DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Curtis Humphreys
v
The Trustee for the Chunys Trust T/A Home Giraffe
(U2017/4348)

Application for an unfair dismissal remedy – dismissal for alleged fraud – small business – whether dismissal consistent with the small business fair dismissal code – grounds for dismissal relied upon at the time - whether reasonable grounds for belief – code not met – valid reason for dismissal found – dismissal not harsh but unreasonable given the absence of natural justice in the procedure – remedy – compensation not appropriate given all of the relevant circumstances.

1. The matter and the major issues for determination

[1] Mr Curtis Humphreys has made an application under s.394 of the Fair Work Act 2009 (the FW Act) for a remedy in connection with an alleged unfair dismissal by his former employer, the Trustee for the Chunys Trust T/A Home Giraffe (Home Giraffe).

[2] Home Giraffe is a digital marketing business that specialises in search engine optimisation (SEO). It is a small business within the meaning of the FW Act. 1 Home Giraffe is also a relatively informal business without some of the administrative structures present in older and larger businesses.

[3] Mr Humphreys began working for Home Giraffe on 11 February 2016. This came about following an approach from the Director and founder of the business, Mr Michael Chunys, to Mr Humphreys to join him. At the time, and subsequently, the two men were considered to be friends and work colleagues. Mr Humphreys was dismissed with immediate effect on 13 April 2017 and given, in effect, two weeks’ pay in lieu of notice. At that time, Mr Chunys informed Mr Humphreys that the dismissal was because the employer considered that he was:

● Bored (at work);
● Didn’t have much work to do; and
● Wasn’t necessary any more to the business.

[4] In the hearing of this matter, Home Giraffe contended that the real reason for the dismissal was that Mr Humphreys had committed “fraud”. That is, he had issued an invoice to a client of the business using the Home Giraffe “letterhead” and other details, but with the banking details linked to a bank account belonging to Mr Humphreys. It further contended that this was done without the knowledge or permission of the employer and involved work that the business could have done and for which it ultimately took responsibility.

[5] Home Giraffe also contended that it had not informed Mr Humphreys of the real reason for the dismissal because it was at that stage still investigating the issue including whether there were more invoices issued in that manner. Further, the employer was considering reporting the matter to the Police, which it subsequently did.

[6] Mr Humphreys does not deny utilising an invoice as described by Home Giraffe. However, he contends that this was not the reason for dismissal and that there were circumstances which explained why the invoice was issued in that form. In effect, Mr Humphreys contends that the work he completed was not a service that Home Giraffe would perform (it was private work), that this work was undertaken to enable Home Giraffe to win a significant contract, and that he developed the invoice using the available open software without any intention to deceive the client or his former employer.

[7] It is common ground that Home Giraffe is a small business within the meaning of the FW Act 2 and the Small Business Fair Dismissal Code3 (the Code) is potentially relevant. It is also agreed that Mr Humphreys has completed sufficient service and also otherwise qualifies to be protected from unfair dismissal.4

[8] Home Giraffe contends that the dismissal was for fraud and misconduct, complies with the Code, and was, in any event, not unfair. Mr Humphreys contends that the dismissal was not based upon the alleged fraud or misconduct, that the alleged fraud and misconduct did not take place, and that the dismissal was unfair. He seeks compensation.

[9] In the circumstances, the Commission potentially needs to consider and determine the following major issues:

1. What was the reason (or reasons) for dismissal – this includes consideration as to when Home Giraffe became aware of the invoice and the related “private” work, and what it did about it;

2. Did Home Giraffe comply with the Code – this is directly linked to issue 1, how that reason fits with the Code, and whether the employer genuinely held the relevant belief about the conduct and its impact;

3. If not consistent with the Code, what was the actual conduct of Mr Humphreys based upon evidence before the Commission, and was the dismissal harsh, unjust or unreasonable (unfair); and

4. If unfair, should any remedy in the form of compensation be granted and if so how much?

2. The determinative conference

[10] The application was subject to a determinative conference following consultation with the parties as contemplated by s.399 of the FW Act.

[11] The determinative conference was conducted in a largely inquisitorial manner. Given the absence of external representation for either party, appropriate assistance or latitude was provided to facilitate the presentation of each case. 5 This included assisting each of the witnesses to confirm their primary written evidence (where such was provided) and, in the interests of fairness, having the parties give sworn evidence concurrently. Further, both parties were provided with relevant extracts of the legislation and submissions invited on each of the relevant considerations. However, the parties retained full responsibility for the conduct of their cases and the provision of relevant evidence to the Commission.

[12] During the conference, it emerged that a number of relevant documents, which had not been provided to that point, were in the possession of Home Giraffe. These included the original contract of employment, the alleged police report, the letter of dismissal, and the email from the client which was said to alert the employer to the invoice in question.

[13] At the end of the conference I indicated to the parties that once these were provided, and I had had an opportunity to review the documents, I would determine whether I would need to reconvene the determinative conference or simply allow the parties to file final written submissions. Those documents were subsequently provided and I determined that the determinative conference should be reconvened given some of the additional issues arising from them.

[14] On 2 August 2017, the respondent provided an additional four statutory declarations of Home Giraffe employees and a further statement of Mr Chunys. Despite the late provision of this material, it was relevant to some critical issues and Mr Humphreys wished to contest some of the allegations and discussions set out in that material. The determinative conference resumed to deal with all of that material, including some additional email exchanges then also provided by Mr Humphreys.

3. The evidence

[15] As outlined above, both Mr Humphreys and Mr Chunys gave sworn evidence. Each also provided some limited written material including the invoice in question.

[16] The respondent also relied on the evidence of its following employees:

• Mr Christopher Lynch, Web Development and Digital Marketing;



• Ms Lisa Kyriazis, who was responsible for social media;



• Mr Evan Kyriazis, TM Manager and Senior Business Consultant; and



• Mr Jono Farrington, Search Engine Optimisation.

[17] I found that Mr Humphreys’ evidence was, for the most part, given openly; however he also had a tendency to be very subjective and somewhat naive in his view of events. There were also some elements of his evidence that were not credible including his justification for the form of invoice and his response, given after the dismissal, to his employer seeking clarification about the “private” website work and any other related invoices.

[18] I found that Mr Chunys’ evidence was generally reliable and given honestly. However, I also find that he had a tendency to exaggerate where he felt strongly about an issue or an incident. Mr Chunys did however make concessions where appropriate including where he had been wrong on the timing of certain matters, such as the precise date that he received an email copy of the invoice in question from the client.

[19] In relation to the four other witnesses relied upon by Home Giraffe, I generally accept their evidence about matters and conversations that they directly participated in or observed. That is, their recollections of events were genuinely held. Some of their evidence was speculative, hearsay or opinion, and whilst this may be admissible in matters of this kind, I have attached little weight to those particular elements.

[20] I would also observe that neither party sought to lead evidence from some of the former employees that might have cast some further light on the events leading to the provision of the invoice.

[21] Accordingly, I have some reservations about the witness evidence and the absence of much objective evidence in the form of written communications has also created challenges. In that light, I have determined the facts based upon my overall assessment of the evidence and the probability and consistency of that testimony.

4. Findings on the major issues

4.1 What was the reason (or reasons) for dismissal?

[22] Having regard to all of the evidence before the Commission, I find that Mr Chunys made the decision to dismiss Mr Humphreys on a basis other than that as stated at the time of the dismissal.

[23] Despite some uncertainty about precisely when Mr Chunys was informed about the invoice in question and the related work, I accept that this was known prior to the day of the dismissal. I also accept that Mr Chunys informed others about his intention to dismiss Mr Humphreys in connection with the invoice at that time. Further, I find that Mr Chunys had been informed by Ms Kyriazis that Mr Humphreys had made an alleged threat in connection with the passwords used in the business and Mr Chunys also relied upon that information in making his decision to terminate the applicant’s employment.

[24] For reasons best known to Mr Chunys, and despite later indications that he would not take any further action if Mr Humphreys confirmed the extent to which other such work and invoicing had occurred, I find that Mr Chunys did not wish to disclose the real reason at the time of dismissal, but rather simply sought to have Mr Humphreys removed from the business.

[25] Accordingly, I find that Home Giraffe dismissed Mr Humphreys on the basis of the following:

● the invoice issued to a client (or at that stage a potential client) of Home Giraffe, which used Home Giraffe “letterhead” and other details but with the banking details linked to a bank account belonging to Mr Humphreys. This was considered by Home Giraffe to be fraud;
● the undertaking of the website development work covered by the invoice (and potentially others) and its view that this was done using the time and resources of Home Giraffe without the knowledge or permission of the employer and involved work that the business could itself have done; and
● the alleged threat about the business passwords.

[26] Of these, the first two grounds were the basis for a report subsequently provided to the Police.

4.2 Did Home Giraffe comply with the Code in dismissing Mr Humphreys?

[27] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[28] This means that if Mr Humphreys’ dismissal was consistent with the Code, it cannot be considered to be unfair within the meaning of the FW Act. Section 396 of the FW Act also requires, in effect, that matters arising from s.385 are to be decided before dealing with the merits of the application.

[29] The Code as declared is set out as follows:

“The Code

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.”

[30] On the day of the dismissal, although Mr Chunys did not reveal the real reason for the dismissal, there was a discussion about the consequences of that decision and a written note that was used as the original basis for the discussion, which was provided to Mr Humphreys at the time, stated as follows:

“Notice is hereby given of employment termination of employee Curtis Humphreys, from Home Giraffe of [address]. Effective immediately, 13th April 2017.

Curtis is no longer authorised to access any of Home Giraffe’s systems or systems created while at Home Giraffe.

Curtis is prohibited from contacting any Home Giraffe clients.

Curtis is no longer authorised to log into anything related to Home Giraffe.

Cease any activity under the Home Giraffe name including BNI.” 6

[31] I consider that the dismissal had immediate effect and occurred without warning or notice. There was some mention of the two weeks’ notice in the dismissal discussion and this was ultimately provided; however, it was always clear that Mr Humphreys would not be working after 13 April 2017 and in my view the pay in lieu of notice does not detract from that finding. Accordingly, I consider that the dismissal was a summary dismissal (immediate dismissal) within the contemplation of the Code.

[32] The summary dismissal aspect of the Code was considered by a Full Bench in Pinawin T/A RoseVi.Hair.Face.Body v Domingo. 7 The Full Bench stated:

“[29] There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

[33] Accordingly, under the Code, for a small business employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish that it did in fact hold the belief that:

● the conduct was by the employee;

● the conduct was serious; and

● the conduct justified immediate dismissal.

[34] The above belief must be based upon reasonable grounds.

[35] The Code also provides that for a summary dismissal to be deemed fair, it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the Police. However, the employer must have reasonable grounds for making the report.

[36] Further, the assessment of reasonable grounds involves consideration as to whether an investigation, which was reasonable in the circumstances, was carried out by the employer. What is reasonable in that context will depend upon the nature of the allegations and the circumstances of the employer.

[37] It also follows that under the Code, the employer does not need to demonstrate by evidence to the Commission that the alleged misconduct actually took place. Further, as it is the belief and reasonable grounds related to the dismissal that must be considered, this involves a consideration to what was known and believed at the time, and not subsequent to that decision. Both of these elements are to be contrasted to the approach adopted in connection with the s.387 (meaning of harsh etc. dismissal) considerations.

[38] In this case, Home Giraffe relies upon the invoice in question as fraud and the undertaking of the “private” work. These allegations were reported to the Police. This report occurred some two weeks after the dismissal (and well after the time that the alleged conduct was first reported to Mr Chunys) and on the day after the respondent had been served with the s.394 application in this matter. The respondent also relies upon the alleged threat in connection with the business passwords.

[39] Based upon the evidence that is now before the Commission the following sequence of events of direct relevance to the present assessment unfolded:

● Business decisions for Home Giraffe were in effect made by Mr Chunys. This included the nature of the work, the allocation of duties, pricing and invoicing matters, and employment decisions.
● Mr Humphreys initially had a sales focused role however this changed in late 2016 to involve more direct service delivery. This had an impact upon the commission payments that he would receive under the arrangements agreed as part of the employment contract. 8 There is also a dispute about whether those arrangements were formally modified or ceased to operate.
● Home Giraffe would undertake some website development work for clients, however, it was not the main service offered and Mr Chunys did not want that work to be undertaken unless it was profitable and linked to broader service delivery.
● This meant that some of the website development work that My Humphreys and other sales orientated staff could obtain was ultimately not supported by Mr Chunys and not undertaken.
● The lines between the business and the private work and the Intellectual Property (IP) involved were not always clear and at least prior to late 2016, it was not uncommon for some website development work to be done by employees on the side. 9 This led Mr Humphreys, and at least one other employee who is no longer in the business (R), to consider that they could do some of that website development work in a “private” capacity. However, that work was not approved by Home Giraffe and no permission was sought in that regard.
● There was also some mixing of private and business work and systems with Mr Humphreys setting up and/or accessing Home Giraffe systems using his own and/or publicly available software and his g-mail account. There is no reliable suggestion that this, of itself, was inappropriate or unexpected; however, it did have later consequences.
● In November 2016, Home Giraffe became aware that Mr Humphreys had undertaken some website development work (with R) for an existing Home Giraffe client. This work was done “on the side” and the client paid the applicant and/or the other employee. When Mr Chunys became aware of this fact, Mr Humphreys was informed that this was not appropriate and was not to happen again. There was no direct indication given at that time, or at any stage, that his employment was in jeopardy.
● Relationships between Mr Humphreys and Mr Chunys became strained during the early part of 2017. Mr Humphreys was concerned that his contribution to the business was not being recognised and Mr Chunys became concerned that some of the work that the applicant should have been doing was being “palmed off” by him to other employees. I note that the evidence reveals that it was not Mr Humphreys that redirected that work. The change in the character of the work, away from sales, was also likely to have impacted upon that relationship
● Mr Humphreys and another employee (NL) apparently discussed undertaking some website development work for a potential client (A2Z) and considered that they should do that in order to secure the work more generally for Home Giraffe. This was not disclosed to Mr Chunys at any time and no permission was sought or obtained. Some such development work was undertaken by Mr Humphreys.
● In early April 2017, Mr Chunys became aware that the website development work for A2Z had been undertaken by Mr Humphreys. This occurred when that business contacted him to complain about unfinished work. This also led to advice that an invoice had been provided for the work in the name of Home Giraffe but that payment had not been made to that business. Mr Chunys did seek some details from the client about the work and the invoice, including that the client considered that it had been dealing with Mr Humphreys on behalf of Home Giraffe, but did not obtain a copy of the invoice at that time. Mr Chunys took the view that this was a repeat of the earlier conduct whereby Mr Humphreys was undertaking work with Home Giraffe clients that he should not be doing and that the invoice was improper.
● Mr Chunys decided at that point to dismiss Mr Humphreys and potentially to continue to explore the extent of such non-authorised “private” work and whether any other invoicing had occurred.
● On the day before the dismissal, Ms Kyriazis also reported to Mr Chunys that she had had a discussion with Mr Humphreys during which the applicant had said:

“Michael better stop asking me what I’m doing at work because I hold all of the passwords for Home Giraffe and can make it difficult for him”.

● Mr Chunys understood that this was a threat but did not explore with Ms Kyriazis the context in which the “threat” was made and did not seek Mr Humphreys’ perspective on the matter. I note that this perspective was that Mr Humphreys did not make a threat, but in the context of a feeling that he was being taken for granted, a statement was made to emphasise that he had established many of the business systems for Home Giraffe and was important to the business. Further, that he (Mr Humphreys) did not actually hold any passwords that were not known to others.
● On Thursday 13 April 2017, the dismissal took place as set out earlier in this decision.

[40] After the dismissal, Mr Chunys may have undertaken some very low level investigation as to whether there were other invoices issued for such “private” work. The Easter long weekend and Anzac Day public holiday occurred in that period and this also had an impact on the activities of Mr Chunys in that regard. However, it is clear that Mr Chunys did not pursue the issue with any urgency or real intent.

[41] Mr Chunys received a copy of the invoice from A2Z on 21 April 2017.

[42] In this period, there had been contact between Mr Humphreys and Mr Chunys during which the applicant was seeking his final payment. This included seeking details about some allegedly outstanding commission payments, which remain in dispute.

[43] In the early afternoon of 26 April 2016, Mr Chunys contacted Mr Humphreys by email and indicated as follows:

“Hi Curtis,

We’ve been made aware of an invoice sent by yourself to a Home Giraffe client (with a Home Giraffe invoice), that contain bank account details that do not belong to Home Giraffe.

The details of the bank account on the invoice are:

Market Share

BSB: xxx xxx

Acct: xx xxxx xxx

This action is a breach of your employment terms at the time, and represents fraudulent activity on your behalf. There was no approval given for you to invoice clients in any form, let alone payment to a non Home Giraffe bank account.

I would like you to provide a full explanation, and provide details for all incidences where this has taken place with Home Giraffe clients while you were employed.

If you cannot do so, I will be forced to take further action.

If you can provide this information, you will be paid what you are due tomorrow, and no further action will be taken.” 10

[44] Mr Humphreys replied later that afternoon as follows:

“Hi Michael,

Could you please provide more information as I cannot recall doing this? Do you at least know which customer? I’ll be happy to provide any information I have I just need some prompting to remember whom this was for as it is not ringing any bells.

I’m not sure why you have decided we must be enemies when it was you who let me go for no real reason? I just now want to move on with my life and try to find a new position with another company so will work with you to resolve this.

Regarding outstanding payment, I’m not entirely sure it’s fair or lawful of you to have withheld it from me this long and we still haven’t had the chance to discuss commission? Please Michael, up until the incident where you “let me go” I thought we were good mates, I’m finding it really hard to understand why you now have some vendetta against me?

I will provide what info I can once you prompt me on the customer please. I’ll get back to you ASAP with any information I have.” 11

[45] The s.394 application was served upon Home Giraffe by email on 26 April 2017, but after the above exchange had taken place.

[46] Mr Chunys made the report to the Police on 27 April 2017. Although it is entirely possible that the receipt of the s.394 application contributed to that decision, Mr Chunys had already sought further information from Mr Humphreys on the day before. On balance, I consider that the email reply provided by the applicant at that time, which lacked credibility, was the motivating force behind the decision to escalate the matter and make the Police report. I also note that Mr Chunys was not aware of the Code prior to proceedings in the Commission and that played no part in the decision to make the Police report.

[47] In relation to the invoice for A2Z, that invoice was produced by Mr Humphreys using the existing form of an invoice issued by Home Giraffe to another client. That original invoice was originally prepared by Mr Humphreys using generally available shareware linked to his own g-mail account. That original invoice was prepared at the request of Mr Chunys. The A2Z invoice produced by Mr Humphreys retained the Home Giraffe “letterhead” and company details but contained a different BSB number for payment, which was an account belonging to Mr Humphreys. It was for all intents and purposes an invoice issued in the name of Home Giraffe.

[48] At some stage after the dismissal and prior to the report to the Police, Mr Humphreys accessed the shareware website and changed the settings related to the invoices that were retained on that site. According to Mr Humphreys, this had the effect of also changing the A2Z invoice to remove reference to Home Giraffe. Mr Chunys was aware of the change to that invoice, which was also reported to the Police as being a further indication of suspicious conduct.

[49] I now return to the application of the Code to the above facts. Mr Chunys made the decision to dismiss Mr Humphreys on the following grounds:

● an invoice had been issued to a client (or potential client) of Home Giraffe, which used Home Giraffe “letterhead” and other details but with the banking details linked to a bank account belonging to Mr Humphreys. This he considered to be fraud;
● the undertaking of the website development work covered by the invoice (and potentially others) and its view that this was done using the time and resources of Home Giraffe without the knowledge or permission of the employer and involved work that the business could itself have done; and
● the threat about the business passwords.

[50] I accept that Mr Chunys held the belief about those matters at the time. The question is whether he had reasonable grounds for doing so at that time within the meaning of the Code. More particularly, whether he believed on reasonable grounds that Mr Humphreys’ conduct was sufficiently serious to justify immediate dismissal.

[51] The report to the Police about the first two of these was made following subsequent events and whilst it is relevant to Mr Chunys’ belief about the conduct, it cannot in the present context be persuasive of the genuineness of that belief at the relevant time in the manner contemplated by the Code. However, a report of that kind is not required and is only one avenue to demonstrate the requisite belief was held upon reasonable grounds.

[52] It is therefore necessary to consider what Mr Chunys knew at the time of the dismissal including as a result of any investigation. Mr Chunys did not undertake any real investigation of the matter, beyond speaking to the client in relation to the invoice, and Ms Kyriazis in connection with the alleged threat. He also did not have any discussions about these matters with Mr Humphreys prior to, or at, the time of the dismissal. Accordingly what he knew, as against what he suspected, was relatively limited.

[53] Mr Chunys knew:

● that some work (website development) had been done for a client (or potential client) of Home Giraffe probably by Mr Humphreys, that client indicated that that he thought he was dealing with Home Giraffe, and this was not work that had not been authorised by the employer;
● an invoice had been issued to that client which used Home Giraffe “letterhead” and other company details but with the banking details linked to a bank account belonging to Mr Humphreys and was for all intents and purposes an invoice issued by Home Giraffe;
● Mr Humphreys was not authorised to produce or send that invoice;
● there had been earlier occasions where Mr Humphreys (and other employees) had undertaken some “private” work for clients and that he had been informed that this was not appropriate; and
● Ms Kyriazis had reported that Mr Humphreys had allegedly made a threat about his knowledge of passwords and the capacity to damage the business.

[54] Mr Chunys did not know:

● Mr Humphreys’ perspective including that he contends that the work for the client was not work that Home Giraffe would do; and was undertaken as part of a marketing approach that was designed to facilitate the client buying significantly more of the major services provided by Home Giraffe;
● who created the invoice in question beyond that it was likely to have been Mr Humphreys given that the client had indicated that he was dealing with the applicant;
● that Mr Humphreys contends that the invoice was issued using an earlier invoice that he had prepared for Home Giraffe and was a mistake, and that he did not intend to mislead anyone;
● the precise nature of the work undertaken by Mr Humphreys for the client and whether any of the work was in fact done using the time and resources of Home Giraffe;
● that Mr Humphreys contends that the work for the client in question did not involve the use of any Home Giraffe time or resources and was undertaken out of working hours;
● whether the work in question was discussed with or known by others within the business;
● whether there had been other such work undertaken by Mr Humphreys and other employees; and
● whether Ms Kyriazis’ appreciation of the threat was accurate and in what context the discussion took place.

[55] What this means is that Mr Chunys had reasonable grounds to believe that an invoice was created without authorisation and was issued in a form that was misleading and that some work had been undertaken by Mr Humphreys for the Home Giraffe “client” that was also not authorised and could have been work that it might otherwise do. The undertaking of that work was, in any event, contrary with to the ground rules communicated to Mr Humphreys as a result of the November 2016 discussion.

[56] Further, Mr Chunys had reasonable grounds to suspect some of the other elements of the alleged misconduct but not to hold the requisite belief.

[57] In order to have reasonable grounds to believe that an employee’s conduct was sufficiently serious to justify immediate dismissal, without conducting any meaningful investigation and without even disclosing the allegation to that employee prior to or at the time of the dismissal, the circumstances are likely to be exceptional. That is, the conduct would need to be directly witnessed or verifiable by clear objective evidence and involve very serious conduct for which no reasonable alternative explanation was plausible.

[58] Further, whilst the assessment is to be made based upon the knowledge of the employer at that time, some insight into the basis of the belief might be found in understanding the actions taken by them in connection with that belief. This approach is also consistent with the Code and the capacity for an employer to justify the dismissal based upon such actions.

[59] I will deal with the veracity of the explanations that Mr Humphreys now provides and more detailed findings about the actual conduct later in this decision. However, based upon the knowledge at the time, and the lack of information about the context, actual conduct and the intentions of Mr Humphreys, I do not consider that the relevant circumstances existed at the point of the dismissal. Further, although Mr Chunys sought to have Mr Humphreys leave the business immediately, he did not then conduct a detailed subsequent investigation or even an audit of invoices and work activities. He did not at that point consider reporting the issue and did not treat the follow-up with the client about the invoice with any priority. Mr Chunys was also prepared to not take matters further if Mr Humphreys subsequently disclosed any other such conduct. These actions are not consistent with the requisite belief contemplated in the Code for a dismissal of this nature.

[60] In the end, I am not satisfied that Home Giraffe has demonstrated that it has complied with the Code in dismissing Mr Humphreys.

[61] I also note that if the dismissal of Mr Humphreys was considered to be an “other dismissal” within the meaning of the Code, the dismissal would not have been consistent with the Code. This must follow as there was no warning given at any stage that the applicant risked losing his employment.

4.3 Was the dismissal unfair within the meaning of the FW Act?

[62] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal

(1) A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

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

[63] Mr Humphreys was dismissed, the employer has not complied with the Code, and the concept of a genuine redundancy is not relevant here.

[64] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[65] The FW Act relevantly 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 is 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.”

[66] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Humphreys’ capacity or conduct (including its effect on the safety and welfare of other employees).

[67] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.¹²

[68] The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee’s employment.¹³ It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.¹⁴ Equally, unlike the Code, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.¹⁵

[69] In Woolworths Limited (t/as Safeway) v Cameron Brown¹⁶ a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,¹⁷ considered when a failure to abide by a policy or instruction of an employer would amount to a valid reason for termination of employment and when it would not:

“In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” A failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:

(a) the policy, or a direction to comply with the policy, is illegal;

(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(b) the policy, or a direction to comply with the policy, is unreasonable.”¹⁸

[70] Although also dealing with considerations beyond the existence of a valid reason, in Bostik (Australia) Pty Ltd v Gorgevski (No 1)¹⁹ the Court observed:

“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”²⁰

[71] I have earlier set out the three elements relied upon by Home Giraffe to constitute the valid reason. I have also set out the sequence of events and the response to the allegations now provided by Mr Humphreys.

[72] During the resumed conference, Mr Chunys also made some additional claims about other “private” work allegedly undertaken by Mr Humphreys and discovered after the dismissal. The substance of these claims was disputed and there was insufficient detail given in the respondent’s evidence about the circumstances and facts for any conclusive findings to be made in that regard.

[73] Having considered all of the evidence and submissions touching upon these issues I find that the use of the invoice in question by Mr Humphreys was either:

● a deliberate attempt to mask the transaction (the true identity of the service provider from the client and/or the fact that the work was being undertaken from Home Giraffe) which he personally benefitted from in doing so; or
● a naive and foolhardy action to abuse the lack of strict parameters around the “private” work without any thought about the potential for the invoice to mislead the client.

[74] In the absence of supporting evidence, and given my reservations about that evidence which is before the Commission, I do not accept Mr Humphreys’ proposition that the “private” work was undertaken solely to facilitate A2Z becoming a client of Home Giraffe. Further, even on his own version, there was no authority for him to issue an invoice in the form that occurred and this led to the foreseeable result that the client was likely to be misled about who had provided the service and who was being paid.

[75] However, there is no evidence to support the notion that this “private” work was actually undertaken using the resources and time of Home Giraffe.

[76] Given the high level of satisfaction that is required 21 for a finding such as fraud to be made, and the state of the evidence that is before the Commission about the actual work and related circumstances, I cannot be satisfied that the conduct in connection with invoice was fraudulent. However, on any view of the conduct in relation to the invoice it was misconduct that had a significant impact on the necessary trust and confidence in the employment relationship.

[77] In relation to the other aspects of the conduct I find as follows:

● The “private” website work should not have been undertaken for the “client” as this was contrary to directions and involved, in circumstances where it was not known or authorised by the employer, a conflict of interests where Mr Humphreys was using the business contact and the other services that were being offered by Home Giraffe as the basis for personal unauthorised reward; and
● The threat about the business passwords was not entirely accurate however it was an indication that Mr Humphreys considered that he had some leverage over the employer and would be willing to use it. In the context of a small business of the kind evident here, with the personal relationships and interconnection between business and personal IP, that position was not conducive to the retention of trust and confidence in the employment relationship.

[78] I am satisfied that there was a valid reason for dismissal.

Section 387(b) – whether Mr Humphreys was notified of the reasons for dismissal.

[79] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.²²

[80] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.

[81] Mr Humphreys was not notified of the reasons for dismissal.

Section 387(c) – whether Mr Humphreys was given an opportunity to respond to any reason related to his capacity or conduct.

[82] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[83] This process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. ²³

[84] Mr Humphreys was not given any opportunity to respond to any reason related to his capacity or conduct.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Humphreys a support person.

[85] There was no request made.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Humphreys – whether he has been warned about that unsatisfactory performance before the dismissal.

[86] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.²⁴

[87] In this case, the dismissal was fundamentally related to conduct.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(g) – the degree to which the absence of dedicated human resource (HR) management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[88] I deal with these two considerations together.

[89] Home Giraffe is a small employer and had no access to HR expertise. I accept that this significantly impacted upon the procedures, or lack thereof, in dealing with the dismissal.

Section 387(h) - other matters considered to be relevant

[90] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission.²⁵

[91] Further, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed.²⁶ Mr Humphreys lost his employment and this has had both economic and other consequences. This includes the fact that he apparently declined an alternative job offer during 2017 and before the dismissal. However, he was paid two weeks’ notice and given the nature of the conduct and the overall circumstances I do not consider that the dismissal was disproportionate to the conduct or had unfair consequences as contemplated by the authorities.

[92] As a result, having considered all of the relevant circumstances, I am not satisfied that the dismissal was harsh.

Conclusions on the dismissal

[93] I have weighed all of the factors and circumstances of this application.

[94] In Byrne and Frew v Australian Airlines Pty Ltd,²⁷ the following observations were made by McHugh and Gummow JJ:

“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[95] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position.²⁸The Commission is also directed to ensure a “fair go all round”. This is reinforced by the objects of this Part of the FW Act in s.381 including ss.(2) which provides as follows:

“(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

[96] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether the procedural deficiencies made any difference to the fairness of the outcome.²⁹ As a result of s.387(f) and (g) of the FW Act, I have also taken into account the circumstances of the business and the impact on the procedures adopted. This includes what amounts to a desire by Mr Chunys to keep his (investigation) powder dry. However, this is not a significant factor in this case, given the lack of immediate action actually taken in that regard.

[97] I have found that there was a valid reason for dismissal. I have also found that the dismissal was not harsh.

[98] In this case, there are significant elements of procedural unfairness including that Mr Humphreys was given absolutely no opportunity to deal with the very serious allegations that were relied upon by Home Giraffe to make the decision to dismiss him. Further, he was actually given reasons at the time that were false. There were matters that Mr Humphreys could have advanced to put his alleged conduct in context and the allegations that were made had potential significant consequences beyond the immediate decision to terminate. The absence of any semblance of natural justice was, in the context of this matter, unreasonable.

[99] On balance, having regard to the provisions of s.387 of the FW Act as applied to my findings in this case, I am satisfied that the dismissal was unreasonable. As result, it was unfair within the meaning of the FW Act.

4.4 Remedy

[100] Mr Humphreys does not seek reinstatement to his former position but rather compensation.

[101] Division 4 of Part 3-2 of the FW Act relevantly provides as follows:

“Division 4—Remedies for unfair dismissal

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.

… …

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

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

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

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

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

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

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

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

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

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. Disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[102] The prerequisites of ss.390(1) and (2) have been met in this case.

[103] Section 390 of the FW Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. Mr Humphreys does not seek reinstatement and in any event I consider that this would be inappropriate.

[104] As set out above, under the FW Act, it is then necessary to consider whether compensation in lieu of reinstatement is appropriate.

[105] A Full Bench in McCulloch v Calvary Health Care Adelaide³⁰ (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg³¹ remains appropriate in that regard.

[106] Section 392(2) of the FW Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the FW Act,³² it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of Home Giraffe

[107] Home Giraffe contended that it was a small, still developing, business, and that an award of compensation would have an impact. However, nothing more specific has been put to the Commission on this issue and is unlikely to arise given my later findings.

The length of Mr Humphreys’ service with Home Giraffe

[108] Mr Humphreys had been employed with Home Giraffe for just over 14 months.

The remuneration Mr Humphreys would have received, or would have been likely to receive, if he had not been dismissed

[109] This involves in part a consideration of the likely duration of Mr Humphreys’ employment in the absence of what I have found to be an unfair dismissal. That is, the establishment of the anticipated period of employment.³³

[110] Given my findings, it is evident that the proper course of action here would have been for Home Giraffe to have investigated the issue, put the allegations to Mr Humphreys and then made an informed decision having provided natural justice. In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment for a further period of no more than two weeks from the date of the dismissal. At that point, it would have been reasonable to have concluded the employment at that time.

[111] The projected remuneration that Mr Humphreys would have received based upon the anticipated period of employment would therefore have been no more than two weeks’ wages.

The efforts of Mr Humphreys to mitigate the loss suffered by him because of the dismissal

[112] I accept that Mr Humphreys has made reasonable efforts to mitigate his losses.

[113] No discount to the amount of compensation is warranted based upon this consideration.

The amount of any remuneration earned by Mr Humphreys from employment or other work during the period between the dismissal and the making of the order for compensation

The amount of any income reasonably likely to be so earned by Mr Humphreys during the period between the making of the order for compensation and the actual compensation

[114] Mr Humphreys gained some casual employment some five weeks after his dismissal and some time later, full-time employment. He remains in that employment. I do not consider that the remuneration from that employment should be deducted from any compensation order to be made, given that particular period over which the projected remuneration loss has been calculated.

[115] Mr Humphreys was paid two weeks’ pay in lieu of notice and this payment should be taken into consideration.

Any other matter that the FWC considers relevant and the remaining statutory parameters

[116] I have taken into account the projected nature of the anticipated loss of remuneration over a very short period and given the circumstances of this case, it is not appropriate to make a further allowance for contingencies.³⁴

[117] There is demonstrated misconduct that should be taken into account as provided by s.392(3) of the Act.

[118] In accordance with s.392(4) of the FW Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[119] The maximum compensation limit in this case is the lesser of 26 weeks remuneration or the statutory cap of $69,450.³⁵

[120] Taxation would be payable on any amount determined.

Conclusions on remedy

[121] I have projected the remuneration loss as being no more than two weeks from the date of the dismissal. Mr Humphreys was paid two weeks’ notice and this would cover that period. Further, I have found that misconduct took place and that this would have otherwise provided a basis for the employment to conclude at that point. In addition, under s.392(3) of the FW Act, the demonstrated misconduct should be taken into account and this would have otherwise reduced the amount of any compensation order.

[122] In all of these particular circumstances, I do not consider that an award of compensation is appropriate in this matter.

5. Conclusions and Orders

[123] I have found that the dismissal of Mr Humphreys did not comply with the Code and was unreasonable given the absence of any semblance of natural justice in the manner of the dismissal.

[124] I have, however, concluded that having regard to the considerations established by s.392 of the FW Act, it is not appropriate that an award of compensation be made.

[125] I would note that it has not been necessary to deal with the dispute between the parties about any commission payments due upon the cessation of employment. That issue, and any related dispute about the full payments due under the contract and the notice that was paid, if a determination is to be pursued, are matters for a Court of competent jurisdiction and not the Commission.

[126] This matter will be closed.

COMMISSIONER

Appearances:

C Humphreys, the Applicant on his own behalf.

M Chunys, for the Trustee for the Chunys Trust T/A Home Giraffe.

Determinative Conference details:

2017

Adelaide

July 20,

August 23.

 1   Section 23 of the FW Act.

 2   Ibid – the respondent employed significantly less than 15 employees at the time of the dismissal.

 3   Section 388 of the FW Act.

 4   Sections 382, 383 and 384 of the FW Act.

 5   This was done in a manner consistent with the statutory charter of the Fair Work Commission. See the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.

 6   Exhibit R3.

 7   (2012) 219 IR 128.

 8   Exhibit R4.

 9   Based upon the evidence of Mr Kyriazis.

 10   Exhibit A1.

 11   Ibid.

12 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].

13 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.

14 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.

15 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

16 PR963023 (26 September 2005) (footnotes omitted).

17 PR928970 (19 March 2003) at [14].

18 PR963023 (26 September 2005) at [34]. See also B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [48], [65] and [67].

19 (1992) 41 IR 452 per Sheppard and Heerey JJ.

20 Ibid at p 460.

 21   See the discussion of the Briginshaw v Briginshaw principle in Budd v Dampier Salt Ltd (2007) 166 IR 407 at [14] - [16].

22 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

23 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

24 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

25 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

26 See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

27 [1995] HCA 24.

28 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]; Miller v University of New South Wales (2003) 132 FCR 147 at [13].

29 See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.

30 [2015] FWCFB 873.

31 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.

32 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.

33 McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873.

34 See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.

35 Section 392(5) of the Act.

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