[2022] FWC 924
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
 s.394—Unfair dismissal

Andelko Sajn
v
Linfox Armaguard Pty Ltd
(U2021/11748)

DEPUTY PRESIDENT MASSON

MELBOURNE, 26 APRIL 2022

Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period not met – dismissal not unfair in the alternative – application dismissed.

Introduction

[1] On 16 December 2021, Mr Andelko Sajn (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Linfox Armaguard Pty Ltd (the Respondent) on 1 December 2021 was unfair.

[2] The Respondent objects to the application on the basis that the Applicant had not completed the minimum employment period of 6 months at the time of his dismissal as required under s.383(a) of the Act. Consequently, the Respondent contends that the Applicant is not entitled to pursue relief for his claimed unfair dismissal under the Act.

[3] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. Determination of the Respondent’s jurisdictional objection in respect of the minimum employment period along with determination of the merits was set down for a hearing/conference on 21 April 2022. Materials were filed by the Applicant and Respondent in accordance with directions issued by the Commission.

[4] In proceeding with the hearing/conference on 21 April 2022 and in considering the views of the parties, I determined to hold a conference pursuant to s.398 of the Act. The Applicant appeared on his own behalf at the conference and gave evidence. Blake Byrnes (Workplace Relations Manager) appeared for the Respondent and called Anthony Zagari (Head of Security for the Respondent) to give evidence.

Background and evidence

[5] The Applicant commenced employment as a Control Room Operator with the Respondent on 10 May 2021 1 and at the time of his dismissal was based at the Respondent’s Essendon Fields Depot. He was covered in his employment by the Security Services Industry Award 20202. The role undertaken by the Applicant could not be performed remotely from the Essendon Fields Depot3.

The mandatory vaccination directions

[6] On 16 March 2020, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (the PHW Act) that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration has been extended a number of times in the period since including on 18 November 2021 and remained in force until 11.59pm on 15 December 2021. The Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 came into operation on 8 December 2021 and now regulates matters pertaining to the COVID-19 pandemic.

[7] On 7 October 2021, the COVID-19 Mandatory Vaccination (Workers) Directions (the CHO Directions) were issued pursuant to s.198(1) of the PHW Act. The key effect of the CHO Directions in respect of the Respondent was that it was compelled to not permit defined workers to work outside their normal place of residence unless they were vaccinated within specified time frames or had an exemption for a medical contraindication. The COVID-19 vaccination dose deadline dates, while varying according to particular occupations, relevantly for the present matter were 22 October 2021 for a first dose and 26 November 2021 for a second dose. The Applicant was a defined worker for purposes of the CHO Directions.

[8] The CHO Directions were replaced by successive iterations which have now been replaced by pandemic orders that are in substantially the same form as the CHO Directions.

The Applicant’s dismissal

[9] On 12 October 2021, the Respondent sent an email to all employees, including the Applicant, providing an update on the CHO Directions and requesting that employees provide the Respondent with their vaccination details 4.

[10] On 15 October 2021, further correspondence 5 was emailed to employees by the Respondent, including the Applicant. Employees were again requested to provide details on their vaccination status and were also advised that if they did not provide evidence of their vaccination status they would be treated as unvaccinated. This would, it was stated, lead to conversations regarding continued employment6.

[11] On 15 October 2021, a meeting was conducted with the Applicant at which Mr Zagari and Vanessa Basic (Armaguard Monitoring Centre Supervisor) attended. The Applicant states that he advised Mr Zagari in the meeting that he was still considering whether to get the vaccination and states that he had a booking for the 21 October 2022. Mr Zagari rejects the Applicant’s evidence and states that the Applicant advised during the meeting that he did not intend to get vaccinated 7 which he says is recorded in his contemporaneous notes of the meeting8. Mr Zagari formed the view, based on the Applicant’s response at the meeting on 15 October 2021, that he was unable to comply with the CHO Directions. He was subsequently escorted off the site and took paid annual leave from 16 - 31 October 2021.

[12] The Applicant claims that as he had a Covid vaccination booking on the 21 October 2021, which the Respondent does not dispute, his removal from site on 15 October 2021 was premature given the first dose vaccination deadline was 22 October 2021. His roster reveals that he was rostered to work on 16 October 2021, was then rostered off for several days before returning on 22 October 2021 for his next rostered shift 9. While claiming to have had a vaccination booking on 21 October 2021 the Applicant advised that he cancelled that booking after he was told by the Respondent that he was not permitted on site due to his vaccination status on 15 October 2021. He also confirmed that even though he says he had a booking on 21 October 2021, he was always leaning to not getting vaccinated.

[13] On exhaustion of his accrued annual leave on 31 October 2021, the Applicant was then placed on a period of leave without pay from 1-30 November 2021 10 although he states that he advised the Respondent that he did not want to take leave without pay. The Applicant further stated during cross-examination that his preference at the time of being placed on leave without pay was for the Respondent to deal with his employment status sooner rather than allowing it to drag on as it did until 1 December 2021.

[14] On 22 October 2021, the Respondent sent further correspondence to employees, including the Applicant, providing an update on the CHO Directions. Employees were advised in that correspondence that those employees who had not provided vaccination status evidence would be treated as unvaccinated and would not be allowed to attend any of the Respondent’s sites 11. The Applicant responded to the 22 October 2021 correspondence from the Respondent that same day and in doing so confirmed that he would not be getting vaccinated12.

[15] On 3 November 2021, a further meeting was held at which the Applicant attended along with a Ms Curavic (Armaguard Monitoring Centre Lead) and Ms May (HR Business Partner), the purpose of which meeting was to allow the Applicant to discuss his vaccination status. The meeting did not proceed as the Applicant refused to comply with a direction of the Respondent to not record the meeting 13.

[16] On 8 November 2021, Mr Zagari says he had formed a preliminary view that the Applicant’s employment should be terminated as he could not discharge the duties for which he was employed. A show cause letter dated 8 November 2021 (the Show Cause Letter) signed by Ms Curavic was subsequently sent to the Applicant. The Show Cause Letter provided the Applicant with an opportunity to respond by 5pm on 12 November 2022 to the Respondent’s preliminary view that his employment should be terminated 14.

[17] On 11 November 2021, the Applicant provided a written response 15 to the Show Cause Letter. The Applicant again made clear in his response that he did not intend to get vaccinated. In doing so he variously challenged the legal basis for the mandatory vaccination requirement, claimed it infringed various individual rights, placed him under duress and he also declared that he would not participate in a clinical trial which he described the Covid-19 vaccination program as.

[18] After considering the response provided by the Applicant, the Respondent determined that the Applicant had not put forward any evidence or material that would alter the preliminary view it had formed that his employment should be terminated. Notwithstanding that view, Mr Zagari determined to provide the Applicant with one final opportunity to discuss his ongoing employment. On 30 November 2021 Mr Zagari emailed the Applicant a meeting invitation for a meeting to be held on 1 December 2021 16.

[19] On 1 December 2021, the Applicant attended a meeting via Microsoft Teams with Mr Zagari and Mr Byrne. The Applicant was offered but declined to be accompanied by a support person. During the meeting Mr Zagari reconfirmed that the Respondent was considering terminating the Applicant’s employment and advised that he had reviewed the Applicant’s written response of 11 November 2021. The Applicant was then asked if there were any other matters he wished to raise before a final decision was made. According to Mr Zagari, the Applicant then raised the same matters orally that he had put in his 11 November 2021 response 17.

[20] After a 30 minute adjournment of the meeting to allow the Respondent time to consider the responses provided by the Applicant, the meeting was reconvened and Mr Zagari confirmed the termination of the Applicant’s employment. The termination letter dated that same day (the Termination Letter) was read out verbatim and subsequently emailed to the Applicant 18.

[21] The Applicant confirmed that as at the date of the hearing he remained unvaccinated against Covid-19. He also confirmed that he was not employed and while he had been looking for work, he had not applied for any roles as he had not seen any roles that interested him.

Has the Applicant been dismissed?

[22] A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:

[23] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

Initial matters

[24] Before considering the merits of the Applicant’s unfair dismissal application the Commission is required by s.396 to decide certain matters. Section 396 provides as follows:

[25] It is not contested that the application was filed within the 21-day statutory timeframe specified in s.394(2) of the Act. Nor is it in dispute and I am satisfied that dismissal was not a case of genuine redundancy and that the Respondent was not a small business, meaning that the Small Business Fair Dismissal Code was not relevant in this matter.

[26] The final preliminary matter to be considered is whether the Applicant is a person protected from unfair dismissal (s.396(b)). The question to be answered in respect of s.396(b) is that found at s.382(a) which states as follows;

[27] It is not in dispute, and I am satisfied that the Applicant was covered by the Security Services Industry Award 2020. The remaining matter to be considered is therefore, whether the Applicant had at the time of his dismissal completed the minimum employment period with the Respondent.

[28] The minimum employment period is one year for a small business employer and six months for other employers, as provided by s.383 of the Act which states as follows:

[29] Relevantly for the purpose of determining whether an employee has met the minimum employment period, the period of employment is defined as follows at s.384 of the Act;

[30] Section 22 of the Act defines the terms service and continuous service as follows;

Consideration

Minimum employment period

[31] It is evident from a review of the statutory provisions set out above that in order for the Applicant to meet the minimum employment period, his continuous service with the Respondent, not including any excluded periods, must meet or exceed either 6 months or 12 months in the case of a small business employer. It is not in dispute that the Respondent is not a small business employer. Therefore, the minimum employment period required to have been served by the Applicant is that of 6 months.

[32] It was not contested that the Applicant commenced employment with the Respondent on 10 May 2021 and ceased employment on 1 December 2021, that being a period of approximately 6 months and 3 weeks. Significantly, the Applicant was placed on a period of authorised leave without pay from 1-30 November 2021, although he objected to this. As set out above at [30], s.22 of the Act, which defines service and continuous service, makes clear that any period of unpaid leave or unpaid authorised absence (subject to defined exclusions) is an excluded period that does not count as continuous service.

[33] In respect of his period of continuous service with the Respondent, the Applicant makes two points in relation to his period of leave without pay between 1-30 November 2021 which he submits affects the calculation of his continuous service. Firstly, that he was prematurely required to take annual leave from the 16 October 2021 in circumstances where he was booked into a vaccination appointment on 21 October 2021, that day being prior to the first dose deadline of 22 October 2021. The second point made by the Applicant is that he was forced to take leave without pay against his wishes and that the Respondent should have dealt with his employment status at the earlier point of his annual leave exhaustion rather than allowing the matter to drag out for a further four weeks.

[34] Dealing with the first point raised by the Applicant. As of 15 October 2021, the Applicant says he had a vaccination appointment on 21 October 2021, a point not challenged by the Respondent. In those circumstances, despite the Respondent’s belief that the Applicant had no intention of getting vaccinated, the Applicant appears to me to have been entitled under the CHO Directions to attend work on his rostered shift on 16 October 2021. He was not permitted to do so by the Respondent and was required to take his accrued annual leave form that date and which he subsequently exhausted on 31 October 2021.

[35] The Respondent’s action in not permitting the Applicant to attend work on his rostered shift on 16 October 2021 due to his vaccination status appears premature. However, any doubt as to the Applicant being entitled to attend work under the CHO Directions was removed on 22 October 2021 when he did not proceed to get vaccinated on 21 October 2021. Had the Applicant been allowed to work on 16 October 2021 rather than take annual leave, his annual leave would have then started on the next rostered shift on 22 October 2021. His annual leave would then have been exhausted on 1 November 2021 rather than 31 October 2021. This would have consequently reduced the period of leave without pay that he was forced to take by one day.

[36] As regards the second point raised by the Applicant, the point has no merit. Had the Respondent moved to dismiss the Applicant on exhaustion of his annual leave on 31 October (or 1 November) 2021, this would not have substantively altered the period of service used to establish whether the Applicant had met the minimum employment period. That is because, had his employment been terminated on or about 1 November 2021, the Applicant’s period of service would have been less than the six month minimum employment period. The further point to be made is that the period of leave without pay extended to the Applicant by the Respondent was for the reason of affording him an opportunity to consider his position and respond to the potential outcome of his dismissal, of which he was put on notice in the Show Cause Letter on 8 November 2021.

[37] I am satisfied that the Applicant was on a period of authorised unpaid leave from 1 - 30 November 2021, that it was not a period otherwise covered by the exceptions set out at ss.22(2)(b)(i)-(iii) & (c), and as such the period from 1 - 30 November 2021 was an excluded period for the purpose of calculating the Applicant’s period of employment with the Respondent. Therefore, the Applicant’s continuous service for the purpose of determining whether he has met the minimum employment period is to be calculated by reference to the date of his commencement of employment with the Respondent on 10 May 2021 and the date on which he exhausted his annual leave on 31 October 2021, from which date he then took unpaid authorised leave. The relevant period of continuous service is 5 months and 3 weeks. Even were one days leave without pay deducted from the excluded period, by reason of the Applicant being forced to take annual leave on 16 October 2021, the period of service would remain less than 6 months.

[38] It follows from the above that the Applicant’s period of service with the Respondent fell short of the required minimum employment period of 6 months. Consequently, the Applicant is not a person protected from unfair dismissal under ss.382(a) and 396(a) of the Act.

[39] I have found that the Applicant has not met the minimum employment period. If, however, I am wrong in that conclusion it is necessary for me to also consider the merits of the application, to which I now turn.

Was the dismissal harsh, unjust, or unreasonable?

[40] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s 387(a)?

[41] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”19 and should not be “capricious, fanciful, spiteful or prejudiced20.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer21.

[42] As set out above in the background, the CHO Directions were issued by the Acting Chief Health Officer on 7 October 2021 pursuant s.198(1) of the PHW Act. The power of the Chief Health Officer to issue such directions derived from Victoria having entered a state of emergency as declared (and regularly renewed) by the Minister for Health on and since March 2020 in response to the COVID-19 pandemic.

[43] In complying with the CHO Directions, the Applicant contends that the Respondent imposed a ‘Policy’ that prevented him from attending and performing his work which he had not agreed to on commencement of his employment. He submits that the imposition of that ‘Policy’ without his consent renders the dismissal unfair. The Applicant’s submission is rejected for the reasons that follow.

[44] The Respondent was required to ensure that on and from 15 October 2021, unvaccinated ‘workers’ as defined under the CHO Directions that it employed, were not permitted to perform work outside their normal place of residence. The first dose deadline date was extended to 22 October 2021 in circumstances where an employee had a vaccination booking prior to 22 October 2021. Compliance of the Respondent with the CHO Directions was not a ‘Policy’ decision of the Respondent. Rather, it was a statutory requirement imposed on the Respondent and many other employers in Victoria, of which there was no discretion available to the Respondent. A breach of the CHO Directions exposes an employer to fines in excess of $100,000.

[45] The effect of the CHO Directions were not materially impacted by their subsequent revocation and replacement with subsequent directions issued. It is uncontested that the Applicant’s role required him to attend and undertake work as a Control Room Operator at the Respondent’s Essendon Fields Depot. The work could not be undertaken remotely. I am satisfied, that the CHO Directions covered the employment of the Applicant in his role.

[46] As stated above, the Applicant and the Respondent were covered by the CHO Directions. This meant that for the Applicant to be permitted to attend work and perform the duties for which he was engaged, he was required to be vaccinated by the dates referred to above at [7] or provide a valid medical exemption. The Applicant declined to be vaccinated, did not provide an exemption for a medical contraindication or acute medical condition and as such was unable to perform his job.

[47] It follows from the above that the Applicant was unable to fulfil the inherent requirements of his role as a Control Room Operator at the Respondent’s Essendon Fields Depot for which he was employed. I am consequently satisfied in the circumstances that the Applicant’s inability to fulfil the inherent requirements of the role for which he was employed founds a valid reason for his dismissal. This weighs in favour of a finding that the dismissal was not unfair.

Notification of the valid reason – s.387(b)

[48] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,22 and in explicit23 and plain and clear terms24.

[49] The Applicant was notified in various communications including correspondence dated 12 October, 15 October and 22 October 2021 of the requirement to be vaccinated by the dates set out in the CHO Directions. The Applicant also attended meetings conducted on 15 October 2021 and 3 November 2021 although I note that the meeting on 3 November 2021 did not proceed due to the Applicant’s refusal to comply with a direction to not record the meeting. The Applicant was subsequently advised in the Show Cause Letter dated 8 November 2021 that the Respondent had formed a preliminary view that his employment should be terminated as he was unable to fulfil the inherent requirements of the role for which he was employed.

[50] I am satisfied that the Applicant was notified of a valid reason for his dismissal before the decision was made to terminate her employment. This weighs in favour of a finding that the dismissal was not unfair.

Opportunity to respond to any reason related to capacity or conduct – s.387(c)

[51] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment25.

[52] The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly26. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.27

[53] As stated above, the Applicant was notified in various communications including correspondence dated 12 October, 15 October, and 22 October 2021 of the requirement to be vaccinated by the dates set out in the CHO Directions. The Applicant also attended meetings conducted on 15 October 2021 and 3 November 2021 although the latter meeting did not proceed for the reasons set out above. The Applicant was subsequently advised in the Show Cause Letter on 8 November 2021 that the Respondent had formed a preliminary view that his employment should be terminated as he was unable to fulfil the inherent requirements of the role for which he was employed.

[54] The Show Cause Letter sent by the Respondent to the Applicant on 8 November 2021 invited him to respond by 12 November 2021 on the proposed termination of his employment. The Applicant provided a response to the Show Cause Letter on 11 November 2021, which according to Mr Zagari did not advance any evidence or material that altered the Respondent’s preliminary view. The Applicant was subsequently invited to a further meeting on 1 December 2021 at which he was provided a further opportunity to respond and offer any mitigations of the proposed termination of his employment.

[55] I am satisfied that the Applicant was afforded an opportunity to respond to the reasons relied on for his dismissal. This weighs in favour of a finding that the dismissal was not unfair.

Support person – s.387(d)

[56] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[57] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“The factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”28

[58] The Applicant was provided with the opportunity to be accompanied by a support person in each of the discussions held with the Respondent regarding his dismissal. In the circumstances I regard this factor as a neutral consideration.

Warnings regarding unsatisfactory performance – s.387(e)

[59] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.

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

[60] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed over 2,500 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

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

[61] The evidence in the matter indicates that the Respondent had access to the services of in-house human resources specialists. In the circumstances this factor weighs neutrally in my consideration.

Other relevant matters – s.387(h)

[62] The Applicant contends that the requirement to be vaccinated in order to be permitted to attend work had the effect of coercing him to undergo vaccination. If that was indeed the effect of the CHO Directions, of which I make no finding, it was not in my view the action of the Respondent that applied that coercion of duress. It was the legislative effect of the CHO Directions imposed on the Respondent, which as I have stated earlier, required compliance with. This clearly left the Applicant in a difficult position, which I acknowledge, but the decision to obtain or decline to be vaccinated remained his choice.

[63] The Applicant may feel aggrieved at the consequence of the Respondent’s compliance with the CHO Directions, resulting in his dismissal on 1 December 2021. However, by his own decision to decline to receive a vaccination within the required timeframe, the Applicant was unable to fulfil the inherent requirements of the role that he had been employed for.

[64] I am not persuaded that the matters raised by the Applicant weigh in favour of a finding that the dismissal was unfair.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?  

[65] I have made findings in relation to each matter specified in s.387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable29.  

[66] As set out above, I am satisfied that a valid reason for the Applicant’s dismissal, related to his capacity, has been established and that the dismissal process followed by the Respondent was procedurally fair. The dismissal was not related to the Applicant’s performance and the size and capacity of the Respondent did not impact on the procedures that it followed and as such these matters weigh neutrally in my consideration of whether the dismissal was unfair. No other matters raised by the Applicant weigh in favour of a finding that the dismissal was unfair.

[67] It follows from the above, having considered each of the matters specified in s.387 of the Act, that I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was unfair.

Conclusion

[68] I have found that the Applicant has not completed the minimum employment period of 6 months with the Respondent at the time of his dismissal (s.382(a) of the Act). I therefore uphold the Respondent’s jurisdictional objection concerning the minimum employment period. Notwithstanding that finding, I have also found that the Applicant’s dismissal was not unfair if I am wrong in my conclusion regarding the minimum employment period not having been met.

[69] The Applicant’s unfair dismissal application is dismissed. An Order to that effect will be issued with this decision.

Seal and signature of Deputy President Masson

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR740567>

Appearances:

A Sajn, Applicant.

B Byrne for the Respondent.

Hearing details:

2022.

Melbourne (by Microsoft Teams):

April 21.

 1   Exhibit R1, Witness Statement of Mr Anthony Zargari, dated 11 April 2022, Annexure AZ-1 Applicant Letter of Employment dated 7 May 2021.

 2   MA000016.

 3   Exhibit R1 at [7]-[8].

 4   Exhibit R1 at [16], Annexure AZ-3.

 5   Ibid , Annexure AZ-4.

 6   Exhibit R1 at [17].

 7   Ibid at [18].

 8   Ibid, Annexure AZ-5.

 9   Exhibit R1, Annexure AZ-6, Leave Report and Payslips.

 10   Exhibit R1 at [18]-[19], Annexure AZ-6, Leave Report and Payslips.

 11   Exhibit R1 at [20], Annexure AZ-7.

 12   Exhibit R1, Annexure AZ-8.

 13   Exhibit R1 at [22].

 14   Ibid at [23], Annexure AZ-9, Show Cause Letter dated 8 November 2021.

 15   Exhibit R1, Annexure AZ-10.

 16   Exhibit R1, Annexure AZ-11, Invitation to Show Cause Meeting.

 17   Exhibit R1 at [29]-[30].

 18   Ibid at [31]-[32], Annexure AZ-12, Termination Letter dated 1 December 2021.

19 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

20 Ibid.

21 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

22 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

23 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

24 Ibid.

25 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

26 RMIT v Asher (2010) 194 IR 1, 14-15.

27 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

28 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

29 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].