[2022] FWC 36

The attached document replaces the document previously issued with the above code on 18 January 2022.

Amendments at [45], [46] and [50]. Addition of new [47].

Associate to Deputy President Anderson

Dated 20 January 2022

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Kimberlee Jane Murdoch
v
Uambi 775 Pty Ltd trading as Altschwager Family Funerals
(U2021/10185)

Application for an unfair dismissal remedy - jurisdiction – casual employee - s 384 Fair Work Act 2009 – whether employment “regular and systematic” – s 386 Fair Work Act 2009 – whether “dismissed” – minimum employment period met – dismissal – jurisdiction established

[1] On 11 November 2021 Kimberlee Murdoch (Ms Murdoch or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to an alleged dismissal by Uambi 775 Pty Ltd trading as Altschwager Family Funerals (AFF, the employer or the respondent).

[2] Ms Murdoch claims to have been unfairly dismissed on 3 November 2021.

[3] She seeks compensation and an apology.

[4] AFF opposes the application and raises jurisdictional issues. It asserts that Ms Murdoch is not entitled to bring the claim for two reasons. Firstly, it says Ms Murdoch had not been regularly and systematically employed and thus has not met the minimum employment period of service (one year) required by s 382 of the FW Act. Secondly, it says Ms Murdoch was not dismissed within the meaning of s 386.

[5] Conciliation was not conducted as the employer sought the jurisdictional issues be first determined.

[6] I issued directions on 15 December 2021. The jurisdictional matters were heard by video on 10 January 2022. Both parties were self-represented (the employer by part owner Mr Altschwager).

[7] In addition to written materials, I heard evidence from:

•  Kimberlee Murdoch (applicant) 1;

•  Debra Avery (AFF part-owner and administration manager) 2; and

•  Kerri I’Anson (senior funeral director) 3.

[8] Each witness gave evidence conscientiously to the best of their knowledge and belief. There are few factual disputes. The factual matters that appeared in dispute were largely resolved through questions from the Commission and in cross examination.

Facts

[9] As this decision concerns relevant jurisdictional matters only, I only set out facts relevant to those questions. I make no findings concerning other matters in issue between the parties (such as merits of the alleged dismissal or an alleged underpayment).

[10] AFF is a family business providing funeral services in regional South Australia (based in Loxton in South Australia’s Riverland).

[11] AFF is a small business for the purposes of the FW Act. In addition to its owners (Mr Altschwager and Ms Avery), the business employed approximately five casual persons at the date of alleged dismissal.

[12] Ms Murdoch commenced work as a casual employee on 1 July 2019 in the role of assistant funeral director. She remained ‘on the books’ until (and including) 3 November 2021.

[13] Ms Murdoch lives in Loxton. She was employed following a verbal discussion with the owners. There was no written letter of employment or employment contract. She was paid by the hour and employed under the Funeral Industry Award.

[14] Ms Murdoch was one of five persons employed as a casual funeral director.

[15] Work required to be performed by Ms Murdoch (and other funeral directors) fell into three categories: preparation of a deceased for a funeral service or burial, conduct or assisting in the conduct of a funeral service or burial (at the funeral home, a church or cemetery) and attendance at a place of death for transfer of a deceased to the funeral home (this latter function referred to as a call-out or ‘transfer’).

[16] Shortly after being hired, and at cost to the business and consistent with its practice with other funeral directors, Ms Murdoch was professionally fitted with a vest and jacket to be worn when performing funeral services.

[17] The business only required casual funeral directors as and when a death occurred in the local area and the services of the business were contracted. On average, one death arose each 7 to 14 days meaning that casual funeral directors were only called on when needed.

[18] As a consequence, it was common amongst the five casual funeral directors that work for AFF was not their sole employment.

[19] In the case of Ms Murdoch, in addition to being a casual funeral director for AFF, she was a disability support worker, a celebrant and a justice of the peace. She was also a mother of children with special needs.

[20] At the time of hiring. Ms Murdoch understood that she was one of a number of casual employees who would work as the business required and as they were available. Equally, Ms Avery understood that Ms Murdoch (and the other casual employees) would not automatically be available to work when funeral services were required as the employees had other commitments.

[21] As a consequence of both the timing of death (especially transfers) not being predictable in advance and the fact that casual employees may be otherwise occupied, there was no advance forward roster prepared for Ms Murdoch or other casual funeral directors. Rather, Ms Avery (or in her absence, Ms I’Anson), would either telephone, text or email from the list of five persons to ascertain availability to undertake work that had arisen. There was no particular hierarchy applied as to who was to be contacted first, though Ms Avery in particular had a general understanding of who might be available or who might be best placed to do a particular task.

[22] Whilst it was Ms Avery (or less commonly, Ms I’Anson) who allocated work, in practice Ms Murdoch recorded the hours she actually worked in a time book. The remuneration she was paid (for those hours) was recorded in a separate wages book.

[23] From time to time during the course of her employment Ms Murdoch became concerned she was not being offered shifts as frequently as she might.

[24] On 21 October 2020 (approximately one year prior to the alleged dismissal) Ms Murdoch emailed Ms Avery asking why she “hadn’t been offered any mortuary work in the last 6 months” and whether the business was “happy with me as an employee”. 4 In reply, Ms Avery explained that a recently hired casual needed “more training” and observed that “you will continue to be our go to for funerals and transfers”.5

[25] Ms Murdoch continued to be allocated shifts from time to time. I make specific findings as to the frequency and regularity of work undertaken by Ms Murdoch in the last twelve months of her employment in the body of this decision.

[26] The advent of the COVID-19 pandemic in February 2020 did not impact the incidence of death in the community, but had a limited regressive impact on the incidence and size of funeral services and thus the extent to which work was available to be allocated amongst staff (for example, in some instances, a small service that otherwise may have required two funeral directors could be covered by one).

[27] The last shift Ms Murdoch worked for the business was on 9 August 2021 (a five hour funeral service shift).

[28] Two subsequent exchanges occurred between AFF and Ms Murdoch concerning shift availability.

[29] On 25 August 2021 Ms Avery texted Ms Murdoch “Hi Kimberlee, Are you around this weekend for transfers?”. Mr Murdoch was not available that weekend. She immediately replied “I’m not”. Ms Avery responded “Ok thanks”. 6

[30] On 7 September 2021 (9.59am) Ms Avery telephoned Ms Murdoch wanting to know if Ms Murdoch was available for a transfer. Ms Murdoch was working in one of her other roles. Ms Murdoch texted a reply “Hi. Just at work ‘til 12. I can answer text but not phone call.” Ms Avery replied “Ok have a call out so don’t worry. Thanks”. 7

[31] On 1 November 2021 Ms Avery was cleaning the office when she came across a DVD that had been previously loaned to her by Ms Murdoch and which she had been unable to find and return to Ms Murdoch.

[32] At 1.17pm on 3 November 2021 Ms Avery emailed Ms Murdoch: 8

“Hi Kimberlee

Hope you are keeping well

While packing during the week I came across your DVD. It was in the funeral cupboard.

Would you like to pick it up?

Also, was wondering if you could return the key to the Cashmore shed?

Warren thinks you may also have a vest?

Many thanks

Kind regards,

Debbie Avery”

[33] Upon reading the email Ms Murdoch was shocked and upset believing she had been dismissed given the request for return of the key and vest (I deal with this aspect later in the body of this decision). At 2.48pm that day (3 November 2021) Ms Murdoch emailed Ms Avery: 9

“Wow.

What a way to find out I no longer work for you guys?!”

[34] Ms Avery read the email but did not respond, wishing to discuss it with Mr Altschwager.

[35] Later that afternoon Ms Murdoch posted on her private facebook (knowing her facebook friends included some work colleagues) the following: 10

“Speechless…

Just got an email asking me to return my work key.

Now THAT is a super professional, not to mention nice, way to let me know I don’t work there any more! WTF!!”

[36] At 7.07pm that day (3 November 2021) an employee of AFF (whose name was not disclosed in these proceedings) forwarded Ms I’Anson the facebook post. Ms I’Anson was shocked at both the post and that Ms Murdoch had apparently been dismissed. She forwarded the post to Ms Avery and Mr Altschwager for information.

[37] Ms Avery and Mr Altschwager immediately discussed the matter. They were taken aback that Ms Murdoch had thought the 1.17pm email was notification of dismissal, and were shocked and upset that Ms Murdoch had communicated in those terms on facebook without seeking clarification from the business. They decided that in light of the facebook post, which they considered unprofessional, Ms Murdoch would no longer be offered shifts and would be taken off the books. The employer did not advise Ms Murdoch of this decision.

[38] The following day, 4 November 2021, Ms Murdoch sought advice on her employment rights. After contacting the “fair work call centre” she spoke to the Working Women’s Centre and two law firms. She was advised that she was entitled to regard the 3 November 2021 email as a dismissal. Then, at 12.09pm, she emailed Ms Avery as follows: 11

“Hello,

The legal company who Fair Work put me in touch with have suggested I seek for clarification around the cessation of my employment with AFF. Reasons, grounds, etc.

A respectful phone call to discuss my employment could have avoided all of this but the disrespect of letting me know I don’t have a job by way of yesterdays email is unacceptable.

I have been a regular, dedicated employee for over 2 years while working other places as well (I have always had more than one job). I have sought feedback and clarification on at least two occasions to ensure AFF was happy with my work. It is a great shame this is how it is ending, I was always proud to work for AFF. However ceasing my employment like this is not legal so I will stand my ground.

If you wish to communicate with me email is the only option going forward.

Kimberlee.”

[39] Upon receiving this email, Ms Avery herself telephoned the fair work advisory service. The employer did not respond to Ms Murdoch. Ms Avery’s evidence was that she was advised by “fair work’ not to respond.

[40] Having not received a response from the employer to her emails of 3 or 4 November 2021, on 11 November 2021 Ms Murdoch filed these proceedings.

[41] Ms Murdoch returned the key and vest by registered mail on 17 November 2021.

Consideration

[42] This decision concerns two jurisdictional matters only: whether Ms Murdoch is eligible to make an unfair dismissal claim and whether Ms Murdoch was dismissed. It does not concern whether Ms Murdoch was fairly treated or whether the employer complied with obligations under the Small Business Fair Dismissal Code (s 388). Those questions concern merit (whether the dismissal was an unfair dismissal) and are only open to be considered in the event the application is within jurisdiction.

Had Ms Murdoch served the minimum employment period to be eligible to make the claim?

[43] In order to be protected from unfair dismissal, the FW Act requires a minimum employment period of one year to have been worked by an employee working in a small business. 12

[44] It is not in dispute that Ms Murdoch commenced working for AFF on 1 July 2019 and remained ‘on the books’ as a casual employee until 3 November 2021 – a period of two years four months.

[45] The entirety of this period was as a casual employee. Ms Murdoch was a casual employee within the meaning of s 15A of the FW Act.

[46] Section 384 of the FW Act provides:

“384 Period of employment

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

(2) However:

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

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

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

(b) if:

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

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

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

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[47] A “regular casual employee” is defined in s 12 as:

“a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a regular and systematic basis.”

[48] Whilst the phrase “continuous service’ is not defined in the FW Act, the ordinary meaning of “continuous service” is a period of unbroken service by an employee with an employer. 13 However, regularly and systematically rostered casual employees remain in service notwithstanding that each engagement may be by separate casual contracts. Gaps in time between such contracts do not necessarily break service because it is the employment relationship and not the contract that is assessed for continuity.14 For these reasons, the phrases “period of employment” and “continuous service” in section 384 of the FW Act and the phrase “continuous service” in section 22 are best read as relating to a period of an unbroken employment relationship and not necessarily an unbroken employment contract (subject of course to the further statutory provisions in section 22 which deem certain service to be continuous despite a break in the employment relationship).

[49] Thus, to be eligible to make this unfair dismissal application, Ms Murdoch’s service as a casual employee in the year prior to dismissal only counts if her employment was “on a regular and systematic basis” and “with a reasonable expectation of continuing employment by the employer on a regular and systematic basis”.

[50] For a casual employee to be said to have worked “regularly and systematically” within the meaning of section 384(2) of the FW Act (as defined) it is sufficient for their employment to have been “regular” in the sense of being frequent notwithstanding it being unpredictable, and “systematic” in the sense of it being part of a pattern of engagement occurring as a consequence of businesses reliance on the employee’s services notwithstanding that the precise pattern of working may not be foreseeable to the employee. 15

[51] The evidence as to incidence of work is as follows:

•  in the twelve months 3 November 2020 to 3 November 2021 Ms Murdoch worked 24 of the 365 days 16;

•  the days worked occurred across random weeks (one day in one week in November 2021, two days in one week in December 2021, one day in each of two weeks in February 2021 and three days in one further week, two days in one week in March 2021 and one day in each of two further weeks, one day in one week in April 2021 and two days in one further week, one day in each of two weeks in both May 2021 and June 2021, one day in one week in July 2021 and one day in each of two weeks in August 2021;

•  in the final twelve months, no work was performed in January, September, October or November 2021; and

•  the number of hours worked on the days when work was performed varied from 0.75 hours to 13.5 hours.

[52] Also relevant are my findings that:

•  there was no advance roster of work because the business could not predict when work would be required;

•  work arose on an as need basis due in part to the inherently unpredictable incidence of death in the local community;

•  when work became available Ms Murdoch was one of five casuals who were ‘on the books’ and selection was made by an owner or manager assessing suitability and then working through the list of casuals to ascertain availability;

•  when Ms Murdoch worked it was on the basis of being offered a shift that was open to rejection if she was unavailable; and

•  on two occasions in the final three months of service Ms Murdoch was offered shifts but declined due to her unavailability.

[53] I also note the contextual consideration that Ms Murdoch’s frequency of work was somewhat greater in the year prior to her final twelve months, and that in some limited respects the COVID-19 impacts of 2020 and 2021 caused a decline in the frequency of work available to the casuals. On Ms Murdoch’s evidence, 17 across the entire period of her two years and four months of employment, she worked on 116 days, which equates to approximately a cumulative period of four months.

[54] As noted, whether employment is “regular” within the meaning of s 384 bears a relationship to frequency more-so than predictability. In the abstract, working 24 of 365 days in her final year with AFF could be said to be infrequent. However, context matters. The business of AFF was dependant on the incidence of death in the local community. That was not a daily occurrence. The evidence is that the incidence of a death contracting AFF’s services was “erratic” and “spontaneous” in nature 18, around weekly though it could be up to fortnightly.19 Work was required to be performed by AFF’s funeral directors at least that frequently but not daily. A death could involve up to three tasks being performed at different times – a transfer, preparation of the deceased, and conduct of a service or burial.

[55] Thus, in the context of this business, regularity bears a relationship to the frequency of work when work was available to the pool of casuals. In this context, work on 24 days in Ms Murdoch’s final year equated to work, on average, almost one day per fortnight. In the context of available work capable of being performed, that incidence was not infrequent and can be objectively characterised as regular in the particular circumstances. That the pattern of work was unpredictable and not rostered in advance arose largely from the nature of business operations and does not preclude a finding of regularity. 20

[56] I also take into account that Ms Avery in her evidence acknowledged that Ms Murdoch, at least in some sense, worked regularly. 21

[57] Was Ms Murdoch’s employment systematic? Ms Murdoch was a casual employee ‘on the books’ and was routinely assessed for available work. To that extent, there was a system by which she could be and was offered work.

[58] Other than in her final three months of employment, the extent to which AFF relied on Ms Murdoch was material. Aside from the rare occasion when a new person was hired who required preferential shifts in order to learn on the job, Ms Murdoch was, in her final year, an experienced employee and offered shifts. As noted, on 21 October 2020 Ms Avery indicated in writing to Ms Murdoch:

“you will continue to be our go to for funerals and transfers”.

[59] This, coupled with the fact that over the following nine months Ms Murdoch worked at least once per fortnight is evidence that the business placed material reliance on her notwithstanding that she was one of five in the pool of casuals.

[60] It appears to have been only in her final three months of employment, and following Ms Murdoch being unavailable to take the transfer work offered on 25 August 2021 and 7 September 2021 that, for whatever reason, the business no longer placed the same level of reliance on her.

[61] I do not give particular weight to Ms Avery’s evidence that she and Mr Altschwager had shortly prior to 3 November 2021 made a private decision not to offer Ms Murdoch transfer work. Ms Avery’s evidence in this regard was somewhat equivocal. Ms I’Anson was unaware of any such decision 22 though Mr Altschwager in his closing submission said that an employee other than Ms I’Anson had been advised. More materially, Ms Murdoch had not been informed and, in any event, she remained a casual on the books irrespective of whether she was to be offered future transfer work.

[62] Considered overall and on balance, I conclude that Ms Murdoch’s employment as a casual in the twelve months prior to the alleged dismissal, whilst unpredictable given the nature of the business, was nonetheless regular and systematic within the meaning of the FW Act. Section 384(2)(a)(i) is made out.

[63] Did Ms Murdoch have a reasonable expectation of continuing employment on a regular and systematic basis?

[64] Ms Murdoch had been asked by the employer in May 2021 to provide evidence of a flu vaccination (to attend aged care homes for transfers), and did so. 23

[65] Ms Murdoch had worked regular shifts since then and been offered work on 25 August and 7 September 2021.

[66] Ms Murdoch was not subsequently informed by AFF or any person acting on behalf of the employer that her employment circumstances had changed as far as the business was concerned, whether in regard to transfer work or otherwise. She had received no advice or information calling her work or work performance into question.

[67] These factors considered collectively lead me to conclude that in the period prior to her alleged dismissal 24 Ms Murdoch had a reasonable expectation of continuing employment on a similar basis to that which she had worked over the preceding year. Section 384(2)(a)(ii) is made out.

[68] As sections 384(2)(a)(i) and (ii) are satisfied, Ms Murdoch’s service as a casual in the twelve months prior to her alleged dismissal counts for the purposes of the minimum employment requirement.

[69] Moreover, the gaps between the twenty four shifts worked by Ms Murdoch in the year prior to the alleged dismissal did not relevantly interrupt service. As noted, gaps between casual contracts of work do not necessarily break service because it is the employment relationship and not the contract that is assessed for continuity. Nor were they “excluded periods” under s 22 of the FW Act as I do not consider they were relevantly “unpaid authorised absences” given that Ms Murdoch was not absent from rostered work on those days.

[70] For these reasons, Ms Murdoch had been relevantly employed for at least one year prior to the alleged dismissal. She met the minimum employment period under s 384 of the FW Act to be eligible to make an unfair dismissal claim under s 394.

Was Ms Murdoch dismissed?

[71] I now consider whether Ms Murdoch was dismissed.

[72] An employment relationship is inherently contractual. 25 Whilst it is necessary for a contract of employment to exist for there to be “employment” from which a person is terminated, the FW Act’s unfair dismissal jurisdiction concerns itself with termination of the employment relationship and not necessarily termination of the contract.26 Indeed, termination of the employment relationship is a different concept from termination of an employment contract.27 Part 3-2 of the FW Act concerns itself with unfair dismissals from the employment relationship and not simply from an employment contract.

[73] I have found that on 3 November 2021 Ms Murdoch remained a casual ‘on the books’ of AFF. In this sense, an employment relationship existed even though Ms Murdoch’s last shift had been some three months earlier (9 August 2021).

[74] Whether a person has been dismissed is to be considered objectively consistent with the statutory definition of dismissal in s 386 of the FW Act. That an employer does not consider it dismissed a person does not make it so any more than an employee subjectively believing they had been dismissed.

[75] Section 386(1) provides:

“386 Meaning of dismissed

(1) 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.”

[76] Ms Murdoch submits that the email she received at 1.17pm on 3 November 2021 constituted a termination of employment because the employer requested the return of a key and a work vest.

[77] Considering the evidence as a whole and on balance, I do not agree. Whilst it was perfectly understandable that Ms Murdoch, not having worked since 9 August 2021 and given the ambiguous wording of the email, took the requests made that way, the employment relationship was not terminated by that email because:

•  the primary purpose and subject matter of the email was to inform Ms Murdoch that her DVD had been found by Ms Avery; and

•  there were operational reasons for the business seeking the return of the key and the vest. The key was not considered necessary if Ms Murdoch was not to be given future transfer work, and the vest (which was company property) was to be dry-cleaned together with the jacket which was already on the business premises.

[78] Whilst AFF can reasonably be criticised for not having communicated this context to Ms Murdoch, I accept Ms Avery’s evidence that it was an email written in haste and for the primary purpose of advising that the DVD had been located.

[79] That Ms Avery, Mr Altschwager and Ms I’Anson were shocked to learn later that day that Ms Murdoch had taken the email as a termination is consistent with the conclusion that the 1.17pm email was not a dismissal.

[80] However, that was not the end of events on 3 November 2021. Ms Avery’s evidence is clear that upon she and Mr Altschwager being shown the facebook post at about 7.07pm that evening, a decision was almost immediately made by the two owners that Ms Murdoch had, in their opinion, conducted herself unprofessionally causing potential harm to the reputation of AFF, and that Ms Murdoch would no longer be ‘on the books’ or offered further shifts or considered for further shifts.

[81] That AFF decided not to communicate this decision to Ms Murdoch does not detract from the fact that this was a decision which terminated the employment relationship. The fact that no offers of further shifts were made from that time onwards is also clear objective evidence that the employment relationship had ceased. It had ceased at the initiative of the employer. So too is the fact that AFF took no steps to dissuade Ms Murdoch from the belief (however erroneous) that she had been dismissed earlier in the day. It matters not that Ms Murdoch sought to ascertain her rights the next day, and was transparent in communicating her view to the employer by email at 12.09pm on 4 November 2021. Nor does it matter whether AFF were advised to not further communicate with her (I make no finding in that regard). AFF was the employer; they had responsibility for the continuation or termination of employment relationships with their staff.

[82] I conclude that Ms Murdoch was dismissed by AFF within the meaning of the FW Act on the evening of 3 November 2021, but not earlier.

Conclusion

[83] Ms Murdoch’s application is within jurisdiction. Having served the minimum employment period, she was a person relevantly protected from unfair dismissal and eligible to make a claim under s 394 of the FW Act. She was also dismissed. Both jurisdictional challenges by AFF are rejected.

[84] As the application has not been the subject of conciliation, I direct that the matter be remitted to a conciliator for that purpose.

DEPUTY PRESIDENT

Appearances:

Kimberlee Jane Murdoch on her own behalf

Warren Altschwager, on behalf of Uambi 775 Pty Ltd trading as Altschwager Family Funerals

Hearing details:

2022
Adelaide (by video)
10 January

Printed by authority of the Commonwealth Government Printer

<PR737395>

 1   A1 and A2

 2   R1

 3   R6

 4   A7

 5   A8

 6   A6

 7   A6

 8   R2

 9   R3

 10   R5

 11   R4

 12   s 383 FW Act

 13   Holland v UGL Resources Pty Ltd [2012] FWA 3453 at [20]

 14   Shortland v Smiths Snackfood Co Ltd  [2010] FWAFB 5709; Flinders Ports Pty Ltd v Woolford [2015] SASCFC 6 at [74] per Stanley J with whom Kelly J agreed

 15   Bell v Aboriginal Legal Service (NSW/ACT) Limited [2018] FWCFB 6102 at [10] – [11]; see also Yaraka Holdings Pty Ltd v Glijevic (2006) 149 IR 399 at [65] – [68] per Crispin and Gray JJ and at [89] per Madgwick J

 16   A12 column 2 (as amended)

 17   A12

 18   Audio transcript Ms Avery 1 hr 34 min

 19   Audio transcript Mr Altschwager closing submission 2 hr 34 min

 20   Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019 at [14] to [17]; Chandler v Bed Bath ‘N Table Pty Ltd [2020] FWCFB 306 at [11]

 21   Audio transcript Ms Avery 1 hr 37 min

 22   Audio transcript Ms I’Anson 2 hr 07 min

 23   A9

 24   Bronze Hospitality Pty Ltd v Hansson  [2019] FWCFB 1099 at [29]

 25   Broadlex Services Pty Ltd v Australian Workers’ Union [2020] FCA 867 at 6

 26   Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [50]

 27   Visscher v Guidice and Others (2009) 258 ALR 651 at [53] to [5] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]-[22]; Khayam v Navitas English Pty Ltd [2017] FECFB 5162 at [31]-[50]