DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Taylor
v
Cut Above the Rest Tree Surgery Pty Ltd T/A Tree Mason
(U2015/16442)

Application for relief from unfair dismissal.

[1] Mr James Taylor (the Applicant) made an application for an unfair dismissal remedy in relation to his dismissal, on 15 November 2015, by Cut Above the Rest Tree Surgery t/a Tree Mason (the Respondent, the company, Tree Mason). The application was made on 2 December 2015. The application was made under section 394 of the Fair Work Act 2009 (the Act).

[2] On 10 December 2015, the company advised of a jurisdictional objection on the grounds that Mr Taylor was not dismissed but resigned. The jurisdictional objection was the subject of a determinative conference on 12 April 2016 during which the Commission determined that Mr Taylor had been dismissed. Attempts were made to assist the parties reach a settlement but they were unsuccessful.

[3] The substantive application (whether the dismissal was unfair) was heard on 31 May 2016. Mr Taylor filed Closing Submissions on 28 June 2016 and the Respondent filed their Closing Submissions on 27 July 2016. Closing Submissions in Reply were filed by Mr Taylor on 19 August 2016.

[4] Mr Taylor appeared on his own behalf, while Mr A Pollock, of Counsel, appeared for the Respondent.

1. Legislative requirements

[5] It was common ground that the Respondent is a small business employer.

[6] Section 385 of the Fair Work Act 2009 provides that a person has been unfairly dismissed if the Fair Work Commission (the Commission) is satisfied that:

“(a) the person has been dismissed; and

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

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

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

[7] It is not disputed that the Small Business Fair Dismissal Code (the Code) applies. The Code is a follows:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

In this matter, the relevant section of the Code is “Other Dismissal”.

2. Witness Evidence

(a) Mr Taylor

[8] Mr Taylor gave evidence that:

• He denied that, after he took on the role of Charge Hand, he began to voice his anger and concerns with Mr Mason. Rather, he said that he had the type of relationship with his boss that any manager would have. 1



• He agreed that, in his witness statement, he had said that he was not always a perfect team leader and that there were times when he had voiced his anger and concerns with both Mr Mason and his co-workers. 2



• He confirmed that he was only doing it to minimise the risk of harm. This was because, in a high-risk environment, safety is a priority. 3



• He denied that he swore at the employees whom he supervised on a daily basis. Mr Taylor disagreed that he had called Mr Street “a dumb cunt”. Mr Taylor also denied that he called Mr Street an idiot or told him that he was “fucking useless”. 4



• He confirmed that he had a continuing disagreement with Mr Mason over his time -pressured expectations for job completion. It was agreed that Mr Mason had said a number of times that jobs were taking too long. 5



• Mr Mason did not say that his performance needed to improve. Rather, Mr Mason had said that he needed to make more money for the company. 6



• He was aware that Mr Street had complained to Mr Mason about his behaviour but was unaware of the nature of the complaint. Mr Taylor was also aware that Mr Smith had also complained to Mr Mason, on the same day, about his behaviour. 7



• There was no basis for Mr Street giving new employees the heads up that they would have to expect abusive behaviour. 8



• On 20 May 2015, there was an informal discussion (not team meeting). Mr Taylor recalled that he left the meeting but denied that he left screaming and yelling at Mr Mason and the other employees. 9



• Mr Mason had not contacted him later that night (on 20 May 2015) but had told him during the discussion to take the rest of the week off. Mr Taylor recalled Mr Mason saying that he was just trying to resolve workplace tensions rather than he should think about his actions. 10



• When Mr Mason texted him the next morning at 5:30 a.m. asking him where he was and why he was not at work, Mr Mason had said that he should think about his future with the company. Mr Taylor’s response had been that Mr Mason had told him to take the rest of the week off. 11



• In his email to Mr Mason, he had said that it appeared that Mr Mason would like to fire him. Mr Taylor confirmed that Mr Mason had blamed the staff who had left over the past two years on him. Mr Taylor did not think that Mr Mason would terminate his employment but he was covering his bases to see what his options were instead of leaving it up to guesswork. 12



• From the day of the discussion (team meeting), Mr Taylor knew that there were complaints about him yelling at and abusing the other employees. 13



• He was never told that that behaviour was unacceptable to Mr Mason and the company because he left the meeting on 20 May 2015 early. This was because he was pigeonholed so he became stressed. Mr Taylor stated that the meeting/informal discussion was never resolved. 14



• He confirmed that Mr Mason had said to him and the other employees, at the meeting on 20 May 2015, words to the effect that everyone should speak respectfully to each other and that it was unacceptable that some employees were bullying or swearing at other employees. 15



• This did not mean that Mr Mason was directing him not to swear. Rather, it was Mr Mason saying that this was what he should not be doing. 16



• He guessed that he knew that that kind of behaviour was not acceptable. 17



• He denied that he continued to yell at the employees he was supervising. Rather, Mr Taylor characterised it as raising his voice. Mr Taylor stated that, from time to time, he needed to do what he had to do which was to create a safe environment for himself, his employees and the public. 18



• He explained that he had to talk in a way that gets people’s attention and get them to realise the severe safety consequences. For example, if he was up a tree dropping a branch down and someone was below it and almost getting hit. 19



• He stated that he never directed his conversation personally towards someone. He said that he would always do it in a way where he needed to get someone’s attention quickly because they could potentially die. It was also at a time when he could not speak softly because everyone had earmuffs on. He stated that it was not like he was sitting next to his fellow employees yelling at them. 20



• He would talk to the other employees as a tradie would talk but not as a vindictive person. 21



• Mr Mason never talked to him about swearing or yelling at other employees. Mr Mason was said to have turned up every now and again and asked him why the job was not getting completed as fast as he would like it to. 22 It was stated that there were no meetings or any formal discussions about this.23



• There were no discussions about not yelling or swearing at the guys or needing to take it easy on the guys after 20 May 2015. He disagreed that Mr Mason spoke to him almost monthly about this. 24



• He understood what had happened on 20 May 2015 after a stressful day but could not say that was regular behaviour because it happened only on one day. He had had one bad day. 25



• When out on a job with the client, about once in a blue moon/occasionally he was approached by neighbours wanting to have a separate job done. Once in a blue moon was maybe (more than) once every six weeks. 26



• He understood that, when approached by a neighbour, that was Tree Mason work and that any money received should be given to Mr Mason. 27



• He disagreed with Mr Street that the side jobs happened about once a week. 28



• The side jobs could be cash, EFTPOS or bank transfer. 29 Mr Taylor described the side jobs as if they were another job on his job sheet.30



• He denied that, on one occasion on a St Kilda job, Mr Smith had helped him on a side job and that he had paid Mr Smith some of the cash. 31



• Every time he had done a side job, he had provided the cash, in full, to Mr Mason. It was stated that customers often required a receipt. 32



• He had told Mr Mason every time they did a side job. As Mr Mason called him up every minute of the day, how was it meant to get anything past him? 33



• He denied that he did side jobs more often than he told Mr Mason and that he pocketed the cash. He said that he was completely honest with Mr Mason. 34



• He asked if the Respondent was implying that he would get the team to work a side job and then pocket all the money himself? 35



• He then asked if the Respondent was implying that the other employees told Mr Mason about the bullying but did not tell him about the theft? 36



• What happened on 20 May 2015 did not reflect his whole work career. It was just that one day and there were no other days when he was warned or talked to about the allegations. 37



• In terms of side jobs, Mr Mason had those recorded and so knows exactly how many. He had not recorded each one that was done. 38

(b) Mr Mason

[9] It was Mr Mason’s evidence that:

• The guys had not provided him with written complaints about Mr Taylor - rather they were verbal. 39



• The warnings that had been given to Mr Taylor were verbal not written as it was a small company with three employees, one of whom was Mr Taylor. 40



• He had tried to correct Mr Taylor’s behaviour during meetings which were held on site. During these meetings, it was explained to Mr Taylor how he should talk to the boys and other ways of getting his point across apart from yelling and screaming and swearing. He had had that conversation quite a few times with Mr Taylor. 41



• One of the meetings was the date of the staff meeting (20 May 2015). 42 This was the only one he could remember off the top of his head. It was an ongoing thing.43



• Following Mr Taylor storming off yelling and swearing on 20 May 2015 Mr Taylor was not given a written warning but a verbal warning and two days off. 44



• When Mr Taylor returned to work, he had had a chat about it and Mr Taylor did pick up and, for at least a week, had a good attitude towards the guys. The guys were said to have been happy to work with him but, after that, it went back to normal. 45



• He did not feel that there was any need to tell Mr Taylor that Mr Smith had resigned because of Mr Taylor. 46



• He believed that he did remove the source of the bullying by giving Mr Taylor a couple of days off because of it. There were also many warnings and trying to get the point across to try and talk to the guys in a suitable manner. 47



• Monthly and weekly, he would have a chat to Mr Taylor about talking to the guys in a reasonable manner. It was not documented because it would just be a personal chat trying to resolve an issue and move forward. It was about trying to change Mr Taylor’s attitude towards the guys, from the way he was doing it, to new ways. 48



• There was no recording of any of these discussions. It was all verbal and on-site. 49



• At the time of Mr Taylor’s dismissal, Mr Taylor was aware of the bullying allegations because it had been going on for so long. 50



• The alleged bullying had occurred from about February 2014. The reason Mr Taylor had not been dismissed was that it was very difficult to recruit new employees. 51



• Mr Smith was not an employee for very long at all because he couldn’t handle it. It was at least once a week that he and Mr Smith would have to have a chat. 52



• He had received complaints about Mr Taylor as far back as February 2014. He believed that Mr Taylor would have been aware of it because there were regular toolbox meetings and talks about it. He had to give every staff member who came through a warning about Mr Taylor’s behaviour. 53



• Mr Street had talked to him the whole time about Mr Taylor’s behaviour but he wanted to keep his job. 54



• The first time he employed Mr Street was about 2 ½ years ago. Mr Street came back because Mr Taylor had wanted him back. 55



• At the start, Mr Taylor’s behaviour was not poor towards the guys because he was working directly to Mr Mason. When Mr Taylor became Charge Hand, he changed a little bit. Within six to twelve months before the end, it had really started to go downhill and he was getting a lot more complaints. He had tried to resolve it and Mr Taylor would improve his behaviour for a couple of days/week and then it would go back. 56



• He had tried to resolve it up to a couple of weeks before and he and Mr Taylor had a few talks about it. 57



• He would ask Mr Street how Mr Taylor was doing this week. Mr Street would say that Mr Taylor was back to his usual self again and so he would go and talk to Mr Taylor and say to take it easy on the guys. 58



• Mr Taylor was probably just trying to do his job and to get the guys to do their jobs properly. It was the way Mr Taylor did it which was incorrect (swearing and abuse). 59



• Mr Taylor should not have been swearing at the guys in front of a customer because that was the wrong thing to do. It was a noisy environment and you do have to yell to get your point across but not to call them names and to swear at them in front of customers. He knew this was happening because Mr Street, amongst others, had told him. 60



• After he and Mr Taylor had a meeting and a discussion about him not swearing etc., Mr Taylor would be really conscious of what he was saying to the guys. But then, under pressure, you change and it is a very high pressure job. He could understand yelling but to swear, belittle the guys and tell them that they were hopeless at their jobs, was just not on. 61



• At the end of each day, after the boys had finished, there would be a phone call between Mr Mason and Mr Taylor. They would talk regularly because Mr Taylor would tell him how the job went and if they needed longer etc. It would be in the yard in the morning or in the afternoon or when he went out on site. 62



• Mr Taylor had been inefficient for the six - twelve months prior to his dismissal. 63 It was stated that he had become concerned that jobs were taking too long to complete which was eroding the profit margin of the job. He had told Mr Taylor on a number of occasions during 2015 that his performance needed to improve.64



• He was aware of Mr Taylor performing side jobs since late 2014. He could not accuse anybody if he did not know anything and had no proof. 65



• He had only asked Mr Street about the alleged theft (side jobs) since Mr Taylor’s dismissal. He was not aware of the alleged theft at the time of Mr Taylor’s dismissal. 66 He had his suspicions the whole time but he had to confirm it with Mr Street and since then, it had been confirmed by Mr Smith.67



• It was recounted that Mr Street told him that side jobs had occurred at least once a week and that Mr Taylor had given them money. Having been in the industry himself for so long, he knew that side jobs came across the road every week - a couple of times a week. He (Mr Mason) would get a call every now and again saying that the caller had seen his guys in the street. However, these calls were not as regular as once or twice a week. 68



• He had preferred what Mr Street had told him rather than what Mr Taylor had said. This was because he knew the industry and he knew what happened. He thought that he had a good enough relationship with Mr Taylor for him not to do it. It was stated that the boys do not know if a job is a genuine job. Mr Street had told him that Mr Taylor would give them money. 69



• He was still under the belief that Mr Taylor had resigned. He was upset about this as he had work that had to be done and Mr Taylor had let him down. The whole time was very difficult as he and Mr Taylor were friends. 70



• Prior to Mr Taylor’s unfair dismissal application, he had offered to write him a good reference because Mr Taylor was having a baby and had just bought a house. He was trying to do the right thing. However, he would not write Mr Taylor a good reference now. 71



• It is definitely easy to find work but you have got to be out there to find it. 72



• He confirmed that it was a very noisy work environment. 73



• Because he and Mr Taylor were friends, it was hard to let someone do that in your company and try and punish them at the same time when you have been mates for so long. So, you put up with it but, if he had treated the situation as purely business, it would have been over a lot earlier. That was his mistake. 74



• Because he and Mr Taylor had worked together for so long and were very close friends, he was hoping that Mr Taylor would do the day-to-day stuff which would allow him to grow the business through promotion and finding more work. 75



• He was very surprised when Mr Taylor said that he could not find a job as he and all the other tree companies had advertisements permanently in the paper and on Gumtree. If Mr Taylor had called up one company, he would have got a job straight away with his experience. 76

(c) Mr Street

[10] Mr Street gave evidence that:

• He changed his witness statement to say that he had seen Mr Taylor receive cash amounts of $100 instead of $100 - $200, a dozen times. 77



• In his previous statutory declaration, with respect to side jobs, he had said that Mr Taylor would keep the cash. This could be from $50/$100 or more and would occur once or sometimes more than three times a week. 78



• He saw Mr Taylor taking cash payments from customers. He knew that Mr Taylor did not give that money to Mr Mason as he had received some of it. This had occurred a dozen times and he had received a third of the money as it was split three ways between the team. This had happened all through Mr Taylor’s time as Charge Hand. 79



• He knew which ones were side jobs because he would ask each morning about the jobs for the day. 80 He also knew because the owner of the house was a different person to the one who walked up the street.81



• He also stated that Mr Taylor’s behaviour towards himself and other staff members was very aggressive and that Mr Taylor would yell and swear at them daily. He had spoken to Mr Mason about this and Mr Mason arranged a meeting to try and resolve the issue. Mr Taylor continued to daily abuse him and the other employees. 82



• He had made Mr Mason aware of Mr Taylor’s behaviour (bullying and abuse) on a weekly basis. 83



• He was involved in three meetings during his employment (six months) to try and resolve the issue of Mr Taylor speaking to him rudely and abruptly. 84 He could not recall the dates.85 At the three meetings were himself, Mr Mason, Mr Taylor and another worker.86



• The meetings were to resolve the conflict within the team. There was a bit of hostility which made it unpleasant to work for a time. He had started to get a bit upset and so spoke to Mr Mason about it and asked if it could be fixed. Mr Mason had stepped in and had started to correct it. 87



• It is a bit hard in the tree industry sometimes (frustrating) and Mr Taylor would tell him to do something and, very aggressively, would throw an extra swear word in at the end. He said that he came from a different family where there was not much swearing anymore. So, he took the swearing to heart and would get a bit emotional and he started taking more time off. 88



• He thought this was just the way that Mr Taylor was. 89



• He had worked for Mr Mason in 2013 and 2014 and was sacked because he was unreliable at the time. He returned in 2015. In the period 2013 - 2014, the yelling, abusing and swearing was not happening. 90

(d) Mr Smith

[11] It was Mr Smith’s evidence that:

• He received a cash payment from Mr Taylor for a side job on one occasion at an address in St Kilda. 91



• This was at the end of a job next to two apartments, when Mr Taylor gave him $50 cash and told him to keep his mouth shut and not to say anything. 92



• He had just told the company’s representative the morning of the hearing about this side job payment. 93



• He had not included the St Kilda side job in his statutory declaration of the previous week because he was scared he was going to get into trouble. 94



• He said that Mr Taylor was screaming all the time and just getting angry. He felt like he was walking on egg shells the whole time. 95



• Mr Mason brought them all together as a group, on 20 May 2015, to talk about how you can treat or micromanage a group. 96



• Mr Taylor’s response was that he needed to be rough with the employees and treat them like that to get stuff done. Mr Taylor also called them certain names. 97



• He had said to Mr Taylor that he thought that he did not have any idea how to micromanage a group. Mr Taylor had then taken off in a huff. 98



• The incident that resulted in the meeting on 20 May 2015 was that, whilst he was working away doing the pipelines for the Yarra, Mr Taylor was just hounding him and hounding him and telling him to do this and do that and not in a professional way. He had then called Mr Mason and told him that he was quitting. Mr Mason called a meeting and he had told Mr Mason what the scenario was. Mr Taylor’s behaviour was only better for four days after the meeting on 20 May 2015. 99



• One day when they were working on a job site in Williamstown he had forgotten to bring his lunch. He continued working until his father brought his lunch and then he was trying to do both (work and eat). Mr Taylor had told him to stop feeding his fucking face and do work. He had worked at the bigger companies and did not think that Mr Taylor’s behaviour was professional. 100



• He left Tree Mason around 24 July 2016 having started on 27 April 2015. 101



• He had stayed for a further two months following the meeting on 20 May 2015 because he was struggling with a young family and so he tried to hold in there until he could get another job. 102



• He could not think of a reason why Mr Taylor might have been angry. Mr Mason was a pretty easy-going guy so we could not see pressure coming from Mr Mason to make Mr Taylor disgruntled. 103

3. Closing Submissions

(a) Mr Taylor

(i) Alleged bullying conduct

[12] It was submitted by Mr Taylor that the alleged bullying conduct was not a valid reason for his dismissal. This was on the basis that Mr Mason’s evidence was unreliable due to it being contradictory in several places. For example, Mr Mason was said to have conceded that it was only after receiving Mr Taylor’s unfair dismissal application, that his thoughts changed about his character. It was highlighted that Mr Mason was happy to write Mr Taylor a good reference before the hearing. This was said to support Mr Taylor’s view that, at the time of his dismissal, he was a capable and valuable employee and that Mr Mason held no valid reason for dismissing him. 104

[13] Further, Mr Taylor stated that Mr Mason had accepted that he worked in a role that involved stress which could result in a change in a reasonable person’s behaviour. It was argued that the allegations of bullying should be considered in this context. In addition, Mr Taylor contended that, even if Mr Mason considered some aspects of his conduct unacceptable, the fact that Mr Mason considered at least some elements of his behaviour to be consistent with his role as team leader meant that his behaviour, in its entirety, was not inconsistent with continuation of his employment. 105

(ii) Allegations of theft

[14] Mr Taylor argued that Mr Mason’s reliance on post-dismissal knowledge of allegations of theft as a reason for dismissal was not credible. This was said to be on the basis of inconsistencies between Mr Mason’s and Mr Street’s evidence. It was contended that it was improbable and highly unlikely that Mr Mason would only seek to raise allegations of theft after Mr Taylor’s employment rather than at the time of his suspicions (2014). 106

[15] It was also contended that, when he emailed Mr Mason on 30 November 2015, Mr Mason made no reference to the allegations of theft despite having become aware of the allegations a couple of days after his dismissal. Further, Mr Taylor noted that there was a long delay between Mr Street’s admissions of theft and when his allegations were put in writing. 107

[16] In addition, Mr Taylor argued that it was improbable that, during the weekly discussions between Mr Mason, Mr Street and Mr Smith about his behaviour, there was no mention of side jobs. As well, it was argued that Mr Smith’s claims that he was scared of getting into trouble with Mr Mason regarding the alleged theft were said to be incompatible with his description of Mr Mason as being a pretty easy-going guy. 108

[17] It was stated that Mr Mason’s claim of weekly side jobs was contrary to the Respondent’s own witnesses’ evidence. Mr Street’s evidence was recalled to have been receiving cash twelve times in a ten month period and Mr Smith – once in a three month period. 109 Mr Mason’s preference for Mr Street’s evidence over that of Mr Taylor’s was said to be despite Mr Mason’s evidence that Mr Street had no way of knowing which was a genuine job and which was a side job.110

[18] Mr Taylor submitted that the facts in existence at the time of his dismissal do not support Mr Mason holding a reasonable belief of misconduct justifying dismissal. 111

(iii) Notified of the reason

[19] It was stated that Mr Mason admitted that he did not inform Mr Taylor of the reason for his dismissal as he believed that Mr Taylor had resigned rather than been dismissed. Mr Taylor contended that this was a direct violation of the Code as the Code requires that the employer must provide an employee with the reason why an employee is at risk of being dismissed. 112

[20] Therefore, it was submitted that the Respondent did not comply with section 387(b) of the Act. 113

(iv) Opportunity to respond

[21] It was highlighted by Mr Taylor that Mr Mason’s evidence was that he could recall only one date when a meeting was held to address his behaviour. As well, Mr Taylor argued that Mr Mason’s evidence of frequent discussions with him was not credible. This was because the normal medium of communication between himself and Mr Mason on serious matters (including health and safety) was by text messages. It was stated that none of these routine text messages, which referred to his behaviour, were provided by the Respondent. 114

[22] Further, it was contended that Mr Mason’s claim of frequent discussions was also not reliable as Mr Mason could not recall specific examples of particular behaviour or when it occurred. It was recalled that Mr Mason used words such as “off the top of my head” which should not be relied on as an accurate recollection of events. In addition, Mr Taylor stated that he was not offered additional training to improve any deficiencies in his performance. 115

[23] As Mr Mason had not notified the Applicant of a reason for his dismissal, it was argued that the Respondent had failed to satisfy section 387(c). This was because the Applicant could not have had an opportunity to respond to a reason that he was never informed of. 116

(v) Support person

[24] It was stated by Mr Taylor that he was not offered the opportunity to have a support person present. 117 Further, it was submitted that the Respondent failed to follow procedural fairness as there was no meeting held, of which the Applicant was made aware prior and where the Applicant was advised that the future of his employment would be discussed.118

(vi) Relevant warnings

[25] Mr Taylor indicated that it was not disputed by either party that he was not provided with a written warning. The Respondent’s claim that he was given an official warning on 20 May 2015 was disputed. Mr Taylor stated that there was an informal discussion on 20 May 2015 about what had occurred on that day. 119 In addition, it was stated that the Respondent was unable to provide any evidence of warnings where he was advised of the reasons why he risked being dismissed.120

[26] It was argued that, even if this had occurred, the warning on 20 May 2015 was not relevant to his dismissal. This was because six months had passed between the warning and his dismissal and also the issues discussed on 20 May 2015 bore no relevance to the issues at hand when he was dismissed. 121

[27] Further, Mr Taylor stated that he had been transparent in acknowledging that there were discussions about job completion timeframes. However, it was disputed that the substance and the manner in which these discussions took place, could have led the Applicant to believe that he was receiving a warning. 122

(vii) Size of Employer’s Enterprise/Dedicated HR staff

[28] Mr Taylor contended that, even though the Respondent’s business is a small business, it was Mr Mason’s evidence that he had been in the industry for many years and had owned his own business for the majority of that time. Therefore, it was stated that his disregard for Mr Taylor cannot be excused solely because his current business is small. 123

[29] Further, it was recalled that Mr Mason’s evidence was that he has administrative help to run his business. Mr Taylor argued that, even though the Respondent may not have an HR manager, it was incumbent on Mr Mason to treat his employees fairly. 124

(viii) Other matters

[30] It was submitted by Mr Taylor that it did not logically follow that Mr Mason should seek to excuse his delayed dismissal because of their relationship. This was because Mr Mason was said to have had no such issue in dismissing Mr Street, whom he had known for a much longer time and Mr Street’s behaviour was far less serious than the allegations made against himself. 125

(ix) Appropriate remedy

[31] Mr Taylor stated that it was agreed that reinstatement would not be an appropriate remedy. 126

[32] In relation to compensation, it was contended by the Applicant that he would have continued in employment with the Respondent for at least a further six months. This was on the basis that, at the time of dismissal, the Respondent repeatedly offered to provide the Applicant with good references and that he held no hard feelings towards the Applicant. As well, it was stated that the Respondent gave evidence that, whilst aware of the allegations regarding his behaviour and poor performance, he had still kept the Applicant employed until he could find a suitable replacement. It was recalled that the Respondent’s evidence was that he was unable to fill the Applicant’s position until May 2016. 127

[33] The Applicant also submitted that, in accordance with section 392, he should be eligible for close to the maximum amount of compensation given his length of service, his efforts to mitigate the loss of income and the evidence of what he would have likely earned had he not been dismissed. 128

(x) Submissions in Reply

[34] Mr Taylor’s Submissions in Reply, included the following:

• It was noted that, following the outcome of the jurisdictional objection, the Respondent’s argument was adjusted to rely heavily on retrospective allegations of bullying and poor performance as the reasons for the dismissal. 129



• The authenticity of these allegations must be questioned given that, neither at the time of the dismissal nor during his attempts at workplace resolution, did the Respondent make any reference to these allegations. 130



• It does not logically follow that an employer would repeatedly offer to provide good references for future work if they were aware of allegations of abuse, poor performance and theft against that employee. 131



• The Respondent performed another U turn in claiming, retrospectively, that a reason for dismissal had been provided on 20 May 2015. 132

(b) Respondent

[35] It was submitted that the Respondent had complied with the Code in relation to ‘Other Dismissals’. It was stated that, even if the Respondent did not comply with the Code, Mr Taylor’s aggressive and bullying conduct was a valid reason for the dismissal and the dismissal was not harsh, unjust or unreasonable. Further, the company contended that, if it was found that the dismissal was unfair, Mr Taylor’s conduct in not giving Mr Mason the cash from side jobs, amounted to serious misconduct justifying summary dismissal. 133

[36] The Respondent explained that, whilst the immediate trigger for Mr Taylor’s dismissal was an aggressive and inappropriate text message exchange between Mr Taylor and Mr Mason, the text messaging was described as the “final straw” in Mr Taylor’s ongoing course of aggressive and bullying conduct. 134

[37] It was argued that the Commission’s role was to assess whether, on the evidence provided, facts existed at the time of dismissal that justified dismissal. In doing so, the Commission was said to not be confined to the reasons expressly advanced by the employer. 135

[38] The company stated that it relied on numerous reports of bullying conduct (including yelling and obscene language) which gave rise to separate complaints from Mr Taylor’s subordinates. Mr Taylor’s behaviour was said to have resulted in the resignation of at least one employee. 136

[39] Further, it was submitted that Mr Taylor was warned about ongoing poor performance in managing the work which resulted in time and cost blowouts for the business. The Respondent accepted that these performance issues were not the immediate trigger for Mr Taylor’s dismissal. However, it was argued that it was permissible for the Commission to consider these issues in assessing whether or not there was a valid reason for the dismissal.

(i) Witness evidence

[40] The company contended that, in large part, this case turns on matters of impression in relation to the witnesses. It was argued that Mr Taylor was an unimpressive witness who was evasive at critical points and argumentative at times. At other times, his oral evidence was inconsistent with his own prior statements. The Respondent submitted that, when confronted with these inconsistencies, Mr Taylor failed to make appropriate concessions. 137

[41] Mr Mason’s evidence was described as balanced and credible and consistent when pressed. As well, it was stated that Mr Mason did not overstate his evidence and made appropriate concessions. 138

[42] With respect to the evidence of Mr Street and Mr Smith, it was submitted that their evidence was also credible and broadly consistent. It was stated that each of them made admissions in relation to their own conduct. 139

[43] Taken together, it was submitted that the Respondent’s witness evidence had a ring of truth about it. Further, the Respondent noted that Mr Taylor did not call any witness evidence, the reason for which was said to have not been explained. 140

(ii) Compliance with the Code

[44] In relation to compliance with the Code, it was argued that all that the Code requires is that the employer gives the employee a reason why they risk dismissal and that there be a warning that they risk dismissal if their performance did not improve. 141

[45] The Respondent contended that Mr Mason had warned Mr Taylor on numerous occasions to cease his aggressive and bullying conduct. It was stated that Mr Taylor was also warned, after a meeting on 20 May 2015, that his behaviour would not be tolerated and that he should consider his future with the Respondent. 142

[46] It was submitted by the Respondent that Mr Taylor’s bullying conduct was serious misconduct and was a valid reason for his dismissal. 143 This was on the basis that it constituted wilful or deliberate behaviour that was inconsistent with the continuation of the employment contract. As well, it was contended that Mr Taylor, in not ceasing his bullying conduct, was refusing to carry out a lawful and reasonable instruction.144 In addition, the text messages that Mr Taylor sent to Mr Mason on 15 November 2015, which triggered the dismissal, were said to be further examples of Mr Taylor’s conduct. It was stated that the text messages demonstrated an aggressive and inappropriate response to a lawful and reasonable direction from Mr Mason. As well, the texts were said to show Mr Taylor’s disdain and aggression towards the other employees. It was submitted that the text messages were inconsistent with the warnings given to Mr Taylor in relation to his inappropriate communication with other employees.145

(iii) Dismissal was fair

[47] The Respondent submitted that, if none of the warnings meet the requirements to warn an employee before dismissing them for conduct other than serious misconduct (including that Mr Taylor should consider his future), Mr Taylor’s bullying conduct (on its own or in conjunction with the performance issues), was still a valid reason for the dismissal. 146

[48] It was stated that Mr Taylor had been warned on 20 May 2015, and on numerous occasions thereafter, that his aggressive and bullying conduct was unacceptable and that he would need to consider his future employment. The Respondent argued that Mr Taylor was given a reasonable opportunity to improve his conduct. Further, it was argued that Mr Mason’s text messages to Mr Taylor, on 15 November 2015, did not refer to Mr Taylor’s conduct because Mr Mason considered that Mr Taylor had resigned. 147

[49] If it was found that the Respondent’s repeated warnings to Mr Taylor did not constitute notification, it was contended that the employer’s business is a small and unsophisticated enterprise. Some allowance should be given to the employer for these reasons together with the fact that the business did not have human resources or legal expertise. Further, it was contended that, a failure in relation to notification, should not be determinative of whether the dismissal was harsh, unjust or unreasonable. Rather, it should be considered in all of the circumstances of the case. 148

[50] In relation to whether Mr Taylor had an opportunity to respond to the allegations of aggressive and bullying conduct, it was argued that Mr Taylor had an adequate opportunity. 149

[51] With respect to section 387(d), the Respondent stated that there was no evidence of any refusal by the Respondent to allow a support person to be present. 150

[52] In terms of section 387(e), it was said that it was not in dispute that Mr Taylor was warned about his performance issues. 151

[53] In relation to section 387(h), the Respondent submitted that the circumstances of Mr Street’s earlier dismissal were irrelevant. This was said to be because it did not constitute an “apples with apples” comparison. 152

(iv) Side jobs

[54] It was stated by the Respondent that facts, existing at the time of dismissal may justify the dismissal, even if the employer was unaware of those facts and did not rely on them at the time of the dismissal. 153

[55] The Respondent submitted that, following Mr Taylor’s dismissal, the Respondent became aware that Mr Taylor had performed side jobs during work time for cash, neither of which was disclosed/given to Mr Mason. Side jobs were said to have been witnessed by Mr Street who, on approximately twelve occasions, was given cash payments by Mr Taylor, following completion of a side job. In addition, Mr Smith gave evidence of having been given $50 in cash following a St Kilda job and being told not to tell Mr Mason. 154

[56] It was stated that Mr Taylor had flatly denied doing side jobs but did not put to either Mr Smith or Mr Street that this aspect of their evidence was contrived. 155 The Respondent disputed that these allegations were a contrivance. Rather, it was said that Mr Smith’s evidence was that he could only recall one occasion when Mr Taylor gave him money for a side job. It was also argued that, as Mr Smith was no longer an employee, Mr Smith could not be said to be in Mr Mason’s “camp”. Mr Street’s evidence that he had only disclosed the incident immediately before the hearing because he was scared he would get into trouble, was described as readily understandable.156

[57] With respect to Mr Smith’s evidence that he had received cash payments from Mr Taylor, it was argued that Mr Smith would have been reluctant to ‘dob’ Mr Taylor in, particularly as Mr Taylor had subjected Mr Smith to continual verbal abuse. Further, it was also said to be unsurprising that Mr Smith only told Mr Mason about this, after Mr Taylor’s departure and only on the condition that he would not get into trouble. 157

[58] It was submitted that the side jobs amounted to serious misconduct which would have justified summary dismissal. This was contended to be so regardless of any findings in relation to the bullying and performance issues. 158

(v) Appropriate remedy

[59] In the event that the Commission found that Mr Taylor was unfairly dismissed, the Respondent submitted that reinstatement was plainly inappropriate. This was due to the nature of Mr Taylor’s conduct and the Respondent being a small workplace. 159

[60] With respect to any award of compensation, it was argued that it should take into account the serious nature of Mr Taylor’s bullying behaviour and his conduct in relation to side jobs. The Respondent contended that any amount of compensation must also reflect that Mr Taylor was likely to have been dismissed once Mr Mason became aware of the side jobs. 160

(vi) Response to Mr Taylor’s Closing Submissions

[61] The Respondent addressed the submissions in Mr Taylor’s First and Second Outlines, in the following terms:

• There is no evidence that Mr Mason said to Mr Taylor, on 21 May 2015, words to the effect about not worrying about yesterday. 161



• The Code does not require an employer to provide additional training or support. Mr Mason made sure that Mr Taylor knew his job expectations from 20 May 2015. 162



• There is no evidence that text messages were the primary mode of communication between Mr Taylor and Mr Mason. 163



• It is unsurprising that, in a small business with three employees, Mr Mason did not take notes or put warnings in writing. 164



• The issues in relation to Mr Taylor’s work performance do not amount to serious misconduct. These issues are to be considered in conjunction with the bullying conduct when determining whether there was a valid reason for the dismissal. 165



• The Respondent no longer presses its submission that Mr Taylor’s bullying conduct amounted to serious misconduct. 166



• Mr Taylor was not a tradie engaging in tradie talk with his colleagues. Rather, he was a manager responsible for the direct supervision of subordinate employees. At issue is not the fact that Mr Taylor disciplined the junior employees. Rather, it was the aggressive and abusive way in which he did so. 167



• There was no inconsistency in Mr Street’s statement about the number of times he saw Mr Taylor accept cash for side jobs. In his oral evidence, Mr Street had clarified that the “dozen times” were those occasions when Mr Taylor gave Mr Street a share of the cash. 168



• Mr Mason and Mr Street both gave evidence that they did not know each other well until Mr Street commenced work with the Respondent. 169

4. Considerations and Conclusions

[62] In cases not involving summary dismissal (Other Dismissal), the Code requires that the employee must be given a reason why he or she is at risk of being dismissed. That reason must be a valid reason based on the employee’s conduct or capacity. The employee must be warned that he or she risks being dismissed if there is no improvement. The employee must be given an opportunity to respond to the warning and be given a reasonable chance to rectify the problem.

(i) Given a reason why at risk of dismissal

[63] The first requirement of this part of the Code is that the employee must be given a reason why they are at risk of being dismissed. Secondly, the reason given must be a valid reason based on the employee’s conduct. It was submitted by the Respondent that the valid reasons for Mr Taylor’s dismissal were his aggressive and bullying conduct and work performance issues. It was argued that Mr Taylor had been warned on a number of occasions in relation to his aggressive and bullying conduct. It was stated that Mr Taylor was warned, after the meeting on 20 May 2015, that his behaviour would not be tolerated and that he should consider his future with the Respondent.

[64] On the other hand, Mr Taylor disputed that he had been given a reason for his dismissal or that he was told that he was at risk of being dismissed. Further, Mr Taylor disagreed that he had ever been given a warning about his behaviour.

[65] The parties were not in dispute that, at 5:30 a.m. on 21 May 2015, Mr Mason sent Mr Taylor a text saying that he would call Mr Taylor later to discuss his future with Tree Mason. The Respondent relied on this text to meet the requirements of the Code to warn an employee that they were at risk of dismissal. It was not Mr Taylor’s understanding, from the evidence he gave, that Mr Mason’s text meant that Mr Mason might be terminating his employment. 170 However, Mr Mason’s evidence was that the text meant that, if Mr Taylor’s conduct towards the other employees did not improve when he returned, he would be dismissed without further warning.171

[66] Having considered the evidence before me, I have not been persuaded that Mr Mason’s text that he would call Mr Taylor later to discuss his future with Tree Mason was Mr Mason giving Mr Taylor a warning that Mr Taylor was at risk of being dismissed if he did not improve his behaviour towards the other employees. Mr Mason’s view about what he thought he was saying by sending that text is noted. However, it is my view that a text that says that
the employer would ring the employee later to discuss his future with the company, does not amount to a warning that the employee’s employment was at risk if he did not improve his behaviour. Therefore, I find that the Respondent did not comply with the Code as Mr Taylor was not warned that he was at risk of dismissal.

(ii) Warnings given?

[67] There was also a dispute between the parties about whether or not Mr Taylor had been given verbal warnings about his yelling, screaming and swearing at the other employees. It was common ground that Mr Taylor was not given a written warning at any stage during his employment with the Respondent. It was Mr Mason’s evidence that he had had quite a few meetings (monthly and weekly) with Mr Taylor about his behaviour towards the guys and how it needed to change. Mr Mason described these meetings as a personal chat trying to resolve an issue and move forward. 172 Mr Mason could only provide the date of one such meeting - 20 May 2015.

[68] For his part, Mr Taylor contended that he had not been given any verbal warnings and that he had never been told that his behaviour was unacceptable. With respect to whether Mr Taylor was given verbal warnings in relation to his behaviour during these meetings with Mr Mason, I have not been persuaded that they constituted warnings about Mr Taylor’s behaviour. From the tenor of Mr Mason’s evidence, the content of the meetings seem to have been closer to counselling meetings/discussions rather than specific verbal warnings.

[69] In relation to the meeting held on 20 May 2015, it was the Respondent’s view that Mr Taylor was given a verbal warning and two days off. Mr Taylor’s evidence was that, during the meeting, Mr Mason had said to him and the other employees that everyone should speak respectfully to each other and that swearing and bullying of other employees was unacceptable. In his evidence, Mr Taylor indicated that he knew what was expected of him and what behaviour was not on, as a result of the meeting. 173

[70] Having considered this aspect of the evidence, I find that, on 20 May 2015, Mr Taylor, and the other employees, were told by Mr Mason as to what behaviour was unacceptable in the workplace and what behaviour was acceptable. It is clear that, following the meeting on 20 May 2015, Mr Taylor understood the Respondent’s expectations regarding behaviour in the workplace. However, I have not been persuaded that Mr Mason telling all of the employees at the 20 May 2015 meeting as to what was acceptable/unacceptable workplace behaviour, amounts to a warning to Mr Taylor that his behaviour needed to change.

[71] Putting all of this together, in relation to the requirements of the Code with respect to the provision of warnings, I find that Mr Taylor was not warned (either verbally or in writing) in relation to his behaviour towards the other employees.

(iii) The reason must be a valid reason

[72] With regard to the requirement of the Code that the reason be a valid reason, the Respondent primarily relied on Mr Taylor’s bullying conduct towards the other employees (serious misconduct) as constituting a valid reason for his dismissal. It was submitted by the Respondent that there were numerous incidents of bullying behaviour, including yelling and swearing, which resulted in complaints to Mr Mason and the resignation of at least one employee. As well, the Respondent pointed to the texts that Mr Taylor sent to Mr Mason, on 15 November 2015, which triggered the dismissal. The texts were described as further examples of Mr Taylor’s conduct which demonstrated an aggressive and inappropriate response to Mr Mason. Further, the evidence of Mr Taylor’s subordinates was said to support the Respondent’s contentions in relation to Mr Taylor’s bullying behaviour.

[73] Mr Taylor denied that he had sworn daily at the employees he supervised or that he had abused them. It was explained by Mr Taylor that he had to talk in a way that got their attention as they worked in a high-risk environment and the safety of the guys was very important. As well, Mr Taylor indicated that he would talk to the other employees as a tradie would speak. Further, Mr Taylor said that they worked with earmuffs on and the environment was really noisy. Therefore, he had to raise his voice from time to time. In his witness statement, Mr Taylor stated that he was not always a perfect team leader and that there were times when he had voiced his anger and concerns with both Mr Mason and the other employees.

[74] Having considered all of the material before me, I find that Mr Taylor’s behaviour towards the employees he supervised was not always appropriate or acceptable as he yelled and swore at the other employees. It is accepted that Mr Taylor was working in a high pressured and safety critical environment and that this had an effect on Mr Taylor’s behaviour. Mr Mason’s evidence is also accepted where he said that, after Mr Taylor became Charge Hand, his behaviour changed a little bit. Mr Mason also said that it was a noisy environment and that one did need to yell to get your point across. It may well have been as Mr Mason suggested, together with Mr Taylor feeling pressured by Mr Mason in relation to job completion. However, neither of these factors make yelling and swearing at other employees acceptable or appropriate behaviour in the workplace. As well, sending one’s boss negative and churlish texts as Mr Taylor sent Mr Mason on 21 May 2015, is unacceptable.

[75] With respect to whether Mr Taylor’s inappropriate and unacceptable conduct was a valid reason for his dismissal, on fine balance, I find that Mr Taylor’s behaviour did not constitute a valid reason for his dismissal. Yelling and swearing at employees is unacceptable and inappropriate behaviour and is not condoned by the Commission. However, in the circumstances of this case, which included working in a high-risk/high pressure noisy environment with time pressures for the completion of jobs, I am not satisfied, on fine balance, that Mr Taylor’s behaviour, in and of itself, was so serious as to provide a valid reason for his dismissal.

[76] In relation to the issues relating to Mr Taylor’s work performance, it was accepted by the Respondent that they were not the immediate trigger for the dismissal. However, it was submitted that these issues could be considered in relation to assessing whether there was a valid reason for Mr Taylor’s dismissal. The Respondent argued that Mr Mason had warned Mr Taylor that his poor management of the work performed by the crew was resulting in time and cost blowouts which were impacting on the Respondent’s profit margins.

[77] It was Mr Taylor’s evidence that he and Mr Mason had had a continuing disagreement over Mr Mason’s time pressured expectations regarding job completion. Mr Taylor agreed that Mr Mason had told him a number of times that the jobs were taking too long. Mr Taylor denied that Mr Mason told him that his performance needed to improve. Rather, it was Mr Taylor’s evidence that Mr Mason had told him that he needed to make more money for the company.

[78] On the basis of the material before me, I have not been persuaded that Mr Taylor was given a verbal or written warning about his alleged poor work performance. It was not disputed that Mr Mason told Mr Taylor a number of times that the jobs were taking too long and that he needed to be making more money for the company. However, I do not consider that either of Mr Mason’s statements amount to a verbal warning.

[79] With respect to whether there were issues with Mr Taylor’s work performance (in relation to the time taken to complete jobs), there was no agreement between the parties on this issue. It was common ground that Mr Mason had told Mr Taylor a number of times that the jobs were taking too long. It was Mr Taylor’s evidence that he and Mr Mason had a continuing disagreement about the time it took to complete a job. However, as there was insufficient evidence provided by the Respondent, I am unable to conclude that Mr Taylor’s work performance was poor. Therefore, it is not possible to take the alleged work performance issues into account in determining whether there was a valid reason for Mr Taylor’s dismissal.

[80] Accordingly, the Commission finds that, on fine balance, there was not a valid reason for Mr Taylor’s dismissal.

(iv) Opportunity to respond/reasonable chance to rectify the problem

[81] In relation to the Code’s requirement that the employee must be provided with an opportunity to respond to the warning and a reasonable chance to rectify the problem, on the basis of the finding that Mr Taylor was not warned about his behaviour or warned that his employment was at risk because of it, it cannot be said that Mr Taylor was given an opportunity to respond and to rectify the problem.

(v) Compliance with the Code?

[82] On the basis of the various findings set out above, I am satisfied that the Respondent did not comply with the Small Business Fair Dismissal Code. It is it is acknowledged that the Respondent is a small business employer without access to human resource specialist and therefore may not have the most sophisticated approach to employee management issues. However, even taking this into account, I find that the Respondent did not comply with the Code in relation to the requirement for a valid reason and the procedural aspects.

5. Was Mr Taylor unfairly dismissed?

[83] Given the non-compliance by the Respondent with the Code, it is necessary to consider if Mr Taylor was unfairly dismissed in accordance with the Act.

[84] I am satisfied that Mr Taylor was dismissed (section 385(a)); the dismissal was not consistent with the Code (section 385(c)) and the dismissal was not a case of genuine redundancy (section 385(d)).

[85] To determine whether Mr Taylor was unfairly dismissed, the Commission is required to determine if Mr Taylor’s dismissal was harsh, unjust or unreasonable.

[86] Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[87] I will consider each of the criteria in turn.

(i) Section 387(a) - valid reason for the dismissal

[88] In relation to compliance with the Code, it has already been found that, on fine balance, there was not a valid reason for Mr Taylor’s dismissal. This was on the basis of findings made that Mr Taylor’s behaviour was inappropriate and unacceptable but that the allegations of poor performance had not been made out by the Respondent.

[89] The Respondent, in relation to the requirements of section 387 of the Act, rather than with respect to the Code, provided an additional reason, which was also said to provide a valid reason, for Mr Taylor’s dismissal. This was on the basis that facts, which existed at the time of the dismissal, may justify dismissal even if the employer was not aware of them at the time of the dismissal. 174

[90] The additional reason concerned the allegation that Mr Taylor undertook side jobs whilst out on a job working for the Respondent and did not tell Mr Mason of this nor give Mr Mason any cash payments that he received. It was explained that, following Mr Taylor’s dismissal, the Respondent became aware that Mr Taylor had performed additional side jobs for cash payment and that Mr Taylor had not advised Mr Mason of this nor given Mr Mason the cash payments that Mr Taylor had received. 175

[91] It was recounted that Mr Street’s evidence was that he had seen Mr Taylor taking cash payments from customers on about a dozen occasions. Mr Street stated that he knew that Mr Taylor had not given the money to Mr Mason as he had received some of it.

[92] It was also highlighted that, during Mr Smith’s evidence, Mr Smith had stated that he had received $50 from Mr Taylor following a job in St Kilda and that Mr Taylor told him to keep his mouth shut and not to tell Mr Mason about it. 176 The Respondent highlighted Mr Smith’s evidence where he had explained that this had occurred at the end of a job next to two apartments.

[93] The Respondent further stated that the evidence of Mr Street and Mr Smith was credible and not contrived. 177 It was also submitted by the Respondent that the retaining of cash payments for side jobs by Mr Taylor was serious misconduct which would have justified summary dismissal.

[94] I have carefully considered all of the evidence before me. At its highest, the Respondent’s evidence results in the Commission finding that it is probable that, on one occasion, Mr Taylor did a side job but did not give the cash payment he had received to Mr Mason. This was the side job in Eldon Street, St Kilda that was referred to by Mr Smith in his evidence. However, there was not enough evidence provided by the Respondent to the necessary level, to satisfy the Commission that other side jobs occurred.

[95] It is noted that it was Mr Mason’s evidence that he would get a call from a prospective client every now and again saying that they had seen his guys in the street. On the basis of Mr Mason’s evidence, this meant that Mr Taylor had acted in accordance with company policy. However, Mr Mason stated that these types of calls were not as regular as once or twice a week which was the rate at which he believed side jobs occurred. Mr Mason’s estimation of the number of side jobs per week was contrary to the evidence of the Respondent’s witnesses - Mr Smith (once in three months) and Mr Street’s evidence of 12 times over a 10 month period.

[96] In making the findings above, I have taken into account that it was only Mr Smith who provided any detail about where the side job occurred and the circumstances surrounding it. Mr Street, on the other hand, is found to be an unreliable witness who was inconsistent in his evidence about the quantum of the cash payments. In addition, Mr Street’s evidence was vague in that he was unable to provide any details about the side jobs occurred e.g. where they occurred etc.

[97] Taking all of these findings into account, I find that, on fine balance, there was a valid reason for Mr Taylor’s dismissal. This is on the basis that it is probable that, on one occasion, Mr Taylor did not give Mr Mason the cash payment from a side job. As well, Mr Taylor’s behaviour in the workplace was unacceptable and inappropriate. However, in making this finding, it is noted that it was Mr Mason’s evidence that, from 2014, Mr Mason had suspicions that Mr Taylor was doing side jobs and not telling him or giving him the cash payments. There is no evidence before the Commission that Mr Mason investigated the side jobs issue prior to Mr Taylor’s dismissal. Rather, the evidence shows that Mr Mason asked Mr Street about this only after Mr Taylor’s employment ended.

(ii) Section 387(b) - notified of the reason

[98] In addition to its submissions in relation to the Code, the Respondent contended that the fact that Mr Mason’s text message giving effect to the dismissal did not specifically refer to Mr Taylor’s conduct, was explained by the fact that Mr Mason considered that Mr Taylor had resigned. 178 Further, without conceding that Mr Mason’s repeated warnings to Mr Taylor did not constitute notification of the reason, the Respondent submitted that some allowance should be given to the Respondent’s small scale and relative lack of sophistication. As well, the Respondent contended that, any such failure would not, in and of itself, be determinative of whether Mr Taylor’s dismissal was harsh, unjust or unreasonable. Rather, it was stated to be for the Commission to determine what weight will be given to such matters, taking into account the circumstances of the case.179

[99] Having considered all of the material before me, I am not satisfied that Mr Taylor was notified of the reason for his dismissal. It was not disputed by Mr Mason that he did not notify Mr Taylor of the reason for his dismissal. It is understood that this occurred in the context of Mr Mason believing that Mr Taylor had resigned. However, the fact remains that, with respect to the requirements of section 387(b), Mr Taylor was not notified of the reason for his dismissal.

(iii) Section 387(c) - opportunity to respond

[100] Mr Taylor argued that, logically, as the Respondent had not complied with section 387(b) of the Act, it was not possible for the Applicant to have been provided with an opportunity to respond. 180 Further, it was highlighted by Mr Taylor that Mr Mason could only remember one meeting that was called to address his behaviour and that Mr Mason could not recall specific examples of his behaviour that led to the alleged warnings.181

[101] For its part, the Respondent made similar submissions to the ones it had made in relation to compliance with the Code. In addition, it was argued that the Respondent was a small and relatively unsophisticated employer and that the procedural aspects should be given the appropriate weight in the circumstances of the case. 182

[102] As Mr Taylor was not notified of the reason for his dismissal, it is not possible that Mr Taylor was given an opportunity to respond to that reason.

(iv) Section 387(d) - support person

[103] On the evidence before me, it is clear that Mr Taylor did not request that a support person be present. Therefore, the Respondent could not have unreasonably refused to allow a support person to be present, as that request was not made.

(v) Section 387(e) - warned about unsatisfactory performance

[104] It was stated by Mr Taylor that the failure of the Respondent to provide the Applicant with a written warning during any stage of his employment was not contested by either party. Mr Taylor disputed that there was an official verbal warning given to him on 20 May 2015. Even if it had been, it was stated that it was not relevant to his dismissal as six months had passed between the warning and his dismissal and the issues that were discussed on 20 May 2015 were said to bear no relevance to the issues at hand when he was dismissed. 183

[105] I have previously found that there was insufficient evidence provided by the Respondent to make out the allegation that Mr Taylor’s work performance was poor and that Mr Mason telling Mr Taylor, a number of times, that the jobs were taking too long to complete, does not rise to the level of a warning to Mr Taylor about his work performance.

[106] Therefore, I find that Mr Taylor was not warned about his alleged poor work performance.

(vi) Section 387(f) and (g) - size of the employer and specialist human resources

[107] It was stated by Mr Taylor that the Respondent had administrative help in running his business. Mr Taylor denied that, even though the Respondent may not have had specialised human resources expertise, it was incumbent on the Respondent to treat his employees fairly. In addition, it was recounted that Mr Mason has been a business owner for many years and has had experience in handling the dismissal of employees prior to his dismissal. Therefore, Mr Taylor submitted that the Respondent should not be allowed to rely on ignorance about dismissals to excuse his actions. 184

[108] The Respondent submitted that the employer is a small and unsophisticated employer with no human resources or legal staff to assist with terminating an employee’s employment.

[109] It is acknowledged that the Respondent is a small employer (three employees) and that there was no dedicated human resource specialist. On the basis of the evidence before me, it would appear that both of these factors had a degree of impact on the procedures followed in dismissing Mr Taylor.

(vii) Section 387(h) - any other matters

[110] It was in relation to this section that the Respondent made its submissions regarding the side jobs issue. These have been dealt with under section 387(a) - valid reason.

(viii) Conclusions

[111] In all of the circumstances of this matter, and having taken account of each of the factors set out in section 387 of the Act, I determine, on fine balance, that Mr Taylor’s dismissal was harsh.

[112] On the one hand, there was, on fine balance, a valid reason for Mr Taylor’s dismissal due to the probability on one occasion, of Mr Taylor not giving Mr Mason the cash payment received for a side job and Mr Taylor’s inappropriate and unacceptable behaviour. On the other hand, Mr Taylor’s dismissal was procedurally unfair, even taking into account that the Respondent is a small employer with no human resources expertise. Mr Taylor was not notified of the reason for his dismissal nor given an opportunity to respond to the reason nor was he provided with any verbal or written warnings. In addition, with respect to the side jobs issue on which the Respondent also relied to provide a valid reason, it is noted that Mr Mason had his suspicions about Mr Taylor, in this regard, back in 2014. However, Mr Mason took no steps to investigate whether or not Mr Taylor was pocketing cash payments from side jobs until after Mr Taylor’s employment ceased.

6. Remedy

[113] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

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

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

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

Note: Division 5 deals with procedural matters such as applications for remedies.”

[114] With respect to the requirements of section 390, I am satisfied that Mr Taylor was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Taylor has made an application under section 394 of the Act (section 390(2)).

[115] Section 390(3) states that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).

[116] Mr Taylor did not seek reinstatement 185 and the Respondent submitted that reinstatement was plainly inappropriate.186

[117] I have considered the submissions of the parties. Taking into account all of the circumstances of this matter, I am satisfied that it would be inappropriate to reinstate Mr Taylor. As mentioned previously, the Respondent is a small employer (three employees at the time of Mr Taylor’s dismissal) and it is more than likely that the close personal relationship which existed between Mr Mason and Mr Taylor, is no longer.

(i) Compensation

[118] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[119] Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

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

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

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

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

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

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

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

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

[120] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 187 (Haigh). In Haigh, the Full Bench also referred188 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket189 (Sprigg). I respectfully adopt the approach taken in Haigh.

Section 392(2)(a) - effect on the viability of the employer’s enterprise

[121] Neither party made submissions in relation to this subsection of the Act. There is no evidentiary basis before me on which to conclude that an award of compensation would affect the viability of the employer’s enterprise.

Section 392(2)(b) - Applicant’s length of service

[122] Mr Taylor was employed by the Respondent from about November 2012 to 16 November 2015 - about three years. 190 For the period from November 2012 to 4 February 2014, Mr Taylor was employed as a casual employee.191

Section 392(2)(c) - remuneration would have received

[123] Mr Taylor submitted that, had he not been unfairly dismissed, he would have continued to be employed for at least a further six months. This was on the basis that, at the time of his dismissal, the Respondent repeatedly offered to provide the Applicant with good references and declared that he held no hard feelings towards him. 192

[124] The Respondent stated that any compensation awarded must reflect the fact that Mr Taylor would, in any event, likely have been terminated once the Respondent became aware of the side jobs conduct. 193

[125] In all of the circumstances of this case, I have formed the view that, had Mr Taylor not been dismissed, it is likely that Mr Taylor’s employment would have continued for three months. For the purposes of the calculations, in accordance with the Sprigg principles, it is determined that the remuneration that Mr Taylor would have received was three months’ pay.

[126] At the time of Mr Taylor’s dismissal, Mr Taylor’s contract (for the position of Manager/Charge Hand) stated that Mr Taylor was employed full-time (45 hours/week) at $27 per hour. 194 Therefore, the amount Mr Taylor would have received for the three month period of anticipated employment is $15,795.00 (gross).

Section 392(2)(d) - efforts to mitigate loss

[127] It was Mr Taylor’s evidence that, during late November 2015 and early December 2015, he had tried to find a job within the arboriculture industry but no-one was willing to hire him at that time of the year. Mr Taylor had then enrolled in a Certificate III course in civil construction in early December 2015 whilst still applying for arborist jobs. Following a pre-planned visit to New Zealand, Mr Taylor returned in January 2016 but was advised by arborist companies that it was not the right time of the year to take a new employee on. At the same time, Mr Taylor was trying to re-establish his failing business venture. Mr Taylor was successful in finding full time work as a civil plumber in April 2016. 195

[128] On the basis of the material before me, I am satisfied that Mr Taylor made reasonable attempts to find alternative employment - initially within the same industry, albeit unsuccessfully. Mr Taylor then, within 3 weeks of his dismissal, enrolled in a Certificate III in an unrelated industry (civil construction) in an attempt to up skill and to better his prospects of finding work. This proved successful as he obtained full time employment in this field in April 2016. In addition, whilst undertaking the course, Mr Taylor attempted to re-establish his business venture.

Section 392(2)(e) and (f) - remuneration earned and income reasonably likely to be earned

[129] It is unclear from the material before me as to the remuneration earned by Mr Taylor for the period of anticipated employment - from 16 November 2015 to 17 February 2016.

[130] Therefore, the Commission is unable to finalise determination of the amount of compensation in lieu of reinstatement.

[131] Accordingly, Mr Taylor is requested to provide details of any remuneration earned from 16 November 2015 to 17 February 2016, together with supporting documentation, by close of business on Friday, 18 November 2016.

Section 392(2)(g) - other matters

[132] Neither party made any submissions in relation to this subsection.

Section 392(3) - misconduct

[133] Section 392(3) of the Act requires that, if the Commission is satisfied that the person’s misconduct contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order.

[134] As one of the reasons for Mr Taylor’s dismissal was inappropriate and unacceptable behaviour in the workplace (misconduct), I propose to reduce the amount by 30%.

Contingencies and taxation

[135] There were no submissions from either party in relation to these issues. As the anticipated period of employment (three months) has well passed, it is not proposed to make a deduction for contingencies.

Section 392(4) - shock or distress

[136] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Taylor.

[137] With respect to section 393 of the Act, there were no submissions that any amount of compensation should be subject to payment by instalments.

[138] Once the information requested of Mr Taylor is at hand, it will then be possible to finalise determination of the amount of compensation in lieu of reinstatement.

[139] A further decision, and an order, in regard to compensation will be issued within two weeks of receipt of the requested information.

Appearances:

J Taylor appeared on his own behalf

A Pollock of Counsel for the Respondent

Hearing details:

2016.

Melbourne:

May 31.

Final written submissions:

Applicant, 28 June 2016

Respondent, 27 July 2016

Applicant, 19 August 2016

 1   Transcript PN 1322

 2   Ibid PN 1323 - 1329

 3   Ibid PN 1335 - 1336

 4   Ibid PN 1338 - 1347

 5   Ibid PN 1330 - 1331

 6   Ibid PN 1332

 7   Ibid PN 1348 - 1349

 8   Ibid PN 1350 - 1352

 9   Ibid PN 1353 - 1358

 10   Ibid PN 1359 - 1360

 11   Ibid PN 1361

 12   Ibid PN 1362 - 1371

 13   Ibid PN 1374

 14   Ibid PN 1375

 15   Ibid PN 1376 - 1386 and 1399

 16   Ibid PN 1402

 17   Ibid PN 1387

 18   Ibid PN 1389 - 1390 and 1403

 19   Ibid PN 1407 - 1408

 20   Ibid

 21   Ibid PN 1404

 22   Ibid PN 1392

 23   Ibid PN 1393

 24   Ibid PN 1394 - 1395

 25   Ibid PN 1398 and 1414

 26   Ibid PN 1417 - 1421, 1437, 1440 and 1443 - 1444

 27   Ibid PN 1422 - 1423

 28   Ibid PN 1425

 29   Ibid PN 1426

 30   Ibid PN 1427 and 1440

 31   Ibid PN 1430 - 1433 and 1494

 32   Ibid PN 1434 and 1440

 33   Ibid PN 1440 - 1441 and 1463

 34   Ibid PN 1451 - 1452, 1463 and 1446

 35   Ibid PN 1447

 36   Ibid PN 1448

 37   Ibid PN 1463

 38   Ibid

 39   Ibid PN 1618 and Exhibit R5 at paragraphs 15 - 16

 40   Ibid PN 1619 and 1625

 41   Ibid PN 1620 - 1621 and 1688

 42   Ibid PN 1622

 43   Ibid PN 1623 - 1624

 44   Ibid PN 1653 and Exhibit R5 at paragraph 13

 45   Ibid PN 1654 - 1656

 46   Ibid PN 1626

 47   Ibid PN 1628

 48   Ibid PN 1629

 49   Ibid PN 1644

 50   Ibid PN 1643

 51   Ibid PN 1630 - 1631

 52   Ibid PN 1659 and 1661

 53   Ibid PN 1662 - 1663 and Exhibit R5 at paragraph 11

 54   Ibid PN 1663 - 1665

 55   Ibid PN 1666 - 1669

 56   Ibid PN 1675 - 1676 and Exhibit R5 at paragraphs 10 - 11

 57   Ibid PN 1677

 58   Ibid

 59   Ibid PN 1678 - 1681

 60   Ibid PN 1682 - 1686

 61   Ibid PN 1687

 62   Ibid PN 1690

 63   Ibid PN 1651 and Exhibit R5 at paragraphs 7 - 8

 64   Ibid at paragraphs 7 - 8

 65   Ibid at paragraph 17 and Transcript PN 1635 - 1636 and 1700

 66   Ibid at paragraph 18 and ibid PN 1637 and 1643

 67   Transcript PN 1643 and Exhibit R8 at paragraph 18

 68   Ibid PN 1700 and 1701

 69   Ibid PN 1701

 70   Ibid PN 1646 - 1647 and 1670

 71   Ibid PN 1648 - 1650

 72   Ibid PN 1634

 73   Ibid PN 1673

 74   Ibid PN 1691 and 1697

 75   Ibid PN 1698

 76   Ibid

 77   Ibid PN 1722 - 1727 and Exhibit R6 at paragraph 10

 78   Ibid PN 1761 and Exhibit R3 at Appendix D

 79   Ibid PN 1809 - 1820

 80   Ibid PN 1806

 81   Ibid PN 1807

 82   Ibid PN 1761 and Exhibit R7 at paragraph 6

 83   Transcript PN 1766 - 1767

 84   Ibid PN 1768 - 1769, 1775 - 1778 and 1781

 85   Ibid PN 1770 - 1771

 86   Ibid PN 1779

 87   Ibid PN 1781

 88   Ibid PN 1782 - 1783

 89   Ibid PN 1785 - 1786

 90   Ibid PN 1788 - 1796

 91   Ibid PN 1918 - 1921

 92   Ibid PN 1922 - 1930

 93   Ibid PN 1933

 94   Ibid PN 1977

 95   Ibid and Exhibit R8

 96   Transcript PN 1942

 97   Ibid PN 1943 - 1944

 98   Ibid PN 1945 - 1947 and Exhibit R8

 99   Transcript PN 1965 - 1967 and Ibid

 100   Ibid PN 1981

 101   Ibid PN 1969 - 1972 and 1975 - 1976 and Exhibit R8

 102   Transcript PN 1974

 103   Ibid PN 1982

 104   Applicant’s Closing Submissions, dated 28 June 2016, at paragraph B.1

 105   Ibid at paragraph B.1.B

 106   Ibid at paragraph B.2

 107   Ibid at paragraphs B.2.B and C

 108   Ibid at paragraph B.2.D

 109   Ibid at paragraph B.2.E

 110   Ibid at paragraphs B.2.E and B.3

 111   Ibid at paragraph B.4

 112   Ibid at paragraph C.5 and Applicant’s Final Submissions, dated 19 August 2016, at paragraphs B.11and C.12

 113   Applicant’s Final Submissions, dated 19 August 2016, at paragraph C.12

 114   Applicant’s Closing Submissions, dated 28 June 2016, at paragraphs D.6 and 7

 115   Ibid at paragraphs D.7 and 9

 116   Applicant’s Final Submissions, dated 19 August 2016, at paragraph D.15

 117   Applicant’s Closing Submissions, dated 28 June 2016, at paragraph E.10

 118   Applicant’s Final Submissions, dated 19 August 2016, at paragraph E.16

 119   Applicant’s Closing Submissions, dated 28 June 2016, at paragraphs F.11 and 13

 120   Applicant’s Final Submissions, dated 19 August 2016, at paragraph F.17

 121   Ibid at paragraph C.13 and F.21 and Applicant’s Closing Submissions, dated 28 June 2016, at paragraph F.13

 122   Applicant’s Final Submissions, dated 19 August 2016, at paragraph F.18

 123   Ibid at paragraph G.24 and Applicant’s Closing Submissions, dated 28 June 2016, at paragraph G.14

 124   Applicant’s Closing Submissions, dated 28 June 2016, at paragraph H.15 and Applicant’s Final Submissions, dated 19 August 2016, at paragraphs G.23 and 24

 125   Applicant’s Closing Submissions, dated 28 June 2016, at paragraph I.16

 126   Applicant’s Final Submissions, dated 19 August 2016, at paragraph H.26

 127   Ibid

 128   Ibid at paragraph H.27

 129   Ibid at paragraph B.8

 130   Ibid at paragraph B.9

 131   Ibid at paragraph B.10

 132   Ibid at paragraphs C.13 - 14

 133   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 4

 134   Ibid at paragraph 2

 135   Ibid at paragraph 6

 136   Ibid at paragraph 8

 137   Ibid at paragraphs 10 - 11

 138   Ibid at paragraph 12

 139   Ibid at paragraph 13 and Appendix A at paragraph 19

 140   Respondent’s Closing Submissions, dated 27 July 2016, at paragraphs 14 - 15

 141   Ibid at paragraph 17

 142   Ibid at paragraph 18 and Appendix A at paragraph 3

 143   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 19

 144   Exhibit R6 at paragraphs 8 - 9

 145   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 20

 146   Ibid at paragraph 24 and Exhibit R6 at paragraph 14

 147   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 25

 148   Ibid at paragraphs 26 and 31 and Exhibit R6 at paragraph 15

 149   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 27

 150   Ibid at paragraph 28 and Appendix A at paragraph 5

 151   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 29

 152   Ibid at paragraph 33

 153   Ibid at paragraph 34 and Exhibit R6 at paragraphs 16 - 18

 154   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 35 - 36 and Appendix A at paragraph 17

 155   Ibid at paragraph 37 and ibid at paragraphs 12 and 19

 156   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 38

 157   Ibid at paragraph 39

 158   Ibid at paragraph 40

 159   Ibid at paragraph 47

 160   Ibid at paragraphs 48 - 49

 161   Respondent’s Closing Submissions, dated 27 July 2016, at Appendix A at paragraph 3

 162   Ibid at Appendix A at paragraph 4

 163   Ibid at paragraph 6

 164   Ibid at paragraph 7

 165   Ibid at paragraph 8

 166   Ibid at paragraph 9

 167   Ibid at paragraph 10

 168   Ibid at paragraph 13

 169   Ibid at paragraph 23

 170   Transcript PN 1361 - 1362

 171   Exhibit R5 at paragraph 13

 172   Transcript PN 1629

 173   Ibid PN 1387

 174   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 34

 175   Ibid at paragraph 35

 176   Ibid at paragraphs 36 and 39

 177   Ibid at paragraphs 38 - 39

 178   Ibid at paragraph 25

 179   Ibid at paragraphs 25 - 26

 180   Applicant’s Final Submissions, dated 19 August 2016, at paragraph D.15

 181   Applicant’s Closing Submissions, dated 28 June 2016, at paragraphs D.6 - 7

 182   Respondent’s Closing Submissions, dated 27 July 2016, at paragraphs 18, 22 and 29 - 30 and Exhibit R6 at paragraph 15

 183   Applicant’s Final Submissions, dated 19 August 2016, at paragraphs F.11 and 13

 184   Ibid at paragraphs G.23 - 25 and Applicant’s Closing Submissions, dated 28 June 2016, at paragraphs G.14 and H.15

 185   Applicant’s Final Submissions, dated 19 August 2016, at paragraph H.26

 186   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 47 and Exhibit R6 at paragraph 23

 187   [2014] FWCFB 236

 188   Ibid at paragraphs [10] – [12]

 189   (1998) 88 IR 21

 190   Exhibit A3 and Exhibit R5 at paragraph 4

 191   Exhibit R4 at paragraphs i. and ii.

 192   Applicant’s Final Submissions, dated 19 August 2016, at paragraph H.26

 193   Respondent’s Closing Submissions, dated 27 July 2016, at paragraph 49

 194   Exhibit A5 at Appendix A and Exhibit R3 at Appendix C

 195   Exhibit A4 at Part B and Exhibit A5 at Appendix K

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