Fair Work Act 2009
s.394—Unfair dismissal

Srinivas Chakravarthy Mangamuri
v
Linfox Armaguard
(U2021/9126)

Application for an unfair dismissal remedy

Introduction

[1] Mr Srinivas Chaklravarthy Mangamuri (Applicant) worked for Linfox Armaguard Pty Ltd (Respondent) as a Cash Processor until his dismissal which took effect on 23 September 2021. He began working for the Respondent on 25 February 2002. The Applicant maintains that his dismissal was unfair and has applied for a remedy under s 394 of the Fair Work Act 2009 (Act). At the time of his dismissal, the Applicant was in Hyderabad, India where he had been for some time. International travel restrictions imposed from 9:00 pm on 20 March 2020¹ in response to the COVID-19 pandemic made returning to Australia difficult. Although exemptions for Australian citizens, permanent residents, and their immediate family, including spouses, legal guardians and dependants would enable such persons to enter Australia, it is notorious that a combination of limited flight availability, high demand and the level at which available ticket pricing was being fixed made returning to Australia by those exempt who wished to return difficult. The Applicant is a permanent resident of Australia² and so fell within the available exemptions.

[2] The Applicant remains in Hyderabad³ but says he would return to Australia if he were reinstated. He has not attended work since at least 4 April 2019 and the nature of his position did not allow for the functions of the position to be undertaken remotely.⁴

[3] I have determined that the Applicant’s dismissal was not unfair and that his application for a remedy should be dismissed. My reasons follow.

Factual background

[4] Except as indicated below, the material facts are not seriously in dispute.

[5] The Applicant left Australia to travel to Hyderabad on 10 February 2019 to attend to the care of his father, whose health was deteriorating.⁵ He returned to Australia on 24 March 2019 and attended work.⁶ He returned to Hyderabad on 4 April 2019 to attend to the care of his mother, and father who by then had been hospitalised⁷ and has not returned to Australia.

[6] The Applicant applied for and used accrued personal and annual leave to cover various of the periods of his absences.⁸ On 25 July 2019 he applied for 20 weeks of annual leave commencing on 8 May 2019.⁹ This was approved. The period of leave would have ended on 25 September 2019.

[7] Mr Stephen Dickson is the Cash Processing Manager for the Respondent. He gave evidence that on 9 November 2019, the Applicant commenced unauthorised unpaid leave.¹⁰ The Applicant’s evidence was that the period of leave which commenced on 8 May 2019, concluded on 25 September 2019 and that thereafter, at least for a period, he continued to be paid whilst on leave.¹¹ The Applicant said that he “just kept quiet because of [his] situation at home [and] [he] assumed the leave lasts till 15 March 2020 approximately”.¹² That the Applicant commenced a period of paid annual leave on 8 May 2019 which according to the leave period for which he applied would be for 20 weeks leave, accords with the Applicant’s evidence that that period of leave would have ended on 25 September 2019. However, according to leave records pertaining to the Applicant, for the period 8 May 2019 to 23 September 2021 produced by the Respondent,¹³ the Applicant was on paid annual leave for the period from 8 May 2019 to 7 November 2019 inclusive. Thereafter the Applicant was on what is described in the records as unapproved unpaid leave. The records available are not inconsistent with the Applicant’s evidence. The Applicant has acknowledged that in verifying his payslips he was not paid from 9 November 2019.¹⁴

[8] It seems uncontroversial and I am satisfied that since 7 November 2019 (apart from a period for which leave was retrospectively granted discussed further below) the Applicant was not being paid for his absences.

[9] On 16 January 2020 Mr Dickson sent an email to the Applicant attaching correspondence about the Applicant’s continued absence from work and requested that he respond within 14 days.¹⁵ Relevantly, the correspondence provided:

We have attempted to contact you via email since 21 October 2019 to seek your explanation for your unapproved leave and to date we have not received any response from you.

You have failed to attend for work for over two months since the 21 October 2019 nor have you made any contact with your Line Manager at Linfox Armaguard to provide any explanation for your unauthorised absence. In such circumstances, we have concluded that you do not intend to be bound by the terms and conditions of your employment contract and no longer wish to work for the Company.

If we do not hear from you within 14 days of the date of this letter, we will consider your employment terminated by way of abandonment of employment as of 17 January 2020.¹⁶

[10] Given the periods of paid leave pertaining to the Applicant’s absence disclosed earlier, the reference in the correspondence to 21 October 2019 is erroneous.

[11] The Applicant provided a response by email on 29 January 2020 and included in the response an application for long service leave for the period 9 November 2019 to 15 February 2020.¹⁷ On 31 January 2020 Mr Dickson issued the Applicant with a written warning which was in the following terms:

This letter serves to acknowledge receipt of an email from you dated 29 January 2020 in response to the letter dated 17 January 2020 which sought a response from you regarding your unauthorised absence from work since 21 October 2019.

I have considered your email response which also accompanied a retrospective Long service leave application form, requesting it to be backdated from 11 November 2019. I conclude the following:

•  You have been on unapproved leave since the 8 November 2019

•  You have failed to provide any response for your absence in your email dated 29 January 2020

•  Your retrospective LSL application form is not approved

•  You have breached Company Policy regarding Long Service Leave

•  You have breached your employment obligations as a Permanent full time employee

I am therefore issuing you with a Written Warning on the grounds of misconduct being a breach of the terms and conditions of your employment.

You are therefore directed to return to work on Monday, 3 February 2020 at 13:24. This is a lawful and reasonable directive, and failure to comply with this may lead to further disciplinary action up to and including the termination of your employment.¹⁸

[12] The Applicant did not return to work on 3 February 2020 as directed. The Applicant gave evidence that on 2 February 2020 he sent an email to Mr Dickson explaining that he would not attend for work on 3 February 2020 because he had assumed the role of primary carer of his father. In the same email the Applicant indicated that he “will be utilizing all [of his] long service leave and the application will be sent in due time for the remaining leave [and he] assume[s] [his] leave lasts till 15 March 20 approximately”.¹⁹ The Applicant says that he was issued a second warning letter on 6 February 2020 in which Mr Dickson directed that the Applicant return to work on Tuesday, 11 February 2020 at 13:24.²⁰

[13] On 6 February 2020, the Applicant sent an email to Mr Dickson in the following terms:

I am Sri from Hyd and I am going on carers leave from 11 February 2020 to provide medical care to my father as mentioned before in the previous email and the relevant medical certificate will be sent ASAP.²¹

[14] On or about 10 February 2020 the Applicant appears to have completed two “Application for Leave” forms.²² The first leave request was for long service leave for the period of 8 November 2019 to 10 February 2020.²³ The second leave request was for a combination of carer’s leave for the period 11 February 2020 to 20 February 2020, annual leave for the period 20 February 2020 to 21 February 2020 and long service leave for the period 24 February 2020 to 13 March 2020.²⁴ These applications were sent to Mr Dickson on 11 February 2020 attached to an email from the Applicant.²⁵ The text of this email was as follows:

I am Sri and here with sending the leave application forms and medical certificates to cover the relevant leave periods.

Please convert my long service leave to carers leave from 8 November 2019 to 10 February 2020 and the remaining annual leave, long service leave from 20 February 2020 to 13 March 2020 as well. I saved the leave to use it during difficult time like this.

Please let me know if there are any defects in the application forms and certificates, they will be rectified. If you need more information, please let me know and it will be provided.

The payments can be processed for the leave period from 8 November 2019 to 10 February 2020 in the coming pay cycle as the leave is being used and the relevant application form and medical certificate is being enclosed.

For leave period from 11 February 2020 to 13 March 2020 the payments can be made weekly in the respective weekly pay cycle. I am in need of money badly to pay my personal debt, expenses and to book the ticket. I am requesting only my earnings to be paid.

Finally, among all the requests mentioned above let me know, what is acceptable to Armaguard and my returning date to work. You have to consider that I am living overseas and caring for a patient and need to give sufficient time to make arrangements for his care and my travel.

According to my knowledge the annual leave finished on 24 September 19. I was under the assumption the leave was getting deducted from annual leave even after the above mentioned date and the same was continuing with the long service leave as well (refer to my email dated 29 July 19 and the leave form is enclosed). The latest annual leave form dated 25 July 2019 makes the previous annual leave form dated 1 April 2019 will be invalid. The leave forms were abused and mismanaged. You don’t have annual leave request form from me from 25 September 2019 to 7 November 2019 and the leave is unauthorized. I am just surprised, why the same was not continued with long service leave.

I furnished all the relevant forms and medical certificates for carers leave from 18 February 19 to 15 March 19 and from 4 April 19 to May 19. You haven’t paid my leave on time and paid it after 3-4 months later and given me so much hard time.²⁶

[15] The Applicant sent a further email to Mr Dickson on 24 February 2020 in the following terms:

I am Sri from Hyd. I sent the leave forms and the necessary attachments on 10 February 20 and since then there was no information from you. I was expecting the pay for the leave period from 8 Nov 20 to 10 Feb 20 on 17 Feb 20 and it was not paid.

Will please let me know when I am going to get paid? If there are any specific reasons to hold my leave payment, you can let me know.

I have noticed the annual and sick leave accruals were reduced from my current week payslip (24 Feb 20) without payment. Can you please clarify me on this.²⁷

[16] Ms Maria De Luca is a Human Resources Advisor with the Respondent. On instructions from Mr Dickson, Ms De Luca sent correspondence to the Applicant dated 27 February 2020, which relevantly provided:

RE: Allegations of Misconduct

The Company wishes to formally notify you of its concerns in relation to your conduct. The allegations made against you in relation to your conduct are as follows:

1. You failed to return to work after a period of annual leave and as such have been on an extended period of unauthorised and unapproved leave since the 9 November 2019.

2. The only attempt you made to contact the Company in this time followed an abandonment of employment letter sent to you and you failed to provide any explanation for your absence.

3. You continue to fail to meet your employment obligations as a Permanent full time employee to attend for work as directed on two (2) occasions which resulted in two warnings issued to you, dated 31 January 2020 and 4 February 2020.

4. You subsequently requested to take retrospective leave, which is in breach of the Company policy.

5. You continue to request LSL retrospectively, even as recently as per emails dated 11 and 24 February 2020 despite being advised that your retrospective requests are not in accordance with the Company LSL policy.

It is our belief that you do not intend to be bound by the terms and conditions of your employment with Armaguard and that you do not intend to return to work in the very near future in accordance with your regular roster.

We request that you provide a written response to the allegations/concerns listed above by close of business Monday 2 March 2020.

We note you are currently subject to two warnings dated 31 January 2020 and 4 February 2020 in relation to your unauthorised absence from work and failure to attend for work as directed.²⁸

[17] Ms DeLuca’s email accompanying the above correspondence responded to some of the matters raised in the Applicant’s email of 24 February 2020 as follows:

Please see attached show cause letter regarding allegations of misconduct for your response by close of business Monday 2 March 2020.

In regard to your query below, your retrospective leave requests have not been granted as communicated to you via letters emailed to you on 31 January and 4 February 2020.

Furthermore, your annual and sick leave were incorrectly being accrued during your unauthorised and unapproved leave (i.e. 9 November 2019 to date). It has now been corrected.²⁹

[18] On 2 March 2020 the Applicant responded to the allegations of misconduct as follows:

RE: Allegations of Misconduct

To claim my own earnings I have to face allegations and submit explanation. The allegations made against me and the responses are listed below.

1. You failed to return to work after a period of annual leave and as such have been on an extended period of unauthorised and unapproved leave since the 9 November 19.

According to me the leave was finished on 27 September 19 (refer email dated 29 July 19 listed below and the leave form is enclosed).

Leave period 8 May 2019 – 27 September 19 (duration 20 weeks)

The leave was getting deducted from annual leave even after the above mentioned date and was under the assumption, the same was continuing with the long service leave as well (Refer email dated 2 Feb 20 and is listed below). I haven’t checked my payslips and was not aware of this situation. I was busy with caring duties and hospital visits.^{30 31}

. . .

2. The only attempt you made to contact the Company in this time followed an abandonment of employment letter sent to you and you failed to provide any explanation for your absence.

After seeing the abandonment letter, I checked my payslips and was not getting paid from 8 November 19 and sent a leave request form but didn’t provide the reason.

I have clearly mentioned the reason that I was caring for my ill father in the subsequent email. I have informed that my father was suffering with memory issues, unable to care himself and attend medical appointments. He needs a carer for life time. (Refer email dated 2 Feb 20 listed above)

The notice for sick leave was given on 6 February 20 and the relevant medical certificates were being sent on 11 February 20 and the emails are listed below.³²

. . .

3. You continue to fail to meet your employment obligations as a Permanent full time employee to attend for work as directed on two (2) occasions which resulted in two warnings issued to you, dated 31 January 2020 and 4 February 2020.

I have clearly mentioned that my father was ill and caring for him in the mail dated 2 February 20 but in spite of that a warning letter is being issued again on 4 February 20. (Refer the mail listed above). The patient needs 24 hours constant monitoring of general condition, blood pressure, medicating at regular intervals, doing dialysis every 6 hours etc. A slight negligence can lead to infection and can be fatal. It is very hard to get a person for care giving like this with so much risk to life. I have no choice as he is my father. I can’t leave him like that and walk away.

4. You subsequently requested to take retrospective leave, which is in breach of the Company policy. 5. You continue to request LSL retrospectively, even as recently as per emails dated 11 and 24 February 2020 despite being advised that your retrospective requests are not in accordance with the Company LSL policy.

The leave is there to use during difficult time like this. There is nothing special with LSL policy and is mentioned in the EBA as below.

LONG SERVICE LEAVE

27.2 The taking of long service leave will be subject to the normal leave requisition approval processes.

The leave request for the period from 11 February 20 to 13 March 20 is not retrospective and must be considered. Sufficient notice is being provided for the sick leave and LSL, the relevant leave request forms and medical certificates are enclosed. If you need any more information it will be provided.

The problem is with leave request from 8 November 19 to 10 February 20 and you need to consider this as there is a misunderstanding and fault on both sides. The amount of responsibility I have as an employee, the same amount of responsibility is with Steve (Cash Manager) as well. He should have issued the work abandonment notice on 9 November 19 itself, so that this situation would not have risen. Since the time has lapsed, we can’t go back. The mistake is on both sides.

I applied for the leave from 18 Feb 19 to 15 March 19 on time, given sufficient notice and supplied all the relevant certificates. I was paid after 3 months of leave utilisation probably on 15 June 2019(dates are not accurate) on repeated requests. It was back dated then but now it is not possible.

I am enclosing the doctor’s prescription and relevant medical records for the leave period only (number of attachments are more) as evidence that I am caring for my father. If you need all the information since February 19, I can provide it.

I have furnished all the details whatever I can and if any more information is needed you can let me know.

You can verify with doctors and the hospital. You are welcome to come here and look for yourself at the situation, how difficult it will be to care a patient and the difficulties in seeing the doctors.

I have organised and trained a person to care for my father and can come back to work.

Once you clear the application forms and make the payments, I can book my tickets.³³ [Underlining added]

[19] Mr Dickson gave evidence that the above correspondence was sent to him by Ms DeLuca on the same day she had received it. He says that the Applicant’s response affirmed that the Applicant was still in India, and that he was still caring for his father and that his intention was to continue carer’s leave.³⁴ These last two propositions are plainly not borne out by the final two paragraphs of the Applicant’s correspondence. Mr Dickson has misunderstood the correspondence and self-evidently did not properly review it before giving his evidence even though he attached the correspondence to his witness statement.³⁵

[20] Mr Dickson instructed Ms Melita Demirova, the Group Manager – Industrial Relations for the Respondent to respond to the Applicant’s correspondence of 2 March 2020, which was not given until 9 June 2020.³⁶ Mr Dickson explained the delay by reference to adjustments that the Respondent had to make as a consequence of the COVID-19 pandemic and a restructure during this period of the Respondent’s human resources department a consequence of which was that several key staff had their employment terminated by reason of redundancy.³⁷ Although undoubtedly preoccupied by these matters, the delay in circumstances where the Respondent was asking the Applicant, in effect to show cause why he should not be dismissed, is unsatisfactory.

[21] The 9 June 2020 correspondence to the Applicant relevantly provided:

By way of background you were on approved annual leave from 10 September 2018 until 8 November 2019.

I refer to your email to Stephen Dickson, Cash Processing Manager, dated 2 March 2020.

Having considered your response and leave applications submitted, Armaguard has approved your request for paid carer’s leave from 11 November 2019 to 13 March 2020. The monies on account of your carer’s leave entitlement will be paid to your previously nominated bank account in the next pay cycle.

I note that you have failed to make any contact with a representative of Armaguard since 16 March 2020 and have not provided any indication of your proposed return to work date. Such behaviour is indicative of an intention to no longer be bound by the terms of the employment contract nor to continue with the employment relationship.

Therefore, and on that basis, you are directed to respond to this letter by no later than 5pm AEST on Friday, 11 June 2020 and advise of your anticipated return to work date. As you will have been on unauthorised and unpaid leave for more than twelve weeks, you are also directed to provide evidence explaining your unapproved absence.

This is a lawful and reasonable direction and failure to comply within the time period set will be deemed misconduct and may result in disciplinary action being taken against you, including a formal warning being issued or the termination of your employment.³⁸

[22] As I earlier noted, and as the correspondence above discloses, the Respondent retrospectively approved leave for the Applicant during the period 11 November 2019 to 13 March 2020.

[23] The Applicant responded by email on 12 June 2020 in the following terms:

I am Sri from Hyderabad and noted the contents of your mail.

Can you please let me know the reasons behind for Armaguard to take so long to make my leave payment and to approve the leave forms? If you can provide me the reasons at the earliest I can furnish my detailed explanation.

Please let me know regarding my employment status and I am not on job keeper payment. How many days of work are you going to provide? I don’t have much leave. I don’t have money. What sort of assurance are you going to give in terms of income and the duration? I have weekly expenses of $1000 which is average for a person living in Australia. How the payments are going to be made either Armaguard pays for it or Job keeper payments are going to be made? Am I eligible for job seeker payment? What safety measures are in place for my protection against infections at work place? Do we have work to cater all the employees? I am a full time employee. Please let me know when I can come back to work. I am not aware of the Australian quarantine rules and regulations that are in place at present.

You have to provide me any more details if I should be aware of before I commence my work.³⁹

[24] Self-evidently the Applicant’s response did not provide his anticipated return to work date as directed by the Respondent.

[25] No further step was taken by the Respondent for a further 13 months. Mr Dickson said that “following a series of operational issues, [the Applicant’s] situation dropped off my radar”.⁴⁰ The lack of urgency and inattention given to the ‘Applicant’s situation’, viewed in the light of the threat of possible dismissal and the Respondent’s demand for the Applicant to provide it with an anticipated return date, is quite remarkable and frankly unacceptable. On 18 August 2021, Mr Dickson sent an email to the Applicant attaching a letter, relevantly, in the following terms:

I refer to your absence from work since 21 October 2019 and your unauthorised unpaid leave which commenced on 9 November 2019.

Armaguard has not received any contact from you since 11 June 2020.

As such, Armaguard instructs you to respond to this correspondence by 4:00pm (AEST) on Tuesday, 31 August 2021 confirming your:

•  Current living situation including your current location;

•  Whether you intend to return to your position with Armaguard of a Full time Cash Processor;

•  Your intended return to work date; and

•  Reasons as to why you have not made contact with Armaguard since 11 June 2020.

Your absence from work and failure to communicate with Armaguard is prima facie evidence of you abandoning your employment with Armaguard. In effect it appears that you have repudiated your contract of employment.

As such you have until 4:00pm (AEST) on Tuesday, 31 August 2021 to contact me...⁴¹

[26] It cannot be permitted to pass without noting the suggestion that the Respondent “has not received any contact from [the Applicant] since 11 June 2020”, while factually correct is both self-serving and misleading in that it seeks to ‘sheet home’ sole responsibility for the absence of any communication to the Applicant. The Applicant replied, perhaps unsatisfactorily, to the Respondent’s last correspondence. The ball was with the Respondent, which it dropped or in Mr Dickson’s words, the Applicant’s situation dropped off his radar.

[27] The Applicant’s response was given by email on 31 August 2021 as follows:

I am Sri from Hyderabad and responding to your mail regarding work abandonment. Please refer to my correspondence with you and Armaguard, there was no response from you and from Armaguard. The mistake is on your part and Armaguard.

Let me know when I should return to work and before that you have to provide me Mr. Peter Fox correspondence details to bring the workplace issues to his attention. Bullying, Abuse of power and position, mismanagement and OHS issues because of which the lives are lost, families destroyed, careers ruined and livelihood lost. All the facts and evidences are on record and these are serious and important to be rectified for the well being of Armaguard and its Employees. It’s unlawful and not acceptable.

I need the email address of Peter to send the list of issues and I need written assurance and measures taken to rectify them in order to recommence my work. Please make an appointment with Mr. Peter Fox and you and your team can avail this opportunity to brief him about me.

Waiting for your reply with Peter Fox, email address.

[28] While, as earlier noted, I do not accept that the Applicant was solely responsible for the absence of communication following his email of 11 June 2020, I also do not accept as suggested in the Applicant’s correspondence above that the responsibility lay solely with the Respondent. In his correspondence of 2 March 2020, the Applicant suggested that he had made arrangements for the ongoing care of his father and that he was ready to return to work, yet there is no evidence that he took any step to enquire about the availability of flights to facilitate his return to Australia or about any travel restrictions which might inhibit his timely return. Much less is there any evidence of the Applicant communicating the outcome of such enquiries to the Respondent. Moreover, the Applicant’s suggestion that the Respondent should let him know when he should return to work, viewed in the context of the several requests that the Respondent had made of him to indicate his likely intended return date, bears all the hallmarks of obfuscation. Plainly, the Respondent wanted the Applicant to return to work immediately and the Applicant knew or ought reasonably to have known that that was the case.

[29] Mr Dickson said that after reviewing the Applicant’s reply he formed the preliminary view that the Applicant’s employment should be terminated.⁴² On 1 September 2021 he wrote to the Applicant in the following terms:

On 9 November 2019 you commenced unauthorised unpaid leave from Armaguard.

On 18 August 2021 you were sent an ‘Abandonment of Employment’ letter requesting you provide information on your current living situation including your current location, whether you intend to return to your position with Armaguard of a Full time Cash Processor, your intended return to work date and reasons as to why you have not made contact with Armaguard since 11 June 2020.

On 31 August 2021 you responded to my correspondence by email as follows:

. . .

Based on your email correspondence dated 31 August 2021, extended period of unauthorised leave, your current location being Hyderabad, India and failure to provide Armaguard with your intended return to work date, it appears you have repudiated your contract of employment with Armaguard.

Armaguard is now considering the termination of your employment for contract repudiation, however before any final decision is made, you are invited to provide Armaguard with any further material relating to your arrival back to Australia and ability to perform your role, that being, a Cash Processor.

You are requested to provide this evidence to Armaguard by 5:00pm (AEST) Wednesday, 15 September 2021. If you do not provide any additional evidence or evidence at all, Armaguard will make a decision regarding your ongoing employment based on the evidence available.

. . .⁴³

[30] The Applicant responded by email on 15 September 2021, relevantly as follows:

. . . I will be returning to my job when the International borders open and I assume it will be around mid of January 2022 as everything planned by the Govt. of Australia and India works out. At present Qantas says they will be flying to 7 countries from 18 Dec 2021 and didn’t include India and things are changing day by day. Ballarat has gone into lockdown and who knows what happens tomorrow.

I have been in contact with arm the guard and it failed to provide me an exact date to return to work. Please refer to all my previous emails. The mistakes are on your and our mudguard part and start blaming me. It’s very bad.

I am not repudiating my contract and will be returning to my role after resolving the workplace issues with Peter Fox.

In the email you are asking me to provide evidence and I don’t understand that. What sort of evidence you need and expecting from me? I have a passport and when the airline start flying ticket hours’ time. It is much simpler rather than explaining.⁴⁴

[31] The Applicant did not give any fixed date for his return, but he suggested that he might return sometime after mid January 2022, and as is apparent, the Applicant appears only to have focused his attention on available flights to Australia by reference to flights operated by Qantas. There is nothing in his response (nor in the evidence before me) which suggests that he made any enquiries about his ability to return to Australia given the border restrictions or about the availability of flights with other carriers which might have facilitated his timely return.

[32] By letter dated 23 September 2021 Mr Dickson advised the Applicant of his dismissal without notice “for contract repudiation - inability to render substantial performance”.⁴⁵

[33] In the context of this factual background, I turn to consider whether the Applicant’s dismissal was unfair.

Whether dismissal was unfair

Protection from unfair dismissal

[34] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act and that the dismissal was unfair. Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal as follows:

“382 When a person is protected from unfair dismissal

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

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

(b) one or more of the following apply:

(i) a modern award covers the person;

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

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

[35] There is no dispute, and I am satisfied, that the Applicant was, on 23 September 2021, protected from unfair dismissal within the meaning of s 382. The Applicant’s dismissal will have been unfair if, on the evidence, I am satisfied that all of the following circumstances set out in s 385 of the Act existed:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[36] The is no dispute that the Applicant was dismissed at the initiative of the Respondent within the meaning of s 386(1)(a) of the Act. The Respondent is not a Small Business employer, so the Code is not engaged, and the Applicant’s dismissal was not a case of genuine redundancy within the meaning of s 389.

[37] The question whether the Applicant’s dismissal was harsh, unjust or unreasonable is considered below.

Harsh, unjust or unreasonable

[38] A consideration of whether a dismissal was harsh, unjust or unreasonable, requires the following matters in s 387 of the Act be taken into account:

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

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

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

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

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

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

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

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

[39] A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ and is a matter which the decision maker is bound to take into account.⁴⁶ To take into account the matters set out in s 387 means that each of the matters must be treated as a matter of significance in the decision-making process⁴⁷ and requires the decision maker to evaluate it and give it due weight, having regard to all other relevant factors.⁴⁸ In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualifications, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.⁴⁹

[40] As to the phrase “harsh, unjust or unreasonable”, a dismissal may be harsh but not unjust or unreasonable; it may be unjust but not harsh or unreasonable; or may be unreasonable but not harsh or unjust. There will be cases where these concepts will overlap. In any given case all the concepts may be present, or only some, or none. A dismissal may be unjust because the employee was not guilty of the misconduct on which the employer acted. It may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer. And may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.⁵⁰ But the assessment of whether any or all of these concepts is present in a given case of dismissal is undertaken in a statutory context and it is the matters set out in s 387 of the Act to which regard must be had in assessing whether a particular dismissal was harsh, unjust or unreasonable.

[41] Before turning to the matters set out in s 387 of the Act, I should note that the Applicant has not properly engaged, in his various written submissions, with the matters in s 387, or with how any of these matters should be assessed in light of the evidence, or with the weight I should ascribe to any particular matter. In summary, he contends that his dismissal was unfair for several or for a combination of several reasons.

[42] First, he suggests that his dismissal was unfair because the Respondent failed or failed to promptly deal with his applications for leave.⁵¹ These leave applications were retrospectively submitted on 11 February 2020, in circumstances where his approved leave had concluded on 7 November 2019. He says he did not realise his leave had concluded until 16 January 2020, a proposition I do not accept given the leave application he signed on 25 July 2019 which was for a period of 20 weeks commencing on 8 May 2019.⁵² The truth of the matter is, as the Applicant said in his evidence, he “just kept quiet because of [his] situation at home[and] [he] assumed the leave lasts till 15 March 2020 approximately and busy with caring work to [his] ill father”.⁵³ Moreover, although some retrospective leave was later approved, Ms De Luca’s email of 24 February 2020 made clear that the Applicant’s “retrospective leave requests have not been granted”.⁵⁴ In any event the need for further leave to care for his father had dissipated since on the Applicant’s evidence he had made arrangements for others to provide the necessary care.⁵⁵

[43] On 2 March 2020, the Applicant made clear that he could now return to Australia because he had made arrangements for his father’s ongoing care. This was well before any international travel restrictions to Australia were imposed. In truth, it seems likely from the Applicant’s correspondence of 2 March 2020 that he lacked the funds to make arrangements to travel to Australia, but this is hardly the Respondent’s responsibility. The Applicant could and should have applied for further leave when the original period of leave had expired, but he did not. In any event in that correspondence the Applicant says that once Ms De Luca “clear[s] the application forms and make the payments, [he] can book [his] tickets”. But there is no evidence that once the leave was later approved and paid, the Applicant took any step to book any flights to return to Australia.

[44] Second, the Applicant suggests that he could not travel to Australia because of international border closures.⁵⁶ As noted earlier the Applicant says he is a permanent resident of Australia and as such he fell within the exemptions available to return to Australia. He provides no evidence of any attempts he made to obtain permission to return through the available exemptions nor any attempts to book a flight to return.

[45] Third, he contends that he was willing to return to work and to provide a return to work date but wanted information from the Respondent about how his wages were going to be paid and the hours or days on which he would be working and that he needed more details if he was going come back to work.⁵⁷ This was not a barrier to his return. The Applicant was a full-time employee of the Respondent, there is no suggestion by the Respondent that it was considering making his position redundant. Payment for work performed would have been made to him as a full-time employee unless the Respondent gave him an appropriate jobkeeper direction. And then only if the Applicant was a participant in the then prevailing jobkeeper scheme.⁵⁸ There is no suggestion that the Respondent was likely to do so.

[46] Fourth, he says he needed the Respondent to specify a date by which it wanted him to return to work.⁵⁹ This contention is devoid of merit since the Respondent had on several occasions requested the Applicant provide an anticipated date of return. Moreover, it had directed the Applicant, on more than one occasion, to return to work by a specified date. Implicit, if not explicit, in these requests and directions was the fact that the Respondent wanted the Applicant to return to work immediately. After all, the Applicant was on unpaid and unauthorised leave at the time the requests or directions were made. He had not applied for any unpaid leave from work for any period outside of the periods for which leave was granted, and only applied for periods of paid leave at a time well after the original period of approved leave had passed.

[47] Fifth, the Applicant says that he gave the Respondent an estimated date of return, that is by mid January 2022 and if the Respondent was dissatisfied with that date it should have provided him with an alternative date to return and so the decision to dismiss him was unnecessary and extreme.⁶⁰ This submission also lacks merit. The estimated date proposed by the Applicant was still many months away. This in itself was unsatisfactory. Moreover, the Respondent had, as noted earlier, on several occasions given the Applicant instructions about the date and time it expected him to resume work – all to no avail. The suggestion that in these circumstances it should have once again given him a date on which it wanted him to return is to say the least disingenuous.

[48] Sixth, the Applicant says that the Respondent chose to terminate his employment because he was requesting Mr Fox’s email address in order to raise workplace issues with him.⁶¹ This submission is also devoid of merit. There is no evidentiary foundation for the submission nor is there any evidentiary foundation for the workplace issues identified by him as being issues of genuine concern. Moreover, the Applicant appears to have belatedly raised these workplace issues as a barrier to his return and had not made mention of any of these issues in his earlier correspondence to the Respondent. The issues appear to me to be proffered by the Applicant as a distraction from the issue that was being raised by the Respondent. But even if there was substance to some of the matters he wished to raise, there are appropriate mechanisms available under the applicable industrial instrument or to the extent relevant, the applicable Occupational Health & Safety law. But the mere existence of such issues presented no barrier to his return to work.

[49] I will deal with some of the other matters raised by the Applicant as is relevant below.

Valid reason – s 387(a)

[50] The essence of a valid reason is that the reason is a sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced.⁶² The issue is whether there was such a valid reason related to the Applicant’s capacity or conduct. Whether conduct which founds a valid reason occurred is to be determined based on the evidence in the proceedings assessed on the balance of probabilities taking into account the gravity or seriousness of the allegations.⁶³ The test is not whether the employer, after a sufficient investigation, had a reasonably held belief that the conduct occurred.⁶⁴ A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination.⁶⁵ It is not necessary to show the misconduct as sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).⁶⁶ An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.⁶⁷

[51] As noted earlier, the Respondent’s reason for dismissal was given as “contract repudiation - inability to render substantial performance”.

[52] The failure to comply with the directions given by the Respondent to the Applicant at various points throughout 2020 to return to work and/or to provide a date on which he intends to return to work are not matters on which the Respondent can now rely to as founding a valid reason. This is because it failed to act until more than 13 months after the last of those events and because it changed its position by first denying then approving the Applicant’s retrospective leave requests. Thus, the Applicant was on approved leave during periods when he had been directed to attend for work. In my view, the Respondent has waived its right to terminate the Respondent’s employment on those grounds. But even if it has not, the passage of time between the known (mis)conduct means that the act of dismissal would not be for a reason that is sound, defensible, or well-founded.

[53] That said, these circumstances are relevant in assessing whether at the time of the Applicant’s dismissal there was a valid reason for the dismissal. Ultimately, the Respondent required the Applicant to return to work. He was absent from work without approval for any leave (paid or unpaid) for a significant period. Attempts to get clarity about his intended return date were met with obfuscation and distraction. He was not likely to return to Australia soon if at all. He is yet to return. He provided no evidence to the Respondent of any attempts to return to Australia or attempts to make such arrangements. Because of his location in Hyderabad he was not able to attend for work and perform his duties. It seems plain enough from the various exchanges discussed above, the Applicant was also not ready, nor willing (or at least excessively reluctant) to return to work to perform the job into which he had been employed. The situation had to be brought to a head. Whether by design or inadvertence, the Respondent had for some time tolerated the position of the Applicant’s absence and his repeated failure, despite directions, to return to work. That the Applicant might have had some difficulty in returning to Australia is a matter almost entirely of his own making. He had the opportunity to return to Australia in early March 2020, before international travel was restricted. His alleged financial position at the time (a matter about which I have no probative evidence) was likely brought about by his failure to apply for leave immediately after 7 November 2019 and his attitude of keeping quiet about the leave situation.

[54] On the evidence, at the time of his dismissal the Applicant was not ready, willing or able to attend for work, that position had pertained for quite some time, the prospect of him returning to work in the near future was vague and this provided a valid reason for his dismissal. The fundamental employment obligation that, as a full-time employee, the Applicant attend for work and perform work for the Respondent, was not being, and could not be met. I am therefore satisfied there was a valid reason for his dismissal. The valid reason related to both his conduct and his capacity.

[55] That there was a valid reason for the Applicant’s dismissal weighs against a conclusion that his dismissal was unfair. And in the circumstances discussed above, it does so significantly.

Notification of the reason for dismissal and opportunity to respond – s 387(b) – (c)

[56] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,⁶⁸ in explicit terms,⁶⁹ and in plain and clear terms.⁷⁰ This is an element which may be described as procedural fairness in order that an employee may respond to the reason. Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment in order to provide them with an opportunity to respond to the reason identified. Section 387(b) and (c) would have little practical effect if it was sufficient to notify an employee and give them an opportunity to respond after a decision had been taken to terminate employment.⁷¹ An employee protected from unfair dismissal should also be given an opportunity to respond to any reason for dismissal relating to the employee’s conduct or capacity.

[57] The Applicant says that “procedural fairness in termination was not followed”.⁷² Given the steps the Respondent took since 18 August 2021 (not taking into account the course of correspondence throughout 2020) to alert the Applicant to the real possibility of his employment being terminated because of his inability or refusal to attend for work and the opportunities given for him to respond, this submission is hollow – it has no substance. On the evidence earlier recounted, the Applicant was notified of the reason for the dismissal and was given an opportunity to respond. That this is so weighs against a conclusion that the dismissal was unfair.

Any unreasonable refusal by the employer to allow the person to have a support person – s 387(d)

[58] There were no in person discussions relating to the dismissal due in large part to the Applicant’s location. Communications throughout the period of his absence, including those relating to his dismissal, occurred in writing by email. Consequently, this consideration does not arise.

Warnings regarding unsatisfactory performance – s 387(e)

[59] The Applicant’s dismissal was not related to any unsatisfactory performance and so this consideration does not arise.

Impact of the size of the Respondent on the procedure followed – s 387(f)

[60] The consideration in s 387(f) is not concerned with standards but with the likely impact on the procedures followed of the size of the employer’s enterprise. The Respondent is a large and well-resourced employer. Its size and available resources meant that it had available to it the capacity to obtain advice. But its size did not impact on the procedure it adopted to effect the Applicant’s dismissal. This consideration weighs neutrally.

Absence of dedicated human resources management specialist/expertise on procedures followed – s 387(g)

[61] This consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have impacted on the procedure it adopted to effect the dismissal. The Respondent has dedicated human resources management specialists or expertise available to it. The consideration does not arise.

Any other matters that the Commission considers relevant – s 387(h)

[62] The Respondent does not contend that any other matter is relevant.

[63] As for the Applicant, he says the following matters are relevant.

[64] First, the Applicant contends that notification of the dismissal by email was not appropriate.⁷³ There was nothing in the manner that the Respondent notified the Applicant of his dismissal that was inappropriate in the circumstances. As already noted, the Applicant was in another country and for the entirety of his absence, all communication had been by email. The manner of the communication does not weigh in favour of a conclusion that the Applicant’s dismissal was unfair.

[65] Second, the Applicant contends that his job is still vacant and has not been filled and that there is work for him to perform.⁷⁴ No evidence is offered for this contention. However, if correct, it is not relevant to the question whether the Applicant’s dismissal was unfair. The Applicant remains in Hyderabad and apart from the bald assertion that he would return to Australia if reinstated, there is no evidence of any step taken to facilitate a return and in my view his failure to take any step to return to Australia speaks much more reliably to his actual intention than does the assertion.

[66] Third, the applicant points to the following matters⁷⁵:

•  He says he was dismissed during pandemic lockdown when the border closures were in effect. This matter might be relevant if the Applicant had provided evidence of his unsuccessful attempts to travel to Australia to return to work. But he has not done so. Consequently, it does not weigh in favour of a conclusion that the Applicant’s dismissal was unfair. In any event, an employer cannot be expected to keep a person in its employ for long periods of unpaid and unauthorised leave during which the person is overseas and prevented from returning to work. This would be so even if the circumstances where wholly outside the person’s control. But as I have earlier indicated the position in which the Applicant found himself was mostly attributable to his inaction during the latter part of 2019 and his failure to return to Australia in earlier March 2020, having by then arranged for alternative care for his father.

•  He says he could not fulfil his contractual obligations during the lockdown period because he was in Hyderabad, India because of pandemic lockdown. This matter does not weigh in his favour since he could have returned in early March 2020 but did not do so. And as already noted, there is no evidence about any unsuccessful attempts the Applicant made to return to Australia. Thus, there is no evidentiary basis for the submission.

•  He says he was “stuck” in Hyderabad because the Respondent had initially refused his retrospective leave application. In truth, the Applicant was “stuck” because of a combination of bad decisions he made. He put his head in the sand after his leave had concluded on 7 November 2020 and did not apply for further leave immediately. He subsequently did so only after he was asked to explain his unauthorised absence. Moreover, his decision to remain in Hyderabad after early March 2020 meant that he was later confronted with the consequences of travel restrictions imposed. That the Applicant may have lacked the funds to return at that time is, as I have already noted, not a matter for which the employer can be held responsible. Moreover, the Respondent subsequently approved and paid the Applicant for the leave he had earlier claimed. There is no evidence that upon the receipt of these funds the Applicant took any step to attempt to return to Australia to resume his job. This was despite his assurances in correspondence of 2 March 2020 that upon receiving payment he would do so. This matter does not weigh in his favour.

•  He contends that his dismissal happened when the Respondent “is seeking the COVID-19 disaster payments from the Australian government”. There is no evidence to support this contention nor that the Respondent was receiving any jobkeeper payments for the Applicant. The Applicant does not give evidence that he completed the necessary paperwork which would have enabled the Respondent to make a jobkeeper payment claim. This matter does not weigh in his favour.

•  He contends that the Respondent took an adverse action against him because he was asking for workplace issues to be resolved. There is little by way of any probative evidence which would support this contention much less any proper basis for me to conclude the contention is correct. This matter does not weigh in his favour.

[67] The Applicant says that his 20 years of service is relevant. I agree. There is no contention that the Applicant rendered anything other than satisfactory service during his period of employment. And although his length of service is a factor which might weigh in his favour, it does not do so heavily in the circumstances of this case particularly having regard to the reason for his dismissal.

[68] I accept that finding employment at his age in Australia may be difficult particularly given the absence of any other professional skills and qualifications, but in the circumstances of this case having regard to the reason for the dismissal this factor does not weigh heavily against a conclusion that his dismissal was not unfair. Moreover, as the Applicant is not in Australia, and has shown no real intention of returning, the biggest obstacle to obtaining employment in Australia is his absence, not his age nor the level of his skills and qualifications. Absent any evidence, I cannot otherwise assess this contention by reference to the employment and economic circumstances in Hyderabad.

Conclusion

[69] In the result there was a valid reason for the dismissal related to the Applicant’s capacity and conduct. This fact combined with procedural fairness considerations in s 387 weigh significantly in favour of a conclusion that the Applicant’s dismissal was not harsh, unjust or unreasonable. The other statutorily mandated considerations weigh neutrally or do not arise. Most of the other matters said to be relevant by the Applicant did not assist him. The two matters I have identified above that weigh in his favour are not in the circumstances of such moment as to outweigh the other matters pointing squarely to a conclusion that the Applicant’s dismissal was not harsh, unjust or unreasonable. In the course of its dealings with the Applicant, the Respondent was, speaking colloquially, very slack in responding to the Applicant. On one occasion a period of three months elapsed, on another 13 months passed without any action – on reflection “very slack” is perhaps too kind. But this delay was in the end favourable to the Applicant, because on any view, the employment relationship could properly have been brought to an end much earlier.

[70] Consequently, taking all of these matters into account as I have the set out above, I am not persuaded the dismissal was harsh, unjust or unreasonable. It therefore was not unfair. The Applicant’s application for an unfair dismissal remedy will be dismissed.

Order

[71] I order that the application in U2021/9126 be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S Mangamuri on behalf of himself
Mr B Byrne on behalf of the Respondent

Hearing details:

2022
Melbourne (via video)
31 January 2022

Final written submissions:

Applicant, 8 and 18 February 2022
Respondent, 14 February 2022

Printed by authority of the Commonwealth Government Printer

<PR740057>

1 See https://www.pm.gov.au/media/border-restrictions

2 Transcript PN91

3 Transcript PN50

4 Transcript PN54

5 Exhibit 2, p 2 at [3]

6 Ibid

7 Ibid at [4]

8 Ibid, p 3

9 Ibid, pp 3-4 at [5] and attachment 1

10 Exhibit 3 at [11]

11 Exhibit 2, pp 3-4 at [5]

12 Ibid

13 Exhibit 3, SD-3

14 Exhibit 2, p 4 at [7]

15 Exhibit 2, p 4 at [6] and attachment 2; Transcript PN 175 – PN 178

16 Exhibit 2, attachment 2

17 Exhibit 2, p 4 at [7]

18 Exhibit 2, attachment 3

19 Exhibit 2, pp 4-5 at [8]

20 Exhibit 2, p5 at [9]

21 Ibid at [10]

22 Exhibit 2, attachment 1

23 Ibid

24 Ibid

25 Ibid, p 5 at [11]

26 Ibid, p 6

27 Ibid, pp6-7 at [12]

28 Exhibit 3 at [12], Annexure SD-4

29 Exhibit 2, p 7 at [13]

30 Exhibit 2, pp7-8 at [14]

31 The Applicant’s response also contained the text of emails that he sent on 29 July 2019 and 2 February 2020 concerning leave applications, but they need not be reproduced

32 The emails to which reference is made need not be reproduced

33 Exhibit 2, pp7-11 at [14]

34 Exhibit 3 at [14] – [15]

35 Exhibit 3, annexure SD – 5

36 Exhibit 3, at [19] annexure SD – 6

37 Exhibit 3 at [17] – [18]

38 Exhibit 3, annexure SD – 6

39 Exhibit 3, Annexure SD-7

40 Exhibit 3 at [22]

41 Exhibit 3, annexure SD-8

42 Exhibit 3 at [26]

43 Exhibit 3, Annexure SD-10

44 Exhibit 3, annexure SD-11

45 Exhibit 3, annexure SD-12

46 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

47 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

48 Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184

49 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]

50 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 465

51 Applicant’s final written submissions at [1]

52 Exhibit 2, attachment 1

53 Exbibit 2, pp 3-4 at [5]

54 Exhibit 2, p 7 at [13]

55 Exhibit 2, p 11 at [14]

56 Applicant’s final written submissions at [2]-[7]

57 Applicant’s final written submissions at [8],[10], [11]

58

59 Applicant’s final written submissions at [12]

60 Applicant’s final written submissions at [15]

61 Applicant’s final written submissions at [16]

62 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371 at 373

63 Briginshaw v Briginshaw [1938] 60 CLR 336

64 King v Freshmore (Vic) Pty Ltd Print S4213 at [23]-[24]

65 Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26]

66 Ibid

67 Ibid

68 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

69 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [150]–[151]

70 Previsic v Australian Quarantine Inspection Services Print Q3730

71 See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 which was dealing with the corresponding provisions in s 170CG(3)(b) and (c) of the Workplace Relations Act 199

72 Applicant’s final written submissions at [19]

73 Applicant’s final written submissions at [20]

74 Applicant’s final written submissions at [22]

75 Applicant’s final written submissions at [21]