Fair Work Act 2009
s.394—Unfair dismissal

Angela Johnson
v
Zehut Pty Limited T/A URBRANDS
(U2014/7032)

Application for relief from unfair dismissal - whether termination was at the employer’s initiative - whether reduction in salary constitutes dismissal - whether dismissal was harsh, unjust or unreasonable - the refusal of the applicant to accept a significant reduction in remuneration did not provide a valid reason for termination and forcing the applicant to resign for failing to agree to this was harsh and unreasonable - Order for compensation.

This is an application made under section 394 of the Fair Work Act 2009 (the Act) by Ms Angela Johnson (the applicant) for an unfair dismissal remedy against Zehut Pty Ltd trading as URBRANDS (the respondent).

[1] The termination of the applicant’s employment took place on or about 20 April 2014. The unfair dismissal application was filed on 6 May 2014. A conciliation conference was held on 17 July 2014 but the matter was not resolved. Following the conciliation, directions were issued by the Fair Work Commission (the Commission) for the filing of evidence and submissions by the parties.

[2] In accordance with the directions, the applicant filed her evidence and submissions by 27 and 29 August 2014. The respondent did not file any evidence or submissions. It is also noted that the respondent did not file an F3 Employer Response to the unfair dismissal application.

[3] The matter was listed for hearing before me on 15 October 2014. When the proceedings commenced, there was no appearance for the respondent. In these circumstances my associate attempted by telephone to contact Mr Howard Herman, the director of the respondent company and the person who had represented the respondent in the conciliation. My associate was unable to speak with Mr Herman and therefore left messages for him.

[4] The hearing proceeded in the absence of any advice or representation from the respondent. The applicant provided a brief summary of the submissions which had been filed and outlined the events leading to the termination of her employment. The applicant also answered questions from me regarding her statements of evidence dated 27 August 2014 and 14 October 2014. These included questions relating to the circumstances of the termination of her employment, the salary and entitlements she had received during her employment, the terms of her contract of employment, and what had occurred since the termination (including any income from other employment). The applicant also referred to payments which she had received from the respondent upon termination and to various payments which she believed were still outstanding (e.g. bonus payments and long service leave).

[5] After the hearing was completed that morning, I received advice that there had been a mix-up by the respondent regarding the hearing date and that a representative of the respondent would be able to attend the Commission in the afternoon. I advised the applicant about the message received and indicated that I would resume the hearing at 2.30pm that day.

[6] In the resumed hearing, the respondent was represented by Mr Joffe, the financial controller of the respondent company. It was agreed between the parties that there should be a further attempt at resolving the matter through conciliation and I spent some considerable time with the parties in this endeavour. However the matter was not able to be resolved in this way and the hearing proceeded.

[7] Mr Joffe was given an opportunity to make submissions on behalf of the respondent. Although he was not directly involved in the discussions or decisions regarding the termination of the applicant’s employment, Mr Joffe provided an explanation on behalf of the respondent and Mr Herman of the circumstances which led to the termination of employment and the payments which had been made to the applicant upon termination. He also explained the reasons of the respondent in seeking to reduce the remuneration paid to the applicant. The applicant was then given an opportunity to respond to those submissions.

[8] There would seem to be no significant difference between the parties as to the factual background to the termination of the applicant’s employment. The statements made by the applicant in the proceedings provide a very full and, in my view, a balanced account of the discussions and developments surrounding the termination. Nothing that was put by Mr Joffe would seem to contradict that account.

[9] In brief terms, the factual background to the unfair dismissal application may be set out as follows.

• The applicant was employed by the respondent (and predecessor entities, from which there were transfers of employment) since March 2002 – a period of just over 12 years. The applicant is 47 years of age.



• The respondent operates a chain of women’s clothing stores and employs more than 140 employees.



• During her employment with the respondent and predecessor entities, the applicant was assigned a variety of roles including as the full-time store manager in the Queenspark Castle Hill store (2002-2008), Queenspark Regional Manager and later National Sales Manager (2008-2010), National Operations Manager (2010-2012), Queenspark Buyer (2012), Online Manager (2012-2013) and the store manager at the Chatswood store (May 2013-April 2014).



• When the applicant moved to the Chatswood store, the terms of her employment remained essentially the same as had applied since 2010. The terms were set out in an e-mail exchange between Mr Herman and the applicant on about 1 May 2013 and included: a base salary of $80,000 exclusive of superannuation; provision of a fully maintained motor vehicle; and participation in a bonus scheme. The applicant estimated that the value of her remuneration package (excluding bonuses and incentive payments) was about $99,600 per annum. There was some issue between the parties as to the total value of the package and whether it included payment of the running costs of the motor vehicle.



• At least part of the explanation for the respondent moving the applicant to the Chatswood store in early 2013 was the generally poor performance of that store and the need for somebody with the applicant’s experience and skills to improve the business. It would seem that the applicant did well in improving the store’s performance, with the turnover increasing by about 19% and it becoming one of the respondent’s top 6 stores.



• In March to May 2014 the respondent sought to have the applicant agree to a change in the terms of her contract of employment. The changed terms included a base salary of $54,000, exclusive of superannuation and with no provision of a motor vehicle. The reasons for the reduction which were explained to the applicant included the difficult business conditions facing the respondent and the need to bring her salary into line with other store managers. It was indicated that if the applicant did not accept the changes then the respondent would need to consider her long term future with it. Later Mr Herman advised that if the applicant did not accept then the respondent would have no choice but to make her resign. The applicant responded indicating that she did not agree to the proposed change in remuneration and did not resign from her employment.



• There were further discussions and e-mails between the parties. The respondent took the view that it had been reasonable in maintaining the applicant’s salary and entitlements for several years despite the changes in her roles. The applicant maintained that she had been assured by the respondent that she would retain her salary and entitlements when she accepted the various changed roles and that she had performed well in all those roles, including as the manager of the Chatswood store.



• On 1 April 2014 Mr Herman sent an e-mail to the applicant asking her to confirm that she would not be accepting the offer to manage the Chatswood store and indicating that, on receipt of the confirmation, the respondent would accept her resignation and make appropriate plans for recruiting a replacement. On 10 April 2014 Mr Herman wrote to the applicant as follows:




“Given your position not to accept the role on the terms outlined in the e-mail, we hereby accept your resignation of Manager of the Queenspark Chatswood store.

Your last working day will be the 20th April 2014 (one month from when the offer was made) and we will duly forward you our payment plan to pay your entitlements….”

• On 17 April 2014 the applicant sent an e-mail to Mr Herman confirming that she did not resign and that she proposed to continue to work. In the e-mail the applicant refers to a letter sent to Mr Herman by her solicitors on 10 April 2014. That letter noted that there was no suggestion that the applicant’s performance was in any way wanting, or that she was engaged in misconduct, or that her position was redundant. It was said that the only issue appears to be that her employer wants to pay her less and that she was entitled to be paid her contracted wage.



• On 20 April 2014 Mr Herman wrote to the applicant confirming that “your last working day would be today (one month after the offer was made) given your resignation as you had not to date accepted the offer.”

[10] I now turn to consider the applicant’s unfair dismissal application.

The unfair dismissal application

[11] The objects of the Act in providing unfair dismissal remedies is set out in s.381 as follows:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.”

[12] The procedures and remedies referred to are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned (s.381(2)).

[13] Section 385 provides:

“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.”

[14] There was no submission that the respondent is a small business or that the Small Business Fair Dismissal Code was applicable. I am also satisfied that the dismissal was not a case of genuine redundancy.

[15] Having regard to the submissions and evidence presented, there are three main matters to be considered in relation to the s.394 application:

• was the applicant dismissed from her employment;



• if the applicant was dismissed, was the dismissal harsh, unjust or unreasonable; and



• if the dismissal was unfair, what is the appropriate remedy?

[16] I now turn to consider these matters.

(i) Was the applicant dismissed?

[17] Section 386 of the Act sets out the circumstances in which a person is taken to be dismissed. Section 386(1)(a) provides that a person will be taken to have been dismissed if his or her employment with the employer was terminated at the employer’s initiative. Section 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by the employer.

[18] The applicant submitted that the dismissal was at the initiative of the respondent and that she did not resign from her employment.

[19] The full court of the Industrial Relations Court in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 1 considered what is termination at the initiative of the employer. It was said that:

“... an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment.”  2

[20] Other authorities suggest that for termination of employment to be at the initiative of the employer, it needs to be proved that the employer’s conduct intended to bring the employment to an end, or “on any reasonable view, would probably have that effect.” 3

[21] A consideration of the facts of this matter suggests that the respondent initiated the end of the employment relationship.

[22] On the basis of the evidence presented, I am satisfied that the applicant did not resign from her employment. The applicant advised the respondent explicitly and repeatedly that she did not resign her employment. There were a series of discussions between the parties regarding the applicant’s future remuneration as the manager of the Chatswood store. These discussions and the various e-mail exchanges were between the applicant and Mr Herman and were the subject of evidence given by the applicant both in written statements and in the hearing before me. I have no reason not to accept her account of the events which led to the termination of her employment.

[23] The applicant accepted the transfer to the Chatswood store on the basis of the maintenance of her then current salary package. This was substantially agreed to by the respondent. After she had transferred to the Chatswood store and had been working there for approximately eleven months, the respondent sought to change her salary significantly. When the applicant did not accept the change, the respondent treated her refusal to accept the new terms and conditions of employment as a resignation.

[24] In all the circumstances, I have come to the conclusion that the actions of the respondent brought the employment relationship to an end. Accordingly I find that the applicant was dismissed at the initiative of the employer.

(ii) Was the dismissal harsh, unjust or unreasonable?

[25] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must have regard to the matters listed in s.387 of the Act which are as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take 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.

[26] Each of the elements identified in s.387 must be considered independently 4 and consideration of each element is mandatory.5

[27] In considering whether there was a valid reason for termination relating to a person’s capacity or conduct, the Commission will have regard to what was said by Northrop J in Selvachandran v Peteron Plastics Pty Ltd:  6

“In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business.” 7

[28] Even if it is found there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was nonetheless harsh, unjust or unreasonable. For example, a dismissal may still be harsh having regard to the circumstances of the employee concerned and the impact of the dismissal. 8 Such considerations may be matters considered to be relevant under s.387(h) of the Act.9

[29] I now turn to consider these matters.

s.387(a) Valid reason

[30] The reason for the termination of the applicant’s employment did not relate to her capacity or conduct. By all accounts the applicant was performing well in her position as manager of the Chatswood store and there was no suggestion that she could not continue in that role and fully meet the expectations of the respondent. The reason for the termination related to her refusal to accept lower remuneration for the position.

[31] Although there might be circumstances where an employer is justified in terminating the employment of an employee who unreasonably refuses to accept a change in the terms and conditions of employment, I do not consider that this is the position in the present case. Even if it was, the termination would need to be effected having regard to the rights and obligations of the parties under the employment contract and relevant legislation and/or awards.

[32] The circumstances surrounding the termination of the applicant’s employment have been described above. The applicant refused to accept a very significant reduction in her remuneration 10 on the basis that she believed she had an entitlement under the employment contract to have the previous salary and conditions maintained.

[33] It is not clear precisely what the contractual arrangements were between the parties and to what extent there was provision in those arrangements for changes and variations to be made and indeed for the contract to be brought to an end by one party or both parties. It is not unreasonable to expect that there might be changes from time to time in employment arrangements and that these would be the subject of discussion and negotiation between the parties. It would be unreasonable to expect that the salary and conditions of an employee would forever be maintained even though the employee was transferred to lower duties. However it is noted in the present case that there was an agreement to maintain the applicant’s salary upon her transfer to the Chatswood store, although it may be somewhat unclear as to how long that commitment was intended to apply.

[34] In these circumstances the refusal of the applicant to accept the proposed reduction in remuneration did not provide a valid reason for termination.

s.387(b) Notice of reason

[35] The applicant was aware that the respondent proposed to terminate her employment if she did not agree to the reduction in remuneration.

s.387(c) Opportunity to respond

[36] This is not a relevant consideration in the present matter as the reason for the termination of the applicant’s employment did not relate to her capacity or conduct.

s.387(d) Support person

[37] There was only one meeting between Mr Herman and the applicant in which the applicant was given an opportunity to discuss the termination of her employment. No notice was provided of the meeting and the applicant did not ask for a support person and was not provided an opportunity to have a support person present.

s.387(e) Warning about unsatisfactory performance

[38] The termination of the applicant’s employment was not related to unsatisfactory performance.

s.387(f) and (g) Procedures followed

[39] The respondent is a sizeable employer and would be expected to have procedures in place for dealing with terminations of employment. The respondent employs dedicated human resource staff but it would seem that they were not involved in the discussions, negotiation or decision relating to the termination of the applicant’s employment. It would seem that Mr Herman, as a director of the respondent company, dealt with this matter.

s.387(h) Other matters

[40] There are a range of additional matters which the applicant submitted are relevant to be taken into account in considering whether the termination was harsh, unjust or unreasonable. It was submitted that the termination of her employment was harsh because of her age, the length of her service, and her record of good service. It was also submitted that the termination was unjust because it involved the employer putting pressure on an employee to accept a significant reduction in her remuneration and then dismissing her when she resisted. It was said that the termination was unreasonable because it was contrary to basic norms of Australian employment law.

[41] On the other side, there were considerable efforts on the part of the respondent and Mr Herman to reach a new agreement with the applicant which would ensure that she could continue as the manager of the Chatswood store. The respondent’s position was that there was a need to reduce the applicant’s remuneration for reasons including the financial needs of the business and in order to align her salary with the salaries of other store managers. There was also a suggestion that the respondent had already maintained the applicant’s managerial salary for a considerable time despite the significant changes in her roles within the business. It is clear that there were lengthy discussions and a series of e-mail exchanges between the parties about the proposed changes and that there were considerable efforts made by Mr Herman to get the applicant to agree to the proposed changes and to continue in the employ of the respondent. However no agreement was able to be achieved between the parties.

[42] These are considerations and circumstances which may be taken into account in making an overall assessment as to whether the applicant’s dismissal was unfair.

Conclusion

[43] As previously noted, the evidence before the Commission is mainly that provided by the applicant in written statements and submissions and given in the proceedings before me. Although Mr Joffe provided an explanation of the respondent’s position, he had limited direct knowledge about the circumstances leading to the applicant’s dismissal. I must reach my conclusions in this matter on the basis of the evidence and material before the Commission

[44] Having considered all the above matters, I have come to the conclusion that the dismissal of the applicant was harsh, unjust or unreasonable.

In the circumstances of this matter, the actions of the respondent in deeming the applicant to have resigned her employment by refusing to accept a lower remuneration package was both harsh and unreasonable. This is because of the applicant’s considerable period of service with the respondent and its predecessors, and her satisfactory performance in managing the Chatswood store and in her other roles in the business. There was no complaint about the performance or conduct of the applicant or her commitment to the respondent’s business. The only complaint was that the respondent considered that the remuneration paid to the applicant was too high given the changed role in the business which she had been asked to undertake.

[45] It was open to the respondent to seek to change the applicant’s remuneration package given her new role as manager of the Chatswood store and given that her remuneration had been set having regard to her previous higher positions within the business. However it was the way in which the respondent sought to bring about the end of the employment relationship which rendered the termination to be unfair. It was both harsh and unreasonable for the respondent to force the applicant to resign from her employment if she did not agree to the proposed terms of the new contract. A more appropriate way of dealing with the issues relating to the applicant’s remuneration package and for any necessary or proposed adjustments to be negotiated might have been found if different procedures involving human resource expertise had been followed by the respondent.

[46] Having regard to all the relevant factors referred to in s.387, I have come to the conclusion that the termination of the applicant’s employment was harsh, unjust or unreasonable.

[47] It might be added that I would reach a similar conclusion even if I had found that there was a valid reason for the termination of the applicant’s employment, namely the refusal by the applicant to accept a reasonable salary adjustment having regard to her changed duties and responsibilities and the period for which her previous managerial remuneration package had been maintained by her employer. It was harsh and unreasonable in the circumstances of the present case to treat such a refusal by a long serving employee as bringing her employment to an end in circumstances where there were no issues about her continued performance as the manager at Chatswood provided that a suitable remuneration package was able to be negotiated between the parties.

[48] I now turn to consider the appropriate remedy in this matter. The applicant has sought compensation.

(iii) What is the appropriate remedy?

[49] The remedies for unfair dismissal are referred to in s.390 of the Act. Section 390(3) provides that the Commission may order compensation only if it is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances of the case. The subsection is in the following terms:

“(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[50] In considering an appropriate remedy in a case of unfair dismissal, regard must also be had to the legislative object set out in s.381 of the Act. This includes an emphasis on the remedy of reinstatement (s.381(1)(c)) and on ensuring that a “fair go all round” is accorded to both the employer and employee concerned (s.381(2)).

[51] In the present matter the applicant does not seek reinstatement. This is because of the breakdown in the employment relationship and the disappointment and distress felt by the applicant as a result of the way in which she feels she was treated by the respondent. There was no submission by the respondent that reinstatement would be an appropriate remedy in this matter. In all the circumstances, I have decided that reinstatement is not the appropriate remedy and that an order for the payment of compensation should be made.

[52] Section 392(2) provides that the Commission must take into account all the circumstances of the case, including the factors set out in the subsection, in determining the amount of compensation to be ordered in lieu of reinstatement. The subsection provides:

“Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[53] In determining the amount of compensation in the present matter, I note that there were virtually no submissions by the respondent regarding the calculation of any appropriate compensation.

[54] The applicant was employed for about twelve years by the respondent and its predecessors (s.392(2)(b)) and was receiving a salary of approximately $92,000 per annum ($80,000 salary and $12,000 car allowance). There is no evidence or material before me as to the effect that any order of compensation would have on the viability of the respondent’s enterprise. It is noted that there was no submission made to the effect that an order of compensation would have an adverse impact on the viability of the enterprise (s.392(2)(a)). I have also considered the remuneration that the applicant would have received if she had not been dismissed (s.392(2)(c)). It is likely that this remuneration would be similar to that paid to other store managers employed by the respondent and would be in the order of $54,000 per annum. I accept that the applicant wanted to continue in the service of the respondent and that there were no complaints by the respondent about her work performance. However, despite the offer made to her, the applicant chose not to accept continued employment with the respondent on a reduced salary.

[55] In relation to mitigation, the applicant indicated that she has not had any employment since she left the respondent. It was said that she has continued to look for other employment but that she has been reluctant to disclose the circumstances as to why she left her position with the respondent and that this has made obtaining other employment difficult. She has recently obtained casual work in a retail establishment in Leichardt working six hours per week on a Saturday. It would seem likely that this income will continue to be earned for some time (s.392(2)(f)). Although I recognise the impact that the termination has had on the applicant and the distress suffered, I do not accept that she could not have done more to mitigate the loss caused by the dismissal and to seek other employment opportunities. The applicant has considerable experience and talents which, it may be expected, would position her well in the employment market.

[56] There are several other matters which are relevant in determining the amount of compensation in this case (s.392(2)(g)), including the other possible benefits and adjustments that might have been provided to the applicant in the event that an appropriate separation agreement had been negotiated between the parties when the continued employment of the applicant was no longer feasible or possible (e.g. period of notice and redundancy).

[57] I have considered all the above matters in reaching a conclusion as to the amount of compensation to be ordered in the present case. In particular I have noted the period of service of the applicant and the long period she has been out of employment (since April 2014). Although the applicant might have done more to find other employment in this period there has nevertheless been a significant loss of income suffered as a result of the termination of her employment.

[58] Having regard to all the circumstances of the case, and taking into account the matters referred to in s.392 of the Act, I have determined that the amount of compensation should be 14 weeks’ pay. I note that this does not exceed the compensation cap in s.392(5). The 14 weeks’ pay should be calculated in accordance with s. 392(6).

Conclusions and order

[59] For all the reasons given, I have decided that the dismissal of the applicant by the respondent was harsh, unjust or unreasonable and that the appropriate remedy is that an order should be made for the payment of compensation to the applicant in the amount of fourteen weeks’ pay. An order to this effect will be made.

SENIOR DEPUTY PRESIDENT

Appearances:

The applicant represented herself.

G. Joffe, appeared on behalf of the respondent.

Hearing details:

2014:

Sydney

October 15

 1   (1995) 62 IR 200.

 2   Ibid at 205-206.

 3   See Mosey v Australian Custom Services [2002] AIRC 879 at [38] - [39], and O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 at [23].

 4   Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth (2010) 202 IR 388 at [13].

 5   Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [4] per Cowdroy J (with whom Marshall J agreed).

 6   (1995) 62 IR 371 at 373.

 7   See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 144; Annetta v Ansett Australia (2000) 98 IR 233 at 235; Bo Vu v State of Victoria (2001) 110 IR 383 at [80]; Potter v WorkCover Corporation (2004) 133 IR 458 at [14]; Rail Corp (NSW) v Vrettos (2008) 176 IR 129 at [51].

 8   Windsor Smith Ltd v Liu (Giudice J, Polites SDP and Gay C, Print Q3462, 13 July 1998); Smith v Moore Paragon Australia Pty Ltd (2004) 130 IR 446 at [45]; Rail Corp (NSW) v El Hawat (2006) 156 IR 385 at [25].

 9   Barclay v Nylex Corporation Pty Ltd (2003) 126 IR 294 at [278] - [280].

 10   It was submitted by the applicant that the reduction was in the order of $26,000 per annum and the loss of a company vehicle.

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