[2015] FWC 4329
FAIR WORK COMMISSION

DECISION


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

Lynn Masson-Forbes
v
Gaetjens Real Estate Pty Ltd
(C2015/1507)

COMMISSIONER WILSON

MELBOURNE, 26 JUNE 2015

Application to deal with a general protections dismissal dispute by arbitration.

[1] Until 1 December 2014, Lynne Masson-Forbes was employed by Gaetjens Real Estate Pty Ltd, an Adelaide-based real estate company, to be its General Manager Retirement Services.

[2] In the early part of 2014, the relationship between Ms Masson-Forbes and Gaetjens Real Estate (referred to as “Gaetjens”) started to change. Part of this change included the expectations the company had about Ms Masson-Forbes’ work performance. Near to the same time the former Chairman of Gaetjens, Mr Ken Gaetjens, moved out of the business as a result of ill health and his role was assumed by his son, Mr Michael Gaetjens.

[3] In May 2014, Ms Masson-Forbes became ill and she was away from work for several months until November 2014. Not long after returning to work, she was provided with a performance warning, and on 24 November 2014, Ms Masson-Forbes resigned from employment with Gaetjens, setting out her reasons for doing so in an email indicating that her resignation was to take effect on 30 January 2015. Mr Michael Gaetjens accepted the resignation, but in doing so substituted 1 December 2014 as the date on which employment would end.

[4] It is argued that Ms Masson-Forbes had no choice other than to tender her resignation and that the action of Gaetjens in bringing forward the date on which employment ended was in itself a dismissal.

[5] On 5 December 2014 Ms Masson-Forbes made a general protections application to the Fair Work Commission pursuant to the provisions of s.365 of the Fair Work Act 2009 (the Act) seeking the Commission deal with alleged contraventions of the Act involving a dismissal. 1

[6] The matter proceeded to a conference before Commissioner Hampton on 20 January 2015, the conclusion of which was the Commissioner certifying pursuant to s.368 of the Act that he was satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful.

[7] On 2 February 2015, the parties submitted their consent to the Fair Work Commission dealing with the dispute by arbitration, pursuant to the provisions of s.369 of the Act.

[8] A hearing of the matter was conducted by me on 2 April 2015. In the course the hearing Mr Ralph Clarke appeared as a representative of Ms Masson-Forbes. Mr Clarke provides industrial relations services to the Registered Real Estate Salesperson’s Association of South Australia (RESA), a transitionally recognised association for the purposes of the Act. Ms Masson-Forbes is the President of the Association. For the reason that I was satisfied Mr Clarke was providing services to Ms Masson-Forbes through her membership of the Association and not through a separate fee to Ms Masson-Forbes, it was not necessary for me to consider a grant of permission for his appearance pursuant to s.596 of the Act.

[9] Michael Gaetjens, a Director of Gaetjens, appeared with his daughter, Madeleine Gaetjens, for the Respondent.

[10] The allegations made by Ms Masson-Forbes which require resolution in this matter include;

[11] Consideration of these matters by the Fair Work Commission requires application of the employer onus set out in s.361 of the Act that actions taken are presumed to have been taken for the alleged reason unless proven otherwise.

[12] The Full Bench has considered the applicable provisions, together with the application of the employer onus, in the matter of Keep v Performance Automobiles Pty Ltd, 2 finding as follows;

[13] Ms Masson-Forbes commenced employment with Gaetjens Real Estate in November 2010. 4 Ms Masson-Forbes describes this initial employment as “General Manager Retirement Services5 whereas Michael Gaetjens refers to it as a “Property Sales Representative”6 and the signed Employment Agreement states the position as Manager Retirement Services.7 Her original salary was $50,000 with superannuation paid in addition,8 with access to a commission structure and payment of a motor vehicle allowance. The signed Employment Agreement acknowledges that Ms Masson-Forbes’ employment was also subject to the Real Estate Award 2010.

[14] Ms Masson-Forbes’ employment with Gaetjens was subject to several changes through the period of her employment and, in May 2012, her position was changed to that of “CEOs Seniors Card Real Estate SA”, and later in January 2013, her position became that of “General Manager Sales and Corporate Development”. Her essential terms and periods of employment, indicated in the Respondent’s outline of submissions include the following; 9

[15] Until 2014, Ms Masson-Forbes worked closely with Mr Ken Gaetjens who at the time was Chairman of the firm. Her evidence about her role and the reporting relationships within the firm include;

[16] The performance measures on Ms Masson-Forbes in May 2012 included that she would be required to complete 12 settled sales over the 12 months commencing on 1 May 2012. After 12 settled sales had been achieved she would be eligible to receive a sales commission.

[17] When Ms Masson-Forbes position was changed in January 2013, Mr Ken Gaetjens provided her with an updated letter of offer, which was signed by Ms Masson-Forbes. The letter provides as follows;

[18] The evidence given in this matter indicates that the reference in the various materials to a sales target of either “12 settled sales” or “personally settle 18 properties per year” are to be read as a reference to properties that have actually completed the full sales process to the point of full execution of the contract of sale, rather than merely as a reference to those which had been subject to offer and acceptance but which did not, for some reason, eventuate in a full execution of the contract of sale.

[19] Ms Masson-Forbes’ duties in early 2013 involved her marketing the firm as a potential sales agent for older clients who were contemplating selling their property as part of an overall retirement plan, including perhaps to move to retirement village accommodation. As the more senior of several other staff, Ms Masson-Forbes’ duties would also include receiving or developing sales leads and then providing the leads to other staff for finalisation. Ms Masson-Forbes evidence is that she understood the expectations upon her had changed appreciably in early 2013;

[20] By early 2014, some difficulties were emerging in the business plan that had been set by Gaetjens. Not only had pressures in the market emerged, but also planned advertising and other marketing expenditure had not been undertaken. Ms Masson-Forbes’ evidence acknowledges the extent of the problems at that point;

[21] In late January 2014, Ms Masson-Forbes attended a meeting with Mr Ken Gaetjens and Mr Elburn. Ms Masson-Forbes’ evidence about that meeting, on 28 January 2014, which is the only evidence on this subject before the Commission, refers to Mr Gaetjens stressing that the company needed to achieve more sales income and there was discussion about the ways that could occur. On 18 February 2014, Mr Ken Gaetjens wrote to Ms Masson-Forbes reinforcing the matters that had been discussed in January;

[22] Not long after this communication, Mr Ken Gaetjens became seriously ill, as a result of a stroke, and ceased to have an active involvement in the business. His role in this regard was taken over by his son, Mr Michael Gaetjens. The evidence is that the expectations on Ms Masson-Forbes from that point forward changed, as did Gaetjens’ overall business strategy.

[23] On 28 March 2014 Mr Michael Gaetjens wrote to a number staff, including Ms Masson-Forbes, advising them that he wished to have a discussion with them about their budgets and performance. A meeting was set with Ms Masson-Forbes in early April 2014. The product of that meeting included a communication from Mr Gaetjens to Ms Masson-Forbes on 17 April 2014 which included the following;

[24] After recording the results achieved by Ms Masson-Forbes in the 2014 period to date, the same email then states the following, as well as specifying the metropolitan regions she would have responsibility for;

[25] Ms Masson-Forbes disputes that there was ever agreement that her sales expectations were “agreed to at 2 settled sales per month” and instead argues that that amount was imposed upon her by Mr Michael Gaetjens.

[26] In late May 2014, a further meeting with Ms Masson-Forbes was requested by Mr Gaetjens, with his witness statement indicating following;

[27] Ms Masson-Forbes’ evidence is that she was notified of this request after-hours, the request being received on Friday, 23 May for a meeting to be held on the following Monday, 26 May and that the meeting would be for the purposes of Mr Gaetjens and his daughter, Ms Madeleine Gaetjens, conducting a performance review about her. She became overwhelmed and distressed and required hospitalisation. The way in which this occurred meant that she did not meet with Mr Gaetjens as had been scheduled and she did not herself tell Mr Gaetjens that she could not attend the meeting. However, the circumstances laid out in her witness statement would indicate that Mr Gaetjens was aware on the day that she required hospitalisation, having been one of the people who provided assistance to her, at least over the telephone. 17 The performance discussion that Mr Gaetjens had sought to have with Ms Masson-Forbes did not then take place and in particular what he refers to as “her second official warning” was not given. Mr Gaetjens is critical that Ms Masson-Forbes did not show up to the meeting that had been scheduled. On the other hand the evidence includes that Mr Elburn, Ms Masson-Forbes’ supervisor at the time, was aware of her absence by at least the following day. On 27 May he responded to an email from Ms Masson-Forbes from the same day about her absence to the effect that “we were all concerned” and that she should “have a good restful and enjoyable break”.18

[28] The following day Ms Masson-Forbes left the hospital and progressed on a prearranged period of annual leave. Her departure from hospital was apparently against medical advice that she received. Ms Masson-Forbes’ evidence through her witness statement on this subject includes;

[29] Subsequently Ms Masson-Forbes’ workers compensation claim was rejected and at about the same time the medical advice she received was not to return to work at that time. In about August 2014 she learned that Mr Elburn was no longer with the company. 20 She sought a review of the workers compensation decision through what she refers to as “an ombudsman investigation” which I take to be a reference to an approach to the WorkCover Ombudsman as provided for under the SA workers compensation system, and then decided to “return to work in the hope that I could successfully establish the SRES training program”21 and on Monday, 3 November 2014 advised Mr Michael Gaetjens that she proposed to return to work on Friday, 7 November, 2014.22 Upon returning to work with Gaetjens, Ms Masson-Forbes states;

[30] Having returned to work on Friday, 7 November 2014, Ms Masson-Forbes advised her resignation to Mr Gaetjens only a little over two weeks afterwards, on Monday, 24 November 2014.

[31] From Mr Gaetjens’ perspective, when Ms Masson-Forbes returned to work, he desired to take up the performance discussion he intended to have with Ms Masson-Forbes in May 2014 where it had been left.

[32] After returning to work, there were discussions between Mr Gaetjens and Ms Masson-Forbes about the company’s forward expectations, and in the course of those discussions she was informed that she would be expected to no longer focus on the SRES activities but to instead focus on listing and selling properties 24 and she understood that the sales staff who had previously been reporting to her would no longer do so.25 She was also told that there were to be changes in the way sales regions were organised and how sales leads were to be distributed, including to her.

[33] At around the same time, Ms Masson-Forbes prepared for potential publication a newspaper article entitled “what to look for when employing a real estate agent”. This was intended for submission to a suburban newspaper for the purposes of raising awareness about the SRES brand. Ms Masson-Forbes’ evidence is that it was motivated by a discussion by Ms Madeleine Gaetjens to the effect that;

[34] Mr Gaetjens’ response to the submission of the article was to suggest that Ms Masson-Forbes put her energies elsewhere, stating the following in a return email to her on 11 November 2014;

[35] The above email was sent at 4:38 PM, and shortly afterwards at 4:39 PM Ms Masson-Forbes received a further email from Mr Gaetjens, and without the benefit of prior conversation. The email commences;

[36] Mr Gaetjens’ evidence is that this email, or a variant of it, was sent not only to Ms Masson-Forbes, but that it was also sent at about the same time to the other sales staff within the company. Consistent with that explanation, the email also provides what would be considered general advice to employees, and especially those within a sales environment, about their conduct at work. For example in respect of “office management” and “clients” the email communicates that personal conversations should be kept to a minimum; that “Surfing the net or looking at 'realestate.com" does not make your phone ring. Reading junk emails does not pay the rent”, and that Facebook is banned from the office.

[37] Nonetheless the email very pointedly states to Ms Masson-Forbes that the company’s expectation is that she should in future settle “four sales per month”. Ms Masson-Forbes’ evidence is that this was not the subject of consultation with her and that the first she knew of the expectation was when it was communicated in Mr Gaetjens’ email on 11 November 2014. Mr Gaetjens’ evidence is that all sales staff received revised KPIs at that time;

[38] Mr Gaetjens’ evidence on this point includes that what was communicated in the correspondence of 11 November is a “new KPI”, meaning a new key performance indicator, and that such stands in contradistinction with what had previously been set as a “budget” in January 2013 to “personally settle 18 properties per year” 30, or April 2014 of “at least two settled sales per month”.31

[39] The day after receiving this communication, that is 12 November, Ms Masson-Forbes responded to Mr Gaetjens and informed him of her need to undertake several activities relating to her position as President of the Real Estate Salesperson’s Association of South Australia (RESA). 32 In particular, she advised she needed to attend a meeting at the South Australian Parliament House on the coming Friday to meet the new manager of the Real Estate Employers’ Federation (REEF), and that in the following week there was a meeting of state representatives of the employee associations in Melbourne, “at the Fair Work Tribunal” to discuss matters associated with the Modern Award.

[40] Mr Gaetjens responded to Ms Masson-Forbes over several emails as follows;

[41] On 21 November 2014 Mr Michael Gaetjens issued Ms Masson-Forbes a written warning about her performance, about which Mr Gaetjens’ witness statement indicates;

[42] The performance warning itself communicates the following;

[43] The email indicates that it was sent late on Friday, 21 November 2014, at 4:47 PM. Ms Masson-Forbes responded to the email late on Monday, 24 November at 5:32 PM with a lengthy email which sets out a number of matters, including her resignation with effect from Friday, 30 January 2015. With reference both to Mr Gaetjens’ email of 21 November and her intention to resign, Ms Masson-Forbes wrote in conclusion;

[44] There is little doubt that in sending this email overall Ms Masson-Forbes believed that what happened after her return was a “deliberate process designed to make me feel unwelcome”. 38

[45] Mr Gaetjens responded two days later on Wednesday, 26 November indicating a number of matters, including the following in relation to Ms Masson-Forbes’ resignation;

[46] Ms Masson-Forbes finished her employment with Gaetjens on 1 December 2014. 40

Consideration

Introduction

[47] The Applicant argues two forms of adverse action on the part of Gaetjens, within the meaning of s.342(1), that is;

[48] The argument as put initially by the Applicant through her originating application to the Commission in that these forms of adverse action were taken against Ms Masson-Forbes because she held a workplace right within the meaning of s.341 of the Act, and in particular that she was entitled to the benefit of personal leave with or without pay and the entitlement to make a claim for workers compensation payments. The argument as then developed through the evidence of the Applicant has been expanded to include an allegation that the adverse action against Ms Masson-Forbes came about either because she held a role or responsibility under a workplace law, being the Fair Work Act, as President of the RESA, which might be a breach of s.341, or that the adverse action was taken against her because she was an officer or a member of an Industrial Association, which protection is given by s.346.

[49] The reasoning of the Full Bench in Keep v Performance Automobiles Pty Ltd 41 is referred to above. That decision sets out broadly the task to be undertaken by the Commission in this matter, and with suitable modification to the issues requiring determination, as follows;42

[50] Keep reinforces that Ms Masson-Forbes bears the onus of establishing that she had exercised a workplace right at the relevant time or a protection, and that adverse action was taken against her. If so established, Gaetjens then bears the onus of establishing that the adverse action was not taken because Ms Masson-Forbes had exercised a workplace right or a protection.

Was Ms Masson-Forbes exercising a workplace right or a protection?

[51] The evidence leads to a finding that Ms Masson-Forbes exercised a workplace right when she did not attend for work on 26 May 2014 for reason of illness; when she proceeded on pre-approved annual leave in May and June 2014; when she subsequently did not attend for work for reason of personal illness; and when she subsequently made an application for workers compensation as a result of illness she alleges arose in or during the course of her employment.

[52] The workplace right that Ms Masson-Forbes had to personal leave derives initially from the National Employment Standards and is reinforced in the modern award and the employment agreement that applied to her. The National Employment Standard requires that the notice of personal leave is given to an employer as soon as practicable, which may be at a time after it started, together with advice of the period or expected period of leave; and makes provision for the evidence that should be provided. 43 The evidence and submissions has not disclosed an argument of substance that would suggest Ms Masson-Forbes has not complied with those obligations. With reference to her initial leave, the evidence shows the circumstances were known to Gaetjens, both to Mr Michael Gaetjens on the day of her initial illness, and to Mr Elburn by at least the following day. There is no evidence that the circumstances of her personal leave after a period of authorised annual leave, including a period of workers compensation, was not appropriately notified and documented.

[53] The taking of personal leave has been held to be the exercise of a workplace right. 44 The making of a claim for workers compensation has been held to be the exercise of a workplace right.45

[54] As referred to above, at the time that she left employment, Ms Masson-Forbes was President of RESA, being a Transitionally Recognised Association for the purposes of the Act. The evidence indicates that on 12 November 2014, Ms Masson-Forbes informed Mr Gaetjens of her need to attend two events in connection with her position as President of RESA. 46 The evidence is therefore consistent with a finding that Ms Masson-Forbes had a role or responsibility under a workplace law.

[55] The possibility that Ms Masson-Forbes might be subject to a protection is a reference to the provisions of s.346 of the Act, which provides as follows;

[56] A finding is therefore also available to the effect that Ms Masson-Forbes was an officer of an industrial association (s.346(a)), and that when she drew to Mr Michael Gaetjens’ attention her need to attend RESA activities in November 2014, she was participating in a lawful activity organised by or promoted by an industrial association (s.346(b)).

Did Gaetjens take ‘adverse action’ against Ms Masson-Forbes?

[57] The relevant consideration of “adverse action” in this matter is that set out within item 1 of the table in s.342(1) to the effect that

[58] As set out above, the possibilities for adverse action in this matter include that Ms Masson-Forbes was dismissed, having been forced to resign; then, or alternatively, dismissed through the actions of Gaetjens in “bringing forward” her termination date to 1 December 2014. An alternative construction, that Ms Masson-Forbes was injured in her employment arises, but ultimately is not necessary to be considered in this matter for the reason that I find that she was dismissed through a forced resignation.

[59] That a person’s forced resignation may be a dismissal is well established, and is explicitly identified in s.386(2) of the Act.

[60] The principles of forced resignation, or constructive dismissal, have been extensively analysed in many cases, including by the Full Bench. Those principles require all of the circumstances of a termination to be examined, and not only the actions of the employer. The employer’s conduct must be weighed objectively and arising from that it “may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal”. 47

[61] Terminations on the initiative of the employer have included those in which an act of an employer either directly or consequentially has led to the departure of an employee; namely, had the employer not taken the action it did, the employee would have remained in the employment relationship.

[62] In relation to what is meant by a termination at the initiative of the employer, the Full Court of the Industrial Relations Court of Australia found the following in an early case, Mohazab v Dick Smith Electronics Pty Ltd (No. 2) 48;

[63] In doing so, the Commission must carefully consider what has occurred, with the Full Bench finding as follows;

[64] In all though, a resignation that may be involuntary in and of itself may not be sufficient on “an objective analysis of the employer’s conduct” to be said to form a constructive dismissal;

[65] The Full Bench developed on these matters in the matter of Bruce v Fingal Glen Pty Ltd (in liq) in which the following was said about the paragraph above from Rheinberger;

[66] I take the following from my analysis of the relevant authorities;

[67] The conduct that I take into account in this matter are the decisions of Mr Michael Gaetjens and Ms Madeleine Gaetjens upon the return to work of Ms Masson-Forbes on 7 November 2014.

[68] The evidence and submissions provided by Gaetjens about its decision-making includes four elements on their part as follows;

[69] The argument in respect of a delayed and then recommenced performance management of Ms Masson-Forbes depends upon the view, which is factually correct, that Ms Masson-Forbes was well behind her budgeted expectations at the start of 2014. That much is recorded within the correspondence Mr Ken Gaetjens provided to the Applicant on 18 February 2014 in which he confirms a discussion with her in January. The correspondence refers to an expectation on the part of Ms Masson-Forbes to achieve over the 2014 year 16 sales with an estimated gross income of $136,000. At the time the letter was written, Ms Masson-Forbes had achieved a “gross commission” of substantially less than that amount, being $23,421. 52

[70] Whether or not this differential had come about because of changed market or corporate considerations, including Mr Ken Gaetjens’ health, it is a substantial difference, and no doubt one that should be the subject of discussion between an employer and employee. The evidence records that around this time, this matter was the subject of considerable concern on the part of Ms Masson-Forbes. It also records that Mr Michael Gaetjens sought to have further discussions with her about the matter. He couches both content discussions as being a “second warning”, however such event never occurred, at least at the intended time of May 2014, not the least of which was because of Ms Masson-Forbes’ illness and subsequent absence from the workplace for an extended period.

[71] The evidence given by Mr Michael Gaetjens and his daughter, Ms Madeleine Gaetjens, about the events in 2014 prior to the time that Ms Masson-Forbes went on leave is plausible and capable of acceptance. The evidence shows that the company had concerns and they wished to discuss those concerns with Ms Masson-Forbes. In and of itself, those matters would not give rise to an implication of being adverse action against Ms Masson-Forbes because either she had a workplace right or an industrial protection.

[72] On 26 May 2014, Ms Masson-Forbes required hospitalisation; then took planned leave, followed by personal leave; made a workers’ compensation claim, which was refused; and then returned to work on 7 November 2014.

[73] The evidence presented by Gaetjens is that upon her return to work in November 2014, Mr Michael Gaetjens then endeavoured to take up with Ms Masson-Forbes the substantive concerns that he had about her work performance when she had left in May 2014.

[74] This evidence would be capable of acceptance if it is able to be established that the period of Ms Masson-Forbes’ leave between the end of May and the start of November 2014 was merely a hiatus in a well-reasoned and implemented performance management process.

[75] The circumstance in which the parties find themselves is further complicated because of the business circumstances of Gaetjens which shifted appreciably between May and November. First of all, Mr Ken Gaetjens ceased to have a day to day involvement in the business; secondly, and perhaps related to the departure of Mr Ken Gaetjens, the business moved away from the SRES work that had been performed by Ms Masson-Forbes; thirdly, the wider business environment of Gaetjens appears to have deteriorated. In view of those matters, all of which amount to significant strategic impacts on a small business, it would not be unreasonable either that an underperforming employee who had gone on an extended period of leave would be held to account for their performance when they returned; or that the nature of the work that they were performing or their reporting relationships may well have changed by the time that they returned to work.

[76] Such matters, being externalities to the relationship between Ms Masson-Forbes and her employer, referred to from this point as “business externalities”, are mentioned for the reason that decisions which are attributable to those matters could likely discharge the onus held by Gaetjens if the evidence is accepted.

[77] Upon returning to work on 7 November 2014, Ms Masson-Forbes was faced with several changes of importance to her working arrangements, including;

[78] Objectively considered, at least some of these changes would have placed considerable pressure upon Ms Masson-Forbes at a time when she had been away from work for a considerable period including for reason of psychological or psychiatric illness.

[79] In particular, the changes made to Ms Masson-Forbes’ performance expectations are likely to have had a considerable impact on her. The expectations were imposed upon her without consultation, and when she complained, her complaints were met by indifference on the part of Mr Michael Gaetjens.

[80] Before she left for extended leave in May 2014, Ms Masson-Forbes’ 2014 calendar year performance obligations were referred to in correspondence from Mr Ken Gaetjens as being a budget of “16 sales at an average commission of $8,500 estimated gross income of $136,000”. 53 However, on 11 November 2014, Ms Masson-Forbes was informed of a new expectation, to the effect that “[w]e need you to settle 4 sales per month”.54 The evidence before the Commission included generally that the parties viewed a “settled sale” as being the ones which could be counted for this purpose, as distinct from a conditional sale. While there is not direct evidence addressing the terminology used in the correspondence from Mr Ken Gaetjens in February 2014, the consistency of the evidence is that the reference in his letter to “16 sales” in 2014 is to be viewed as being a reference to “16 settled sales”. As a result, the expectation of a salesperson now achieving four settled sales per month is significantly different to the expectation 16 sales per year.

[81] In these circumstances, it is likely that Ms Masson-Forbes and, indeed many other employees, would have been of the view that they were being moved out of the organisation, or that they were being asked to work under unreasonable demands. Ms Masson-Forbes reported her reasons for resigning in the following manner;

[82] I accept this evidence as a truthful and compelling recollection of how Ms Masson-Forbes felt at the time and that she reasonably believed she had no alternative other than to resign from employment with Gaetjens. In such circumstances, it follows that I must also find that her resignation from Gaetjens was a dismissal within the meaning of s.386 of the Act, for the reason that it was a forced resignation.

[83] Mr Michael Gaetjens submits that his motivation in bringing forward Ms Masson-Forbes’ end working date to 1 December 2014 was for reason that she was only obliged to provide one weeks notice of her resignation. No other reason has been put forward by Mr Gaetjens about why it was necessary to bring forward the termination date.

[84] Unilaterally substituting an earlier termination date for a date an employee has indicated to an employer on which they will resign has been held to be a termination at the initiative of the employer: per Nohra v Target Australia Pty Ltd. 56

[85] Following this analysis, I find Ms Masson-Forbes to have been subject to a forced resignation, that was to take effect on 30 January 2015, but the date of which was unilaterally brought forward by Gaetjens with the earlier termination date of 1 December 2014.

[86] The combination of these events is, and I find, a dismissal for the purposes of the Act that took place on 1 December 2014.

[87] Having made these findings, I also find that Gaetjens took ‘adverse action’ against Ms Masson-Forbes both in respect of;

Did Gaetjens take the adverse action because of a prohibited reason, or reasons which included that reason??

[88] The evidence is that Ms Masson-Forbes, by the time she commenced leave in May 2014, was either underperforming or perhaps was no longer required by the company because its strategic purpose was changing. The case could relatively easily be made that she needed to be the subject of performance management or alternatively that she should be made redundant for the reason that Gaetjens no longer required her role to be undertaken.

[89] However such was not the case. She was not made redundant, and the performance management that she was put under when she returned in November 2014 appears significantly punitive. No allowance was apparently made to the 2014 expectations even though she had been away at that time for slightly more than five months of the year. No allowance appears to have been made for the fact that the reason for her absence had been personal illness. Instead Ms Masson-Forbes was confronted with significant changes which on any reasonable view would likely cause anxiety. Those significant changes included taking a budget of expectation of 16 settled sales in the whole course of 2014 to an expectation of 4 settled sales per month.

[90] What had occurred in the period that Ms Masson-Forbes was away was, of course, the business externalities referred to previously, but in addition the personal and other leave she had taken, as well as having made a workers compensation claim. In response to the proposition about whether it was a reasonable request that she concentrate on sales, Ms Masson-Forbes gave the following evidence;

[91] While it could be said that changes to the company’s operations because of the business externalities referred to above might lead to Ms Masson-Forbes having significantly more time to concentrate on, and thereby achieve, a direct sales target for the reason that she would now be unencumbered by the need to focus on business development or staff management activities, the evidence given does not lead to this conclusion. Instead the evidence indicates that Ms Masson-Forbes might have had some, but not appreciably greater, time to concentrate on direct sales. In addition it indicates that she believed she would need time to grow into the expectation, which in any event she considered to be unreasonable, and that she considered she would need to be assisted through marketing and other business support activity by Gaetjens itself.

[92] Mr Michael Gaetjens’ evidence in relation to the changed circumstances is unconvincing. While he gave evidence that other salespersons in the office were similarly affected with changes to their performance expectations, he did not give a convincing explanation as to why the change was made in relation to Ms Masson-Forbes. His evidence endeavoured to explain the difference between key performance indicators (KPIs), and “budgets”. In essence Mr Gaetjens saw the changes made in November as being the an aspirational or stretch target and therefore perhaps not as punitive as Ms Masson-Forbes took them to be. In this regard, he gave the following evidence about KPIs in comparison with what might be a budget. His claim in setting new KPIs is taht they were something for salespeople to aim for

[93] This evidence was not connected with any evidence about the distinction between the two terms used being discussed with Ms Masson-Forbes. To the contrary, the evidence indicates that there was no such discussion. Altogether, and in the context of all of the evidence and submissions in this matter, this evidence on the part of Mr Gaetjens is implausible. The plausibility of this evidence may have been assisted either through the discussions referred to that did not take place, or alternatively through some evidence relating to the business pressures Gaetjens was endeavouring to respond to and which caused it to amend its expectations about performance.

[94] Overall, I am unable to accept Mr Gaetjens’ evidence about his motivations for the changes made upon Ms Masson-Forbes’ return to work. I prefer the evidence of Ms Masson-Forbes to the effect that when she returned from leave she felt pressured and demeaned and that this was as a consequence firstly of the leave she had taken and secondly because she had a need to ask Mr Gaetjens for time to attend to her duties as President of RESA.

Consideration of presumed reasons

[95] At this juncture, it is necessary to consider whether the adverse action referred to was not taken for a prohibited reason. In this regard, and in connection with the evidentiary onus held by the Respondent, s.361 provides the following;

[96] In relation to the question “why was the adverse action taken?”, the High Court has found;

[97] In relation to the same proposition in relation to the protection afforded to officers and members of industrial associations through s.346, the Federal Court has elaborated that determination of the question will be a matter of acceptance of evidence;

[98] As a result of the foregoing analysis, I am unable to find that Gaetjens has discharged its evidential onus. It has failed to demonstrate that its reasons for acting in the way it has in relation to Ms Masson-Forbes was for reasons that were not those as alleged by Ms Masson-Forbes. There is not a plausible reason in evidence about Gaetjens’ decision making, either through the evidence of Mr Michael Gaetjens or Ms Gaetjens.

[99] The likelihood that Gaetjens faced difficult times at around the time that Ms Masson-Forbes returned from leave and needed better sales performance from her and others insufficiently explains the actions it took against her. While it is an argument that might form a foundation for properly implemented performance management, the actions taken by Gaetjens against her were not that. Its new sales targets were unilaterally imposed and bore no relationship to those she had before commencing extended leave. She was given insufficient time after returning from leave, and unreasonably so in the circumstances, to demonstrate her ability to meet her sales targets. When she sought time to attend to her RESA duties, there was no negotiation, merely an instruction that attendance would be in her unpaid time, which she believed was contrary to her prior arrangements with Gaetjens.

[100] That Gaetjens might have taken its actions because of Ms Masson-Forbes’ workplace rights is demonstrated in the following correspondence from Mr Michael Gaetjens on 13 November. The email was sent by him after Ms Masson-Forbes had advised she needed to attend a meeting at the South Australian Parliament House to meet the new manager of the REEF, and to attend in the following week a meeting of state representatives of the employee associations in Melbourne. Mr Gaetjens’ email from 13 November sets out the following;

[101] The correspondence leaves the impression that Mr Michael Gaetjens was resentful of the time that Ms Masson-Forbes had taken off since May, in accordance with her workplace rights, and that he was similarly opposed to her exercising her rights as President of RESA, and that he was making it difficult for her because of those matters.

[102] There has been no adequate explanation from Gaetjens for the changes to her working arrangements or the people she used to supervise. Support she expected in the form of assistance from Gaetjens, such as sales leads, business cards or advertising, was suddenly no longer there and when she questioned those matters does not appear to have been given a reasonable explanation. She demonstrably was returning from a significant period of illness, and was no doubt still emotionally fragile and lacking resilience. Gaetjens has not explained plausibly what its motivations were for its decisions, or why improbable and unreasonable targets should be unilaterally imposed on her, at the same time as her duties were significantly changed.

[103] The effect of finding that Gaetjens has not discharged its evidential onus is that I accept the presumption set out in s.361 applies. Such finding leads to the further finding that Gaetjens has contravened the provisions of s.340 and s.346 of the Act.

Remedy

[104] I turn to consider any orders that may be suitable in this matter.

[105] The orders that may be made by the Commission when dealing with a general protections dismissal dispute are set out within s.369(2) as follows;

[106] Ms Masson-Forbes does not seek reinstatement as a consequence of a finding that the general protections provisions of the Act have been contravened in respect of her dismissal. In any event, I do not consider it appropriate both for the reason of Ms Masson-Forbes’ own situation, described in her evidence, as well as the small size of Gaetjens. The evidence before the Commission also leads to the view that the relationship between Ms Masson-Forbes and Mr Gaetjens in particular would not sustain a re-establishment of the working arrangement.

[107] Notwithstanding this situation, Ms Masson-Forbes seeks compensation both for economic and non-economic loss, that is, orders to be made respectively under s.369(2)(c) and (b).

Economic loss

[108] In relation to the assessment of compensation in general protections matters in the Courts, and noting there are differences in the basis of orders that may be made by a Court and this Commission, the following observations have been made about the purpose of compensation;

[109] While the provisions of s.545(2) of the Act allow for an order for “compensation for loss that a person has suffered because of a contravention”, the provisions of s.369(2), which must be applied in this matter, refer to the making of “an order for the payment of compensation”.

[110] In application of these principles the following has also been observed;

[111] In respect of compensation for her remuneration lost, Ms Masson-Forbes seeks the payment of wages that would have otherwise been earned by her in the period between the date on which she finished with Gaetjens, 1 December 2014 and the date she had originally put forward to the company as being her finishing date, being 30 January 2015. In this regard, I take her to be conceding that an ongoing employment relationship with Gaetjens was improbable.

[112] The circumstances of Ms Masson-Forbes’ employment with Gaetjens include that at the time she left the company she was employed as General Manager Sales and Corporate Development and remunerated on the basis of the payment of a salary of $75,000 per year with the further offer of a 15% commission on sales. 64 The terms of the payment of commission on sales are in turn dealt with in the letter to Ms Masson-Forbes from Mr Ken Gaetjens in January 2013 in which he indicated that sales commission would be paid for in accordance with a budget for settlement of more than 18 properties per year.65 The same correspondence also refers to Ms Masson-Forbes being entitled to payments for motor vehicle, mobile phone and superannuation. In the absence of any evidence to the contrary, I take her superannuation entitlement to be the Superannuation Guarantee rate applicable from 1 July 2014, namely 9.5% of ordinary time earnings. There is no evidence before me in relation to payments for motor vehicle or mobile phone use, and so I make no provision for them in my assessment of compensation.

[113] In relation to her entitlement to sales commission, the correspondence from Mr Ken Gaetjens to Ms Masson-Forbes in February 2014 confirming an earlier discussion with her in January 2014, lays plain that Ms Masson-Forbes had achieved, by that point, considerably fewer sales than had been budgeted. 66 As a result, and for the reason that by the time she finished with Gaetjens on 1 December 2014 Ms Masson-Forbes’ sales position had not turned around, it is clear that no sales commission was due to be paid either for services rendered to date or likely for the foreseeable future, at least until her sales position had become significantly more positive. The evidence shows little prospect of this occurring in the months ahead.

[114] As a result, the correct basis on which to assess Ms Masson-Forbes economic loss is her annual salary of $75,000 per year, upon which she would also have been entitled to a superannuation contribution of 9.5%, but there is no need for consideration of the inclusion of an amount for sales commissions foregone.

[115] Having been terminated on 1 December 2014, Ms Masson-Forbes had no earnings from Gaetjens or any other party between that date and the date of the hearing.

[116] Even though I have found that Ms Masson-Forbes’ decision to give notice to finish with Gaetjens on 30 January 2015 was the product of a forced resignation, this is not a matter where the evidence would indicate an applicant is likely to continue working with an employer until some indefinite time in the future. Instead, the evidence indicates first of all that Ms Masson-Forbes’ health and well-being was impacted to some degree at least by factors external to the employment relationship and secondly that the business externalities to which I have referred to above meant that by the time she returned to work in November 2014, the job that she was performing was under some measure of pressure as to the likelihood of its continuation. Additionally, her own sales performance would clearly also have an impact on her likely future tenure; in early 2014, her sales were demonstrably lower was needed.

[117] The evidence in relation to Ms Masson-Forbes’ health does not disclose whether and how those factors might impact upon her ability to continue working, and so I make no inferences about what, if any, impact her health might have on her future job security.

[118] However the evidence in relation to the business externalities faced by Gaetjens in November 2014 is more cogent.

[119] In that regard, the evidence discloses first of all that the business was under some measure of pressure to achieve sales results, which at that time were not being achieved in the way Mr Michael Gaetjens wanted.

[120] Secondly, it is apparent that with Mr Ken Gaetjens ceasing to have a day-to-day involvement in the business that Gaetjens’ strategy in respect of the seniors real estate market was changing. By the time Ms Masson-Forbes had returned to work the seniors real estate market was no longer a focus of the business, and it is reasonable to infer that within a month or two it probably would not be a market in which the business wanted to be involved at all.

[121] Thirdly, it is also apparent that, even before Mr Ken Gaetjens’ departure from the firm, Ms Masson-Forbes’ performance was under some level of question on the part of the company. In January and February 2014 she had been advised of the need to pay greater attention to the company’s budget expectations. They were, all things considered, reasonable expectations. Despite the fact that Ms Masson-Forbes spent considerable time away from the company between the end of May and the beginning of November 2014 for health-related reasons, and even if those health-related reasons were only partly connected to the anxiety caused from performance related discussions, is also not unreasonable to expect that those discussions would have resumed upon her return to work.

[122] As a result, it is entirely foreseeable that having returned to work on 7 November 2014, both that Gaetjens would have discussed with Ms Masson-Forbes the need for her to pay closer attention to and achieve the budgets that had already been set for her; and that it would have taken some considerable time for Ms Masson-Forbes to get to a point where she could achieve the company’s expectations. Despite her being a senior sales representative with considerable industry experience, the impression gained in the course of her giving evidence was that her operating preference was towards the sales development role of general manager sales and corporate development, to which Mr Ken Gaetjens had appointed her in January 2013, rather than the direct real estate selling role which appears to be the greater expectation of Gaetjens from early 2014. Whether or not she could meet those expectations, only time would tell. However it is reasonable to infer from all of the evidence given in this matter that she may not have achieved those expectations within the relatively short timeframe the firm needed because of its business externalities.

[123] Consideration of these matters leads to the view that either of two eventualities would likely have brought Ms Masson-Forbes’ employment with Gaetjens to an end within a relatively short period. The first of these eventualities is that Gaetjens may well have determined that it no longer required her job to be done by anyone and that it then moved to make her redundant. The second of the eventualities is that Ms Masson-Forbes may well have been the subject of more appropriate performance management processes, leading ultimately to her dismissal, after the giving of appropriate counselling, warning and opportunities to demonstrate the desired performance.

[124] Because Gaetjens is a small business within the meaning of the Fair Work Act 2009, the provisions of s.121 of the Act mean that the redundancy payment otherwise payable under s.119(2) would not be payable in the event of a redundancy.

[125] In the eventuality that Ms Masson-Forbes was, instead, dismissed for performance related reasons, the provisions of s.117(2) would require that having been employed for more than three years but not more than five years with Gaetjens, a period of not less than 3 weeks’ notice of termination of employment would be required to be given to Ms Masson-Forbes, together with a further one week notice for the reason that she is older than 45 years old.

[126] The period from 1 December 2014 to 30 January 2015 is a period of 60 days, or a period of slightly less than 9 weeks.

[127] That period, and its potential as a reference for Ms Masson-Forbes’ anticipated period of remaining employment with Gaetjens, viewed at the point at which she did finish with Gaetjens, on 1 December 2014, is a not improbable estimation of the time she would have remained employed with Gaetjens, within the context of the whole of this matter.

[128] Given the time of year that these events took place, it is improbable that were she to have been eventually dismissed by Gaetjens for performance related reasons that such would have happened before the end of 2014, or even very early in the New Year. That being the case, it is likely that any performance related dismissal would take place before the end of January 2015, at which time she would have been entitled to be provided with notice of any dismissal. In Ms Masson-Forbes’ case, the minimum notice period would be 3 weeks’ notice or payment in lieu, with a further 1 week for reason of her age and that she has completed at least 2 years of service. There was also no evidence that would lead to the view that a decision to make her redundant was imminent, or likely to occur by the end of January 2015.

[129] I find therefore that an appropriate amount of compensation for Ms Masson-Forbes’ economic loss is a payment of 13 weeks wages, comprising 9 weeks wages that would have otherwise been earned together with a further 4 weeks payment in lieu of notice upon termination of employment, within which is included a further 1 weeks payment for reason of the Applicant’s age. On the basis of an annual salary of $75,000, 13 weeks wages equates to $18,750 to which I add a further 9.5% in lieu of superannuation contributions that would have otherwise been made on the Applicant’s behalf, an amount of $1,781, making the subtotal amount of $20,531.

[130] I consider it appropriate in a matter such as this to make a deduction for the contingency that the Applicant may not have served the whole of the remaining period of employment for reasons such as ill health or other related factors, or matters relating to the Respondent’s business conditions. 67 While the period of remaining employment that I have assessed is not great, the evidence as a whole points to there nonetheless being some factors that would create uncertainty about the continuation of the relationship on both sides.

[131] I consider it appropriate in this matter to deduct 15% from the subtotal referred to above for the purposes of contingencies. A deduction by that factor is an amount of $3,080, which reduces the total assessment of remuneration lost to $17,451.

Non-economic loss

[132] Ms Masson-Forbes seeks compensation for non-economic loss in the order of $5,000 for the hurt, distress and humiliation caused to her by Gaetjens adverse action against her. 68

[133] Consideration was given by the Federal Court to the question of an award of non-economic loss in the matter of Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd 69 (ALAEA v IASA). The context of that case was a determination by the Court pursuant to s.545 of the Act, which of course is a different provision to that in consideration in this matter. The relevant part of s.545 includes;

[134] In contrast, and as referred to above, the provisions of s.369(2), under which this decision is made, are an order for reinstatement (s.369(2)(a)); an order for the payment of compensation (s.369(2)(b)); and an order for payment of an amount to the person for remuneration lost (s.369(2c)). It is notable that the section separately provides for orders for compensation and orders for remuneration lost.

[135] In ALAEA v IASA, the Federal Court held the following about compensation for non-economic loss;

[136] Whereas the provision relevant to the Federal Court’s decision in the above matter was the meaning of the term “an order awarding compensation for loss that a person has suffered because of the contravention”, which stands in contrast to the term to which I must have regard, namely “an order for the payment of compensation to the person”, I am satisfied that the reasoning set out above by Barker J has application in this matter and that it is proper in all the circumstances to proceed to assess the factors for any non-economic loss incurred by Ms Masson-Forbes.

[137] In this regard I take into account that the reasoning set out by Barker J in ALAEA v IASA follows the earlier judgement of the Industrial Relations Court of Australia in the matter of Burazin v Blacktown City Guardian, 71 in which consideration to an award of non-economic loss was given but ultimately not awarded. I have also taken into account the specific prohibition upon compensation for shock, distress or humiliation which is provided for within s.392(4) of the Act. That section deals with compensation in unfair dismissal matters. In contrast the section under which this matter is determined is s.369 which contains no prohibition of the type found within s.392(4). I also take into account that s.369(2) provides separate heads of remedy for each of reinstatement, payment of compensation and payment for remuneration lost.

[138] The assessment by the Courts of non-economic loss has included the caution set out in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd, 72 a matter dealing with the termination of employment of a man who had earlier been reinstated to his position by the Court, but in which the residual matter went to whether there should be compensation for non-economic loss. Finding that something more is required for compensation for non-economic loss than the usual element of distress which accompanies most terminations, the Court first noted the basis of the claim but then refused the order, not being persuaded of its basis;

[139] In considering the assessment of non-economic loss, within the different context of a matter arising under the Act involving judicial review of an earlier decision of the Commission and allegations of the breach of a certified agreement, the Federal Court in Dafallah v Fair Work Commission 74 has emphasised the need for an examination of the whole of the circumstances of the matter as well as causality and the extent to which it is reasonable to compensate the employee for such consequences;

[140] Having considered these matters, Mortimer J in Dalfallah found that while the Applicant had suffered “tangible emotional upset” both in regards to the dismissal and the warning processes that preceded, there was no evidence of psychological damage or treatment, and an award of $3,000 for non-economic loss was made. 76

[141] Other than the circumstances of the matter, together with questions of causation, an award for non-economic loss can only be made if the applicant has in fact suffered distress, hurt, and humiliation as a result of the contravention. 77

[142] In referring to the circumstances in which loss has arisen in the assessment of non-economic loss for general protections applications, Courts have taken into account many factors, including the following;

[143] The factors which I have taken into account in my assessment of non-economic loss include that Ms Masson-Forbes, at the time of her departure from Gaetjens, was a senior sales person within her profession; that she was also President of the RESA; and that she also had, until at least February 2014, had a good working relationship with her employer and in particular Mr Ken Gaetjens. The loss then that she incurred went not only to what she saw as maltreatment on the part of Gaetjens both during and after the period of personal leave, but also to the subsequent distress that being seen, as a senior person, to have lost employment and purportedly for performance related reasons. Against these matters I balance that there was no evidence, other than Ms Masson-Forbes own evidence, before me about the nature of her post employment distress or psychological state and the evidence very strongly suggests that there were medical and other factors contributing to her level of psychological anxiety at the time that she departed on personal leave in May 2014.

[144] In all the circumstances I consider it appropriate to make an order for non-economic loss in the order of $3,000. In forming this view, I have taken into account not only the amount sought by the Applicant, but also the amounts awarded by the Courts in the matters referred to above. Of course those awards are heavily circumstantial, however they do provide a range that can be considered in forming a proper assessment of loss in this matter. The approach of Barker J to such task in ALAEA v IASA is set out in the following passage;

[145] In other matters to which I have regard, orders have been made in the range of;

[146] In Ms Masson-Forbes’ case, I have taken into account the state of the evidence about her distress, and that factors other than Gaetjens’ conduct may have been a contribution. Those factors have not lead me to make an award of a large amount, however I have considered that a modest level of award should be given to her in recognition of her hurt, humiliation and distress.

Conclusion

[147] For the reasons set out above, I have found that;

[148] An order requiring Gaetjens to make payments to Ms Masson-Forbes in the amounts of $17,451 for remuneration lost, together with $3000 compensation for her non-economic loss is issued at the same time as this decision. The order will require payment of these amounts within 14 days of the date of this decision.

[149] In relation to the order for $17,451, the order will specify that the amount of $15,937 will be paid to Ms Masson-Forbes as wages, taxed according to law and that a further amount of $1,514 will be paid on her behalf to her superannuation account.

al of the Fair Work Commission with member’s signature

COMMISSIONER

Appearances:

Mr R Clarke and Ms L Masson-Forbes for the Applicant

Mr M Gaetjens and Ms M Gaetjens for the Respondent

Hearing details:

2015.

Adelaide:

2 April

 1   C2014/8102

 2   [2014] FWCFB 8941

 3   Ibid, at [7] - [15]

 4   Exhibit R2, Appendix B

 5   Exhibit A1, para 2

 6   Exhibit R1

 7   Exhibit R2, Appendix B

 8   Exhibit R2, Appendix B

 9   Exhibit R4, para 2b

 10   Exhibit A1, para 3

 11   Exhibit A1, Addendum B

 12   Exhibit A1, para 4

 13   Exhibit A1 para 5

 14   Exhibit A1, Addendum C

 15   Exhibit R2, Appendix J

 16   Exhibit R1, p2

 17   Exhibit A1, para 10

 18   Exhibit R2, Appendix I

 19   Exhibit A1, para 11

 20   Exhibit A1 para 12

 21   Exhibit A1 para 13

 22   Exhibit A1, Addendum E

 23   Exhibit A1, para 14

 24   Ibid

 25   Transcript, PN 94 - 95

 26   Exhibit A1, para 15

 27   Exhibit A1, Addendum G

 28   Exhibit A1, Addendum H

 29   Exhibit R1, p2

 30   Exhibit R2, Appendix B

 31   Exhibit R2, Appendix J

 32   Exhibit R2, Appendix E

 33   Ibid

 34   Ibid

 35   Exhibit R1, p2

 36   Exhibit R2, Appendix D

 37   Exhibit A1, Addendum J

 38   Exhibit A1, para 19

 39   Exhibit R2, Appendix C

 40   Transcript, PN 7

 41   [2014] FWCFB 8941

 42   Ibid, at [14] - [15]

 43   Fair Work Act 2009, s.107

 44   Khiani v Australian Bureau of Statistics [2011] FCAFC 109 and Ross v RC Mackenzie & Sons [2013 FMCA 31

 45   See CFMEU v Leighton Contractors Pty Ltd [2012] FMCA 487, (2012) 225 IR 197 and Stephens v Australian Postal Corporation [2010] FMCA 1012; (2010) 202 IR 437

 46   Exhibit R2, Appendix E

 47   Doumit v ABB (1996) AIRCFB N6999

 48   (1995) 62 IR 200, at pp.205-206

 49   Doumit v ABB (1996) AIRCFB N6999

 50   Rheinberger v Huxley Marketing Pty Ltd (1009) 67 IR 154

 51   Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, at [23]

 52   Exhibit A1, Addendum C

 53   Ibid

 54   Exhibit R2, Appendix H

 55   Transcript, PN 104

 56   [2010] FWA 6857, at [10], (2010) 204 IR 389, at [10]

 57   Transcript, PN 168

 58   Transcript, PN 327 – 331

 59   Bendigo Institute v Barclay [No 1] [2012] HCA 32, (2012) 248 CLR 500, at [45], per French CJ and Crennan J

 60   Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited [2013] FCA 267, at [53]

 61   Exhibit R2, Appendix E

 62   Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875, at [351]

 63   Heriot v Sayfa Systems Pty Limited (No.2) [2014] FCCA 1627, at [8] - [9]

 64   Exhibit A1, Addendum B and Exhibit R4, para 2b

 65   Exhibit A1, Addendum B

 66   Exhibit A1, Addendum C

 67   Slifka v J W Sanders Pty Ltd (1995) 67 IR 316, p.328; see also Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875, at [358]

 68   Exhibit A3, para 8

 69   Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333

 70   Ibid, at [443] – [449]

 71   [1996] IRCA 371

 72   [2006] FCA 122

 73   Ibid, at [8] and [10] - [11]

 74   Dafallah v Fair Work Commission [2014] FCA 328

 75   Dafallah v Fair Work Commission [2014] FCA 328, at [159] – [161]

 76   Ibid, at [179]

 77   Hall v City Country Hotel Management Pty Ltd & Ors (No.2) [2014] FCCA 2317, at [25]

 78   Ibid, at [26]

 79   ALAEA v IASA, [2011] FCA 333, (2011) 205 IR 392, at [450]

 80   Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27, at [316]

 81   Transport Workers' Union of Australia v Atkins [2014] FCCA 1553 14, at [22]

 82   Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875, at [359]

 83   [2011] FCA 333, (2011) 205 IR 392, at [450]

 84   [2014] FCCA 2317, at [25]

 85   [2015] FCA 27, at [316]

 86   [2014] FCA 328, at [179]

 87   [2014] FCCA 1553, at [22]

 88   [2014] FCCA 875, at [335] and [359]

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