

• [114] Having found that the Applicant has been unfairly dismissed, I now turn to the issue of an appropriate remedy.

• [115] The relevant provisions of the Act in relation to a remedy for an unfair dismissal are:

"390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies."

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

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

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

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

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

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

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

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

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

(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.

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

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

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

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

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

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

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

(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."

• [116] The Applicant seeks compensation for his termination. I am satisfied that, whilst reinstatement is the primary remedy under the Act, it would be very difficult to re-establish the necessary trust and confidence to re-create an employment relationship. I am satisfied and find that the payment of compensation is the appropriate remedy in this circumstance.

• [117] Section 392(2) of the Act identifies criteria that the Commission must taken into account in determining the appropriate level of compensation to be awarded to the Applicant.

Section 392(2)(a) - effect of order on employer's viability

• [118] I am satisfied that my order will not have an adverse effect on the viability of the Respondent. I have taken this into account.

• [119] It is not in dispute that the Applicant was employed from 6 April 2021 - 7 August 2023, being almost 2 and a half years. I have taken this into account.

Section 392(2)(c) - remuneration received if not dismissed

• [120] The Applicant would have continued to be paid his regular fortnightly pay of $5,192 had he not been dismissed. I have taken this into account.

• [121] The Applicant stated that following his termination, he has continued operating his contracting business but did not perform any work for a 4-week period and has not matched his pervious salary in any week since that time. I have taken this into account.

Section 392(2)(e) - amount of remuneration received by the Applicant

• [122] The Applicant stated that from his contracting business, he was earning approximately $850 per week some 4 weeks after his termination. I have taken this into account.

• [123] The Applicant testified that he was earning approximately $850 per week.

• [124] I am also required to have regard for the criteria known as the 'Sprigg formula' which emanates from the Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket.[22] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.[23]

• [125] I have taken into account all of the parties' submissions in relation to remedy.

• [126] I have found in associated matters that the renovation project would have continued for a further 12 months. However, I am satisfied that the Applicant would not have remained employed for the duration of the Project. The Applicant has sought 16 weeks' pay. The Respondent has suggested that 8-12 weeks should be the maximum amount ordered. I am satisfied that the Applicant would have only remained employed for a further 10 weeks under the new building manager.

• [127] I have taken into account that the Applicant was earning approximately $850 per week from his contracting business some 4 weeks after his termination.

• [128] I have applied a deduction of 40% on the amount I am going to order based on the misconduct of the Applicant in conducting his own business during his normal working hours for the Respondent.

• [129] I have taken into account the terms of the Applicant's contract.

• [130] I have taken into account the Applicant has attempted to mitigate his loss by applying for at least 10 jobs as an electrician on the Sunshine Coast.

• [131] I have not applied any contingencies in this matter.

• [132] Based on the above considerations, I am satisfied and find that the Applicant is entitled to 10 weeks' pay (minus deductions) plus superannuation.

• [133] I order that the Respondent pay to the Applicant $12,516 (less tax) plus superannuation.

[1] Wiburd v Grandbridge Limited [2018] FWC 1900.

[2] Colour Control Centre v Ty [1995] NSWSC 96; (1996) 39 AILR 5-058.

[3] Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312 at [17].

[4] [1995] HCA 18; (1995) 182 CLR 544.

[5] [1995] HCA 18; (1995) 182 CLR 544 at 557-558.

[6] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at pp. 373, 377‒378; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne v Australian Airlines Ltd [1995] HCA 24(11 October 1995) at pars [131], [136] (McHugh and Gummow JJ), (1995) 185 CLR 410 at pp. 467, 468.

[7] Witness Statement of Mr Waldie at [9]-[12].

[10] Witness Statement of Mr Wood at [9].

[11] Sybron Corp v Rochem Ltd [1984] Ch 112; [1983] 2 All ER 707; [1983] 3 WLR 713.

[12] Wiburd v Grandbridge Limited [2018] FWC 1900.

[14] (1998) 84 IR 1.

[15] [2000] AIRC 1019.

[16] [1995] IRCA 333; (1995) 62 IR 371.

[18] [1998] FCA 865; (1998) 84 FCR 483.

[20] [2021] FWCFB 1038.

[21] [2014] FCAFC 15.

[22] [1998] AIRC 989; (1998) 88 IR 21.

[23] [2012] FWCFB 431.

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