s.365 - General protections

The Trustee for The CBC Lawyers Unit Trust, Sandra Clive

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - resignation - alleged repudiation by employee - alleged termination during notice period - jurisdictional objection dismissed - application to proceed

• [1] Mr Renee Passmore (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 18 November 2024. The Applicant claims that adverse action was taken against her by The Trustee for The CBC Lawyers Unit Trust (the First Respondent) and Mrs Sandra Clive (the Second Respondent) under s.352 of the Fair Work Act 2009 (Cth) (the Act). Mrs Clive is also a Principal of the First Respondent.

• [2] The Respondents raised a jurisdictional objection that the Applicant was not dismissed under s.386 of the Act as the Applicant resigned from her employment on 1 November 2024. The Applicant argues that she resigned on 1 November 2024 but that the First Respondent subsequently terminated her employment while she still was serving out her notice period.[1] In the alternative, the Applicant argues that she was forced to resign.[2]

• [3] Directions were issued and the matter was listed for hearing on 7 February 2025. The Applicant appeared self-represented. The Respondents were also self-represented, although I note the Principal of the First Respondent, Mr Michael Clive, and the Second Respondent, Mrs Sandra Clive, are solicitors.

• [4] The Applicant commenced work for the First Respondent on 20 May 2024 as Business Operations Manager.

• [5] Prior to commencing employment with the First Respondent, the Applicant worked for a local private school. As part of the Applicant's employment with the school, she received a bursary of 40% of the value of her daughter's tuition at the school.[3]

• [6] When the Applicant commenced employment with the First Respondent, the Second Respondent sent a letter of sponsorship to the school as follows noting that they would like to provide sponsorship for the Applicant's daughter's tuition fees "for the duration of her enrolment" at the school.[4]

• [7] There is contention between the parties as to whether this arrangement for the Respondents to provide sponsorship for the tuition fees was contingent on the Applicant remaining employed with the First Respondent. The Applicant says that it was not.[5] The Respondents say it was always contingent on the Applicant remaining employed. This is ultimately a contractual matter for a court of competent jurisdiction to consider. That said, the contractual matter provides context for the current dispute. The Applicant claims that one reason why the Respondents chose to terminate the contract for alleged repudiation is because termination for repudiation would allow the Respondents to claim that they were not obliged to pay the bursary.

Circumstances leading up to the Applicant's resignation

• [8] Prior to commencing her employment with the First Respondent, the Applicant disclosed illnesses which may impact her work. Relevantly, this included injuries related the Applicant's thirteen years of service with the Australian Army.[6]

• [9] The Applicant states that in the middle of October 2024, she felt a "shift" in her relationship with Mr and Mrs Clive.[7] She states that Mrs Clive accused her of "not being able to problem solve and think critically".[8] The Applicant also had a meeting with Mr Clive in which he discussed performance concerns relating to the Applicant being on her phone during work and leaving the office without telling anyone. The Applicant responded that Mrs Clive had given her permission to use her phone while at work. The Applicant visited her regular psychologist to discuss issues with her increased stress as a result of her workload.[9]

• [10] On Monday, 28 October 2024, the Applicant's wife called the Respondents' office to advise that the Applicant was sick. The Applicant's wife also emailed the Second Respondent a copy of the Applicant's medical certificate from her general practitioner, valid from 28 October 2024 to 4 November 2024 (inclusive).[10] It was noted in the email that the Applicant had another appointment with her doctor scheduled for 4 November 2024.[11]

• [11] The Applicant states that she deliberated with her wife over the week commencing on 28 October 2024 over what to do about her employment. She states that she spoke at length with her wife:

We discussed the option of me resigning, and my fears of not being paid my wages for the week prior, that they might sack me for no reason while I was on medical leave, and Mrs Clive not honouring the contract to pay the Sponsorship [for the Applicant's daughter's] tuition fees.[12]

• [12] On 1 November 2024, the Applicant emailed her letter of resignation to Mr and Mrs Clive. The letter reads as follows:

After careful consideration I regret to inform you of my resignation from my position as the Business Operations Manager at CBC Lawyers. My last day of employment with the firm will be Friday 29 November 2024.

I will continue to update you on my medical status for the duration of my notice period,

however, it is unlikely that I will be deemed medically fit to return to the workplace.[13]

• [13] The Applicant gave 4 weeks' notice of her resignation, as is required by her employment contract.

• [14] On the morning of 4 November 2024 at 7:30am, the Applicant attended the Respondents' office and returned her keys, her work laptop, the garage remote for the work carpark and her work polo shirts (to be worn on casual Fridays). Mr and Mrs Clive were not present in the office when the Applicant returned her things. The Applicant spoke to Ms Sheree Newham, the Respondents' Accountant, when she dropped off her things. According to Ms Newham, the Applicant said to her something to the effect: "Good luck with everything, you're going to fucking need it".[14]

• [15] Ms Newham then called Mr and Mrs Clive and told them that she believed the Applicant had just resigned because she had come in and handed everything in.[15] Ms Newham was also influenced by the fact that the Applicant had made a "rude comment".[16] Mr and Mrs Clive formed the view that the Applicant had repudiated her employment contract and evinced an intention not to work out her notice period.

• [16] I note in this regard that Ms Newham did not present as a particularly reliable witness. Her answers under cross-examination were vague. She stated that the date the Applicant returned the firm property 28 October 2024,[17] but all evidence points to the date being 4 November 2024, a week later. If the Applicant had returned the firm property on 28 October 2024, that would mean she had done so prior to sending her resignation letter, which would not make sense. That being said, it not contested that the Applicant returned the property and said something to the effect of: "Good luck with everything, you're going to fucking need it".

• [17] It strikes me that the whole matter could have been avoided if Mr and Mrs Clive had simply called or texted the Applicant to ask why she returned her property before the end of her notice period. For whatever reason, Mr and Mrs Clive chose not to communicate with the Applicant at this time and instead relied wholly on Ms Newham's account of events.

• [18] The Respondent did not communicate directly with the Applicant until 12 November 2024.

• [19] On 4 November 2024, the Applicant emailed the Respondent's a copy of a new medical certificate she received after seeing her doctor for a review appointment on 4 November 2024. The medical certificate certified her as being unfit for work until 18 November 2024.[18]

• [20] On 5 November 2024, the Applicant contacted Mr and Mrs Clive as she had not received her fortnightly pay. The Applicant states that under her employment contract, her pay is to be processed on Fridays.[19] Mrs Clive stated in the hearing that they normally process payment on Monday afternoon and by that Monday, 4 November 2024, they were "aware that the applicant had handed in her - taken the steps that she did to repudiate the employment contract."[20] Mrs Clive stated that "Under the contract, the applicant was required to provide four weeks' notice and, by her repudiation of the contract, she had not provided the four weeks' notice, and therefore under the contract, we were entitled to deduct four weeks."[21]

• [21] On 12 November 2024, Mr Clive emailed the Applicant a letter.[22] The letter states:

On Monday, 4 November 2024 at 7:30 AM you attended our office, without notice, and left:

2. A remote control to the roller door to our car park;

Your actions in delivering these items to our office at 7:30 AM in the morning were clearly done prior to your medical appointment on 4 November 2024 and conclusively show that you had no intentions of serving out your notice period and ending your employment on 29 November 2024 as you were required to do under your Employment Contract. As such, your actions in delivering these items to our office constitute a repudiation of your employment with CBC and a withdrawal of your notice.

We give notice that we accept your repudiation of your employment with CBC and your

withdrawal of your notice, and terminate your employment on the date of your repudiation, that is, 4 November 2024

• [22] On 18 November 2024, the Applicant emailed Mr Clive contesting that she had repudiated her contract. The Applicant argued that her actions "including consistently providing medical certificates and timely updates regarding my medical status" were consistent with continuing her employment until the end of her notice period.[23] The Applicant filed her general protections application on the same day.

• [23] Section 386(1) of the Act relevantly provides that a person has been dismissed if:

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

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

• [24] The Applicant argues that gave her resignation on 1 November 2024, but that resignation was not effective until 29 November 2024. The Applicant argues that by their letter of 12 November 2024 allegedly accepting the Applicant's repudiation, the Respondents terminated the Applicant's employment during her notice period.

• [25] Alternatively, the Applicant argues that she was forced to resign within the meaning of within the meaning of s. 386(1)(b) of the Fair Work Act.

• [26] The Respondents' contention is that by returning her work property on 4 November 2024, the Applicant evinced an intention to no longer serve out her notice period, and as such, that action constituted a repudiation of the employment contract. The Respondents' stated that they accepted this repudiation on 12 November 2024. They sent the Applicant a letter stating:

We give notice that we accept your repudiation of your employment with CBC and your withdrawal of your notice, and terminate your employment on the date of your repudiation, that is, 4 November 2024.

• [27] The Respondents' rely on the common law doctrine of repudiation of contract.

• [28] I will deal firstly with the Applicant's alternative argument that she was forced to resign within the meaning of s. 386(1)(b) by a course of conduct engaged in by the Respondents.

• [29] The Applicant generally felt that Mr and Mrs Clive used their position as solicitors in order to engage in unethical and immoral behaviour in relation to their staff, their clients and their tenants.[24] She claims that they also engaged in behaviours such as failing to pay wages and leave balances to former employees and engaging in workplace bullying. She claims this behaviour forced her to resign.

• [30] Several past employees were brought up during the course of the hearing. For the sake of those employees' privacy, I will not canvass the allegations made by the Applicant as to why they left in detail. The Applicant alleges that in the time that she was employed by the First Respondent, other employees were forced to leave including one who allegedly made an application to the Fair Work Commission. Ms Newham gave evidence that four employees left in the period since she started. The allegations of forcing employees to leave is strongly denied by the Respondents. Ms Newham says that two employees resigned because they were bullied by the Applicant.

• [31] Constructive dismissal involves a high-bar. It involves proving that the employer's conduct was such that, when viewed objectively, the Applicant was left with no choice but to resign.

• [32] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[25] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[26]

• [33] All the circumstances - including the conduct of both the employer and employee - must be examined.[27] In other words, it must be shown that "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."[28]

• [34] The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.

The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.

The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."[29]

• [35] Furthermore, in Pawel v Australian Industrial Relations Commission,[30] the Full Bench noted:

"Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer."

• [36] Forced resignation has been interpreted by the Commission in the following ways:

• • the actual conduct of the employer forced to do so, such that there was an element of compulsion present;[31]
• • a 'critical action' or 'critical actions' of the employer which was intended to bring the employment relationship to an end;[32]
• • as a result of some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect;[33] and
• • the employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.[34]

• [37] The Applicant's statement is detailed and demonstrates her thought process in relation to the decision to resign. She states:

I spoke with Natasha at length about the mistreatment I had experienced at the firm and the impact it was having on my mental health. We discussed the option of me resigning, and my fears of not being paid my wages for the week prior, that they might sack me for no reason while I was on medical leave, and Mrs Clive not honouring the contract to pay the Sponsorship...

After speaking with the Fair Work Ombudsman, reviewing my Employment Contract and the Sponsorship Contract, Natasha and I decided that it was in the best interests of my health and wellbeing to give my notice and end my employment with CBC Lawyers. I said to Natasha "I want to resign before the weekend so I can finally feel free where I can enjoy time with my children, but I am worried Sandra won't pay me. I don't think I can get through this weekend without having an end date with them, but I also do not want my pay not to be paid". Natasha said "I don't think we should wait until Monday, the longer we wait, the longer your notice period, I think it just needs to be done"[35]

• [38] It is clear that the Applicant was conflicted about whether to give her notice.

• [39] Although the distinction is finely drawn, it appears the Applicant exercised a choice to prioritise her family and her health. Her resignation was not forced. It appears that the Applicant's pre-existing mental health concerns were exacerbated by work-related stress and this exacerbation contributed to a decision to resign.

• [40] When making the decision to resign, the Applicant also weighed up concerns that she would continue to suffer perceive mistreatment is she stayed. There is not clear evidence before me of workplace bullying. The behaviour which the Applicant complains of - being told that she is "not being able to problem solve and think critically" and otherwise being distant - is not clear bullying behaviour. The former comment is within the realm of what could be considered constructive feedback delivered by an employer.

• [41] In relation to alleged illegal behaviour by Mr and Mrs Clive in relation to treatment of their tenants, evidence of this behaviour does not go beyond mere assertions from the Applicant. To an extent, this also goes beyond what can be attributed to the employment relationship and relates to Mr and Mrs Clive's private conduct as well.

• [42] The Applicant also gave evidence that the Respondents failed to pay their employees correctly. There is substance to this claim. I note that the Respondents asserted that they were entitled to deduct 4 weeks from the Applicant's wages if she failed to give four weeks' notice. This is not correct and is in breach of the Legal Services Award 2020.[36] It is trite law that the Modern Awards provide minimum standards for employment and cannot be contracted out of. The Applicant also alleged that they failed to provide payslips with information about leave entitlements. Finally, the Applicant alleges that a "salary sacrifice" for the Applicant's car space was taken out of her wage without her consent. These matters are all concerning, especially for employers who are legal practitioners. However, in my view these matters did not force the Applicant to resign, as on the evidence before me, these matters did not come to light with respect to the Applicant until after she gave her resignation on 1 November 2024. It is sufficient for me to address these concerns by referring the matter to the Fair Work Ombudsman. I will request that a copy of this decision by sent to the Fair Work Ombudsman.

• [43] The Applicant argues that by "accepting her repudiation" of the employment contract, the Respondent in fact terminated the employment contract on their own initiative. The question is therefore whether the Applicant repudiated the contract within the notice period, or whether the Respondent terminated her employment.

• [44] The Respondent observes, correctly, that the test for repudiation is an objection one.

• [45] The test for contractual repudiation is set out in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 at 135 to 136 where the plurality judgment of the High Court stated:

The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. Secondly, it may refer to breach of contract which justifies termination by the other party. It will be necessary to return to the matter of classifying such breaches. Campbell J said this was the sense in which he would use the word "repudiation" in his reasons. There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirement.

• [46] The conduct in question is alleged renunciation, the first kind of repudiation discussed by the High Court.

• [47] The Full Bench has confirmed in NSW Trains v James [2022] FWCFB 55 that repudiation is not to be inferred lightly.[37]

• [48] In Rajnoha v Sauer's Bakehouse [2021] FWC 488, in a different context involving a casual employment relationship, Commissioner Cambridge found that the Applicant's actions in clearing out his locker and handing in his locker keys, together with failing to make further enquiries about his roster afterwards, meant that it was "understandable and reasonable" for the employer to treat those actions as an "unambiguous intention to no longer continue the employment."[38]

• [49] The Applicant had already tendered her resignation letter by the time she is alleged to have repudiated the contract, which makes the factual assessment more difficult.

• [50] At the time the Applicant arrived at the office to hand in her items, she had a doctor's appointment scheduled for later in the day. At that doctor's appointment, she was found to be unfit for work until 18 November 2024. The Applicant acknowledges that at the time she handed in the firm property, she did not know with certainty whether she would be able to return to work or not.[39]

• [51] The Respondent relies heavily on Ms Newham's account of events on 1 November 2024 as evidence that a "reasonable person" would have found that the Applicant was not ready, willing and able to perform her employment contract for the duration of her notice period.

• [52] The uncontested evidence before me is that on 4 November 2024, the Applicant arrived at the office and handing in four items of company property, her keys, remote control to the car park, her work laptop and charger and her "casual Friday" polo shirts. The Applicant was frustrated and told Ms Newham "Good luck with everything, you're going to fucking need it".

• [53] The Applicant states that her reasoning for handing in these items is that she was aware that under the employment contract, she was obliged to return the employer's property. She did so because she was worried that failure to return firm property would mean deductions would be made from her wage under the contract.[40]

• [54] The Applicant states that she did not require any of the returned property in order to perform her daily duties, as she could access the office without a key,[41] and she did not need a remote control to enter the carpark if other staff were already there.[42]

• [55] The Respondent contended that the handing in of the polo shirts was particularly significant. The Applicant argues that she handed in her casual Friday shirts so that other staff could wear them, noting that they had limited small sizes. There was extensive debate about how many shirts of each size were available. I accept the Applicant's evidence that she did not require a polo shirt to perform her daily duties.

• [56] The Applicant mainly used a desktop when working rather than her laptop. She said she handed her laptop so as to not be accused of accessing or deleting firm files.[43] The Respondent rejected this assertion, saying that LEAP is cloud-based, so the Applicant could have accessed the files from anywhere. [44]

• [57] The gist of the Applicant's submissions as to why she handed in the firm property three weeks before the end of her notice period is that she expected that it was unlikely that she would be found fit to return to work during the notice period, and because she wanted to ensure she "diligently" complied with the contractual requirement to return the employer's property. This is a sound argument, however, the Applicant's mental state at the time of handing in the property is a subjective consideration, rather than an objective one. Repudiation must be assessed objectively. Objectively, a reasonable person would determine that by handing in her work keys and her work laptop, the Applicant intended to no longer perform her work. The evidence of the Respondents is that they did not know or had not turned their mind to the fact that the Applicant may be able to access the office without a key. Further, the handing in of the work laptop suggests that the Applicant would not be able to work from home, either. This was a situation where, from the employer's perspective, the Applicant's medical certificate was due to expire that day and, at that point in time, she may have been found fit to return to work the following day.

• [58] The fact which is not readily reconcilable with an objective intention to no longer perform the employment contract is that the Applicant sent the Respondents a copy of her new medical certificate on the afternoon of 4 November 2024. This was prior to the Respondent's acceptance of the Applicant's repudiation of the contract. Under clause 13.2(c). of the Applicant's employment contract, she was obliged to provide a medical certificate if she would be on sick leave for more than one day.[45] There would have been no logical reason for the Applicant to provide this certificate to the Respondents if she did not believe herself to be still employed and bound by the employment contract. The Respondent reasoned in this regard, that, by that point, they had already received evidence of "clear and unequivocal" conduct showing that the Applicant had repudiated the contract. They stated that the Applicant's conduct was "not conduct of someone who's willing to face that employer the next day after insulting them".[46]

• [59] The Respondent acknowledges that repudiation by one party does not unilaterally end the employment contract. The other party must accept the repudiation. The Respondent did not purport to do so until 12 November 2024. The evidence of the Applicant's conduct on the afternoon of 4 November 2024, prior to the Respondent's election to terminate the contract is relevant, as the Applicant may by later conduct "cure" an earlier repudiation or renunciation may be superseded or retracted. The Full Bench stated, in respect of a repudiatory breach in Jowett v iDrilling Australia Pty Ltd T/A iDrilling Australia Pty Ltd [2024] FWCFB 262:

It is, however, well established that a repudiation may only be retracted or cured by the party in breach if reasonable notice of the change of intention is given to the innocent party and this is done so before the innocent party exercises the right to terminate the contract.[47]

• [60] The Applicant sending a medical certificate to the Respondents should have made the Respondents pause and reconsider whether there was objectively a repudiation based on the Applicant's conduct of 4 November 2024. There was clearly reasonable time for the Respondents to reassess their position between the afternoon of 4 November 2024 and 12 November 2024.

• [61] While an employee must be ready, willing and able to perform work, an employee is also within their rights to take sick leave if they are sick and may only be terminated for absence for illness after three months of absence.[48] The Respondents appear to conflate the Applicant being on sick leave, for a relatively short period, noting also that she had never taken extended period of leave prior to this,[49] with the Applicant being unwilling to perform the contract. Repudiation should not be lightly inferred. A temporary absence while on sick leave will not objectively establish that the employee does not intend to perform the employment contract. In the circumstances, the Applicant providing her medical certificate, and keeping the Respondents informed for when she would be fit to return to work, is objectively consistent with her believing herself to be bound by the employment contract.

• [62] Once the totality of the conduct of the Applicant on 4 November 2024 was considered, it could not be objectively determined that the Applicant evinced an intention to no longer be employed by the First Respondent.

• [63] As the evidence does not establish repudiation, the Respondents' election to end the employment relationship on 12 November 2024 amounts to the employer ending the employment relationship at their initiative. The Applicant was therefore dismissed during her notice period. The jurisdictional objection is dismissed.

• [64] The Applicant was therefore dismissed at the initiative of the employer in accordance with s.386(1) of the Act. The matter will be programmed for conference in accordance with s.368 of the Act.

• [65] Noting I have concerns about the Respondents' conduct with respect to the Applicant's pay, I will request that a copy of this decision be sent to the Fair Work Ombudsman. The Respondents may need to be educated by the Ombudsman on the requirements of the Legal Services Award 2020.

[3] Annexure RP-2 to Applicant Witness Statement

[6] Annexure RP-12 to Applicant Witness Statement

[10] Annexure RP-16 to Applicant Witness Statement

[12] Applicant Witness Statement [48].

[13] Annexure RP-4 to Applicant Witness Statement

[17] Sheree Newham Witness Statement [3]

[18] RP-22 to Applicant Witness Statement

[22] RP-6 to Applicant Witness Statement

[23] RP-25 to Applicant Witness Statement

[24] Applicant Witness Statement [36].

[25] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[26] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].

[27] Whirisky v DivaT Home Care [2021] FWC 650 at [77].

[28] Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [28].

[30] (1999) FCA 1660 at 58.

[31] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.

[32] Boulic v Robot Building Supplies [2010] FWA 6905, [16].

[33] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [1995] IRCA 625; (1995) 62 IR 200, 205-206.

[34] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].

[35] Applicant Witness Statement [49]

[36] Under clause 32.1(d) of the Award only one week may be deducted.

[37] NSW Trains v James [2022] FWCFB 55 at [125]

[38] [2021] FWC 488 at[33]-[34]

[47] Jowett v iDrilling Australia Pty Ltd T/A iDrilling Australia Pty Ltd [2024] FWCFB 262 at [35].

[48]Section 352 of the Fair Work Act.

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