Applicants claims that she helps with sales as part of her work duty which we dispute. She keyed a total sales of $75 for September 2018, $966 for Oct 2018 and $2124 for Nov 2018 (Appendix 9). Most of these are also personal sales to myself "Michael Chen".

Account reconciliation which are listed as one of her main duties, shows minimum daily entries with some days with 0 entries. The last week's record from 26th to 30th Nov is provided for reverence (Appendix 10).

Handling cash is listed as one of her main duties and we have record that shows most days are without any cash receipt (Appendix 11)

The applicant are late to work almost every day. We have given warning in the past but situation has not improved. Please see sample time record cards showing that she is late almost every day (Appendix 12).

I don't believe there is any genuine intention for the application to reconcile this matter. Since 30th Nov, she has refused all communication and have not also rejected the commission's offer for face to face conciliation. There has also been no indication that she wanted to continue to work and compensation is the only consideration for her.

With sincerity to resolve this matter, we have paid out the long service of 8.9335 weeks on 07th June for $6441.09 gross. This is so we can also complete the separation certificate in regards to long service leave (Appendix 13).

Our industry is doing extremely tough with many of our customers having filed for bankruptcy (Appendix 14). This has contributed to lack of amount of available work as our business has also been drastically affected."[143]

[93] Mr Michael Chen gave further evidence in chief concerning his state of mind in relation to the Respondent's performance and Mrs Liu's maternity leave as follows:

"Can you explain the company financial position around end of 2018?---The financial position of the company has been declining over the years. Sales and gross profit has been dropping gradually but surely. There's no real fluctuation in regards to numbers, but there is one alarming sort of factor though we sort of noticed towards the end of 2018. Towards the second half of 2018 there was a massive drop in terms of sales and gross profit. I think, you know, certain months it could be down by 30 or 40 per cent, so it is very noticeable, yes.

What did you decide to do about this downturn?---You know, when there's a pretty big drop, you try and look at various sort of areas - you know, you sort of look at your expenses, you look at ways you can improve sales, but I think in general the industry is doing it very tough. The economy is sort of declining as well. So it's pretty evident there's probably not a lot more we can do to invest to try and increase the sales; you know, if we do that, you know, it's probably really putting money down the well really. So we sort of decided to have a look internally, look at our expenses, find out what we can sort of do to make sure the business can still survive, moving into this year and beyond. So naturally wages is the biggest expense for the company, and we generally just, you know, noticed it hasn't been busy - you know, when the sales have dropped by 30 or 40 per cent in some months then business activity will be down naturally. So we looked at possibly cutting, you know, employee numbers to try and sort of rectify the situation.

Do you have any issues with Anna taking maternity leave?---There would never be an issue of anyone taking maternity leave. It's never really even a consideration for us; you know, we have employees that have gone through a difficult time so some of them have been sick; they've taken time away for being sick; you know, we have people away because of family reasons, being overseas; you know, myself I have two kids as well, I've been away as well. So I know it's important to be away for your family, so there's no reason - there's absolutely no reason why we would sort of, you know, have any problem with someone taking leave of that regard."[144]

[94] Mr Michael Chen was involved in discussions with the Applicant during 2016 in relation to her leave and pay inquiries. Mr Wallace Chen, the father of Mr Kevin Chen and Mr Michael Chen was originally responsible for payroll and the business. During 2016 Mr Michael Chen took over this responsibility, which involved him trying to reconcile and computerise the system.[145] Mr Michael Chen maintains that he was the one to initiate the discussion with the Applicant about her leave and pay inquiries.[146] In relation to the Applicant's evidence that she was required to have her medical certificates reissued, Mr Michael Chen stated that most of the issues raised by the Applicant were "removed" straightaway (ie. the Applicant's sick leave was debited and her annual leave credited) and that the Applicant was happy. In relation to the reissuing of the Applicant's medical certificates, Mr Michael Chen said that it would have been helpful to have these on the record but was not required.

[95] In response to the proposition that he had required the Applicant to have medical certificates for a four year period reissued, Mr Michael Chen had the following exchange with the legal representative for the Applicant:

"So you're saying - your evidence is that you would have accepted no medical certificates supplied by her and you would have updated your records accordingly?---Yes. Yes, I'm happy to resolve this, because I know there are is sort of shortcoming on our side. So I was more than happy to resolve this.

So you were happy to do it, to resolve the situation, without medical certificates?---Yes.

So you're saying that she went to all that trouble to obtain medical certificates off her own bat?---She offered to provide them on the email before and I said, "Yes, you can provide it."

I put it to you that she was required by you to actually obtain the medical certificates so that you could update the records?---I've already answered that question. I said no, it's not required. That's probably about the fourth time, okay. I said it's not required, okay."[147]

[96] In relation to the medical certificate of 11 May 2018, Mr Michael Chen's evidence in cross-examination was that he found it "unusual" and "rather strange" that the Applicant tried to apply for sick leave in advance and that she would know that she would be unfit for work the day before. In relation to whether he received the medical certificate Mr Michael Chen said he did not recall but did not say that he did not receive it. In relation to the reason for the sick leave Mr Michael Chen had the following exchange with the Applicant's legal representative:

"So were you aware of what this leave was being sought for?---No.

So you didn't ask her what it was being sought for?--- No, I didn't, no. I don't think it was in the email conversation, was it? No, I don't think so.

So you didn't know that it was regarding - pregnancy related?---Was she pregnant at the time? I wasn't sure.

I'm just asking you the question?---I don't think so, no, but I do know she has been trying to get pregnant for a while. I do know that, so that part is okay. It's never been in question. I think she's been trying maybe for a year or two, maybe, now.

THE DEPUTY PRESIDENT: Yes?---So in regards to that - like I said before, she's been trying, as far as I know, for one or two years to get pregnant, so, yes, that's the reason I - - -

MS KEYES: So you were aware - - -?---I'm pretty sure she's taken similar leave before to try and - you know, try and get pregnant, so yes.

So you've said here that she wanted to take leave to see an obstetrician?---Yes.

How did you feel when Ms Liu was querying this? Did you have any particular emotions regarding Ms Liu querying - - -?---Not really. I think it's within her rights to question, you know. I think we all just want to make sure it's correct, that's all, so there's no issue with that, yes."[148]

[97] As to his knowledge of whether the Applicant was pregnant in mid to late 2018, and discussions about this with other employees, Mr Michael Chen's evidence is:

"Did you know she was pregnant at this stage?---No.

Had you heard anything from other employees about her being pregnant?---No, none.

So in her evidence on 28 June, Ms Liu said that prior to 30 October she didn't tell you or Kevin herself that she was pregnant. She had told some other members of staff. They were aware of it, but she didn't tell either of you that she was pregnant?---Yes. I think during the first day of the hearing she did mention that, yes."[149]

[98] Mr Michael Chen maintains that the Applicant did not, at any time, come to him and say "Michael, I'm pregnant".[150] Mr Michael Chen disputes the Applicant's evidence that at the time of applying for sick leave on 30 October 2018, she handed him an application form for sick leave and told him that she was pregnant, although Mr Michael Chen did concede that it is possible that the Applicant applied for personal leave on 1 November 2018 to attend a medical appointment.[151] Mr Michael Chen was not sure whether he received the leave application for this date[152] but when referred to his own witness statement[153] agreed that he did in fact receive the application for sick leave dated 30 October 2018.[154] In response to the proposition that he had been provided with a leave application form on 30 October referring to the Applicant being pregnant and suffering from gestational diabetes and a medical certificate on 2 November referring to gestational diabetes that would need to be reviewed throughout the Applicant's pregnancy, and was therefore aware that the Applicant was pregnant, Mr Michael Chen said:

"There's all this assumption in place but I've never been told....

...when someone is pregnant you would expect someone to tell you. You know, it shouldn't be based on circumstantial sort of evidence or assumptions.

...There's assumptions that she could be, but I can't be sure, hundred percent, no."[155]

[99] Mr Michael Chen also said that he does recall a conversation with the Applicant on 2 November 2018 concerning the smells from refurbishment and that she wished to move and sit in another area but could not recall that the Applicant referred to the fumes being harmful to her baby.[156]

[100] Mr Michael Chen was on leave at the time that the Applicant's employment ended, but was aware prior to 30 November that the Applicant's position was going to be redundant, although he was not aware that the redundancy was going to be communicated to the Applicant on 30 November 2019.[157] Mr Michael Chen also said that he had a "general discussion"[158] with Mr Kevin Chen in early October 2018 about identifying which roles were no longer required. [159] Mr Michael Chen found out that the Applicant's position had been made redundant after he returned from leave.[160] Mr Michael Chen did not make the decision to terminate the Applicant's employment and had not had a conversation in relation to this specifically.[161]

[101] Mr Michael Chen said that he is equally involved with Mr Kevin Chen in financial aspects of the business.[162] In response to the proposition that the evidence provided to the Commission by the Respondent in relation to financial matters is limited to sales reports over a couple of years, Mr Michael Chen said that sales are the most important aspect of the business "by far" given that the Respondent is in the business of buying and selling.[163] Mr Michael Chen accepted that Ms Chiang did not advise the Respondent to reduce wages specifically, but maintained that Ms Chiang did advise the Company to reduce expenses, and that wages are the biggest expense.[164]

[102] In relation to other staff reductions, Mr Michael Chen's evidence is that he spoke with two employees - "Keith" and "Jack" - when they were both let go prior to the termination of the Applicant's employment.[165] Mr Michael Chen's evidence about those discussions was as follows:

"What conversations did you have with them?---Well, I talked to Jack quite often, I told him business is not really that busy. He does technical work, system builds, repairs, but we rarely get any job. So I sort of had spoken to him many times throughout the year saying, you know, changes are going to happen because you know, it's not just more the employer to employee, you know, I sort of like talk to them on a personal level as well. So I said changes were coming, yes.

With respect to Jack, did you terminate him or did you come to an agreement that there wasn't enough sales and to part ways?---Well, it was - it was bit of both. You know, I explained to him, you know, more than likely, you know, you wouldn't be able to continue and he agreed because he realised there is no work for him.

And there had been a number of conversations with him about that?---Yes formal and informal. We talk all the time back then, so yes.

So you had discussions with Jack about, you know, the problems with the sales decreasing et cetera and possible problems - - -?---Not so much - sorry, go ahead.

Sorry. So you have had informal and formal discussions with Jack about your concerns about the financial aspect of the business, is that correct?---I don't disclose the financial side of - to the employees because that's really not a good thing to do.

Slowing down in the business?---Yes, slowing down a business, yes. He recognised that as well, yes.

Did you raise with him the possibility of you not being able to keep him?---Yes.

And you had a number of those conversations with him?---Yes, yes, we talked. Yes.

Do you say that it was - it could more properly be interpreted as a mutual agreement for him to leave?---Well, it's recognised, yes. So he agrees as well there's not enough work, yes, understand. Yes.

So he was happy enough when he left?---Definitely, yes. There was no - there was no issue with Jack. Yes, because he recognised there wasn't enough work and he understands, yes.[166]

"Okay. Do you recall Keith, was he one of the employees that also left around about that time?---That's correct, yes.

How long do you recall him working for you?---It wasn't a long time. We got him in to replace someone in the warehouse, maybe around one or two months I'm not sure. I don't have the details exactly in front of me.

Could it have been around a month?---I can't say for sure but it could've been maybe, yes.

What was the circumstances of his departure, was there a discussion with him that you couldn't afford to keep him?---Well, it wasn't very busy in the warehouse. So we did discuss about that. He was only new. He hasn't been with us for a long time so - so I kind of had that discussion with him to explain - you know, we thought we were coming into a busy period sort of towards end of the year but it wasn't the case, which unfortunately, you know, explained to him, you know, there may not be the work that we thought there would be coming towards the end of financial - sorry, end of the year.

Do you accept that his employment with Compuworld was significantly less than Ms Liu's employment with Compuworld?---Yes, but that they're a completely different role.[167]

[103] Mr Michael Chen also had the following exchange with me during his evidence:

In advance of you ending their employment - - -?---Yes.

- - -you gave them a heads up, to put it in vernacular?---Yes.

"Things aren't going well. We might have to lay you off. I know you've only been here for a month. You understand, we understand"?---Yes. Yes.

You gave them a heads up, okay?---Yes. So that's - yes, I definitely like to do that, yes.

The proposition that's being put is the applicant was treated differently. She didn't get a heads up?---Mm-hm.

She got called in on the day before she was going on leave. There was no discussion. The letter she was handed said "Termination of your employment". There was no warning that that was going to happen. She was about to go on annual leave till 7 January, and then she wanted to take maternity leave a few months later?---Yes.

Why was the sudden desperate urgency to put her off on that date?---I think Kevin was trying to have that discussion with her on that day.

What discussion was being had in circumstances where she was being given a letter that said, "Your employment is terminated"? What was the - so it's really a discussion about, 'This is what we're going to do'. It's not really a discussion. It's a, 'This is what we're going to do', isn't it?---Yes. Yes, I agree my style and Kevin's style is different, and I acknowledge that. So, yes, I do agree with you. We have different ways of doing things for sure, yes..."[168]

[104] Mr Michael Chen accepted that he did not have a conversation with the Applicant concerning the downturn, the effect the downturn could have on her job or about her role changing.[169] Further, contrary to his earlier evidence, Mr Michael Chen accepted that he was aware of the Applicant's pregnancy prior to her dismissal in the following exchange with the Applicant's representative during cross-examination:

"Yes. So I put it to you - I'm wrapping up you'll be pleased to know - that you were aware of her pregnancy before she was terminated, or her position was changed. You were aware of it? --- Yes, based on the record you gave me now, yes, there's always assumptions, but I never really paid attention to it, if that's what you're saying. That what I answered before."[170]

[105] However notwithstanding this, Mr Michael Chen maintained that the pregnancy was not a factor in the Respondent's decision to dismiss the Applicant.[171]

[106] In the Applicant's outline of argument filed prior to hearing, the Applicant submitted that the true reasons for her dismissal were:

"a. That she was pregnant and applied for maternity leave;

b. That she had physical disability, namely gestational diabetes; and

c. that she exercised a workplace right, namely her entitlement to benefit from the remuneration and leave entitlements under an award."

"Given the temporal proximity of the Applicant's pregnancy, maternity leave announcement and renewed enquiries regarding her award entitlements, it is highly improbable that these factors and the termination of her employment was purely coincidental. They were clearly the substantial and operative reasons behind the termination of the Applicant's employment."

[108] In final written submissions it was contended for the Applicant that on 30 November 2018, the Respondent dismissed her from employment and that the dismissal constituted adverse action against her in contravention of Part 3-1 of the Act:

• because she had exercised or proposed to exercise workplace rights (s 340(1)), namely:
  • her entitlement to benefit from the remuneration and leave entitlements under an award; and
  • her entitlement to apply for maternity leave.
• because of her physical or mental disability or pregnancy (s 351(1)), namely:
  • her pregnancy; or
  • a physical disability (gestational diabetes).

[109] In relation to exercise of a workplace right, the Applicant submits that she was dismissed because she exercised or proposed to exercise her entitlement to benefit from the remuneration and leave entitlements under an award. While the parties do not agree on the Award that applied to the Applicant's employment it is submitted that this is not relevant because each of the Awards in contention - the Clerks Private Sector Award 2010 or the General Retail Industry Award 2010 as submitted by the Applicant or the Business Equipment Award 2010 as submitted by the Respondent - provide for annual leave and sick leave and also for consultation in cases of redundancy. It is submitted that that given the absence of consultation with the Applicant about the supposed redundancy, the Commission is entitled to infer that redundancy is a retrospective pretext for the dismissal.

[110] It was also submitted that the Applicant had been employed by the Respondent since 2008. Further, there is uncontroverted evidence establishing that the Applicant repeatedly raised concerns with the Respondent that she was not receiving her award entitlements to remuneration, annual leave and sick leave. The Applicant plainly had workplace rights and exercised or proposed to exercise them within the meaning of s 341 of the Act. In relation to disability or pregnancy, the Applicant submits that she was dismissed because she had a physical disability (gestational diabetes) or was pregnant.

[111] The Applicant contends that the Respondent's oral and written communications of 30 November 2018 constituted adverse action in that the Respondent;

• threatened to dismiss the Applicant in the conversations at 4.30pm and 5.30pm on 30 November 2018;
• actually dismissed the Applicant in the letter dated 30 November 2018; and
• altered the Applicant's position to her detriment in the conversations at 4.30pm and 5.30pm and the letter dated 30 November 2018 in that her employment and her entitlements under it were terminated.

[112] The Applicant's primary case is that the Respondent's actions of 30 November 2018 amounted to dismissal, and the Applicant's dismissal is adverse action (s 342(1), item 1(a)). But if that case is not accepted, the Applicant submits that by those actions, the Respondent altered her position to her prejudice, and that alteration is also adverse action (s 342(1), item 1(c)).

[113] In this regard, the Applicant submits that the Respondent's actions of 30 November 2018 terminated that employment at the Respondent's initiative and constituted a dismissal in terms of s 386(1)(a). The Applicant also submits that even if it is accepted that the Respondent's directors and managers position did not believe they were terminating the Applicant's employment but merely changing her status to part-time or casual, this may constitute termination. In support of this contention reference was made to the Decision in Ucchino v Acorp Pty Ltd[172], where the employer terminated an employee's employment and offered new casual employment which the employee refused. The employer asserted that the employee's refusal terminated the employment. The Court held that the employer had terminated the employment and observed that the fact that performance issues had not been raised previously "tends to impact negatively on the credit of [the employer] and the respondent's case generally".[173]

[114] Reference was also made to the Applicant's evidence to the effect that the 30 November meeting was the first time she had heard of problems with the business or the possibility of redundancies, and it was submitted that her evidence in this regard is also supported by the evidence of the Respondent's witness Mr Thanh Nguyen. Ucchino demonstrates that the unilateral action of an employer to end permanent employment and 'offer' inferior part-time or casual conditions constitutes termination, not mere modification, of the permanent employment. The unilateral nature of the Respondent's actions is highlighted by the apparently consultative and consensual nature of its dealings with the other employees Jack and Keith.

[115] According to the Applicant's submission, the evidence establishes that each of the reasons she advances was a substantial and operative reason for the dismissal. Given the temporal proximity to the dismissal of the Applicant's pregnancy, maternity leave announcement and renewed enquiries regarding award entitlements, it is highly improbable that these factors were purely coincidental in the dismissal. The Applicant also submits that the evidence does not support the Respondent's assertions about business downturn, and that even if it did, the mere existence of one reason does not negate a proscribed reason as provided in s. 360 of the Act.

[116] Further, the Applicant points to an absence of any rationale for the Applicant's alleged redundancy and that this combined with the lack of consultation made it unjust and unreasonable, consistent with the decision in n Kukaleve v Prosegur Australia[174]. Further, it was submitted that if the Applicant could not help in sales or there was not enough work, why still offer her casual or part-time work? The inescapable inference is that there was enough business, but the Respondent was seeking to avoid the imagined costs and imposts of a full-time employee compared to a part-time or casual employee.

[117] Reference was made to s. 361 of the Act which creates a statutory presumption that the adverse action (the dismissal) was taken by reason of her pregnancy, gestational diabetes and exercise of a workplace right unless the Respondent proves otherwise.[175] Reference was also made to the principles established in Board of Bendigo Regional Institute of Technical and Further Education v Barclay[176] which it is submitted require the Commission to determine the question of fact as to why the adverse action was taken. Further, it was submitted that the facts in Ucchino were similar to those in the present case.

[118] The facts in Ucchino were that the employee was pregnant, and on 2 February 2010 her supervisor made unfavourable comments about the employee's pregnancy and attempted to change her status from full-time to casual employment after she applied for maternity leave. When the change in status was refused, that employer terminated the employee's employment by treating her refusal of casual employment as a repudiation of the employment contract. In Ucchino the Court held that it was reasonable for the employee not to accept the alternative casual employment[177], that the employer had terminated the full-time employment[178], and that the employer had not discharged the onus cast on it by s 361.[179]

[119] The Applicant submits that in the present case, Ms Janice Chang's comments to the Applicant are of a similar kind to those of the supervisor in Ucchino and that the Applicant need not demonstrate that the Respondent's categorical language causally linking the pregnancy and the termination. The Commission should infer from Ms Chang's remarks that the Applicant's pregnancy was, either directly, or indirectly, because of her gestational diabetes, a substantial and operative reason for the termination.

[120] It was further submitted that s. 361 puts the onus on the Respondent to rebut the presumption that the adverse action was taken for a proscribed reason, and Bendigo TAFE v Barclay establishes that it will be extremely difficult to do so if no direct evidence is given by the employer's decision-maker. In the present case, the extreme difficulty of rebutting the section 361 presumption in the absence of evidence from Ms Janice Chang or any other Directors of the Respondent is not overcome by the incomplete evidence of Mr Kevin Chen, Mr Michael Chen, Ms Clarissa Chiang and Mr Thanh Nguyen.

[121] Accordingly, the Applicant submits her evidence should be accepted where there is a conflict. The Commission should also have regard for the fact that while Mr Kevin Chen and Mr Michael Chen were not directors, they were employees and had management responsibility in relation to the Applicant. In those circumstances, the Commission is entitled to take into account their family and business interests in defending the Respondent's actions as going to their reliability[180] and the Commission should have regard for the fact that they had a motive, even if only unconsciously, to portray the Respondent's actions as not attributable to the proscribed reasons.

[122] In relation to the failure of the Respondent to call Janice and Wallace Chang, it was submitted that the Commission should draw an inference consistent with the rule in Jones v Dunkel[181] consistent with the manner in which that case was applied as articulated by the Full Court of the Federal Court in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd[182] as follows:

"It is accepted that where a party fails, without explanation, to call a witness who that party might have been expected to call and whose evidence might have elucidated the matter in dispute, then the inference may be drawn that the evidence of the absent witness would not have assisted the party that failed to call that witness: Jones v Dunkel at 308, 312 and 320-321. By itself that inference is frequently somewhat barren, for knowing that the evidence of a witness would not have assisted tells one nothing about what the witness's evidence affirmatively would have been. Often more directly useful is the allied principle that in such a case the trier of fact may more confidently draw any inference unfavourable to the party that failed to call that witness if that witness appears to be in a position to cast light on whether the inference should be drawn: Jones v Dunkel at 308 per Kitto J, 312 per Menzies J, and 320-321 per Windeyer J. Neither inference is mandatory and, generally speaking, these inferences only become material where the balance of the evidentiary record is equivocal".

[123] While the Applicant does not place excessive reliance on the rule in Jones v Dunkel, the Applicant submits the Respondent did not call its directors Mr Wallace Chen and Mrs Janice Chang, who, from other evidence, could have given relevant evidence on live issues. As the only two directors, they must have been able to give evidence about the dismissal decision-making process generally. Specifically, the Applicant further submits Ms Clarissa Chiang and Mr Michael Chen's evidence indicates that Mr Wallace Chen could have given evidence about the financial position of the company. The Applicant gave evidence of Ms Janice Chang's comments about the effect of her pregnancy on her fitness for work and in relation to Ms Janice Chang's comments at the meeting where her employment was terminated. It was submitted that Ms Janice Chang could plainly have given evidence about how those thoughts bore on the subsequent decision to terminate.

[124] However, with or without any Jones v Dunkel inference, the Applicant submits that on the whole of the evidence, her pregnancy, gestational diabetes (s 351(1)) and exercise of her workplace rights (s 340(1)) were substantial and operative reasons for her dismissal. The Respondent's adverse action against the Applicant therefore contravened sections 351(1) and 340(1) of the Act.

[125] The Respondent submits that it is a small family run business which has been in business for around 30 years and engages in the sale of business equipment - mainly desktop and notebook computers - to registered businesses. Over the past financial year to now, the Respondent asserts that its business has and is still, facing very tough challenges. These challenges have arisen due to many circumstances including competition from international online businesses, the declining economy and the transition away from traditional computers. All these factors have contributed to very difficult business environment which have seen the closure of the businesses of suppliers and customers.

[126] Due to these challenges, the Respondent had to make tough decisions in order to keep the business running. Towards the end of 2018, it was evident that the Respondent needed to cut costs in order to maintain a positive cash flow. As a result, it made the difficult decision to let go of two employees in October and November 2018 and to reduce the working hours of the Applicant on 30 November 2018. According to the Respondent these are all decisions made because of the insufficient amount of work available and were not made for discriminatory reasons. The Respondent contends that its evidence including Business Activity Statements from the Australian Taxation Office, detailed sales and GP records, a witness statement from its accountant and declining card receipt statements from its bank establishes its financial position. Financial documents available after the hearing are also said to support the Respondent's decision with respect to the Applicant's employment. All of these documents are said to establish that there are significantly less business activities and hence less work available.

[127] In relation to the Applicant's assertion that she was dismissed for exercising workplace rights in relation to remuneration and leave entitlements or maternity leave, the Respondent submits that there has been no discussion with the Applicant regarding Award or her remuneration entitlements for the last two years of her employment. It was submitted that the only supporting evidence the Applicant provided was back in 2016 - over two years before her employment ended and has no relevance to the present case. It also submits that, as explained in the Respondent's evidence during the hearing, in 2016 when it was migrating data to a new payroll system, the leave entitlements were calculated and emailed to employees for checking. Upon the Applicant taking issue with the amount of her accrued leave entitlements, the leave details were entered as agreed by the Applicant into the Respondent's system and no further question has been raised since that time.

[128] In regard to the Applicant's sick leave request for 11 May 2018 which was not granted, the reason for rejecting that request was because it was submitted in advance and it was not believed to be reasonable that the Applicant could foresee her own incapacity to work before the actual date. The Respondent also submits that the Applicant was not pregnant at the time she made the request and that it has no relevance to the case being heard.

[129] The maternity leave request was said to have been accepted by Mr Kevin Chen on 30 November 2018, after 5:30pm when it was first presented. The Respondent contends that there is no reason why the Applicant's request to take maternity leave would be rejected when the Respondent's objective is to reduce its staffing cost. It is also contends that: "Had we known in advance her intention to take maternity until 2020, we may have considered our position differently".

[130] The Respondent rejects the Applicant's assertion that she was dismissed because of her pregnancy or physical disability (gestational diabetes) and states that these factors do not affect her ability to perform her duties at work. In this regard, the Applicant's duties are 100% clerical in nature and her pregnancy or gestational diabetes has no impact on her ability to carry out such tasks. Accordingly, the Respondent submits that there is no sound reason as to why it would discriminate against the applicant based on her pregnancy or physical disability as there is none affecting the work required.

[131] The Respondent contends that sales and gross profit had both declined drastically leading to 30 November 2018 as confirmed by its evidence to the Commission this was the reason for its reduction in employee numbers. The Respondent submits the survival of its business was "100% the reason and was their only concern right now." The Respondent is in the business of selling and this activity is 100% of its source of revenue/income. The Respondent submits that it had no choice but to reduce its employee numbers or the working hours of its employees. In this regard, the Respondent points to the fact that the Applicant was not the only person adversely affected and that two other staff were made redundant one month prior to 30 November 2018.

[132] The Respondent also contends that on 30 November 2018, it intended to change the Applicant's position from full-time to either part-time or casual and it had not intended to dismiss her "completely". The Respondent submits that the evidence establishes that the Applicant was asked by Mr Kevin Chen to come to his office around 2 - 3.00 pm on 30 November 2018 as he wanted to discuss the changes to her employment status for the next year. The Applicant had not applied for maternity leave at this stage. In relation to the Applicant's assertion that she applied for maternity leave during the first meeting with Mr Kevin Chen, the Respondent contends that there are "questionable actions" on the Applicant's part which suggest otherwise.

[133] Firstly, the Respondent contends that it is unlikely that the Applicant would have initiated a meeting to request maternity leave when she did not know the date upon which she wished to commence the leave. Secondly, the Respondent points to the fact that when the Applicant states that she first told Mr Kevin Chen that she wished to take maternity leave, she did have a completed application form for such leave with her. The Respondent submits that the maternity leave form which was later submitted by the Applicant was an afterthought after the Applicant spent time calling and seeking advice after the first meeting. The maternity leave form was presented for the first time at the meeting with Mr Kevin Chen after 5.30 pm on 30 November 2018.

[134] The Respondent also contends that the Commission should find that Ms Janice Chang was not present during the "first meeting" and did not enter the room as claimed by the Applicant. The Respondent submits this is supported by the evidence of Mr Nguyen who stated that he did not recall seeing or hearing Ms Janice Chang "earlier on that day." Further, it submits that given Mr Nguyen claims that he heard a loud commotion from the Applicant it would be reasonable that he would have noticed the presence of Ms Janice Cheng.

[135] The Respondent also took issue with the Applicant's claims that the meeting on 30 November 2018 was the first time that the Applicant heard of problems with the business submitting that this was an "impossible assertion" given that her role was to look after Accounts Receivable, daily receipts and customer pickups. The Respondent contends that the drastic decline in payment being received and debtors for at least six months prior to 30 November 2018 and the drop off in customer pickup cannot have gone unnoticed given the work done by the Applicant. The Respondent also disputes the Applicant's assertion that she was unaware of any redundancies in circumstances where two other employees were made redundant within a month prior to the Applicant. It also submits that while the Respondent had not discussed financial issues with the Applicant it is not common for businesses to openly declare financial woes.

[136] In relation to the Applicant's claims about the absence of any rationale for her selection for redundancy, and the lack of consultation regarding her dismissal, the Respondent submits that as the Applicant was the only person "doing receivable", she was the only one who could be selected. Further, Mr Kevin Chen did try to consult with the Applicant on 30 November 2018 around 2 - 3.00 pm and the Applicant refused to have those discussions and was raising her voice.

[137] The Respondent submits that Mr Wallace Chen and Ms Janice Chang, while being directors of the Respondent, are not involved in the business and are rarely in the office. Mr Wallace Chen is over 70 years old and Ms Janice Chang is almost 70. They were not called as witnesses in the present case due to the stress of the situation and their fitness for such event. Mr Wallace Chen attended the meeting with the Respondent's accountant because she also manages his superannuation. Support for the assertion that Mr Wallace Chen and Ms Janice Chang are rarely in the office was said to be found in the evidence of Mr Nguyen who had also confirmed that Ms Janice Chang does not given directions in regard to work apart from asking all staff to help with basic tasks on rare occasions such as sweeping leaves if it gets windy. The Respondent strongly disagrees with the Applicant's statement against Mr Wallace Chen and Ms Janice Chang.

[138] It is not sufficient to engage the provisions in Part 3 - 1 of the Act, that the Commission be satisfied that that adverse action as defined in s. 342 was taken against the Applicant simpliciter. The Commission must also be satisfied that the adverse action was taken because of a matter that is the subject of one or more of the general protections in Part 3 - 1 of the Act. The Applicant asserts that the adverse action taken against her by the Respondent was because she exercised a workplace right by raising issues associated with her leave and conditions of employment (s. 340) and/or because she was pregnant and/or because she suffered a disability - gestational diabetes (s. 351).

[139] Notwithstanding that the Full Bench in Keep was considering s. 340, I have applied the approach set out in that Decision in relation to the tasks I am required to undertake in order to determine the central question of whether adverse action was taken against the Applicant in contravention of s. 340 and s. 351. I turn now to consider each of the factual questions posited buy the Full Bench in Keep, on the basis of the facts in the present case established by the evidence.

[140] In doing so, I observe at the outset that I found the Applicant to be a credible witness. I do not accept the attempts by the Respondent to impugn the Applicant's evidence on the basis that she raised pregnancy related issues only after she had been informed that her full-time employment was to be terminated. In this regard, I observe that the Applicant had raised issues with the Respondent's observance of legislative and award requirements and had kept documentation in relation to the issues she had raised. That documentation establishes that the Respondent simply refused to engage with the Applicant on legitimate issues she had raised such as its failure to pay annual leave loading.

[141] The Respondent's failure to address the Applicant's legitimate concerns about annual leave loading explain her propensity to retain documents and to put communication about her pregnancy and related medical condition into writing and provide it to the Respondent's managers to supplement her verbal advice about those matters. The Applicant's evidence that she did not trust the Respondent's managers to "do right" in relation to her pregnancy and related illness was credible and I do not accept that she had a motive other than protecting her rights in relation to her pregnancy and related illness based on her past experience of the manner in which the Respondent's managers had responded to earlier issues she had raised. In particular I do not accept the inference in the Respondent's submissions that the Applicant deliberately contrived to advise of her intention to take maternity leave after her full-time employment had been terminated. The Applicant was pregnant at the time her full-time employment was terminated and gave birth to her first child in April 2019.

Was the Applicant exercising a workplace right within the meaning in s. 341?

[142] I am satisfied on the basis of the evidence before me, that at the time the Applicant's employment ended, she had workplace rights which she had exercised or proposed to exercise. Specifically the Applicant had a right to paid personal leave and had sought to exercise that right for the purposes of attending pre-arranged medical appointments with respect to treatment for pregnancy related gestational diabetes.

[143] The Applicant had sought to exercise the right to take paid personal leave for this purpose by completing a form which the Respondent used for leave applications including for sick leave. The information included on that form was that the Applicant had been diagnosed with gestational diabetes related to her pregnancy and had been advised to seek medical attention and that she had a medical appointment on 1 November 2019.

[144] I am satisfied and find that the form was handed to Mr Michael Chen on 30 October 2018. The evidence also establishes that Mr Michael Chen disputed the Applicant accessing her personal leave for this purpose and that the Applicant sought advice from the Office of the Fair Work Ombudsman which she provided to Mr Michael Chen on 5 November 2018, causing him to revise his views and to authorise payment for the Applicant's absence on 1 November 2018 as personal leave. In my view it is irrelevant whether the Applicant was actually entitled to access personal leave for the purposes of attending a pre-arranged medical appointment. What is relevant is that the leave is a workplace right which the Applicant sought to exercise. It is clear that Mr Michael Chen disputed the Applicant using personal leave for this purpose to the extent that he sought advice from the Office of the Fair Work Ombudsman in relation to the matter.

[145] The Applicant also took personal leave on 2 November 2018 because she was concerned about the effect of fumes from refurbishment work that the Respondent was undertaking at its premises on the health of her unborn child. The Applicant states that she informed Mr Michael Chen of her reasons for taking personal leave and I accept her evidence. I also accept the Applicant's evidence that she expressed concerns to Ms Janice Chang about the effect of the fumes on her unborn child.

[146] It is also the case that on 30 November 2018 the Applicant sought to exercise a workplace right by making an oral and a written application for maternity leave. The fact that the Applicant may not have finalised the precise time at which she intended to commence maternity leave or that she had not formally advised the Respondent of the fact that she was pregnant, does not alter the fact that she had a right to take maternity leave and intended to exercise it. While the Applicant would have been required to provide more information closer to the time at which she wished to commence maternity leave, the steps she took on 30 November 2018 were in my view, sufficient to engage s. 341 of the Act. The Applicant was entitled to the benefit of maternity leave under the Act and to the right of return to her position or a position that was substantially the same at the conclusion of such leave. The fact that further information may have been required in relation to the time at which she sought to exercise her right, does not change the existence of the right or that she sought to exercise it. The Respondent's suggestions to the contrary in its evidence and submissions elevate form over substance.

[147] Further, I am satisfied that the Applicant had previously raised issues with her leave entitlements, including her entitlement to be paid annual leave loading which was rejected by Mr Michael Chen after consulting Mr Wallace Chen. Each of these matters was a workplace right as defined in s. 341 of the Act, being a benefit of a workplace law and/or a workplace instrument. This is so regardless of the specific modern award that applied to the Applicant's employment.

[148] In relation to the issues raised by the Applicant in 2016, I do not accept that at the time the adverse action subject of these proceedings was taken against the Applicant she was seeking to exercise workplace rights in relation to these issues or that the fact that the Applicant had previously exercised a workplace right to make inquiries about them, had any bearing upon the adverse action taken against her in 2018. Mr Michael Chen addressed some of the matters at the point the Applicant raised them and there is no evidence that she continued to agitate the matters that were not addressed. I also note that the matters raised by the Applicant in 2016 did not include a contention that either the General Retail Industry Award 2010 or the Clerks Private Sector Award 2010 applied to her. Rather, those issues related to her sick leave accruals, annual leave accruals and annual leave loading. The issue later raised by the Applicant related to whether she was entitled to use personal leave (sick leave) for the purposes of attending pre-arranged medical appointments in connection with the fact she was suffering from gestational diabetes.

Did the Applicant have any of the attributes in s. 351(1)?

[149] It is not in dispute that the Applicant was pregnant at the time her employment ended and was also suffering from gestational diabetes related to her pregnancy. Pregnancy is an attribute specifically referred to in s. 351(1). I am also of the view that gestational diabetes is a physical disability for the purposes of s. 351(1). Accordingly, I find that the Applicant had attributes specified in s. 351(1) so that she had a protection from adverse action because of those attributes.

Did the Respondent take adverse action against the Applicant?

[150] By virtue of s. 342(1) of the Act, adverse action is taken by an employer against an employee if the employer dismisses the employee, injures the employee in his or her employment or alters the position of the employee to the employee's prejudice. In the present case, the Applicant asserts that she was dismissed by the Respondent on 30 November 2018 or in the alternative her position was altered to her prejudice.

[151] I see no reason why the term "dismisses" in s. 342 of the Act should bear a different meaning to the meaning it bears in other parts of the Act. The term "dismissed" is defined in s. 12 of the Act by reference to s. 386. Section 386(1)(a) of the Act provides that a person has been dismissed if the person's employment with his or her employer has been terminated at the initiative of the employer. As a Full Bench of the Commission held in Khayam v Navitas English Pty Ltd (t/as Navitas English)[183] the analysis of whether there has been a termination at the initiative of the employer for the purposes of s. 386(1)(a) is to be conducted by reference to the employment relationship, not by reference to the termination of the contract of employment operating immediately before the cessation of the employment.[184]

[152] In the present case, I am satisfied that the Applicant was dismissed on 30 November 2018. The Applicant had been employed on a full-time basis for a period in excess of ten years. On 30 November 2018 she was informed, orally and in writing, that her employment was terminated. I do not accept the Respondent's submission that it did not intend to dismiss the Applicant "completely" and that it intended to change the status of her employment to casual or part-time.

[153] The letter emailed to the Applicant on 30 November 2018 is headed "Termination of your employment by reason of redundancy". The letter states that the Applicant's employment in a full-time position will "seize", that the position of full-time administrative clerk is no longer required and that this means her employment with the Respondent will terminate. The letter goes on to advise the Applicant of her notice period and that her termination date will be discussed with her. Even if an offer of casual employment could have maintained the employment relationship, there was no such offer made to the Applicant. The termination letter simply stated that the Respondent was seeking to offer a casual position for similar work, "as per operational requirements" with no information being provided about what those requirements were, what the position entailed or whether there was a position at all.

[154] Even if the Applicant was offered casual employment and refused that offer, it was the conduct of the Respondent in terminating the Applicant's full-time employment which brought the employment relationship to an end. Accordingly, the termination of the Applicant's full-time employment was a dismissal as provided in s. 342 of the Act.

[155] I am also of the view that in seeking to terminate the Applicant's full-time employment and offer her casual employment on an uncertain and unspecified basis, the Respondent altered the Applicant's position to her prejudice given that she was a full-time employee with some ten years' service. Further, even if the termination of the employment relationship was not actually effected the conduct of the Respondent threatened dismissal and prejudicial alteration of the Applicant's position.

[156] It is clear from the evidence that when the adverse action was taken against the Applicant she was pregnant and had sought personal leave to deal with her gestational diabetes. I am also satisfied that that prior to 30 November 2018 when adverse action was taken against the Applicant the Directors and Managers of the Respondent knew that she was pregnant.

[157] On 30 October 2018, the Applicant placed a written application for personal leave on Mr Michael Chen's desk which stated that the Applicant was pregnant and suffering from gestational diabetes. The Applicant also states that she verbally informed Mr Michael Chen that she was pregnant when she placed the leave application on his desk. After some obfuscation Mr Michael Chen conceded that he did receive the leave application handed to him by the Applicant on 30 October.

[158] Mr Michael Chen also conceded that he received the communication from the Office of the Fair Work Ombudsman forwarded by the Applicant on 5 November 2018 in relation to her entitlement to take personal leave to attend a medical appointment related to her gestational diabetes on 1 November 2018. Mr Michael Chen accepted that the Applicant left the workplace early on 2 November 2018 because of the smell of paint associated with a renovation that the Respondent was undertaking but maintained that he did not recall the Applicant raising the issue of her pregnancy in relation to this matter. Mr Michael Chen also accepted that he authorised payment of personal leave entitlements to the Applicant for attendance at the medical appointment on 1 November 2018 and for the period when she left the workplace on 2 November.

[159] I find it improbable that Mr Michael Chen did not receive the medical certificate the Applicant claims to have given to him on 5 November 2018 to support her personal leave claim for attendance at the medical appointment on 1 November 2018. The information from the Fair Work Ombudsman referred to the need for a medical certificate to be provided to the employer to support an absence. Given Mr Michael Chen's reluctance to treat the medical appointment absence as personal leave I think it improbable that he did not receive the medical certificate covering the absence. That medical certificate also made clear that the medical appointment was pregnancy related. Further the email from the Applicant on 5 November 2018 setting out information from the Office of the Fair Work Ombudsman in relation to personal/carer's leave specifically refers to "pregnancy related illness". It is also the case that in May 2018 the Applicant sought to take personal leave to consult a medical practitioner about fertility issues. Mr Michael Chen conceded that he had known that the Applicant was attempting to fall pregnant for a year or two prior to her dismissal.

[160] In relation to the Respondent's knowledge of the Applicant's pregnancy, Mr Nguyen's evidence is that both of the Respondent's salespersons knew that the Applicant was pregnant as did other staff and Mr Nguyen knew of the pregnancy from August or September 2018. There was uncontested evidence from the Applicant that Ms Janice Chang knew that the Applicant was pregnant having made comments about the fact that sweeping the floor would be good exercise for the Applicant given her pregnancy and having engaged in a debate with the Applicant about moving to the back of the office for a period when renovations were being carried out, to avoid the smell of paint and dust. The Applicant maintained that she told Ms Janice Chang of her concern that the dust and paint could affect her baby. The failure of the Respondent to call Ms Chang is a matter to which I will return.

[161] In light of the fact that by at least 30 October 2018, Mr Michael Chen, Ms Janice Chang and the Respondent's sales staff, all knew that the Applicant was pregnant, it is improbable that Mr Kevin Chen did not also know of the Applicant's pregnancy before her dismissal was effected. In this regard I note that the Applicant sent emails to Mr Kevin Chen on 22 November and 29 November 2018, respectively attaching an application for sick leave on 29 November to attend a medical appointment in relation to gestational diabetes and a medical certificate dated 29 November stating that the Applicant had gestational diabetes and would require treatment for this during her pregnancy. The sick leave application was for a period on 29 November from 4.00 pm and the medical certificate was emailed at 10.33 pm on 29 November 2019 evidencing that the Applicant did not return to work after the medical appointment. The emails were sent from the Applicant's private Hotmail address, the same address to which Mr Kevin Chen emailed the Applicant's termination letter to the same email address. It is improbable that Mr Kevin Chen did not receive the emails and other documents.

[162] I also found Mr Kevin Chen's evidence that he did not know that the Applicant was pregnant until after he handed her the letter terminating her employment, most unconvincing. Mr Kevin Chen insisted that he handed the termination letter to the Applicant before she handed him her maternity leave application and was focused on establishing the order in which these events occurred. In my view, this is immaterial when the evidence of the Applicant's pregnancy which had been provided to the Respondent prior to 30 November is considered. I did not find Mr Kevin Chen to be a reliable witness and I am satisfied and find that Mr Kevin Chen knew that the Applicant was pregnant before he terminated her employment.

[163] I am satisfied that the Applicant has proved the existence of objective facts which provide the basis of the Respondent's conduct that she asserts and the elements of each of the general protections on which she relies. Accordingly, by virtue of s. 361, the onus shifts to the Respondent to prove that it did not take adverse action against the Applicant for the reasons that she alleges.

[164] The Respondent asserts that it took the action to terminate the Applicant's full time employment because there was a drastic drop in sales and gross profit and the Respondent needed to reduce its costs. The figures tendered through Ms Chiang evidence a total reduction in sales of 19.05% when the three quarters from July to March 2018 and 2019 are compared. The evidence of Mr Kevin Chen also indicates that gross profit had reduced by some 30%. Further, Mr Kevin Chen's evidence established matters such as a reduction in telephone sales and an increase in on-line sales which reduced the need for an accounts receivable role and that the duties previously performed by the Applicant were performed on a part-time basis by another staff member who also undertook a sales role after the Applicant's employment ceased.

[165] However, I have also had regard to the following matters. On 30 November 2018 when the Applicant's full-time role was terminated, she was about to commence a period of annual leave which had been approved in September 2018. The Applicant would not have returned to work until 7 January 2019. Whether the Applicant took the leave or received payment in lieu for the leave on termination of her employment could not have made any difference to the Respondent's financial position. In short, there was no apparent need to terminate the Applicant's employment at 5.30 pm on 30 November 2018, the day that she was due to commence a period of annual leave until 7 January 2019.

[166] Further, given that Mr Michael Chen and Mr Kevin Chen knew that the Applicant was pregnant before she was dismissed on 30 November, they must also have known that she would seek to take maternity leave at some point in the new year. Mr Kevin Chen said in his evidence that he had no problem about the Applicant taking maternity leave and that it would help the Company cut costs if the Applicant took such leave. This statement begs the question as to why it was necessary to dismiss the Applicant on 30 November 2018. The Respondent's explanation for this apparent inconsistency in its position, is that Mr Kevin Chen did not know the Applicant was pregnant and wanted to take maternity leave when he handed her the termination letter on 30 November 2018 and that the Applicant handed him her maternity leave application after he handed her the termination letter.

[167] Even if Mr Kevin Chen's evidence is accepted, that evidence is that before he effected the Applicant's dismissal from her full-time position Mr Kevin Chen knew that she was pregnant and wanted to take maternity leave commencing in March 2019. If Mr Kevin Chen genuinely had no issue with the Applicant taking maternity leave and accepted that it would have helped the Respondent cut costs, there is no reason why Mr Kevin Chen could not have altered his position about the need to dismiss the Applicant from her full time position when he became aware that she wanted to take maternity leave. Such leave would have been at no cost to the Company and would have resulted in the Applicant being absent from the workplace without pay for a period of almost twelve months. Instead, Mr Kevin Chen confirmed the dismissal by emailing another copy of the termination letter to the Applicant.

[168] It is also the case that the timing of the Applicant's dismissal is at odds with the Respondent's evidence about two other employees who were also dismissed, purportedly for the same reasons as the Applicant. Ms Chiang's evidence is that the meeting where the financial position of the Company was discussed was held some time in October 2018. The Respondent's case is that it was this meeting which informed the view that reduction in employee numbers was required. Putting aside the conflict in the evidence about whether one or other of the two employees - Keith and Jack - left of their own volition or were dismissed, on Mr Michael Chen's evidence, one employee left on 12 October 2018 and the other on 9 November 2018. The fact that the Applicant was not dismissed until 30 November 2018 is at odds with the evidence that the Respondent was in such a dire situation following the meeting in October 2018 that it also needed to dismiss the Applicant at the time that it did

[169] Mr Kevin Chen's evidence about why he waited until 30 November 2018 to dismiss the Applicant was not convincing. Effectively, Mr Kevin Chen said that he did not dismiss the Applicant before 30 November 2018 because he was busy doing other things. This is inconsistent with the picture of the dire financial situation the Respondent sought to paint. Further, the manner in which the Applicant's dismissal was effected is at odds with the manner in which the two employees who were also purportedly dismissed due to the financial position of the Respondent were dealt with. Mr Michael Chen's evidence is that those employees were informed about the Company's position and why they were being dismissed. This is in stark contrast with the manner in which the Applicant was dealt with.

[170] The Applicant contended that she had no prior warning that the financial position of the Company was such that her job was in jeopardy and she was dismissed without warning on the day that she was proceeding on a period of annual leave and had informed the Respondent that she wished to take maternity leave in the new year. It was conceded by the Respondent that there was no discussion with the Applicant about the financial position of the Respondent prior to the meeting at which she was informed by Mr Kevin Chen that her full-time employment was terminated. While the Applicant may have been aware that the Respondent was suffering from financial difficulties, it is also the case that she had been employed by the Respondent for over ten years and had no reason to believe that matters had reached the point where her dismissal was in contemplation.

[171] The competing evidence about the meetings between Mr Kevin Chen and the Applicant on 30 November seems to have been directed at establishing whether the Applicant gave Mr Chen her maternity leave application before he gave her the termination letter or whether Mr Chen gave the Applicant the termination letter first. To put in in the vernacular, the question of whether or not Mr Kevin Chen beat the Applicant to the draw by handing her the termination letter before he received her maternity leave application, is not determinative of whether the adverse action was taken against the Applicant because of her exercise of a workplace right to take such leave or because of her pregnancy or disability.

[172] For the reasons set out above, Mr Kevin Chen knew at the time he handed the termination letter to the Applicant, that she was pregnant. Even if the Applicant gave Mr Kevin Chen her maternity leave application after he gave her the termination letter, Mr Kevin Chen proceeded to confirm the termination of the Applicant's employment by sending her a further copy of that letter by email in circumstances where the Applicant taking maternity leave would have had no adverse impact on the business and on Mr Kevin Chen's evidence, would have assisted the business.

[173] Finally, the Respondent's failure to call Ms Janice Chang to give evidence, is in my view significant. I accept that the Respondent is unrepresented and that Mr Michael Chen and Mr Kevin Chen who conducted the case on its behalf, do not have a full understanding of the implications of this failure with respect to the issue of whether an adverse inference should be drawn in light of the principle in Jones v Dunkel. To draw such an inference against the interests of an unrepresented party is problematic.

[174] However, the Applicant made detailed allegations about the conduct of Ms Janice Chang which were of central relevance to matters in dispute in this case. In this regard the Applicant asserted that Ms Janice Chang made comments about her pregnancy prior to her dismissal and at the meeting on 30 November 2018, questioned the Applicant about childcare arrangements and expressed concern about her returning to work after her maternity leave. The Applicant also asserted that Ms Janice Chang referred to the fact that she suffered illness as a result of her pregnancy and would not be able to work full-time. Whether Ms Janice Chang was at one or more meetings between Mr Kevin Chen and the Applicant on 30 November, her presence at the final meeting at or around 5.30 pm when Mr Kevin Chen handed the Applicant the termination letter, was not in dispute. Further, Ms Chang signed the termination letter.

[175] I do not accept the attempts by Mr Michael Chen and Mr Kevin Chen to downplay the role of the Directors - Mr Wallace Chen and Ms Janice Chang - in the decision to dismiss the Applicant. Mr Kevin Chen said in his evidence that he asked Ms Janice Chang to attend the 5.30 pm meeting with the Applicant. The presence of Ms Janice Chang at that meeting and the fact that she signed the termination letter in her capacity as Director, signifies that she played a role in the decision to dismiss the Applicant and arguably one that was more significant than the role played by Mr Kevin Chen. It is also the case that there is conflict in the evidence of Mr Kevin Chen and the Applicant about what Ms Chang said at that meeting.

[176] Ms Chang could have elucidated the matters in dispute. While Ms Chang may have simply denied the Applicant's allegations, in circumstances where she was not called and no satisfactory reason for this failure was provided, I can more confidently draw an unfavourable inference on the basis that Ms Janice Chang would have been in a position to cast light on whether the inference should be drawn.

[177] There is no evidence of incapacity on the part of Mr Wallace Chen or Ms Janice Chang that would have prevented their attendance at the hearing, other than assertion by Mr Michael Chen from the bar table. There are other indicators that Mr Wallace Chen and Ms Janice Chang played a role in the operation of the Respondent's business. They are directors and were involved in the decision to dismiss the Applicant having at very least, engaged in discussions with Mr Michael Chen and Mr Kevin Chen about this. When Mr Michael Chen was responding to the Applicant's earlier queries about leave loading, he sought guidance from Mr Wallace Chen before responding and Mr Kevin Chen acknowledged that the signature of Mrs Janice Chang on the Applicant's termination letter made it formal.

[178] On balance, the Respondent has not discharged the onus of establishing that the reasons for the termination of the Applicant's full-time employment did not include reasons which contravene the provisions in Part 3 - 1 of the Act. I have concluded that the reasons for the adverse action taken against the Applicant included the following prohibited reasons:

• the exercise by the Applicant of a workplace right to take personal leave for the purposes of attending medical appointments in relation to gestational diabetes; and
• the Applicant's pregnancy; and
• the disability suffered by the Applicant as a result of the pregnancy - namely gestational diabetes.

[179] Although I accept that the economic situation of the Respondent was also a reason for the termination of the Applicant's full-time employment, I have also concluded that the prohibited reasons were substantial or operative factors influencing the adverse action.

[180] Having found that the Respondent has breached the provisions in Part 3 - 1 of the Act, I turn to consider the orders that may be made. The Commission's power to make orders in arbitrating a general protections dispute is dealt with in s. 369(2) which provides as follows:

"(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(b) an order for the payment of compensation to the person;

(c) an order for payment of an amount to the person for remuneration lost;

(d) an order to maintain the continuity of the person's employment;

(e) an order to maintain the period of the person's continuous service with the employer."

[181] The approach to assessing compensation under s. 369(2) of the Act has been drawn from cases involving s. 545(2)(b) which concerns orders that particular courts may make for contraventions of civil penalty provisions under the Act, including ss. 340 and 351. Section 545(2)(b) provides that the Federal Court or Federal Circuit Court may make orders for loss that a person has suffered because of a contravention. In Heraud v Roy Morgan Research Ltd (No 2)[185] Judge Jones summarised cases in relation to compensation under s. 545(2)(b). Notwithstanding that Courts are dealing with damages, the principles are apposite when compensation under s. 369(2) is being determined. The principles which can be distilled from those case are:

• Compensation is for loss suffered because of the contravention and there must be an appropriate causal connection between the contravention and the loss claimed.[186]
• In assessing compensation the court will:
  • have regard to what is reasonable in the circumstances and what would have been likely to occur if had the Act not been contravened; and
• consider the detriment to the employee occasioned by the employer's contravention and the extent to which it is reasonable to compensate the employee for such consequence.[187]
• The approach to calculation of compensation is, so far as a monetary amount can achieve, to place the employee in the position he or she would have been in had the employer not contravened the Act, having regard to:
  • the totality of the evidence;
• how long the employee would have remained in employment and the determination of the value of the likely income stream.[188]
• The value of the likely income stream is discounted for reduced by the discount for contingencies and vicissitudes and the employee's mitigated loss.
• The Court may consider whether the employee has taken appropriate steps to mitigate his or her loss, however it is for the employer to establish the facts going to the employee's alleged failure in this regard.[189]
• Assessment for economic compensation for loss suffered because of a contravention of the Act is not limited to the loss of a particular job and may extend to circumstances where the employee has suffered a loss of opportunity for employment because of a particular contravention.[190]

[182] In relation to estimating how long an employee may have remained in employment, it was held in Bostik Australia Pty Ltd v Gorgevski[191] that:

"Where an employee is wrongfully dismissed, he is entitled, subject to mitigation, to damages equivalent to the wages he would have earned under the contract from the date of dismissal to the end of the contract. The date when the contract would have come to an end, however, must be ascertained on the assumption that the employer would have exercised any power he may have had to bring the contract to an end in the way most beneficial to himself; that is to say, that he would have determined the contract at the earliest date at which he could properly do so."

[183] Similarly in Dalfalla v Fair Work Commission[192] Mortimer J held that it was appropriate for the purposes of determining compensation under s. 545(1) to consider that the employer would have been entitled to exercise any power it had to bring the employment contract lawfully to an end in a way most beneficial to itself. Her Honour also observed in that case that the likelihood of the employer taking that approach will be fact dependent.[193] In Heraud v Roy Morgan Research Limited (No 2)[194] Jones J expressed a view that Bostik and Dalfalla respectively involved misconduct and poor work performance in contrast with Heraud (No 2) where the Applicant was a valued employee and the Respondent was seeking to fill positions in a newly create Research Centre. Her Honour concluded that the evidence did not support a contention by the Respondent that it would have brought the contract lawfully to an end because of ongoing redundancies and that in the circumstances of that case, the question of any ongoing redundancies was relevant to the consideration of any discount for contingencies or vicissitudes rather than to the length of time the Applicant would have remained in employment.[195]

[184] Similar issues were considered by Wilson C in in Masson-Forbes v Gaetjens Real Estate Pty Ltd[196] and by Simpson C in Roos and Ors v Winnaa Pty Ltd.[197] In Masson-Forbes matters relevant to how long the Applicant would have remained in employment included issues with the Applicant's performance, a change in expectations in relation to her role and that the market in which the Applicant was working was not one that the Respondent wished to remain involved in. In Winnaa the casual and fluctuating nature of the Applicants' work was relevant to the period they would have remained in employment. This approach was not disturbed by a Full Bench of the Commission in Andrew Roos; Loretta Roos v Winnaa Pty Ltd.[198]

[185] I have applied the principles in those cases in assessing whether I should award compensation to the Applicant and if so, the amount that should be awarded.

The amount of compensation sought by the Applicant

[186] In relation to remedy, the Applicant does not seek reinstatement but rather seeks compensation for economic and non-economic loss pursuant to s. 369(2)(b) and (c) in the amount of $96,092.60 comprising:

[187] The total amount sought by the Applicant in her compensation claim includes amounts for underpayments in relation to notice, long service leave and annual leave entitlements, based on an assertion that the Applicant was being paid rates that were less than she was entitled to under the modern award which applied to her at the time of her dismissal. It is also asserted that the Applicant was not paid all of her leave entitlements on termination. Further it is asserted that the Applicant was not paid four weeks in lieu of notice on the basis that the Respondent debited her accrued leave rather than providing four weeks in lieu of notice. I take it that the assertion in this regard is that the Respondent absorbed the notice period into the annual leave. An issue was also raised in respect of the Applicant's sick leave not being accrued correctly. The compensation sought by the Applicant was based on a weekly wage rate of $837.40 per week based on either the level 2 rate under the Clerks - Private Sector Award 2010 or the Level 4 rate under the General Retail Industry Award 2010 and not the weekly rate of $721.00 which the Applicant was paid.

[188] The Respondent objects to the inclusion amounts in relation to alleged underpayments in any amount of compensation on the basis that these proceedings concern a general protections application. In my view that objection is legitimate.

[189] The present case concerns a general protections dispute involving assertions by the Applicant that adverse action has been taken against her in contravention of the general protections in Part 3 -1 of the Act. It is not asserted that the Applicant raised the issue of her award coverage or that the adverse action was taken against her because she asserted that a particular award covered or applied to her. The award coverage issue is raised only in the context of the quantum of compensation that the Applicant claims. Further, the Applicant does not positively assert that a particular modern award applied to her employment. Rather, she asserts that either the General Retail Industry Award 2010 or the Clerks - Private Sector Award 2010 applied to her. The Respondent asserts that the Business Equipment Industry Award 2010 was the modern award which applied to the applicant's employment.

[190] To award the compensation claimed for these alleged underpayments I would be required to determine the controversy about which modern award applied to the Applicant. There is insufficient evidence before me to determine the matter and in any event given the way it arose in the proceedings, it is arguable that the Respondent's consent to arbitration did not encompass this matter. I am also of the view that the present case is not an appropriate vehicle to address any issue of underpaid wages. If the Applicant has a claim for underpayment of wages it should be progressed through a court of competent jurisdiction. I intend to calculate the Applicant's compensation on the basis of the rate she was paid at the time her employment was terminated - $721.00 per week.

Length of time the Applicant would have remained in employment

[191] The starting point to consider whether compensation should be awarded to the Applicant and the amount of any such award, is to determine, on the totality of the evidence, how long the Applicant would have remained in employment had the adverse action not been taken.

[192] Evidence that weighs in favour of a finding that the Applicant would have remained in employment for a relatively lengthy period is that she had been employed by the Respondent for 10 years and there were no significant issues with her conduct, capacity or work performance. In this regard, I note that the Respondent attempted to suggest that there were issues with the manner in which the Applicant carried out her duties. However, there was no evidence that any of these matters had been raised with the Applicant and that her work performance was anything other than satisfactory.

[193] On the day that the Applicant's full-time employment was terminated - 30 November 2018 - she was proceeding on a period of annual leave up until 7 January 2019. That period of annual leave had been approved in September 2018. The Applicant had also planned to commence maternity leave on or around 4 March 2019 and to return to work on a full-time basis on 6 January 2020.

[194] Consistent with my findings in relation to liability, I consider it probable that had the Respondent not contravened the general protections provisions in Part 3 -1 of the Act by terminating the Applicant's full-time employment the Applicant would have remained in employment until at least 4 March 2019. The period of annual leave from 30 November to 7 January 2019 had been approved and the Applicant was entitled to payment for the leave regardless of whether she took the leave or was paid the accrued entitlement on termination of her employment. There was no pressing financial imperative as at 30 November 2018 which necessitated the termination of the Applicant's employment. Similarly there was no pressing financial imperative on 7 January 2019 when the Applicant was scheduled to return from annual leave or before 4 March 2019 when the Applicant would have proceeded on unpaid parental leave. If she had proceeded on unpaid parental leave the Applicant would have continued to be employed but would not have accrued leave entitlements. The Applicant could have remained on parental leave as she had planned, until 7 January 2019, at no cost to the Respondent.

[195] However, determining the likelihood of the Applicant's employment continuing for a 12 month period after her period of unpaid parental leave concluded, as posited in her claim for compensation, is more difficult. On the one hand, had the Applicant proceeded on unpaid parental leave on 4 March 2019, the Respondent would have had the right to terminate the Applicant's employment, either while she was on parental leave or upon her return, provided that it did so for a valid reason and in a manner that was consistent with its statutory and award obligations.

[196] In this regard, I accept that the Respondent has suffered a downturn in its sales and gross profit and that the Respondent was entitled to restructure its business in order to reduce operating costs, on the basis that it no longer required a full-time employee in the role of Receptionist/Accounts. It is not for the Commission to second guess the Respondent and determine that its losses were not sufficient to justify a restructure involving the abolition of the full-time Reception/Accounts role held by the Applicant. The Applicant was the only employee in that role and a restructuring which allocated the duties she had previously performed to a person who could also perform a sales role could have provided a valid reason for terminating the Applicant's employment either during her period of parental leave or upon her return, subject to the Respondent meeting its obligations under the consultation term in the relevant award.

[197] On the other hand, the Applicant had the right under s. 84 of the Act to return to her pre-parental leave position following her period of parental leave, or if that position no longer existed, to an available position for which she was qualified. That right is a significant right enshrined in the National Employment Standards and accordingly, there is some level of probability that but for the Respondent's contravention, the Applicant would have exercised her right of return.

[198] It is also possible that there would have been some work for the Applicant to perform - albeit that it may not have been full-time work. This is apparent from the Respondent's own case in which it asserts that it wished to offer the Applicant similar duties to those that she had performed in her full-time role but on a part-time or casual basis. In circumstances where the Applicant was returning from parental leave, and had experienced mental health issues during her absence, there is some probability that a return to work on a part-time basis may have suited the Applicant. Even if - as the Respondent asserts - the Applicant declined such an offer on 30 November, this can be explained by the manner in which the Applicant was treated on that date.

[199] It is also the case that if the Respondent wished to alter the basis of the Applicant's employment from full-time to casual or part-time on the basis of a reduction in sales, then it had an obligation to consult the Applicant about this in accordance with the consultation term in the relevant award which applied to the Applicant's employment. Such obligations are found in all modern awards and applied in the present case, regardless of which modern Award applied to the Applicant's employment. For the Respondent to fulfil its obligations in this regard would have taken a period of time after the Applicant's return from parental leave and had the discussions occurred in an appropriate manner the Applicant may have agreed to reduce her hours of work and work on a part-time or casual basis consistent with the arrangement Mr Michael Chen and Mr Kevin Chen stated that they wished to implement. Had this occurred however, there is a likelihood that the part-time or casual role would not have been ongoing for a lengthy period and may also have been abolished by the Respondent if it wished to further cut its operating costs.

[200] The matter is further complicated by the fact that the Applicant suffered post-natal depression. At the time this matter was heard, her treating Psychiatrist was unable to state with certainty when the Applicant would be in a position to return to employment in any capacity. Against this consideration, I have also had regard to the evidence that the issues with accessing sick leave prior to attend medical appointments related to gestational diabetes and the stress of losing her full-time employment prior to the birth of her child, had some impact on the Applicant's condition.

[201] In all of the circumstances, and having regard to the matters I have set out above, I have concluded that the Applicant's employment would have continued for a further period of no more than six months after her return from parental leave - half of the 12 month period claimed by the Applicant.

[202] In relation to past economic loss, the Applicant was dismissed on 30 November 2018, the day that she was proceeding on a period of annual leave. The Applicant was paid her accrued annual leave entitlements on termination of her employment. To the extent those leave entitlements covered the period of leave the Applicant would have taken but for her dismissal, to put the Applicant back in the position she would have been had she not been dismissed, an order for compensation would include payment for the period from her return to work on 7 January 2019 to 4 March 2019 when she would have commenced maternity leave and would not include any amount for wages in lieu of notice.

[203] Assuming that the Applicant would have commenced maternity leave on or around 4 March 2019, she would have been paid eight weeks' wages from 7 January 2019 at $721.00 per week, totalling $5,768.00.

[204] The Respondent contends that it offered the Applicant part-time or casual employment for the period prior to the date upon which she was scheduled to commence her maternity leave, which the Applicant refused. The Respondent also contends that by this refusal the Applicant has failed to mitigate her loss for this period and that the Commission should not award her compensation because of this failure.

[205] I do not accept these submissions. In circumstances where I have found that the Respondent took adverse action against the Applicant by terminating her full-time employment and offering her casual employment, the Applicant should not be penalised for failing to accept an offer of casual employment given that the Respondent making such an offer constituted adverse action. Further, at the point the Respondent offered the Applicant casual employment - on its own evidence 26 February 2019 - the Applicant was heavily pregnant and one week away from the date upon which she had planned to commence maternity leave had she not been dismissed. In those circumstances it was not unreasonable for the Applicant to refuse the offer of casual employment and she should not be penalised for failure to mitigate her loss on that basis.

[206] I also accept that had adverse action not been taken against the Applicant by the Respondent terminating her full-time employment, the Applicant would have been entitled to access the Commonwealth Government paid maternity leave scheme. Under that scheme the Applicant would have received a payment of 18 weeks at the amount of $740.60 per week before tax, totalling $13,330.80. The adverse action taken by the Respondent against the Applicant, by terminating her employment on 30 November 2018, caused the Applicant to lose her entitlement to payments under the Commonwealth Government paid maternity leave scheme, so that there is a direct causal connection between the adverse action and the loss. Accordingly, the Applicant is entitled to compensation for that loss.

[207] The Respondent contends that if the Applicant had accepted its offer of casual employment made on 26 February 2019 the Applicant could have met the eligibility test for the maternity leave payment and that the Applicant should not be awarded compensation for loss of payments under the Commonwealth Government paid maternity leave scheme, on the basis of this refusal. For the reasons set out above, I do not accept this submission. Similarly, I reject the Respondent's submission to the effect that it offered to "reinstate" the Applicant and allow her to take sufficient leave to qualify for the payment to enable her to access it. By the time that offer was made, so much water had gone under the bridge by virtue of the Respondent's conduct in terminating the Applicant's employment, that the employment relationship was destroyed.

[208] The Applicant suffered adverse action by having her full-time employment of some ten years terminated, and a suggestion of alternative employment on a casual basis with uncertain and unspecified terms and conditions attaching to such offer, at a time when she was heavily pregnant and about to go on annual leave which had been applied for and approved in September 2018, was not a reasonable suggestion to mitigate the Applicant's loss as a result of earlier adverse action. Upon return from annual leave, the Applicant planned to work full-time for the next eight weeks before accessing maternity leave to which she was entitled. The Applicant was also planning to access an entitlement to the Commonwealth Government's paid maternity leave scheme. In those circumstances it would be unfair to penalise the Applicant for failing to mitigate the loss of her entitlement to the Commonwealth Government paid maternity leave scheme, by refusing an offer of casual employment in circumstances where an earlier offer of casual employment was adverse action taken for a proscribed reason.

[209] To accept the Respondent's submission would require acceptance of the proposition that because the Applicant did not re-engage with an employer who had taken adverse action against her in contravention of the general protections in Part 3 - 1 of the Act, to mitigate loss which had been caused by that adverse action, the Applicant should be penalised by having her compensation reduced. It would be unreasonable to expect that the Applicant would take this step, in circumstances where the conduct of the Respondent destroyed the employment relationship.

[210] The Respondent also contends that the Applicant received other Centrelink benefits during this period which should be taken into account. In relation to those benefits it appears that they were one-off payments associated with the birth of the Applicant's child and there is no evidence that the Applicant would not have received those benefits in addition to the maternity leave payment had she been entitled to access it. It is also the case that the Respondent did not provide the Applicant with an employment separation certificate for a lengthy period after her employment was terminated, thereby causing delay to the Applicant receiving assistance from Centrelink. For these reasons I have decided to make no deduction from the amount of compensation which I have awarded for the loss of the Commonwealth Government maternity leave payment.

[211] In relation to future economic loss, for the reasons set out above, I have determined that the Applicant would have remained in employment for only a further period of six months. In that six-month period the Applicant would have earned an amount of $18,746 gross. I have also determined to make a deduction of 15% for contingencies to reflect the likelihood that the Applicant's health issues would have continued or that she would have reduced her working hours to part-time had she been appropriately consulted by the Respondent in relation to its need to cut costs and in light of the fact that this may have suited her personal circumstances. Applying a 15% deduction for contingencies, the amount for future economic loss is $15,934.10.

[212] The Applicant submits that the events of 30 November 2018 caused the Applicant emotional distress during the latter part of her pregnancy at a time when she was most vulnerable. That stress, including the Respondent's refusal to provide a separation certificate and having no income has contributed to the Applicant developing and being diagnosed with post-natal depression and warrants an award of compensation for hurt, distress and humiliation. The Applicant referred to the decision in Winnaa where the Commission awarded an amount of $5,000 as compensation for non-economic loss with no psychiatric injury. Reference was also made to Sagona v R & C Piccoli Investments Pty Ltd[199] a case involving adverse action because of pregnancy where an amount of $10,000 was awarded for distress and humiliation. It was also submitted that the approach in Heraud (No 2)[200] should be followed where Judge Jones held in relation to the applicant in that case that:

"Although she has not produced medical evidence regarding her distress, nor corroborative evidence regarding the impact of the Respondent's conduct on her, I am of the view that the Court should not diminish her suffering, taking in to account that the general protection provisions operate in the context of beneficial legislation, designed to protect those employees who take leave because of the birth or adoption of a child. I am satisfied that prevailing community standards demand recognition of the fundamental entitlement of an employee to take parental leave to care for their child or children, safe in the knowledge that their employment will not be prejudiced because they have exercised their workplace right to take parental leave, including to request flexible working arrangements. I am satisfied that community standards now recognise the distress and suffering an employee will experience when those rights are contravened by an employer."

[213] In Heraud (No 2) her Honour went on to award $20,000 for non-economic loss and damage. In the present case, the Applicant was a long-serving employee who sought to exercise workplace rights in relation to her pregnancy related medical condition and to take parental leave. The Applicant suffered adverse action involving the termination of her full-time employment at the point she was proceeding on a period of annual leave. This undoubtedly caused the Applicant great distress at a point in her pregnancy where she should have been able to enjoy a holiday and then return to work prior to taking a period of parental leave to which she was entitled. There was no warning or discussion with the Applicant in relation to the financial position of the Respondent's business to put her on alert to the possibility of losing her employment at such a vulnerable time. The prospect of the Applicant gaining alternative employment in the weeks preceding the point at which she wished to cease work to prepare for the birth of her child would have been limited given the advanced state of her pregnancy.

[214] The Applicant should have been able to exercise the rights to access her personal leave in relation to her gestational diabetic condition; to access her entitlement to parental leave; and her right to return to her pre-parental leave position, secure in the knowledge that she would not be discriminated against or treated adversely for exercising such rights. The Applicant should also have been able to access a source of income via the Commonwealth paid parental leave scheme and the fact that she was denied this opportunity also caused her distress. The Applicant should not have been placed in a position of financial and emotional stress prior to the birth of her child given her length of service and her reasonable expectations to access her rights to personal and parental leave and to return to her position.

[215] Unlike the circumstances in Heraud (No 2) there is evidence from the Applicant's treating psychiatrist that establishes that these matters contributed to the post-natal depression suffered by the Applicant. Although the evidence also establishes that there were other more significant factors at play, it also establishes that the Respondent's contraventions contributed to the Applicant's condition and caused her distress. In all of the circumstances I consider it appropriate to award an amount of $15,000 for non-economic loss.

[216] I am satisfied and find that the Respondent has contravened s. 340 and s. 351 of the Act by taking adverse action against the Applicant because of:

• the exercise by the Applicant of a workplace right to take personal leave for the purposes of attending medical appointments in relation to gestational diabetes; and
• the Applicant's pregnancy; and
• the disability suffered by the Applicant as a result of the pregnancy - namely gestational diabetes.

[217] I have determined to award the Applicant compensation in the following amounts:

1. $5,768.00 as compensation for past economic loss between 7 January 2019 and 4 March 2019;

2. $13,330.80 as compensation for loss of entitlement to the Commonwealth Government paid maternity leave scheme;

2. $2,061.70 in superannuation contributions on amounts for past and future economic loss to be paid into the Applicant's nominated superannuation fund.

[218] The amounts in a. and c. are to be taxed according to law. An order requiring such payments to be made within 21 days of the date of this Decision will issue.

Ms F Keyes of Corney & Lind Lawyers for the Applicant

[2] Exhibit R1 Letter from Ms Clarissa Cheng.

[3] Exhibit R2 Witness Statement of Thanh Nguyen.

[4] Exhibit R3 Statement of incident summary on 30 November 2018; Exhibit R4 Statement about Anna Liu's duties; Exhibit R5 Bundle of documents.

[5] Exhibit R6 First Witness Statement of Michael Chen; Exhibit R7 Second Witness Statement of Michael Chen.

[6] [2014] FWCFB 8941.

[7] General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; approved in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 290 ALR 647 at [59] and [62] per French CJ and Crennan J and at [104] per Gummow J and Hayne J

[9] [2019] FCAFC 181.

[10] Ibid at [114] to [121] per O'Callaghan and Thawley JJ.

[11] [2014] FWCFB 8941 at [12] citing Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 at [161]- [162] per Branson J; Rojas v Esselte Australia (No. 2) [2008] FCA 1585; (2008) 177 IR 306 at [49] per Moore J; Construction, Forestry, Mining and Energy Union v BHP Coal and Steven Rae [2010] FCA 590; Jones v Queensland Tertiary Admissions Centre (No. 2) [2010] FCA 399; (2010) 186 FCR 22 at [10]

[12] [2017] FCA 1046.

[13] [2012] HCA 32; (2012) 248 CLR 500.

[14] [2014] HCA 41; (2014) 253 CLR 243.

[15] [2017] FCA 1046 at paras 295 - 303.

[134] PN1785; PN1797 to PN1798; PN1811 to PN1812.

[172] [2012] FMCA 9; (2012) 218 IR 194

[174] [2018] FWC 7524 at [37]

[175] Kennewell v MG & CG Atkins trading as Cardinia Waster & Recyclers [2015] FCA 716, [52].

[176] [2012] HCA 42; (2012) 248 CLR 549

[180] Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467, [121]

[181] [1959] HCA 8; (1959) 101 CLR 298.

[182] [2011] FCAFC 53 at [79].

[183] [2017] FWCFB 5162.

[185] [2016] FCCA 1797.

[186] Australian Licensed Aircraft Engineers v International Aviation Service Assistance Pty Ltd (2011) 103 FCR 526 at [423].

[187] Aitken v Construction, Forestry, Mining and Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 63 IR 1.

[188] Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60.

[189] Harding v Harding [1928] NSWStRp 103; (1928) 29 SR (NSW) 96 at 106; Tasman Capital v Sinclair Pty Ltd [2008] NSWCA 248; 75 NSWLR 1 at [55] - [72]; Bagnall v National Tobacco Corporation of Australia Ltd [1934] NSWStRp 30; (1934) 34 SR (NSW) 421 at 430.

[190] Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120.

[192] [2014] FCA 328.

[194] [2016] FCCA 1797.

[196] [2015] FWC 4239 citing Heriot v Sayfa Systems Pty Limited [2014] FCCA 1627 at [8] - [9].

[197] [2018] FWC 3568.

[198] [2018] FWCFB 7394 at [30].

[199] [2014] FCCA 875.

[200] [2016] FCCA 1797

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