[2007] AIRCFB 35 |
PR975821 |
[Note: a correction has been issued to this document - see 2007AIRCFB35 PR987551 signed 24 June 2009]
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.120 appeal against decision [PR974111]
issued by Commissioner Hingley on 20 September 2006
Village Cinemas Australia Pty Ltd
(C2006/3107)
s.643 – Application for relief re (HUU) termination of employment
Carter
and
Village Cinemas Australia Pty Ltd
(U2006/5326)
SENIOR DEPUTY PRESIDENT DRAKE |
|
SENIOR DEPUTY PRESIDENT KAUFMAN |
|
COMMISSIONER EAMES |
SYDNEY, 15 JANUARY 2007 |
Appeal – termination of employment - redundancy – sections 643(8), 643(9) and 649 - genuine operational reasons – respondent bears evidentiary onus – discretion - irrelevant considerations – consideration of alternatives to termination of employment - whether termination of employment for genuine operational reasons synonymous with termination for a valid reason based on operational requirements.
REASONS FOR DECISION
[1] Pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act) an employee whose employment has been terminated may apply to the Commission for relief in respect of the termination of that employment. Its relevant provisions read:
“643 Application to Commission to deal with termination under this Subdivision
(1) Subject to subsections (5), (6), (8) and (10), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:
(a) on the ground that the termination was harsh, unjust or unreasonable; or
…”
[2] However, s.643(8) limits the circumstances in which such an application for relief may be made. It reads:
“(8) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if the employee’s employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons.” (emphasis added)
[3] Operational reasons are defined in s.643(9) as follows:
“(9) For the purposes of subsection (8), operational reasons are reasons of an economic, technological, structural or similar nature relating to the employer’s undertaking, establishment, service or business, or to a part of the employer’s undertaking, establishment, service or business.”
[4] Section 649, insofar as is relevant, provides:
“649 Dismissal of application relating to termination for operational reasons
(1) If:
(a) an application is made, or is purported to have been made, under subsection 643(1):
(i) on the ground referred to in paragraph 643(1)(a); or
(ii) on grounds that include that ground; and
(b) either:
(i) the respondent has moved for the dismissal of the application on the ground that the application is outside the jurisdiction of the Commission because the employee’s employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons; or
(ii) …
the Commission must hold a hearing to deal with the operational reasons issue before taking any further action in relation to the application, …
(2) If, as a result of the hearing, the Commission is satisfied that the operational reasons relied on by the respondent were genuine, the Commission must:
(a) …
(b) if subparagraph (1)(a)(ii) applies - make an order dismissing the application to the extent that it is made on the ground referred to in paragraph 643(1)(a).
(3) Subject to any right of appeal to a Full Bench of the Commission, a finding by the Commission that it is not satisfied that the operational reasons relied on by the respondent were genuine is final and binding between the parties in any proceedings before the Commission.
(4) …
(5) In this section:
operational reasons has the meaning given by subsection 643(9).
[5] Although several members at first instance have dealt with motions to dismiss applications for relief on the basis that it had been alleged that the termination of the employee’s employment was for genuine operational reasons, this is the first occasion upon which these provisions have been considered by a Full Bench.
[6] The facts in this matter are relatively uncontroversial. They were conveniently recited by Mr M. Bromberg, SC, who appeared for Mr Carter, at paragraphs 407-409 of the transcript. Those paragraphs read:
“Mr Carter was employed by the appellant, Village, since 10 December 1986. You'll see that at appeal book 91. His employment was terminated after 19 and a half years of service. He worked at nine different locations in various positions. He was a well-performing manager and there's no issue as to his capability or his standards of performance. He managed the Doncaster cinema for Village and on 15 June 2006, Village received a notice to vacate its Doncaster complex, and as a result of that, Village decided to close the complex effective 1 August 2006. Now, there was then a discussion between Mr Lundahl, the general manager of Village and Mr Carter, which occurred on 6 July 2006. Mr Carter was informed of the developments, that is, the prospective closure, and he was told that no decision had been made about his employment.
He at that stage suggested to his employer that Village grant him his accrued long service leave of six months which would take him through to December 2006. His purpose for doing that, as paragraph 3 of our line demonstrates by reference to the evidence, was he said, "Well look, in the six-month period whilst I'm taking long service leave, a position might come up that you can redeploy me to. I want to keep working at Village, and therefore I'm asking for long service leave to facilitate the capacity for my redeployment during that period." This was discussed, the request was discussed between Mr Lundahl and his superior, Ms Norton-Baker. Ms Norton-Baker seems to be the decision-maker who decided to terminate the employment. That was discussed on 11 July 2006, and it was requested. That is, the request for long service leave was rejected.
On 25 July 2006, Mr Carter was informed that his employment would be terminated. Now, can I take the Commission to the appeal book, and in particular to page 49 of the appeal book?”
[7] Consequent upon the termination of his employment, Mr Carter brought proceedings under s.643 of the Act claiming that the termination of his employment was harsh, unjust and unreasonable and also alleging that Village Cinemas Australia Pty Ltd (Village) had breached s.659 by reason of discrimination or other prohibited reasons.
[8] Village filed a notice of motion for dismissal of the application, insofar as the ground referred to in s.643(1)(a) is concerned, asserting that the application is outside the jurisdiction of the Commission because the employee’s employment was terminated for genuine operational reasons, or for reasons that include genuine operational reasons. Section 649 of the Act was thereby triggered and the matter came before a single member of the Commission for the jurisdictional objection to be dealt with.
[9] On 20 September 2006 the notice of motion was dismissed. i After reciting the facts as he found them, the Commissioner reached the following conclusions, which, as they are brief, are set out in full:
“[18] Jurisdiction is a question of fact. It is not a circumstance where the Commission is entitled to step into the shoes of the employer in the management of its business. However in considering the facts as to whether the termination of the applicant’s employment in the circumstances of this matter were for genuine operational reasons, the following are relevant considerations.
[19] The applicant was a long serving multi-skilled employee who had worked at numerous different locations (nine) (ibid PNs 428/429). He was therefore eminently redeployable.
[20] Of the twelve staff working at the Doncaster complex only the applicant was made redundant (ibid PN 461).
[21] The applicant had an entitlement to at least six months long service leave which he offered to take knowing ultimately it could still lead to redundancy, but he wished to exercise every opportunity to stay with the company and await a vacancy. It could have been a possibility according to the Human Resources Manager (ibid PN 491).
[22] The applicant was never asked if he would consider or accept a position of lower status. He gave evidence that he would have accepted redeployment to a lower status position.
[23] The evidence was that in the twelve months prior to the termination of his employment, four to five general managers left the respondent (ibid PN 495). It was conceded by the Human Resources Manager that on that basis vacancies were likely, and her answer was;
“That certainly would be a possibility.” (ibid PN 499).
[24] The onus rested with the respondent to prove its motion for dismissal on the ground that s.643(8) excluded the applicant from jurisdiction. A case has not been made out that discharges that onus.
[25] I find that the applicant’s employment termination was not for genuine operational reasons. I find that the reasons advanced do not meet the test of genuine reasons and do not conform to the intent the Act in s.643(8) seeks to convey.
[26] Accordingly I determine that the applicant is entitled to jurisdiction and to proceed with his application.”
[10] On 4 October 2006, Village lodged an appeal against that determination.
[11] On the appeal, Mr C. O’Grady of counsel appeared for Village. Mr T. Ginnane, of Senior Counsel, intervened on behalf of the Minister for Employment and Workplace Relations and Mr Bromberg of Senior Counsel appeared for Mr Carter.
Appeal Principles
[12] Section 120(1) of the Act provides that an appeal lies to a Full Bench only with the leave of the Full Bench. Further, s.120(2) requires that a Full Bench grant leave to appeal if in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
Alternatively, a grant of leave is governed by the conventional considerations for the grant of leave to appeal, including whether the decision is attended with sufficient doubt to warrant reconsideration or whether substantial injustice may result if leave is refused ii. As was noted by a Full Court of the Federal Court of Australia, these grounds for a grant of leave:
"……should not be seen as fetters upon the broad discretion conferred by s 45(1), but as examples of circumstances which will usually be treated as justifying the grant of leave. It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error." iii
[13] There being no opposition to the grant of leave, and we being of the view that the matter is of such importance that, in the public interest, leave to appeal should be granted, we grant leave. Accordingly, the appeal proceeds by way of rehearing. iv
[14] As the appeal is from a decision involving the exercise of a discretion, to succeed the appellant must show that the decision was affected by error in the manner explained in House v The King:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so." v
[15] The “discretion” that the Commissioner exercised is affected by s.649(2). After holding a hearing under s.649(1) dealing with the operational reasons issue and if, as a result of the hearing, the Commission is satisfied that the operational reasons relied on by the respondent were genuine, the Commission must make an order dismissing the application to the extent that it is made on the ground referred to in s.643(1)(a) (the allegation that the termination was harsh, unjust or unreasonable).
[16] The nature of such a discretion was considered by the High Court in Coal and Allied Operations Pty Ltd and Australian Industrial Relations Commission. vi Gleeson CJ, Gaudron and Hayne JJ held:
"19. Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
20. In the present case, the decision by Boulton J to terminate the bargaining period involved, in effect, two discretionary decisions. The first was as to his satisfaction or otherwise that the industrial action being pursued posed a threat for the purposes of s 170MW(3) of the Act. Although that question had to be determined by reference to the facts and circumstances attending the industrial action taken in support of claims with respect to a certified agreement, the threat as to which his Honour had to be satisfied was one that involved a degree of subjectivity. In a broad sense, therefore, that decision can be described as a discretionary decision. And if Boulton J was satisfied that there was a threat for the purposes of s 170MW(3), that necessitated the making of a further discretionary decision as to whether the bargaining period should be terminated.
21. Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King … “
[Footnotes omitted]
We have extracted the relevant extract from House earlier in our reasons.
[17] The exercise of the discretion by the Commissioner in the matter before us was quite narrow. He was required to make a particular decision if he formed a particular opinion or value judgment. It is thus incumbent upon us to determine whether there was error in the decision-making process at first instance.
[18] For Village it is put that the position is straightforward. The Doncaster cinema complex closed, with the result that there was no position available for a theatre manager, the job that Mr Carter had been performing. The reason for the termination of Mr Carter’s employment was the closure of the cinema. Thus, there was a genuine operational reason for the termination of Mr Carter’s employment. This, it is said, falls squarely within the definition of “operational reasons” in s.643(9) of the Act.
[19] In failing to find that there were genuine operational reasons, or reasons that included genuine operational reasons, for the termination of Mr Carter’s employment it is said that the Commissioner erred in the House v The King sense in that he acted upon a wrong principle or allowed extraneous or irrelevant matters to guide or affect him.
[20] The so-called irrelevant matters appear at paragraphs 18 to 23 of the Commissioner’s decision.
[21] The essence of Mr Bromberg’s case is that the closure of the Doncaster cinema complex was not a reason for the termination of Mr Carter’s employment. It merely created the circumstances which provided a justification for the termination of Mr Carter’s employment. He submitted that the reason for the termination of Mr Carter’s employment was the refusal by Village to allow him to take his long service leave. Additionally, the failure by Village to redeploy or attempt to redeploy Mr Carter to another cinema centre as manager, or offer him a lower classified position, were said to be relevant to the assessment of the genuineness of the operational reasons.
[22] In order to make out his case Mr Bromberg took us to the Termination of Employment Convention¸ and then the history of the legislation since the time that the harsh, unjust and unreasonable termination provisions first appeared in the Act. He, as well as Mr O’Grady and Mr Ginnane, referred us to the Explanatory Memorandum vii at the time of the introduction of the present provisions. Mr Bromberg placed considerable emphasis on cases decided during the short period that he contended the Act was most closely akin to its present form. He also relied on cases relating to the freedom of association provisions of the Act in order to draw an analogy between the expressions for a prohibited reason or for reasons that include a prohibited reason and for genuine operational reasons, or reasons that include genuine operational reasons.
[23] We have not found these submissions to be helpful. The “Workchoices” amendments to the Act wrought a significant alteration to the termination of employment regime. At the time that Mr Bromberg contends the Act was in the form most analogous to its present form it relevantly read:
“170DE(1) An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, … based on the operational requirements of the undertaking, establishment or service.” viii
[24] Mr Bromberg submitted that because at that time there was no reference to harsh, unjust or unreasonable ix the then Act was relevantly the same as it is now. We do not accept that proposition. Under the Act, in its present form, it is a bar to the bringing of proceedings if the employee’s employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons. When s.170DE(1) applied, the provision was as set out in the paragraph above. There was no bar to bringing proceedings in such circumstances. In the course of determining whether an employer had breached s.170DE(1) the Commission had to determine whether there was a valid reason, or there were valid reasons, for the termination based on the operational requirements of the undertaking, establishment or service. The jurisprudence to which we have been referred, particularly Nettlefold v Kym Stoker x and Selvechandran v Peteron Plastics Pty Ltd,xi developed when it was necessary to determine whether a reason for termination was valid in the context of operational requirements. The present Act speaks of a termination of employment for genuine operational reasons. Had the Parliament intended the present provision to bear the same meaning as s.170DE(1) then it could have used those words.
[25] To make good his contention that the current provisions differ significantly from those that preceded them the Minister took us to various dictionary definitions. Although “operational reasons” are defined in the Act, the word “genuine” is not. Dictionary definitions define it thus:
“genuine: 1. being truly such; real; authentic…2. properly so called… 3. sincere, free from pretence or affectation… (Macquarie Concise Dictionary xii)
genuine: 1. Natural or proper to a person or thing. 2. Having the character claimed for it; real, true, not counterfeit (New Shorter Oxford English Dictionary” xiii)
[26] We agree with Mr Ginnane that a reason for the termination of the employment of a particular employee can be genuine in the sense that it is real, true or authentic, not counterfeit, whilst it may not have been valid, meaning sound, defensible or well founded in the Selvechandran xiv sense. The enquiry as to validity does not arise at the stage of the Commission determining whether a reason for termination was based on genuine operational reasons.
[27] Dictionary definitions also assist in determining whether basing the exclusion from jurisdiction on operational reasons has the same effect as the previous defence - that the employment was for a valid reason related to the employer’s operational requirements - to an allegation that a termination of employment was harsh, unjust or unreasonable.
“reason: 1. a ground or cause, as for a belief, action, fact, event etc… 2. a statement in justification or explanation of belief or action…(Macquarie Concise Dictionary xv)
reason: … 2. A fact or circumstance forming a motive sufficient to lead a person to adopt or reject some course of action, belief, etc; a fact adduced or serving as this… b A Cause of a fact, situation, event, or thing, esp one adduced as an explanation; cause, ground. … 4. A statement used as an argument to justify or condemn some act, or to prove or disprove some assertion or belief. …(New Shorter Oxford English Dictionary” xvi)
[28] We agree with Mr Ginnane that the operational reason relied upon by the employer need only be a ground or cause for the termination of the employment of an employee. It need not be something that demands or brings about an obligation to terminate the employment of a particular employee. The termination of employment of the particular employee does not have to be an unavoidable consequence of the operational reason for the limitation in s.643(8) to operate. Consequently, whether the employer could have done something other than terminating the employee’s employment will generally be irrelevant in deciding whether the termination was for genuine operational reasons, or reasons that include genuine operational reasons. To pose the question whether the termination was a “a logical response to” the employer’s operational requirements xvii will also not necessarily assist in determining whether the termination was for genuine operational reasons. This may also be an appropriate question to pose in a consideration as to whether or not the operational reason advanced by the employer for the termination of employment of the particular employee was a sham or not. However, that question does not arise in this application.
[29] The jurisprudence, to which we were referred, that has developed in relation to the freedom of association provisions, dealing with different matters, in a different context, and where there is a reverse onus of proof, is of little assistance. We do however adopt the words of Finkelstein, J in Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union: xviii
“212 I have a clear view about this aspect of the operation of s 298L(1)(h). My view does not depend upon any purposive or other modern principle of statutory construction. It does not depend upon the legislative history of the provision. It depends simply upon the meaning of the words used in the provision, taking into account the context in which those words are used. Once this would have been known as the "literal rule" (J Willis, "Statute Interpretation in a Nutshell" (1938) 16 Canadian Bar Review 1), or the "plain meaning" rule (Rodriguez v United States, 480 US 522 at 525-6 (1987))… “
[30] Mr Bromberg referred us to ss.15AA and 15AB of the Acts Interpretation Act 1901. Section 15AA provides:
“(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
[31] Section 635(1)(e) of the Act, provides that the principal object of Division 4 – Termination of Employment, is, by the procedures and remedies set out in sub-paragraphs (a) to (d), to assist in giving effect to the Termination of Employment Convention. xix
[32] The part of the Termination of Employment Convention upon which Mr Bromberg relied is Article 4 which reads:
“. The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.”
[33] It can readily be seen that the pre-reform Act more closely approximated the Termination of Employment Convention than does the Act in its present form.
[34] To interpret s.643(8) in the manner contended for by Mr Bromberg would, in effect, be to revert to the pre-reform position. It would be to equate the expression “for genuine operational reasons or for reasons that include genuine operational reasons” with “a valid reason ...based on the operational requirements of the undertaking, establishment or service” . This is something that the Parliament has deliberately eschewed by using the words that it has in s.643(8). In our view the construction contended for by Mr Bromberg is not open.
[35] In our view, the expression genuine operational reasons should be given its natural meaning, taking into account the context in which the words are used. That context is, that if a termination of employment of a particular employee was for genuine operational reasons, or reasons that include genuine operational reasons, no application may be made to the Commission for relief in respect of such a termination. The operational reason must exist but we do not find it helpful to analyze the expression further or to determine whether the test is subjective, as Mr O’Grady contended, objective, as Mr Bromberg contended, or somewhere in between as Mr Ginnane contended.
[36] Nor do we accept Mr Bromberg’s submission that whilst a position redundancy may constitute a proximate reason for a termination it will be an operative reason for the termination where the position is redundant but the worker is not. To accept such an interpretation would, in our view, require an inquiry into the circumstances of the termination such that the Commission is required to determine the appropriateness of the termination rather than ascertaining whether the termination of the employment of the particular employee was for genuine operational reasons or reasons that included genuine operational reasons. This, it seems to us, is precisely the type of inquiry that the Parliament sought to avoid when it created the statutory bar to bringing applications for relief in s.643(8).
[37] Whilst different members of the Commission have used different expressions in determining whether a termination was for genuine operational reasons, in our view, care should be taken not to go beyond the plain meaning of the words as they appear in the Act, including its definition of operational reasons.
[38] Here the situation was clear. The cinema complex was closing and there was no longer a position for a manager. That circumstance led to the termination of Mr Carter’s employment. The closure of the cinema was at least one of the operational reasons for the termination of Mr Carter’s employment. Indeed, it seems to us that it was the reason. We reject Mr Bromberg’s submission that the reason was the failure by Village to allow Mr Carter to avail himself of long service leave and thereby remain employed for at least another six months. That decision by Village was a refusal to allow Mr Carter to take long service leave and thereby delay the implementation of its decision to terminate his employment. The refusal of Mr Carter’s request by Village, did not convert what was otherwise a termination of employment of a particular employee for genuine operational reasons into one that was not for such reasons.
[39] Whilst there will no doubt be cases where it will be necessary to examine the circumstances of a termination of employment of a particular employee said to be for genuine operational reasons, to determine whether or not the alleged operational reasons relied on by the employer were genuine, this is not such a case. In having regard to the matters set out in paragraphs 19 to 23 of his decision the Commissioner erred by allowing extraneous or irrelevant matters to guide him. As we have said, the termination of Mr Carter’s employment was a direct consequence of the closure of the Doncaster cinema complex. In this case there was no suggestion that his employment was terminated for any other reason.
[40] It is appropriate that we comment on paragraph 24 of the Commissioner’s reasons. An applicant for relief bears the onus of proving all the elements necessary to establish his claim. This includes satisfying the Commission that it has jurisdiction to deal with the matter. Where, as in this case, the respondent asserts that the application is precluded by operation of s.643(8), the respondent bears the evidentiary onus of persuading the Commission that the termination of employment of a particular employee was for genuine operational reasons or for reasons that include genuine operational reasons. It is in that context that a mere assertion by an employer to that effect will usually not be sufficient to discharge the evidentiary onus. What evidence will suffice will vary from case to case depending on the circumstances.
[41] Where, as in this case, it can be clearly established that the termination of employment was for operational reasons it is not necessary to have regard to such matters as the refusal of Mr Carter’s request for long service leave in order to ascertain whether the reasons relied on by the employer for the termination of the employee were genuine.
[42] Having granted leave to appeal, we allow the appeal and quash the Commissioner’s determination.
[43] Pursuant to 649(2) of the Act, as we are satisfied that the operational reasons relied on by Village for the termination of Mr Carter’s employment were genuine, we dismiss his application for relief to the extent that it is made on the ground referred to in s.643(1)(a).
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
C O’Grady of Counsel for the Appellant
M Bromberg of Senior Counsel for the Respondent
T Ginnane of Senior Counsel for the Minister for Employment and Workplace Relations
Hearing details:
2006
Sydney
November 21
<Price code C>
ii CFMEU v AIRC (1998) 89 FCR, 200, 220.
iii Wan v Australian Industrial Relations Commission [2001] 116 FCR 481 @ [30]
iv Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission, (2000) 203 CLR 194
v 1936 55 CLR 499 at para 505
vi (2000) 203 CLR 194 at paras 19-21
vii Workplace Relations Amendment (Workchoices) Bill 2005 (Cth) 321-324
viii Workplace Relations Act 1996 s.170DE(1)
ix The High Court in Victoria v Commonwealth (1996) 187 CLR 416 had ruled beyond the Parliament’s power s.170DE(2) which referred to a reason for termination of employment not being valid if the termination was harsh, unjust or unreasonable.
x (1996) 68 IR 370
xi (1196) 62 IR 371
xii The Macquarie Concise Dictionary (3rd ed) (1998), page 465 (emphasis added).
xiii The New Shorter Oxford English Dictionary (1993), page 1078 (emphasis added).
xiv Selvechandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 @ 373
xv The Macquarie Concise Dictionary (3rd ed) (1998), page 965 (emphasis added).
xvi The New Shorter Oxford English Dictionary (1993), page 2495 (emphasis added).
xvii Perry v Savills (Vic) Pty Limited Print PR973103, Watson SDP 20 June 2006 at para 41
xviii (2001) FCR 232 at para 212
xix ILO Termination of Employment Convention, 1982 (No. 158)