Fair Work Act 2009
s.365—Application to deal with contraventions involving dismissal (consent arbitration)

Application to deal with a general protections dismissal dispute by arbitration - s.369 Fair Work Act 2009 (Cth) - distinction between unfair dismissal and adverse action proceedings - onus under s.361 discharged - application dismissed.

1. Introduction

[1] Mr Neil Keep (the applicant) was terminated from his employment with Performance Automobiles Pty Ltd (Performance Automobiles, the respondent) on 4 April 2014. Mr Keep alleges that the termination of his employment was in breach of Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act) and, in particular, that Performance Automobiles contravened s.340 of the FW Act by taking ‘adverse action’ against him because he exercised a ‘workplace right’. Mr Keep made application under s.365 of the FW Act for the Fair Work Commission (the FWC) to deal with the dispute about his dismissal by Performance Automobiles (‘the general protections dismissal dispute’). A conference did not resolve the dispute and the parties agreed to the FWC determining the dispute by consent arbitration. Mr Keep seeks orders for reinstatement (with continuity of service), compensation and costs.

[2] The evidence in respect of the consent arbitration was heard on 12 and 15 September 2014 and at the conclusion of the evidentiary hearing the parties were directed to file written submissions in relation to the question of liability only. For the reasons which follow we are satisfied that the respondent has discharged the onus under s.361 of the FW Act and accordingly have decided to dismiss Mr Keep’s application.

[3] Before turning to the factual context and the contentions we propose to say something about the relevant legislative provisions.

2. The Legislative Context

(i) The Arbitration of General Protections Dismissal Disputes

[4] Section 369 of the FW Act enables the FWC to deal with a general protections dismissal dispute (such as the present matter), by consent arbitration. Subsection 369(1) sets out the requirements which must be met before the FWC may deal with such a dispute by arbitration:

(i) the FWC issues a certificate under s.368(3)(a) in relation to the dispute (s.369(1)(a));

(ii) the parties notify the FWC that they agree to the FWC arbitrating the dispute (s.369(1)(b));

(iii) the notification is given within 14 days of the certificate being issued, or within such period as the FWC allows or an application made during or after those 14 days (s.369(1)(c)(i)); and

(iv) the notification complies with any requirements prescribed by the procedural rules (s.369(1)(c)(ii)).

[5] It is common ground that the requirements referred to in paragraphs [4] have been met. The parties notified the FWC that they had agreed to the FWC arbitrating their general protections dismissal dispute by filing a completed Form F8B. We are satisfied that we may deal with the dispute by arbitration.

[6] In dealing with a dispute under s.369 the FWC may exercise any of its powers under subdivision 3B of Part 5-1 of the FW Act (see s.595(4)). These powers include:

• making decisions as to how, when and where a matter is to be dealt with (s.589(1));



• informing itself in such manner as it considers appropriate (s.590(1));



• requiring a person to attend before the FWC and provide copies of documents or records or to provide any other information to the FWC (s.590)2)(a) and (c));



• holding a hearing (s.590(2)(i));



• taking evidence under oath or affirmation (s.590(2)(d));



• making an order that all or part of a hearing be held in private (s.593(3)(a)); and



• making orders prohibiting or restricting the publication or disclosure of evidence of a confidential nature (ss.593(3) and 594).

(ii) ‘Adverse Action’ and the FW Act

[7] Part 3-1 of the FW Act prohibits an employer from taking adverse action against an employee because, relevantly, that employee exercises a workplace right.

[8] Section 340 is one of the central provisions. It states, in part:

“(1) A person must not take adverse action against another person:

(a) because the other person:

... (ii) has ... exercised a workplace right; ...” [emphasis added]

[9] An employer contravenes s.340 if it can be said that the exercise by the employee of a workplace right was a ‘substantial and operative factor’ in the employer’s reasons for taking the action which constitutes ‘adverse action’ within the meaning of s.342. 1

[10] Section 341 sets out the meaning of a workplace right, relevantly:

“(1) A person has a workplace right if the person:

... (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument.”

[11] The table in s.342 sets out the circumstances in which a person takes ‘adverse action’ against another person. Relevantly, adverse action is taken by an employer against an employee if the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.

[12] Sections 360 and 361, in Div 7 of Pt 3-1 of the FW Act, make it easier than it otherwise would be for an employee to establish a contravention of the protective provisions in Pt 3-1, including s.340. Section 360 provides that, for the purposes of Pt 3-1, ‘a person takes action for a particular reason if the reasons for the action include that reason’. Section 361(1), casts an onus of proof on an employer to show that it did not take action for a prohibited reason, it says:

“If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took ... action for a particular reason ...; and

(b) taking that action for that reason ... would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was ... taken for that reason or with that intent, unless the person proves otherwise.”

[13] It is important to note that s.361 does not obviate the need for an applicant to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicant to merely make assertions regarding these elements, they must be determined objectively. 2

[14] The task of the FWC in a consent arbitration proceeding such as this is to determine three factual questions:

(i) Was the employee exercising a workplace right, within the meaning of s.341?

(ii) Did the employer take ‘adverse action’ against the employee, within the meaning of s.342?

(iii) Did the employer take the adverse action against the employee because of a prohibited reason, or reasons which included that reason?

[15] In the context of this case the applicant bears the onus of establishing that he had exercised a workplace right at the relevant time and that adverse action was taken against him. If so established, the respondent then bears the onus of establishing that the adverse action was not taken because Mr Keep had exercised a workplace right.

[16] We now turn to deal with some of the factual context.

3. The Background Facts

[17] We propose to set out the general factual context before turning to the central issue, namely whether the respondent took adverse action against the applicant because he exercised a workplace right. Much of the material which follows is not disputed and is contained in an Agreed Facts document prepared by the parties.

[18] Performance Automobiles is a motor car dealer in Hobart and is the franchisee for a number of car manufacturers including Subaru, Volvo, Mercedes-Benz, Porsche, Peugeot (from May 2014) and Opel (from September 2012 until September 2013).

[19] The applicant commenced employment with Performance Automobiles on 3 June 2010. There is a dispute about whether the applicant was initially appointed as a detailer in the Pre-Delivery Department or as the Pre-Delivery Inspection Supervisor. We are satisfied that the applicant was initially appointed as a detailer. We note that the applicant had responded to an advertisement in the Mercury newspaper for the position of ‘Car Detailer’. 3 We accept the respondent’s evidence that the applicant was employed as a detailer, albeit with the intention of offering him the position of supervisor when the Cambridge site opened.4 Later in 2010 the respondent leased a satellite storage and vehicle preparation centre at Cambridge (“the Cambridge Site”). In November 2010 the applicant was appointed to the position of Pre-Delivery Inspection Supervisor when the Pre-Delivery Department was relocated to the Cambridge Site.

[20] On 30 December 2010 the applicant suffered injuries as a result of a motor vehicle accident not associated with his employment. It is common ground that the respondent was sympathetic and flexible to the applicant's needs following the accident and allowed the applicant to carry out amended duties and attend rehabilitation when necessary for his recovery. On 17 February 2011 the applicant supplied the respondent with a medical certificate certifying him fit to return to full duties.

[21] In December 2011 the Cambridge Site operations were discontinued and as a result all operations were relocated to the respondent's other continuing sites at Argyle Street and Patrick Street. We deal later with the circumstances which led to the closure of the Cambridge Site. As a result of the closure of the Cambridge Site the following occurred:

(i) all fitting and mechanical requirements for new and used vehicles went to the primary workshop at Patrick Street. These operations were supervised by the workshop controller, Jarod Walker;

(ii) one of the fitting and mechanical staff from the Cambridge Site was redeployed to the workshop at Patrick Street and the other staff member retired; and

(iii) the pre-delivery inspection staff (including the applicant) were relocated to the Argyle Street showrooms.

[22] On 2 July 2012 the applicant was injured during the course of his employment. The applicant made a workers' compensation claim which was accepted. The applicant returned to work on restricted duties, on a part time basis. He returned to full time hours by about April 2013, however he remained subject to a partial incapacity.

[23] On 31 January 2014 the applicant was requested by email from Mr Adrian Brown (the Managing Director of Performance Automobiles) to attend a meeting scheduled for 3 February 2014 at 3:00pm. The email invited the applicant to bring a representative and stated that:

“The purpose of this meeting is to review and allow management to decide upon:

(a) The future operating structure of the Pre-Delivery Department.

(b) Update us on your current Workers Compensation progress.

(c) External invoices issued by you to the Performance Automobiles that I have been made aware of in recent days.

(d) Answer questions that pertain to your non-disclosure to the Managing Director of Performance Automobiles regarding your operating an external business whilst claiming workers compensation benefits. A business is registered in your name.”

[24] At the meeting on 3 February 2014 the applicant was accompanied by his partner Ms Sonya Carr and the respondent was represented by Mr Adrian Brown, and its General Manager, Mr Dave Eve.

[25] There appears to be some dispute about what was discussed at this meeting. The applicant contends that the meeting lasted some 16 minutes and that items (b), (c) and (d) from the respondent’s email of 31 January 2014 were discussed. The respondent contends that all items on the agenda for the meeting were discussed and further that during the course of the meeting the applicant advised Messrs Eve and Brown that he had been assessed as having an impairment of up to 30%. The respondent submits that this assessment was not reflected in any current medical certificates and that Messrs Eve and Brown sought clarification as to the impairment, but the applicant provided no further details.

[26] We accept that there was some reference to the agenda items during the course of the meeting but no detailed discussion of those items. We also find that during the course of the meeting Ms Carr said words to the following effect: ‘I don’t know what sort of impairment he’s got. Anywhere between 5 per cent to 30 per cent; who knows’. 5 Ms Carr’s statement during the meeting is the source of the confusion about the extent of the applicant’s impairment.

[27] The applicant was directed to attend a further meeting on 4 February 2014. At this meeting the applicant was handed four documents - a letter to the applicant, an outline of Roles and Responsibilities for the Pre-Delivery Supervisor role, a letter to Dr Francis (the applicant’s treating doctor) requesting an assessment of the applicant's ability to carry out his duties and an authority to Dr Francis for the applicant to sign to enable Dr Francis to release information. At the meeting the applicant was informed that the respondent was considering a number of options in relation to the structure and operations of the Pre-Delivery Inspection Department. The applicant was requested to provide an up to date medical assessment. The applicant requested time to seek advice and respond to the documents and information provided to him at the meeting, which was agreed to. The applicant was also directed that he was not to do any physical work until a report had been received back from Dr Francis.

[28] It is common ground that at the 4 February 2014 meeting the applicant was informed about possible options for his future employment. There is a dispute about which possible options were put forward. The applicant contends that the possible options were:

(a) that the applicant could remain in his current position if fully cleared;

(b) that the respondent could terminate his employment if he was not fully cleared as the respondent only had an obligation to keep the applicant’s job open for 12 months under the Workers Rehabilitation and Compensation Act 1988; or

(c) that the respondent could make an offer of suitable alternative employment.

[29] The respondent contends that the possible options put to the applicant were:

(a) that the Pre-Delivery Inspection Supervisor role be retained with modified duties;

(b) redundancy of the Pre-Delivery Inspection Supervisor role;

(c) that the respondent could make an offer of suitable alternative employment.

[30] We find that each of the matters referred to by the applicant and the respondent were discussed at the meeting and, in particular the options of redundancy, modified duties or suitable alternative employment were put. Further, the respondent advised the applicant that it could terminate his employment if he was not fully cleared as the respondent only had an obligation to keep the applicant’s job open for 12 months under the Workers Rehabilitation and Compensation Act 1988. However, the respondent did not put this as an option to the applicant at that time.

[31] On the morning of 5 February 2014 the applicant was requested to provide the authority and letter for Dr Francis together with the position statement so that the respondent could seek the medical report confirming the applicant's capacity to work. The assessment sought was to ascertain whether or not the applicant had the capacity to carry out the inherent requirements of the position of Pre-Delivery Inspection Supervisor and arose out of the confusion regarding the applicant’s level of impairment following Ms Carr’s statement at the meeting on 4 February 2014 (see paragraph [26] above). This issue was the subject of a significant amount of evidence and submissions. The short point, put on behalf of the applicant, is that if the position of Pre-Delivery Inspection Supervisor was redundant why was the applicant asked for an assessment of his capacity to carry out the requirements of a redundant position? The answer lies in Mr Brown’s evidence, which we accept. It is apparent from Mr Brown’s evidence that he believed the applicant had said he had a 30 percent impairment and Mr Brown sought advice from VACC as to the appropriate course to take, he then acted on that advice. The VACC advised that the respondent clarify the extent of any impairment and forwarded some pro forma documents in that regard. Mr Brown then implemented the VACC’s advice. 6 The VACC was not informed that the relevant position was redundant.7 In our view Mr Brown’s evidence satisfactorily explains the sequence of events and hence the request for a medical assessment is not inconsistent with the proposition that the Pre-Delivery Inspection Supervisor’s position was redundant.

[32] On 6 February 2014 the respondent received correspondence from the applicant's solicitor, in the following terms:

“6th February 2014
Performance Automobiles Pty Ltd
Attention: Mr Adrian Brown/Mr David Eve
EMAIL: abrown@pahobart.com.au

deve@pahobart.com.au

Dear Sirs

RE: NEIL KEEP

We act on behalf of Mr Keep. We are instructed that our client is employed by Performance Automobiles Pty Ltd in the capacity of a Pre-delivery Inspection Supervisor. We understand he has held that position since in or about June 2010.
We are instructed that in or about July 2012, our client suffered a workplace injury for which he lodged a worker’s compensation claim pursuant to the Workers Rehabilitation and Compensation Act 1988. We understand that the claim was not disputed and that you accepted liability for the purposes of that Act.
We are instructed that our client has continued to submit worker’s compensation medical certificates to you in respect to his injury, and that he has returned to work on a full-time basis subject to some minor restrictions. Notwithstanding these restrictions, we understand that, in consultation with you, our client has been able to modify his position to substantially fulfil his required duties.
We are instructed that for reasons un-beknown to our client, you have placed additional pressure on him over the past week or so in respect to his worker’s compensation claim. This has caused our client considerable angst.
We note you have requested that our client execute an authority addressed to Dr Hilton Francis, and also requested that you attend our client's appointment with Dr Francis which is scheduled to take place at 3.45pm today.
We have advised Mr Keep not to execute the authority requested as we consider the same to be unnecessary. We understand that when completing the worker's compensation claim form our client executed the authority contained in the form which would enable you to seek the desired information from Dr Francis.

In respect to your attendance with our client at today's appoint with Dr Francis, we are instructed that our client is content for you to attend, but that in accordance with his right to privacy, he will require a private consultation with Dr Francis before you may join the consultation.

In considering our client's instructions, it has become apparent to us that the treatment being afforded to him by you in respect to his worker's compensation claim may constitute adverse action in relation to the exercise of a work place right (i.e. his worker's compensation claim) for the purposes of the Fair Work Act 2009. We reserve our client's rights in that regard.

In addition, we are instructed that you have requested an additional meeting with our client at 3pm on Friday 7th February 2014. In order to enable our client time to prepare for that meeting we request your advice as to the matters to be discussed at the meeting by no later than 5pm today. In the event that you are unable to comply with this time frame might we suggest it would be fair and reasonable in all of the circumstances for the meeting to be deferred until an alternative time next week?

Please do not hesitate to contact the writer should you wish to discuss any aspect of this correspondence, or Mr Keep's employment, further.

Yours faithfully

MURDOCH CLARKE

Per:

[signed] LUKE GOLDING”

[33] The respondent's solicitor responded on 6 February 2014 as follows:

“6 February 2014

Mr L. Golding
Murdock Clarke
DX 131
HOBART

By email luke.golding@murdochclarke.com.au

Dear Sir

Performance Automobiles Pty Ltd & Neil Keep

I confirm my advice that I act on behalf of Performance Automobiles Ply Ltd in relation to this matter. I have to hand your letter dated 6 February 2014.

As discussed, I enclose a copy of the letter forwarded by my client to your client on 4 February 2014 with attached letter to Dr Hilton Francis, authority and duty statement for the position of Pre-Delivery Supervisor.

You have indicated that your client does not agree with all aspects of the duty statement and you will provide me with details of the areas of discrepancy tomorrow. If agreement cannot be reached then it would be appropriate to include all duties for the purposes of obtaining Dr Francis' opinion and then make an assessment of your client's ability to perform his duties bearing in mind the discrepancies once the opinion is at hand.

To avoid any misunderstanding, the assessment is being sought to ascertain whether or not your client has the capacity to carry out the inherent requirements of the duty statement and largely arises out of your client's recent observation to our client that he has a 30% permanent impairment.

The medical authority you refer to, which was completed as part of the worker's compensation application process, in our opinion relates to your client's worker's compensation application and resulting entitlements and not to his employment contract and his ability to perform his duties under that contract. Accordingly, we would prefer that your client sign the attached authority directed to Dr Francis.

By way of disclosure, I note from our conflict checker that we may have acted for the MAIB in relation to a motor vehicle claim made by your client. I do not believe there is any conflict but please advise if your client has any concerns.

Yours faithfully
Simmons Wolfhagen


[signed] Chris Cunningham
Partner|Litigation|Dispute Resolution
chris.cunningham@simwolf.com.au”

[34] On 7 February 2014 the applicant advised the respondent he had met with Dr Francis and provided a copy of the request for the report. The applicant indicated that he expected to receive a report from Dr Francis and would provide a copy to the respondent within 7 days. On 14 February 2014 the applicant supplied a report from Dr Francis.

[35] On 18 February 2014 the applicant was requested to attend a further meeting with the respondent and was invited to bring a support person.The applicant attended with Matthew Robins. At the meeting later that day the applicant was advised the Pre-Delivery Inspection Supervisor role was to be made redundant and he was invited to consider and discuss the following options:

(a) A redundancy with payment of all statutory requirements; or

(b) Redeployment to the position of yard hand/used car detail in the respondents' used car yard - subject to the respondent being provided with a medical report confirming that the applicant had the capacity for any such role.

[36] On 20 February 2014 the applicant was provided with written confirmation of the applicant's options of redundancy or alternative employment, as set out below:

“20th February 2014

Mr. Neil Keep

2 Finlay Street

Bridgewater 7030

Re: Redundancy of Position- Pre Delivery Supervisor

Dear Neil,

I confirm that at the meeting attended by yourself and your support person Matthew Robins, on 18th February 2014 at 3pm, we informed you that the position of Pre Delivery Supervisor is no longer (required (and has not been since July 2012) as a result of the relocation of our off-site POl Centre at Cambridge to our central business location in Hobart.

The position is to be made redundant from 28 February 2014.

The role will not be reinstated.

The company has offered you alternative acceptable employment should you wish to accept the terms and conditions of that employment. The details are outlined in a separate letter.

For the purposes of redundancy, we confirm your period of continuous service with the Company is 3 years 8 months and therefore you are entitled to 3 week's notice in accordance with the National Employment Standards. Your notice will be paid out in lieu of you working out your required notice period, and accordingly will be treated as a tax-free redundancy payment.

Your final pay out entitlements is as follows:

Pay in lieu of Notice-3 weeks: $2052.00 (No Tax to be Deducted)

Redundancy Payment- 7 weeks: $4788.00 (No Tax to be Deducted)

Unused pro rata annual leave on termination: $2815.14 (Tax $844 to be deducted)

Outstanding time worked: $TBA

Total: $ TBC at COB 28th of February 2014

At COB 28th February an employment separation certificate and a statement of service which sets out the roles you performed during your period of employment with the Company will be provided.

Yours sincerely,

[signed] Adrian Brown”

[37] On 24 February 2014 the applicant attended a further meeting, with a support person Matthew Rollins, during which he requested time to contact his solicitor. Following this meeting the applicant's solicitor wrote to the respondent's solicitor outlining the applicant's position. There appears to be some dispute about what took place at this meeting. The applicant contends that he was directed to perform duties as a yard hand/car detailer in the respondent’s used car yard or his employment would be terminated. The applicant tried to contact his solicitor but was unsuccessful. The respondent contends that the meeting was adjourned to enable the applicant to contact his solicitor and that when the meeting resumed the applicant advised that he would accept the offer of alternative acceptable employment, being the position of yard hand/used car detailer. The respondent also contends that the applicant accepted that his commencement in this role remained subject to confirmation from a medical professional that the applicant had the capacity to perform the role.

[38] There is a dispute about whether the respondent directed the applicant to perform the duties of yard hand/used car detailer in the respondent’s used car yard. The applicant contends that as and from 25 February 2014 he was given such a direction and he complied with it. The respondent denies that any such direction was given and contends that the position of yard hand/used car detailer was always subject to a medical assessment. We accept the respondent’s submission on this point. On the applicant’s own evidence, and the documents, 8 commencement in this role was subject to the applicant undertaking a medical assessment.

[39] On 3 April 2014 Mr Eve and the applicant attended an appointment with Dr Francis, the applicant's treating medical practitioner. Dr Francis provided the applicant with a medical certificate for the period 3 April 2014 to 3 June 2014.

[40] On 4 April 2014 the applicant was provided with a letter of termination of employment signed by Dave Eve, in the following terms:

“Re: Redundancy of Position - Pre Delivery Supervisor

I confirm that at the meeting by yourself and your support person Matthew Robins, on 18th February 204 you were advised that the position of Pre Delivery Supervisor was to be made redundant as at 28 February 2014.
This was confirmed in writing to you by letter dated 20 February 2014. You were given the opportunity and elected to take up an offer of alternative employment as Yard Hand/Used Car Detailer - subject to the provision of a medical report assessing your capacity to perform the duties of the role before commencing on 28 February 2014.
On 3 March 2014 you provided a medical certificate that indicated you had ‘impediments’ to performing the duties of the role of Yard Hand/Used Car Detailer. No further clarification or documents have been provided. You did not provide the requested report regarding your capacity and have not yet commenced in the role as Yard Hand/Used Car Detailer.
We again requested that report from you by no later than 28 March 2014 in our letter to you dated 17 March 2014. To date, you have not provided a report as to your capacity to perform the role of Yard Hand/Used Car Detailer as requested being a condition to your appointment to the role of Yard Hand/Used Car Detailer.
As there are no other suitable roles for you to be redeployed to within the company in accordance with the notice provided to you on 20 February 2014 we advise that your employment is now terminated as a result of the position of Pre Delivery Supervisor being redundant.
For the purposes of calculating your entitlements as a result of the redundancy, we confirm your period of continuous service with the company is 3 years 10 months.
You are entitled to 4 weeks’ notice of termination which was provided to you as at 28 February 2014. Accordingly, the notice period has passed. The calculations below reflect your entitlements to redundancy payment as at termination and will processed in the next payroll.
Notice - 4 weeks: Paid
Redundancy Payment - 7 weeks: $4788.00 (No Tax to be deducted)
Unused pro rata annual leave on termination: $3140.11 (Tax $989 to be deducted)
Outstanding time worked: $N/A
Total: $6939.11

An employment separation certificate and a statement of service which sets out the roles you performed during your period of employment with the Company will be provided.”

[41] The application alleges that the applicant has ‘exercised a workplace right’ within the meaning of s.340 of the FW Act in that he made a claim under the Workers Rehabilitation and Compensation Act 1988 (Tas) (and has maintained that claim) and made an application for the FWC to deal with a general protections non-dismissal dispute pursuant to s.372 of the FW Act. It is common ground that these actions amount to exercising a workplace right. The meaning of the expression ‘a process or proceedings under a workplace law in s.341(1)(a) includes a conference conducted or hearing held by the FWC under a workplace law and any other process or proceedings under a workplace law (see s.341(2)(a), (b) and (k)). In CFMEU v Leighton Contractors Pty Ltd,  9 Burnett FM concluded that the Workers’ Compensation and Rehabilitation Act 2003 (Qld) was a ‘workplace law’ within the meaning of ss.12(d) and 340(1)(a) of the FW Act.10 No party in these proceedings contended that Leighton Contractors was wrongly decided and it was common ground that the Workers Rehabilitation and Compensation Act 1988 (Tas) was a ‘workplace law’ within the meaning of s.12(d) and 340(1)(a) of the FW Act.

[42] On 18 February 2014 the applicant was advised that his position of ‘Pre-Delivery Inspection Supervisor’ was to be made redundant and on 4 April 2014 the respondent terminated the applicant’s employment. It is common ground that the termination of the applicant’s employment constitutes ‘adverse action’ within the meaning of s.342 of the FW Act.

[43] Hence, it is agreed that the applicant has exercised a workplace right and that the respondent has taken adverse action against the applicant. The sole substantive issue in dispute in these proceedings is whether the respondent took adverse action against the applicant because he exercised a workplace right. We now turn to consider that issue.

4. The Central Issue: Did the Respondent take adverse action against the applicant because he exercised a workplace right?

[44] As we have mentioned, s.340 provides, relevantly, that ‘A person must not take adverse action against a person...because the other person...has...exercised a workplace right.’

[45] The question of why an employer took adverse action against an employee is a question of fact 11 and the application of s.340 turns on the word ‘because’. As Gummow and Hayne JJ observed in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (Barclay):

‘The use in s.346(b) of the term “because” in the expression “because the other person engages ... in industrial activity”, invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s.346, while there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge. 12

[46] While Barclay was specifically dealing with an alleged breach of s.346, the same reasoning applies to the construction of s.340.

[47] Section 361(1) casts an onus of proof 13 on the employer to show, relevantly, that the exercise of a workplace right by the employee was not a substantive and operative factor in the decision to take adverse action against the employee. Under s.361 of the FW Act it is presumed that adverse action was taken for a prohibited reason, unless the employer proves otherwise. The onus on the employer is to be discharged on the balance of probabilities in light of all the evidence.14

[48] The FWC’s task in a case such as this is to determine, on the balance of probabilities, ‘why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason.’ 15

[49] The practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption.¹⁶ In assessing the evidence led to discharge the onus upon the employer under s.361(1), the reliability and weight of such evidence is to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it is the reasons of the decision-maker at the time the adverse action is taken which is the focus of the inquiry.¹⁷

[50] Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question. As French CJ and Crennan J observed in Barclay:

“There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?” 18

This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. 19 Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker20 or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.21”22

[51] It is apparent from the above extract that evidence from the decision-maker which is accepted as reliable ‘is capable’ of discharging the burden of proof cast on the employer by s.361. But this does not mean that evidence by a credible decision maker that adverse action was not taken because of any prohibited reason will necessarily always discharge the statutory onus. It is open to the FWC to accept as honest and credible a decision maker’s explanation of the decision for taking adverse action, then to weigh all of the evidence and the overall facts and circumstances of the case, and not be satisfied that the employer has discharged the statutory onus.

[52] A range of factors may affect the reliability or credibility of the decision maker’s evidence. It may be unreliable because of other contradictory evidence given by the decision maker 23 or because other objective facts are proven which contradict the decision maker’s evidence.24 Differential treatment as between an applicant and other employees of the respondent may also undermine the credibility of purported reason given by the decision maker.25 Conversely corroborative evidence and the absence of differential treatment may lead the FWC to accept the decision maker’s evidence as to the real reason the adverse action was taken.26

[53] The following witnesses gave evidence in the proceedings:

(i) On behalf of the applicant:

• Mr Neil Keep



• Ms Sonya Carr




(ii) On behalf of the respondent:

• Mr Adrian Brown, Managing Director Performance Automobiles



• Mr David Eve, General Manager Performance Automobiles”

[54] In assessing the evidence it needs to be borne in mind that the FWC’s task is to determine whether or not the respondent dismissed Mr Keep because he exercised a workplace right, contrary to s.340 of the FW Act. Importantly, the issue before us is not whether Mr Keep was unfairly dismissed within the meaning of Part 3-2 of Chapter 3 of the FW Act. Indeed the merits or otherwise of the termination of Mr Keep’s employment are not the focal point of these proceedings.

[55] A number of Federal Court cases have drawn a distinction between proceedings such as these (ie general protections dismissal disputes under Part 3-1 of Chapter 3 of the FW Act, or the legislative antecedents to those provisions) and unfair dismissal proceedings. 27 For example, in Pryde v Coles Myer Ltd28 Keely J had to consider whether the defendant had discharged the onus of proof under s.334(6) of the then Industrial Relations Act 1988, in circumstances where Mr Pryde, a shop steward, had been dismissed. The defendant’s case was that Mr Pryde had been dismissed for misconduct, specifically for the language he used towards a manager (Mr Cirillo) in the presence of a customer and another employee. His Honour drew a distinction between the proceedings before him and an unfair dismissal claim, in these terms:

“Although Mr Pryde initially commenced proceedings in the South Australian Industrial Commission, alleging that his dismissal was harsh, unjust or unreasonable, in this court he has brought proceedings alleging an offence against s.334 of the Act. This is not a case of an allegation of unfair dismissal ... on the ground that the dismissal was ‘harsh, unjust or unreasonable’. In the present case the question which the Court has to decide is not whether the dismissal was ‘harsh, unjust or unreasonable’. Nor is it whether the defendant could have - or should have - acted differently in all the circumstances of the case, including the length of Mr Pryde’s service with it. The question is whether the defendant has satisfied the onus of proof placed upon it by s.334(6) of the Act.” 29

[56] His Honour found that the decision to dismiss Mr Pryde was made by Mr Siemsen and that he did so after discussing the matter with Mr Rossiter and that Mr Rossiter had advised Mr Siemsen that the conduct reported by Mr Cirillo warranted dismissal. His Honour concluded that the defendant had discharged the onus:

“Both Mr Rossiter and Mr Siemsen were called by the defendant to give evidence in the case. Both have specifically denied in their evidence in chief that the dismissal of Mr Pryde was actuated in any way by the fact that he was a delegate of the union or his activities as a delegate; that denial was maintained under cross examination ...

Mr Siemsen’s evidence was that the decision to dismiss Mr Pryde was made by reason of the language which, according to the oral report of Mr Cirillo, had been used to him by Mr Pryde in the presence of a lady customer and another employee. I have rejected Mr Cirillo’s evidence that that language was used but I accept the evidence of Mr Rossiter and Mr Siemsen that each of them was told by Mr Cirillo that that language had been used in the presence of those persons ... on the evidence as a whole I have reached the conclusion that it is more probable than not that the defendant, in deciding to dismiss Mr Pryde, ‘was not motivated (whether in whole or part) by the reason ... specified in the charge’. Accordingly the information is dismissed.” 30

[57] Hence, in Pryde the onus was discharged on the basis of a genuinely held, albeit erroneous, belief that the dismissed employee had engaged in inappropriate conduct. It was not relevant that, on examination, the reason for the dismissal was not well founded - as the dismissed employee had not in fact used the language attributed to him. It was sufficient that the decision maker genuinely believed that he had, on the basis of the report provided to him. This may be contrasted with unfair dismissal proceedings under Part 3-2 of Chapter 3 of the FW Act. In an unfair dismissal case one of the considerations is whether there was a ‘valid reason’ for the dismissal. A ‘valid reason’ must be defensible on an objective analysis of the relevant facts and it will not be sufficient for an employer to say they acted on the belief that the dismissal was for a valid reason.

[58] Had Pryde been an unfair dismissal case the test would not have been whether the employer believed, on reasonable grounds, that the employee was guilty of misconduct, rather the FWC would have to make a finding as to whether the conduct actually occurred based on the evidence before it. 31Conversely, in a general protections matter it may be sufficient, depending on an assessment of all the evidence and circumstances, that at the time the adverse action was taken the decision maker’s reason for taking that action was genuinely held, on reasonable grounds, even if that belief is ultimately shown to be erroneous.32 We now turn to the submissions advanced by the parties.

[59] The applicant submits that the respondent took the adverse action because the applicant had exercised a work place right, namely made and maintained a claim under the Workers Rehabilitation and Compensation Act 1988.

[60] The respondent denies the allegation and submits that the applicant was advised on 18 February 2014 that his position of Pre-Delivery Inspection Supervisor was to be made redundant and was subsequently offered redeployment within the respondents’ business to the position of Yard Hand/Used Car Detailer. The offer of redeployment was stated to be subject to the respondent being provided with a medical report confirming the applicant had the capacity to perform the duties of that position. The applicant was also given the option to accept a redundancy payment encompassing his statutory entitlements by way of a redundancy. The respondent submits that the applicant initially accepted the offer of redeployment but failed to provide a medical report confirming his capacity to perform the role of Yard Hand/Used Car Detailer and did not ever commence in that role. On 26 March 2014 the respondent was provided with a copy of a medical report from Dr Francis (dated 4 March 2014) which confirmed the applicant did not have the capacity to take up the offer of redeployment. The respondent submits that as the applicant could not take up the offer of redeployment and his position of Pre-Delivery Inspection Supervisor was redundant the applicant’s employment was terminated on 4 April 2014.

[61] It is common ground that on 18 February 2014 the applicant was informed that his position of Pre-Delivery Inspection Supervisor was to be made redundant and that, in essence, he had two options:

(a) redeployment within the respondents’ business to the position of Yard Hand/Used Car Detailer (the offer of redeployment was stated to be subject to the respondent being provided with a medical report confirming the applicant had the capacity to perform the duties of that position); or

(b) he could accept a redundancy payment encompassing his statutory entitlements by way of a redundancy.

[62] On 26 March 2014 the respondent was provided with a copy of a medical report from Dr Francis (dated 4 March 2014) which confirmed the applicant did not have the capacity to take up the offer of redeployment. On 3 April 2014 the applicant and Mr Eve attended an appointment with the applicant’s treating doctor, Dr Francis, where it was confirmed that the applicant could not perform the role of Yard Hand/Used Car Detailer.

[63] It is on this basis that the respondent contends that the applicant’s employment was terminated because the Pre-Delivery Inspection Supervisor role was redundant and he was not able to take up the offer of redeployment.

[64] There is a dispute about who made the decision to make the position of Pre-Delivery Inspection Supervisor redundant and then to terminate the applicant’s employment. The respondent submits that the decision maker is Adrian Brown. The applicant contends that the relevant decisions were made jointly by Adrian Brown and David Eve.

[65] While the evidence establishes that Mr Eve played some role in the relevant decisions to say that he was a joint decision maker for the purposes of the relevant inquiry in this matter is to overstate Mr Eve’s involvement.

[66] Mr Eve, as the General Manager, was answerable to Mr Brown as Managing Director and Mr Brown issued directions to Mr Eve 33, while Mr Brown talked to Mr Eve about these matters, he made the Decisions.34 Mr Eve confirmed in his evidence, although agreeing it was a joint decision, that Mr Brown “organised all of this” (referring to requiring Mr Keep to obtain a medical assessment and obtaining advice from VACC) and “…Mr Brown was responsible for – took over those actions.”35 Mr Eve also confirmed that Mr Brown, being the Managing Director, could override his decisions – in particular if he had told Mr Brown that the applicant should not be made redundant then Mr Brown could have overridden that.36

[67] We also note that all of the emails and correspondence in relation to the Decisions 37 came from Mr Brown and were signed off by Mr Brown with one exception being the letter of 4 April 201438 which Mr Eve states was drafted by Mr Brown and signed by Mr Eve39.

[68] We have considered the evidence relied on by the applicant in support of his contention that Messrs Brown and Eve were joint decision makers but our consideration of the evidence as a whole does not support the applicant’s contention.

[69] Having identified the relevant decision maker the Commission’s task is to determine the substantive and operative reasons of Mr Brown in making the Decisions.

[70] The applicant’s position can be summarised as follows:

(a) The respondent runs a successful and prestigious business, which continues to expand.

(b) The applicant was an honest, hardworking and skilled employee, albeit very low paid.

(c) The applicant suffered a workplace injury on or about 2^nd July 2012.

(d) From the moment the applicant suffered his workplace injury the respondent commenced a course of contemptuous conduct towards the applicant which ultimately led to the respondent demoting the applicant then terminating him from his employment because he made and/or maintained a claim under the Workers Rehabilitation and Compensation Act 1998 (Tas).

[71] In relation to the proposition at (d) above the applicant also submits, in the submissions in reply, that the respondent was ‘fed up’ with dealing with the workers compensation claim and when the applicant was not given a full medical clearance the respondent decided to terminate his employment and attempted to give the termination the appearance that it was due to redundancy.

[72] The essence of the respondent’s case is that the applicant’s position was made redundant, they sought to redeploy him to a suitable alternate role but he was unable to obtain a medical clearance, and as there was no alternate position for the applicant his employment was terminated. The respondent’s evidence was that it took adverse action against the applicant because of operational changes in its business occasioned in consequence of product supply disruptions and a down turn in trade in or around 2011.

[73] After the commencement of operations at the Cambridge Site there were a number of external events which led to a reduction in the supply and sale of new vehicles. Mr Brown described these external events and their impact on the respondent’s business. The external events included:

• supply disruption as a result of the Japanese tsunami on 11 March 2011; 40



a change in policy by supplies saw them remove bonuses and put vehicles at recommended retail pricing, which negatively impacted on demand; 41
a change in vehicle purchasing policy by the Tasmanian Government meant that they stopped buying prestige vehicles (which impacted on the sales of Mercedes and Volvo vehicles) and extended the vehicle replacement cycle from 2 to 3 years (which led to less purchases); 42
• a deteriorating economic climate, particularly in Tasmania. 43

[74] These events impacted adversely on the respondent’s business. Mr Brown’s evidence was that there was a 20% reduction in overall vehicles sold in the 2011 calendar year and sales have not recovered since that time. 44 The number of employees employed by the respondent has also reduced over time, from 65 employees in 2010 to about 50 employees at present.45

[75] Mr Brown’s evidence was that the impact of external factors on the respondent’s business led to the closure of the Cambridge Vehicle Preparation Centre. At paragraph 10 of his statement Mr Brown says:

“As a result of the reduction in new vehicle supply and sales the offsite Pre-Delivery Inspection Centre at the Cambridge site became less and less productive to a point where it was not commercially viable for the Cambridge site to continue.”

[76] The relocation of the PDI Department (including the applicant) to Patrick Street impacted on the extent of the applicant’s supervisory functions. In short, while there is some dispute about the actual number, it is clear that Mr Keep was supervising fewer employees at Patrick Street than he had been supervising at the Cambridge site.

[77] The applicant contends that Mr Brown’s evidence as to the product supply disruptions and downturn in trade was not supported by ‘independent evidence’ and, further, it is submitted that the respondent continually displayed all of the hallmarks of a successful business. As to the latter point the applicant pointed to the following activities undertaken by the respondent:

(i) advertising for and employing new employees;

(ii) paying the applicant 14 bonuses;

(iii) expanding its operations by opening the Burnett Street used car facility in late 2013;

(iv) introducing new franchises including Peugeot in May 2014; and

(v) being declared Tasmanian Subaru Dealer of the Year 2013.

[78] We do not find any of these submissions persuasive. Mr Brown was not challenged in respect of the relevant part of his evidence. It was certainly not put to him that he was mistaken as to any of the central aspects of his evidence regarding the 20% reduction in overall vehicle sales and the reduction in the number of employees employed by the respondent. Each of the activities relied on by the applicant ((i)-(v) above) are readily explicable. The ‘new’ employees were to replace staff who left or retired and overall employment numbers fell and the bonuses paid to the applicant were very modest. It needs to be remembered that although employed as a supervisor the applicant was only paid about $35,000 per annum. The other ‘activities’ referred to by the applicant are simply features of a business of the type conducted by the respondent and in no way undermine the thrust of Mr Brown’s evidence.

[79] We also note that the profit and loss statement relating to the PDI Department support Mr Brown’s evidence. In 2011/2012 the Department incurred a loss of [text deleted]. This position improved somewhat in 2012/2013 and 2013/2014 albeit that the Department still operated at a loss in those years [text deleted]. 46 In this context we note that the applicant submits that we should draw an adverse inference from the fact that the respondent elected not to adduce any audited or other financial statements concerning the overall financial performance of the respondent’s business at the relevant times. This submission is misconceived, for two reasons.

[80] First, as we have mentioned, this is not an unfair dismissal proceeding and we are not concerned with whether the termination of the applicant’s employment was a ‘genuine redundancy’ within the meaning of s.389 of the FW Act. Second, financial material has in fact been produced to the Commission and made available to the applicant. It was open to the applicant to tender this material or to cross examine the respondent’s witnesses by reference to it. The applicant chose not to do so despite being put on notice that in such circumstances the Commission would not draw a Jones v Dunkel inference.

[81] Mr Brown’s evidence is that the applicant’s position as PDI Supervisor was ‘earmarked for redundancy’ in late 2011. 47 During December 2011 Mr Brown developed a business plan to implement changes in the first half of 2012. The business plan identified a number of changes directed at reducing costs to the business, two of which were:

• to reduce staff by 3, one of whom was the applicant; and



• move the PDI Department including detailing.

[82] Mr Brown’s evidence in this regard is supported by a diary note he made of a conversation with an accountant, dated 28 June 2012, that includes the statement: ‘Move PDI to Patrick Street, lower cost by making the supervisor redundant and have Jarod look after them’. 48

[83] Importantly, Mr Brown’s evidence establishes that the applicant’s role as Pre-Delivery Inspection Supervisor was “earmarked” for redundancy following the closure of the Cambridge site in late 2011. That is some 6 months before the applicant sustained a workplace injury the respondent had given consideration to the need to make the position of Pre-Delivery Inspection Supervisor redundant.

[84] Mr Brown’s evidence in respect of each of the above points is corroborated by the evidence of Mr Eve, who also gave evidence to the effect that the Pre-Delivery Inspection Supervisor role was redundant when the Cambridge site was closed down. 49

[85] In the applicant’s submissions in reply the following submission is advanced:

“Although the respondent may have considered making the applicant’s position redundant prior to his suffering a workplace injury and making a subsequent workers compensation claim, this consideration was not acted upon and so it must be assumed that the position was actually not redundant.”

[86] This submission is misconceived. A position is redundant when the job is no longer required to be done by anybody. We are satisfied on the evidence that the respondent has established that the position of Pre-Delivery Inspection Supervisor was redundant because the role was no longer required. Only minor operational changes resulted from the Pre-Delivery Inspection Supervisor role being made redundant 50 and no employee of the respondent is now employed in the position of Pre-Delivery Inspection Supervisor.51 The fact that an employer does not act immediately to terminate the employment of the redundant employee does not mean that the job was not, as a matter of fact, redundant.

[87] Having established that the role of Pre-Delivery Inspection Supervisor was made redundant because it was no longer required the respondent’s evidence is that they then considered the redeployment options. The respondent opened a used car Trade Clearance Centre in or around September 2013 52 and the Manager of that Centre was seeking a dedicated yard hand/detailer to be appointed53. Mr Brown believed that Mr Keep had the skills to do the job of Yard Hand/Used Car Detailer54.

[88] The applicant submits that the respondent tried to redeploy him to a position they knew he could not do. We do not find this submission persuasive and note in this regard that:

(i) there was significant cross-over and similarities between duties in the role of Pre-Delivery Inspection Supervisor and Yard Hand/Used Car Detailer;

(ii) both Mr Eve and Mr Brown, knew that the applicant had been carrying out jobs from his home under his own business that were similar or the same to the kind of work that would be required of the applicant in the Yard Hand role ;

(iii) the applicant was certified “fit for pre-injury duties” on 30 January 2014 55;

(iv) the respondent’s evidence is that they were content to consider modifications to the role to assist the applicant take up the position if that was possible 56 and they in fact organised Mr Dave Parkes of ORS to attend on 2 occasions to conduct an assessment of any required modifications to assist the applicant in the role57; and

(v) the applicant’s submission is inconsistent with his own evidence in that he says that he accepted the position on 20 February 2014 and there is no evidence that the applicant thought, at the time, he could not do the job.

[90] We are satisfied that the applicant was given a genuine offer of redeployment because the position of Pre-Delivery Inspection Supervisor was redundant.

[91] In our view, Mr Brown’s evidence clearly establishes that the substantive and operative reasons for the Decisions were operational changes in the business of the respondent which led to the applicant’s position as Pre-Delivery Inspection Supervisor being redundant. The applicant has not presented any facts to substantiate a basis for the Commission to reject the evidence of Mr Brown, corroborated by Mr Eve, in relation to the reasons advanced for the Decisions.

[92] In reaching this conclusion we have had regard to the evidence relied on by the applicant in support of the proposition that the respondent had engaged in a course of contemptuous conduct and had become ‘fed up’ with dealing with the applicant’s workers compensation claim (see paragraphs [70] and [71] above). Some of this evidence was the subject of a satisfactory explanation during the course of cross examination (eg. Mr Eve did not advise Ms Carr of the applicant’s workplace injury because he believed another worker had already done so) and most of the remarks relied on by the applicant were made by Mr Eve, and, as we have already decided, Mr Brown was the relevant decision maker. In relation to Mr Brown the applicant relies on Ms Carr’s evidence that at the meeting on 3 February 2014 Mr Brown was aggressive towards the applicant. We note that this related to an accusation from Mr Brown that the applicant was operating a business while on workers compensation and to an accusation that, in effect, the applicant was stealing from the respondent by charging the respondent GST in circumstances where he was not remitting any GST to the ATO. Any aggression displayed by Mr Brown at this meeting did not relate to the applicant’s workers compensation claim per se. Finally, we note that the proposition advanced is also inconsistent with the respondent’s response when the applicant had earlier been injured in a motor vehicle accident. It is common ground that on that occasion the respondent was sympathetic and flexible to the applicants needs. On an analysis of the totality of the evidence we are not persuaded that the propositions advanced on behalf of the applicant have any substance.

[93] The respondent has satisfactorily discharged the onus of establishing that the reasons for the Decisions were not for a prohibited reason under the FW Act. The fact that the applicant maintained a workers’ compensation claim was not a substantive and operative reason in the making of the Decisions. The application is dismissed.

PRESIDENT

Appearances:

Neil Keep - Mr. L. Golding (Murdoch Clarke)

Performance Automobiles Pty Ltd - Ms S. Masters (Simmons Wolfhagen)

Hearing details:

2014.

Hobart.

12 and 15 September

Final written submissions filed on 3 October 2014.

 1   General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; approved in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [59] and [62] per French CJ and Crennan J and at [104] per Gummow J and Hayne J

 2   Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] per Branson J; Rojas v Esselte Australia (No. 2) (2008) 177 IR 306 at [49] per Moore J; Construction, Forestry, Mining and Energy Union v BHP Coal and Steven Rae [2010] FCA 590; Jones v Queensland Tertiary Admissions Centre (No. 2) (2010) 186 FCR 22 at [10]

 3   See Annexures 1-4 to Mr Brown’s statement, Exhibit R1

 4   See PN1014 of the Transcript

 5   Ibid at PN1835-PN1837

 6   Ibid at PN614, PN645, PN688, PN690 and PN694

 7   Ibid at PN699

 8   See PN1306 of the Transcript and Annexure “I” to the Agreed Statement of Facts (marked Exhibit 1 in the proceedings)

 9   [2012] FMCA 487

 10   Also see Stephens v Australian Postal Corporation [2011] FMCA 448

 11   Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [41] per French CJ and Crennan J and [101] per Gummow and Hayne JJ )

 12   Ibid at [101]

 13   Ibid at [21] per French CJ and Crennan J, at [105] per Gummow and Hayne JJ

 14   Ibid at [62] per French CJ and Crennan J; House of Representatives, Fair Work Bill 2008, Explanatory Memorandum at 234 [1461]

 15   Ibid at [5] per French CJ and Crennon J.

¹⁶ Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 at [29] per Buchanan J; Rojas v Esselte Australia Pty Ltd (No 2) (2008) 177 IR 306 at [48] per Moore J.

¹⁷ Barclay, ibid at [127] per Gummow and Hayne JJ

 18   Purvis v New South Wales (2003) 217 CLR 92; 202 ALR 133; 77 ALD 570; [2003] HCA 62 at [236] per Gummow, Hayne and Heydon JJ.

 19   See, for example, General Motors-Holdens Pty Ltd v Bowling (1976) 51 ALJR 235 at 241; 12 ALR 605 at 617 (Bowling) per Mason J

 20   See, for example, Pearce v WD Peacock & Co Ltd (1917) 23 CLR 199 at 208; 23 ALR 212 at 216; [1917] HCA 28 (Pearce) per Isaacs J, at CLR 211; ALR 217–18 per Higgins J.

 21   See, for example, Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270; [2009] FCAFC 102 at [31]–[33].

 22   Barclay ibid at [44] - [45]

 23   See for example Pearce v WD Peacock (1917) 23 CLR 199 at 208 per Isaacs J, 211 per Higgins J; Barclary at [45] per French CJ and Crennan)

 24   Barclay, ibid at [45] per French CJ and Crennan J

 25   Barclay, ibid at [63] per French CJ and Crennan J

 26   Lewis v Qantas Airways Ltd (1981) 54 FLR 101 at 109

 27   See Vink v LED Technologies Pty Ltd [2013] FCA 443 (16 May 2013) at [41]

 28   (1990) 33 IR 469

 29   Ibid at 471

 30   Ibid at 471-472

 31   King v Freshmore (Vic) Pty Ltd, unreported AIRCFB 17 March 2000, Print S4213 at [24]

 32   Also see AWU v John Holland Pty Ltd (2001) 103 IR 205 at [39]

 33   See PN858 to PN 861 of the Transcript

 34   See PN660 to PN678 of the Transcript and paragraph 2 of Mr Brown’s Statement of Evidence (Exhibit R1 in the proceedings)

 35   See PN1148 and PN1153 of the Transcript

 36   Ibid at PN1194

 37   Particularly annexures “B” “C” “D” “H” “L” to the Agreed Statement of Facts (Exhibit 1 in the proceedings)

 38   Annexure “O” to the Agreed Statement of Facts (Exhibit 1 in the proceedings)

 39   See PN1184 of the Transcript

 40   Exhibit R1 at para 23 and Transcript at PN161

 41   See PN164 of the Transcript

 42   Ibid at PN171-PN172

 43   Exhibit R1 at paragraph 23(c)

 44   See PN166-PN170 of the Transcript

 45   Ibid at PN447-PN454

 46   See Exhibit A2

 47   Exhibit R1 at paragraph 71

 48   Exhibit R2

 49   See PN1066-PN1067 of the Transcript

 50   See paragraphs 60-61 of Mr Brown’s Statement of Evidence (Exhibit R1 in the proceedings)

 51   See paragraphs 59 and 62 of Mr Brown’s Statement of Evidence (Exhibit R1 in the proceedings) and PN293 and PN936-PN939 of the Transcript

 52   See paragraph 42 of Mr Brown’s Statement of Evidence (Exhibit R1 in the proceedings)

 53   See paragraph 44 and 47-48 of Mr Brown’s Statement of Evidence (Exhibit R1 in the proceedings)

 54   See PN252 of the Transcript

 55   See PN554-PN558 of the Transcript, Annexure “E” to Mr Keep’s Statement of Evidence (Exhibit A3 in the proceedings) Certificate of Dr Scott Macrossan dated 28/01/2014

 56   See PN262 of the Transcript, Annexure “L” to the to the Agreed Statement of Facts (marked Exhibit 1 in the proceedings)

 57   See PN254, PN339, PN753, PN1481 of the Transcript and Exhibit R5 to the proceedings

 58   See Annexure “H” Statement of Agreed Facts (marked Exhibit 1 in the proceedings) and PN1311 of the Transcript

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