[2018] FWC 2399

The attached document replaces the document previously issued with the above code on 8 May 2018.

To amend typographical errors at paragraphs [9] & [19], and correct Footnote 2.

Arthur Dowdle

Associate to Commissioner Johns

Dated 10 May 2018

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

Mr Terence Howell
v
Linfox Australia Pty Ltd
(U2017/9485)

Application for an unfair dismissal remedy – jurisdictional objections – not dismissed – release and discharge.

Introduction and background

[1] Mr Terence Howell made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (FW Act) for a remedy for what he alleges to have been an unfair dismissal by his former employer, Linfox Australia Pty Ltd (Linfox). Mr Howell’s application for an unfair dismissal remedy was lodged on 31 August 2017 and in it he claimed that he was notified of his dismissal on 7 August 2017, with the dismissal taking effect on 18 August 2017.

[2] On 21 September 2017 Linfox filed its Employer Response to the Application. In it Linfox objected to the Commission exercising jurisdiction in relation to the Application on the basis that, it contended, Mr Howell:

a) earned more than the higher income threshold, and also

b) was not dismissed.

[3] The higher income threshold jurisdictional objection was determined by Deputy President Gooley in favour of Mr Howell (i.e. the jurisdictional objection was dismissed). 1

[4] Linfox appealed her Honour’s decision. On 25 January 2018 permission to appeal was refused. 2 The substantive matter was remitted to another member of the Commission and listed for hearing on 1 February 2018. However, on 31 January 2018 the matter was reallocated to me.

[5] Before me Linfox contended that the application ought be dismissed without a hearing on the merits for the following reasons:

a) Mr Howell was not dismissed in that, by letter dated 7 August 2017, he resigned from his employment effective from 18 August 2017; and further,

b) On 7 August 2017 Mr Howell signed a release Agreement which provided a release and discharge by Mr Howell in favour of Linfox relating to his employment and the cessation of his employment (Release Agreement). Linfox relies on the Release Agreement to contend that Mr Howell’s claim for unfair dismissal has no prospects of success.

[6] These jurisdictional objections (and the substantive merit case):

a) were the subject of a hearing before me on 1 and 22 February 2018; and

b) are the subject of this decision.

[7] At the hearing:

a) Mr Howell:

i. was represented by Mr J McKenna of counsel. Mr McKenna was given permission to represent Mr Howell because I was satisfied that, having regard to the complexity of the jurisdictional objections raised by the Respondent, I would be assisted in the efficient conduct of the matter if I granted permission pursuant to s.596(2)(a) of the FW Act.

ii. gave evidence on his own behalf and was cross examined. Further, he relied upon two witness statements that had been filed in the matter.

b) Linfox:

i. was represented by Mr G Katsifolis, the Respondent’s in-house Workplace Relations Advisor.

ii. called the following people to give evidence:

A. Simon Livingstone, General Manager – Resources and Industrial East. Mr Livingstone was cross-examined. Three witness statements were filed on his behalf.

B. Jessica Bianchi, Corporate Human Resources Manager. Ms Bianchi was cross-examined. Three witness statements were filed on her behalf.

[8] In addition to the oral evidence I heard on 1 and 22 February 2018, in coming to this decision, I have had regard to all of the evidence, documents and submissions filed in the proceedings as follows:

a) Exhibit A1 – Original email to Sharon Thomson with Annexure.

b) Exhibit A2 - Applicant’s further submissions dated 11 December 2017.

c) Exhibit A3 - Witness statement of Terence Howell dated 30 November 2016.

d) Exhibit A4 - Further statement of Terence Howell dated 11 December 2017.

e) Exhibit A5 - Summary of bank statement entries.

f) Exhibit A6 – Audio of Service Desk conversation recorded on 7 August 2017.

g) Exhibit A7 – Letters from Lewis Holdway Lawyers to George Katsifolis dated 9 October 2017.

h) Exhibit A8 – Bundle of documents.

i) Exhibit R1 - Outline of submissions of the respondent dated 4 December 2017.

j) Exhibit R2 - Further submissions of the respondent dated 28 December 2017.

k) Exhibit R3 - Witness statement of Simon Livingstone dated 4 December 2017.

l) Exhibit R4 - Supplementary witness statement of Simon Livingstone dated 22 December 2017.

m) Exhibit R5 – Further supplementary witness statement of Simon Livingstone dated 30 January 2018 (with substituted pages).

n) Exhibit R6 - Witness statement of Jessica Bianchi dated 4 December 2017.

o) Exhibit R7 - Supplementary witness statement of Jessica Bianchi dated 22 December 2017.

[9] Based on the evidence, I make the following findings of fact relevant to the matters before me:

a) Mr Howell has worked as a Dangerous Goods specialist for around 20 years. In that time he had three periods of employment with Linfox.

b) On 4 May 2011 Mr Howell re-commenced employment with Linfox.

c) From 2 November 2015 Mr Howell commenced in the role of National Dangerous Goods Manager.

d) Mr Howell worked across all business units. His services were regularly utilised by Linfox’s Resources and Industrial Business Unit (R&I), of which Mr Livingstone is the General Manager.

e) From an organisational perspective Mr Howell reported to the National Safety Manager. However, that role had been vacant since April 2017. In the interim Mr Howell reported to another safety manager Chris Hensworth.

f) Mr Howell worked autonomously and remotely most of the time. However, when he needed to or was required to he would attend a Linfox worksite. Linfox provided Mr Howell with a computer (Linfox Laptop). Consistent with Linfox’s acceptable use policy Mr Howell used the Linfox Laptop to store personal electronic data.

g) It was still Livingstone’s evidence that, for some time, he had concerns about Mr Howell’s communication style especially as between him and external parties, including regulators. This concern came to a head in June 2017. On 23 June 2017 Mr Howell sent an email to Comcar which Mr Livingstone considered contained inappropriate content and was aggressive. He considered it a breach of Linfox’s Email Usage Policy which defines “inappropriate use” to include emails that might “cause embarrassment or loss of reputation to Linfox.”

h) On 29 June 2017 Mr Livingstone had a discussion with Mr Howell in which he communicated to Mr Howell his views about the inappropriateness and lack of professionalism attached to Mr Howell’s emails to external parties. It was a robust discussion. It was agreed that Mr Howell would not send external communications relevant to the R&I Unit without them being approved by Mr Livingstone.

i) On 30 June 2017 (at 12:14 am) Mr Livingstone sent an email to Mr Howell confirming their discussion. He wrote,

“As per our discussion, when interacting with the R&I East business, please do not communicate with any external parties (regulators, customers, government, other).

Your subject matter expertise in regards to DG requirements is very strong. I value your input and realise you are acting with good intent. However, I am uncomfortable with your external communication style and believe your emails are too lengthy, unprofessional and contained inappropriate content.

I would like to continue utilising your expertise as an internal advisor to our team, requesting you draft any communication and send it to me to review and approve first.”

j) At 9:35 am Mr Howell advised Mr Livingstone that, “I’ve just sent a response from the training room-I haven’t run it past you for the reasons are self-explanatory in the text.”

k) At 10:17 am Mr Livingstone replied,

“Last night I requested for you not to send emails to external parties. I requested that you draft any response and run past me first.

I am very disappointed that first thing this morning you have completely disregarded this reasonable request.

Please do not let this happen again.”

l) Mr Livingstone reported Mr Howell’s conduct to Mr Mazurek, President – Resources and Industrial.

m) On 18 July 2017 Mr Livingstone, with Mr Hemsworth had a conversation with Mr Howell about his role and his communications style. Following the meeting Mr Howell sent an email to which Mr Livingstone took offence. It was Mr Livingstone’s evidence that he had lost trust and confidence in Mr Howell’s ability to perform his role.

n) In late July 2017 Mr Howell travelled to Queensland where he worked for two weeks, initially in North Queensland and then in Brisbane.

o) When in North Queensland Mr Howell contracted influenza. Notwithstanding he continued to work. When in Brisbane Mr Howell attended the company doctor who referred him for follow-up with his own doctor in Ballarat.

p) Sometime around 4 August 2017 Mr Livingstone met with Mr Mazurek and Mr Laurie D’Apice. He described them as Linfox’s Executive Leadership Team. They made a decision to terminate Mr Howell’s employment. 3

q) On 4 August 2017 Mr Livingstone spoke with Ms Bianchi about Mr Howell’s employment. He told her Mr Howell’s position was untenable. Ms Bianchi was told a decision had been made to terminate Mr Howell’s employment 4 and that his employment would be coming to an end, one way or the other.5 They discussed meeting with Mr Howell. Ms Bianchi advised Mr Livingstone to offer Mr Howell the opportunity to bring a support person to the meeting.6 Mr Livingstone ignored that good advice.

r) Mr Livingstone and Ms Bianchi also discussed suspending Mr Howell’s access to the Linfox IT system fearing that he might send inappropriate emails to external third parties when he discovered his employment was to be terminated. 7

From my observations of Mr Howell this was an unfair assessment of his character. Although his emails could have been more polite, he always acted, in what he thought, was in the best interests of Linfox. There is nothing his history of employment with Linfox that would justify a conclusion that he would go rogue and act contrary to the Linfox’s interests upon learning of the termination of his employment. Ms Bianchi took on the responsibility of liaising with the IT department. 8

s) Also around this time:

i. Mr Livingstone,

A. asked Ms Bianchi to arrange for the preparation of a Release Agreement.

B. caused to be prepared a letter addressed to Mr Howell terminating his employment by providing him with one months’ notice. The letter was under the signature block of Mr Mazureck.

ii. Ms Bianchi caused some pay-out calculations to be prepared. 9

t) On 4 August 2017 Mr Howell missed a phone call from Mr Livingstone. He then flew from Brisbane to Melbourne.

The events of Monday, 7 August 2017 10

u) On 7 August 2017 Mr Howell attended an appointment with his local general practitioner. He was provided with a medical certificate indicating that he was “suffering from medical condition, [and advising that] he will be unfit for work from 7 August 2017 to 18 August 2017 inclusive” (Medical Certificate).

v) Mr Livingstone said he called Mr Howell and asked him to attend the Essendon Fields site. Mr Howell said he called Mr Livingstone. He said he told Mr Livingstone he would be attending work despite being ill. Mr Livingstone told Mr Howell he wanted to catch up with him. Nothing much turns on who initiated the call. Likely there had been some “phone-tag” after they missed speaking with each other the previous Friday.

w) Notwithstanding that he had obtained the Medical Certificate, after the appointment with his GP, Mr Howell drove to work at Linfox’s Essendon Fields site to undertake some work. 11

x) At 8.44am Mr Livingstone sent Mr Howell a meeting request for 2.30pm – 3.30pm. The meeting subject was titled “Performance”. Mr Livingstone did not let on that he intended to terminate Mr Howell’s employment. Mr Howell was not offered the opportunity to bring a support person.

y) Also that morning Mr Livingstone spoke with Ms Bianchi to confirm the upcoming meeting. He invited her to attend the meeting with him at 2.30 pm. Sometime that morning Ms Bianchi instructed IT to disable Mr Howell’s IT access. 12

z) At 1.30pm Mr Howell’s access to the Linfox IT system was suspended.

aa) Also at around this time Mr Howell arrived at Essendon Fields.

bb) Mr Howell saw Mr Livingstone on his arrival at Essendon Fields. He was around an hour early for the scheduled meeting at 2.30pm. Mr Livingstone was caught off guard. Mr Livingstone told Mr Howell he needed to do a few things first before meeting with Mr Howell.

cc) Mr Howell unpacked the Linfox Laptop and attempted to login to the Linfox network. He could not do so. At around 1.39pm Mr Howell rang the Linfox IT helpdesk to report that he was being told his account had been disabled. The following exchange 13 occurred:

dd) Mr Howell then turned to Mr Livingstone and asked “Do you know if I’m being terminated … because my account’s been deleted. I’m not being smart, I’m serious.” 14

ee) Consequently, Mr Livingstone invited Mr Howell into a meeting room. (First Meeting). Mr Livingstone could not quickly locate Ms Bianchi to attend with him. Only Mr Livingstone and Mr Howell were present for the First Meeting. During the meeting both men were calm, composed and cordial.

ff) Mr Livingstone said words to effect of,

“… I do need to talk to you about your ongoing employment with Linfox. The business has made a decision that your communication style does not suit the business going forward and has decided to terminate your employment.”

gg) Mr Howell asked for a letter of termination. Mr Livingstone said he wanted to talk with Mr Howell about alternatives.

hh) Mr Howell asked what the reason for termination was. Mr Livingstone responded by saying words to the effect of that Mr Howell was “not the right fit for the business going forward with your communication style.”

ii) Mr Livingstone again indicated he wanted to discuss alternatives.

jj) Discussion ensued with Mr Livingstone telling Mr Howell that, if he resigned, he would be paid an additional months’ pay. Mr Livingstone told Mr Howell he would have to sign a waiver. 15 I am satisfied that obtaining access to the additional payment was one motivating factor in Mr Howell’s decision to resign. I accept the evidence of the Linfox witnesses that Mr Howell said words to the effect of wanting “the option that would give him the most money”,16 although he thought that an additional payment of one month was “not a particularly attractive proposition”.17

kk) Mr Howell was also concerned to be able to obtain access to the private information he had stored on the Linfox Laptop. He asked Mr Livingstone about accessing that material.

Mr Howell says Mr Livingstone told him that his phone and computer would be taken immediately and he would be provided with a taxi home.

Mr Livingstone says he told Mr Howell the usual practice was to take the phone and computer immediately and to provide a taxi home, but that he would make enquiries about Mr Howell’s phone, car and IT access. I accept that Mr Livingstone said this because, during the break, he made those enquiries and reported the same back to Mr Howell.

I am not satisfied that Mr Livingstone said anything that suggested to Mr Howell that, unless he resigned, he would not gain access to his records on the Linfox Laptop. Nothing in the evidence or in the demeanour that I observed of Mr Livingstone supports a finding that he was overbearing during the meeting or that he made any threats express or implied. Mr Howell conceded that no threats were made. 18 In fact I am satisfied that Mr Livingstone was supportive of Mr Howell having IT access.19

However, I am also satisfied that obtaining access to the Linfox Laptop and the personal records it contained was another motivating factor in Mr Howell’s decision to resign.

ll) There was also a discussion about Mr Howell being allowed to take the Linfox car because it contained too many personal effects for Mr Howell to take home in a taxi. Mr Livingstone told Mr Howell he would speak with Mr Mazureck about allowing access to the car and having Mr Howell return it the following day.

mm) Mr Livingstone then left the room.

nn) Mr Livingstone returned with Ms Binachi (Second Meeting). Mr Howell has not previously met Ms Bianchi. Mr Livingstone introduced them to each other. Mr Livingstone informed Ms Bianchi that Mr Howell had decided to resign. He told her Mr Howell would be paid an additional months’ pay. He told Ms Bianchi that Mr Howell needed to retrieve data from the Linfox Laptop.

oo) Ms Bianchi explained the calculation of entitlements and that, all together, Mr Howell would receive about 5 months’ pay. Ms Bianchi advised Mr Howell that Linfox had arranged for a counsellor to be on site to see Mr Howell if he wanted to use that service. Mr Howell declined. Ms Bianchi observed that “the atmosphere in the room was not overly tense. Mr Livingstone and Mr Howell were speaking to each other as if they were mates.” 20

pp) Ms Bianchi said she would get a Release Agreement.

qq) Mr Howell provided Ms Bianchi with the Medical Certificate. This lead to a discussion about a termination date. It was agreed that the effective date of termination would be 18 August 2017, being the day that the Medical Certificate expired.

rr) Mr Howell, Mr Livingstone and Ms Bianchi left the room. Mr Howell returned to the desk where the Linfox Laptop was. Ms Bianchi went to get the Release Agreement. Mr Livingstone and Ms Bianchi went to inform the EAP counsellor that they were not required to stay on site. 21 Mr Livingstone called Mr Mazurek about the phone, car and Linfox Laptop issues.22

ss) After a short period Mr Livingstone collected Mr Howell from where he was seated and took him into another room again with Ms Bianchi (who had returned with a Release Agreement) (Third Meeting). There was only one copy of the Release Agreement. The Release Agreement included the agreed termination date of 18 August 2017.

tt) Mr Livingstone informed Mr Howell that he could keep the car overnight and that his mobile phone number would be transferred to him. 23 Mr Livingstone told Mr Howell IT had been contacted and that they would assist him to download his files.24

uu) Ms Bianchi asked Mr Howell to write out a resignation letter.

vv) Mr Howell wrote out a letter of resignation in the following terms,

“Dear Chris,

I need to tender my resignation from Linfox effective end of sick leave 18/8/17.

I thank Linfox for the period of employment.”

[10] The fact that Mr Howell submitted a letter of resignation does not mean that the termination of Mr Howell’s employment was not at the initiative of the employer. A dismissal is defined in s.386(1) as follows:

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[11] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli 25, a Full Bench of the Commission referred to a number of authorities dealing with “dismissal” under s 386(1). In relation to the operation of s.386(1)(b) the Full Bench held that,

“[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd , that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.

….

[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

….

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

….

[49] We do not consider it is particularly helpful in applying s.386(1) to refer to the concept of “constructive dismissal” - an expression nowhere used in the FW Act. In saying this, we acknowledge that the expression has been used in a number of the authorities and also in the passage from the explanatory memorandum earlier quoted. However, as explained by Greg McCarry in his 1994 article “Constructive Dismissal of Employment in Australia”, the concept of “constructive dismissal” in UK law was not a development of the common law, but rather a description of a statutory extension to the ordinary meaning of dismissal to encompass a situation where “the employee terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct”. That is a much wider concept than just “forced” dismissal and is conducive of confusion, as McCarry warned:

“If the forced resignation is now to be regarded as a dismissal, at least under some statutes, then so be it. But it is not and should not be called a “constructive dismissal”, nor should that term come to be regarded as a separate concept in its own right, as may be happening. To regard “dismissal” as including constructive dismissal without the aid of a definition of extension is reading a lot into a statute by English and Australian standards of statutory interpretation, although as we shall see American courts have had no trouble doing just that. Moreover, unnecessary or loose use of the phrase “constructive dismissal” brings with it the inevitable, and erroneous, tendency to draw on English judicial pronouncements and examples which arise in the quite different situation adverted to earlier. Given the way the extended definition in England is to be interpreted, all kinds of breaches of contract and repudiatory conduct, as determined by the common law rules, can legitimately come within the statutory extension. There are good reasons for arguing that similar definitions should be inserted into our statutes, but at the moment they are not there. So care is needed that decisions on the English regime are not misunderstood or misapplied.”

[50] In the different statutory context of the NSW unfair dismissal scheme in the Industrial Relations Act 1991, a Full Bench of the Industrial Relations Commission similarly warned in Allison v Bega Valley Council, in relation to forced dismissal, that the term “constructive dismissal” could “deflect attention from the real inquiry ... Did the employer behave in such a way so as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?” In the current statutory context of s.386(1), the breadth of the concept of “constructive dismissal” may cause confusion and deflect attention away from whether a dismissal within the meaning of paragraph (a) or paragraph (b) is being considered. That occurred in this case.”

[12] I adopt the reasoning of the Full Bench. Consequently, it is necessary for me to focus on whether Mr Howell was “forced to [resign] because of conduct, or a course of conduct, engaged in by [Linfox]” rather than exploring notions of “constructive dismissal”. The onus is on the Applicant to establish that he was forced to resign: Banda v Mrs Australia Pty Ltd (t/a 7-Eleven). 26

[13] In determining the matter the following exchange 27 between me and Mr Livingstone is instructive,

[14] Why, in the face of this refreshingly honest evidence from Mr Livingstone, Mr Katsifolis sought to maintain that Mr Howell’s resignation was not a dismissal under s.386(1)(b) of the FW Act, is perplexing.

[15] In the present matter Mr Livingstone had made up his mind to terminate Mr Howell’s employment. 28 Nothing Mr Howell said was going to change the outcome of Mr Howell ceasing to work for Linfox.29 In this context Mr Howell was forced to resign. He did not do so of his own free will and accord. He did so to secure a further month payment. If Mr Howell had not resigned his employment would have been terminated by Linfox. That was the candid evidence of Mr Livingstone.30 There was no effective choice. Ms Bianchi also, appropriately, made this concession.31

[16] Consequently, I am satisfied that, in all the circumstances of this matter, although Mr Howell resigned from his employment, the cessation of the employment relationship constituted a dismissal by Linfox under s.386(1)(b). This determination does not deprive what Mr Howell did as being characterised as a resignation. He did resign. It just means that, pursuant to s.386(1)(b) of the FW Act, his resignation constituted a dismissal by Linfox.

[17] Also during the Third Meeting Ms Bianchi provided Mr Howell with a Release Agreement. There was only one copy and it was handed to Mr Howell. Ms Bianchi sat next to him. 32

[18] It was Mr Livingstone’s evidence that,

“46. Ms Bianchi then discussed the contents of the document. It was not read out verbatim, however, each section was explained Mr Howell. Mr Howell was informed to take his time to read the contents.

47. I clearly recall Ms Bianchi asking Mr Howell whether he required legal support or help in reading the document. He was also afforded the opportunity to take the document away.

48. I recall Mr Howell answering as follows; “no, it looks recently straightforward, I just want to get through this”.

49. Ms Bianchi kept checking with Mr Howell whether he wanted anything clarified when reading each section of the Release Agreement.” 33

[19] It was Ms Bianchi’s evidence that,

“28. I gave Mr Howell a copy of the Release Agreement. I informed him that he could take his time to read through the document and that he could seek legal advice.

29. I took Mr Howell through the contents of the Release Agreement. I did not read out the document verbatim, however, each section was explained to Mr Howell.

30. Mr Howell was quite content with what I was explaining to him. I did note he only peruse the document whilst I was explaining each section.

31. I then took Mr Howell to section 5 Warranties of the document and pointed out that he had the opportunity to have the Release Agreement reviewed legally and take the document away and come back to us.

32. I recall Mr Howell responding as follows; “no, I’m alright, I’ll just sign it”, and “it looks recently straightforward, I just want to get through this”.

32. I asked him if he was sure about this and he said he was sure.” 34

[20] Mr Howell denied this. It was his evidence that,

“42…[he] did not read through the agreement before signing it. Jessica did not take me through the contents of the agreement. Neither Jessica or Simon explained each section to me… Jessica did not refer me to the part relating to Warranties or state that I had the opportunity to have the document reviewed legally or that I could take the document away and come back to them.

43. At no time did she offer me the option of getting legal advice. Neither she nor Simon offered or allowed me any opportunity to obtain advice or representation….

44. Jessica showed me where to sign the document. I signed my name and Jessica also signed as my witness.” 35

[21] In his Supplementary witness statement Mr Livingstone gave evidence that “Ms Bianchi did take Mr Howell through the Release Agreement. Ms Bianchi did so slowly and methodically.” I reject this evidence.

[22] Having considered all of the evidence and observed each of the witnesses I have concluded that Ms Bianchi did not explain the Release Agreement in any great detail. She did no more than make reference to the headings in each of the sections and say something generally about them. 36 However, this is not a criticism of Ms Bianchi. There was no obligation on her to explain the Release Agreement. Her failure to do so in detail (or at all) is not fatal to its enforceability.

[23] More likely than not Mr Howell was caught up in the moment of having been told that his employment was at an end without any forewarning of the same. Consequently, and understandably, he likely paid little attention to what Ms Bianchi was saying. Mr Howell was being presented with a fait accompli. In order to secure the additional payment he had to enter into the Release Agreement. He accepted his fate. But he did not have to. He could have elected to take the Release Agreement away with him to consider it and seek independent legal advice in relation to its contents. He decided not to do so. At no point was Mr Howell told he had to sign the Release Agreement then and there. However, he decided to do so. At no point were either Mr Livingstone or Ms Bianchi overbearing during the meetings. I accept the evidence of Mr Livingstone and Ms Bianchi that Mr Howell said words to the effect that the Release Agreement “looks relatively straightforward”. 37

[24] Mr Howell entered into the “Release Agreement” with Linfox. Relevantly, the Release Agreement provided that:

● Background:

A. The Employee was first employed by Linfox on 3 May 2010.

B. The Employee resigned from Linfox on 7 August 2017 in accordance with the “leaving Linfox” provision contained within the Employee’s Letter of Offer (the resignation). The Employee’s last working day with Linfox is 18 August 2017.

C. In addition to entitlements, and upon acceptance and signing of this Agreement, Linfox will pay a further two months’ salary (inclusive of notice in accordance with the Employee’s Letter of Offer) on the Employee’s last working day of 18 August 2017 is an ex-gratia payment totalling $23,236.28 (gross).

● Clause 2.1 – Release and Future Conduct of the Employee

The Employee:

a) releases and forever discharges Linfox,… From all present and future disputes over the employment relationship, and any liability to the extent permitted by law, arising from, within the duration of, in connection with either directly or indirectly, the Employment, a Resignation or the events prior to, around the time of or after the Resignation (including but not limited to a claim in contract, tort or statute), by the Employee…

b) accepts that the Payment is in satisfaction of all present and future entitlements…

c) acknowledges that Linfox… may plead this Agreement as a bar to any dispute (except any claim to enforce the Payment)…

● Clause 5 – Warranties

The Employee warrants:

a) having read and understood the terms of this Agreement;

b) …

c) having had adequate opportunity to obtain independent legal advice about the terms and effect of this Agreement; and

d) awareness and acknowledgement that Linfox relies on these warranties.

The Release Agreement was signed on behalf of Linfox by Mr Mazurek on 10 August 2017.

[25] Mr Howell was not legally represented in relation to the negotiation and execution of the Release Agreement.

[26] It was Mr Howell’s evidence that,

“45. I was hurt and frustrated by what had occurred. In signing the agreement, I did not intend to prevent myself from pursuing an unfair dismissal claim against Linfox. I would not have signed the document if I knew that this would have been the result.

46. I cooperated with Simon and Jessica to the extent needed to have an IT person arrive and retrieve the data which included the material evidence of my letter of offer and my duty statement and all my personal business and banking.

47. Simon only got the IT guy up and got the files from him onto a USB drive once I had signed the document.” 38

[27] It may be the case that Mr Howell did not fully or properly read the Release Agreement. However, he warranted to Linfox that he had done so, that he understood its terms and that he had had an opportunity to obtain independent legal advice. Although feeling ill and having a Medical Certificate there is no evidence that Mr Howell lacked any legal capacity to sign the Release Agreement.

[28] I reject Mr Howell’s evidence that “[he] would not have signed the document if [he] knew that this would have been the result” (i.e. that he would be prevented from commencing legal action against Linfox). The evidence in his witness statement 39 and oral evidence40 was to the effect that he conceded Mr Livingstone had told him he would have to sign a waiver. I am satisfied that an intelligent and competent man like Mr Howell knew exactly what that meant.

[29] Further, the terms of the Linfox Release Agreement were not unfamiliar to Mr Howell. 41 He had been involved (on behalf of Linfox) of effecting the resignation and the execution of a release agreement of another employee.42 In addition, Mr Howell is clearly an intelligent and competent adult.43 He has experience in signing important documents (like bank documents and contracts of employment).44 Mr Howell knew he was signing an important document.45 His witness statement46 and oral evidence47 supports a finding that he was told he would have to sign a waiver. He knew exactly what that meant. He has seen settlement agreements in the past and knows what a waiver is.48

[30] After signing the Release Agreement an IT employee assisted Mr Howell to download the files he wanted to save onto a USB drive.

[31] As earlier stated, Mr Howell lodged his unfair dismissal remedy application on 31 August 2017.

[32] Linfox submitted that: 49

“15. Mr Howell signed the Release Agreement voluntarily and wrote out his resignation letter out thereafter. There were no unlawful threats or unconscionable conduct by Linfox.

16. In Paul Thomas and Logica Pty Ltd (“Logica”), Senior Deputy President Kaufman relied on a leading case on duress at [35] and [37] and stated:

[35] The leading case on duress is Crescendo Management Pty Ltd v Westpac Banking Corporation. His Honour said:

...The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.

[37] The Chief Justice made some observations about unconscionable conduct at paragraph 11 and following as follows:

11. One thing is clear and is illustrated by the decision in Samton Holdings itself, a person is not in a position of relevant disadvantage, constitutional, situational or otherwise simply because of an inequality of bargaining power. Many, perhaps even most, contracts are made between parties of unequal bargaining power and good conscience does not require parties to contractual negotiations to forfeit their advantage or neglect their own interests.

17. Mr Howell was not forced to make up his mind immediately, in fact Ms Bianchi encouraged him to obtain independent legal advice. That is not duress or unconscionable conduct on behalf of the employer. This is supported by the Commissioner’s decision in Ferry.

Amiable Behaviour

18. The FWC cannot be persuaded that Mr Howell was not well enough to make a decision to sign the Release Agreement. In Mr Owen Lockett v Sugar Research Australia the Senior Deputy President at [22] indicated that:

…He may not have been in perfect health, he may have been on pain relief medication, he may have been ill at ease with his circumstances generally and warranting some counselling, but his behaviours nonetheless during the relevant period indicate a capable, organised and active mind.

19. During the meeting with Mr Livingstone, and then with Mr Livingstone and Ms Bianchi on 7 August 2017, Mr Howell did not appear distressed or indicate that he was too unwell to take part in the meeting. Mr Howell only mentioned that he had a certificate from his doctor once the Release Agreement was being discussed. He used it to negotiate his last day with Linfox, being 18 August 2017. There were no protestations by Mr Howell regarding his inability to continue the meeting at any point due to his health. His behaviour indicated a capable, organised and active mind.

Fair Go All Round And Public Interest

20. As the Release Agreement was not obtained by duress and Mr Howell had the opportunity to obtain legal advice, it is Linfox’s submission that a fair go all round must be applied to all parties which satisfies the public interest test. This approach was taken in Logica at [33] where the Senior Deputy President said:

…should the Commission, acting according to equity, good conscience and the substantial merits of the case as well as ensuring that the parties are given a fair go all round, allow this application to proceed in face of the deed of release signed by the applicant? Further, s.90 requires that I have regard to the public interest. It is in the public interest that settlements compromising proceedings or potential proceedings be honoured, unless there is a sound reason, such as that the compromise was obtained by duress, not to observe their terms.”

[33] In relation to these events, Mr Howell made the following submissions:  50

“17. the Release Agreement does not operate as a bar to these proceedings because:

(a) the applicant executed the document under duress and/or undue influence; and

(b) properly construed the terms of the [Release] Agreement did not release the respondent from an unfair dismissal proceeding.

Enforeceability of the restraint agreement

(i) Duress

18. Discussing the vitiating factor of duress, the High Court in Thorne v Kennedy recently noted that the required consideration of the effect of a particular type of pressure on the person seeking to set aside the transaction. At [26] the Court said:

It does not require that the person's will be overborne. Nor does it require that the pressure be such as to deprive the person of any free agency or ability to decide. The person subjected to duress is usually able to assess alternatives and to make a choice. The person submits to the demand knowing "only too well" what he or she is doing. As Holmes J said in Union Pacific Railroad Co v Public Service Commission of Missouri:

"It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called." (citations omitted)

19. The illegitimate threat to detain goods in order to secure an advantage is a recognized category of duress. In Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd the NSW Court of Appeal upheld a decision to set aside a release, obtained in the circumstances of an implied threat to withhold the releasor’s goods.

20. It is submitted that the documents and data on the laptop used by Mr Howell were his property. The direct (or implied) threat that these would be withheld from him if he did not sign the release agreement amounted to illegitimate pressure. As noted above, it is not necessary to establish that his will was overborne but sufficient that Linfox procured the benefit of Mr Howell signing the release agreement by reason of the illegitimate pressure.

21. Accordingly, the release agreement should be set aside.

(ii) Undue influence

22. It is further submitted that the release agreement should be set aside because it was obtained by reason of undue influence applied by Linfox such that Mr Howell did not sign the document as an exercise of his free will.

23. Discussing the concept of undue influence, the High Court in Thorne v Kennedy said at [32]:

The question whether a person's act is "free" requires consideration of the extent to which the person was constrained in assessing alternatives and deciding between them. Pressure can deprive a person of free choice in this sense where it causes the person substantially to subordinate his or her will to that of the other party. It is not necessary for a conclusion that a person's free will has been substantially subordinated to find that the party seeking relief was reduced entirely to an automaton or that the person became a "mere channel through which the will of the defendant operated". Questions of degree are involved. But, at the very least, the judgmental capacity of the party seeking relief must be "markedly sub-standard" as a result of the effect upon the person's mind of the will of another. (citations omitted)

24. In light of the circumstances described above in relation to duress, where Mr Howell was unwell, and (on his evidence) where the terms of the agreement were not explained to him, he was not given the opportunity to obtain legal advice and was not afforded the necessary time to consider his position, the signing of the release agreement was not a “free” act by Mr Howell. Accordingly, the release agreement should not be enforceable because of the respondent’s undue influence.

Proper construction of the Agreement

25. It is submitted that, properly construed, the release agreement does not extend to bar the current proceeding. This is because:

(a) The release agreement does not apply to Mr Howell’s termination of his employment; and/or

(b) The release agreement should be read down so as not to extend to an unfair dismissal proceeding.

(i) Language of the agreement

26. The release agreement provides by way of “Background”, that Mr Howell:

… resigned from Linfox on 7 August 2017 in accordance with the “Leaving Linfox” provision contained within the Employee’s Letter of Offer (Resignation).”

27. For the reasons set out above, it is submitted that Mr Howell did not resign from Linfox. He was terminated by Linfox.

28. The terms of the purported release provided by Mr Howell are set out in clause 2 to the release agreement. Clause 2.1(a) provides that Mr Howell:

Releases and forever discharges Linfox, and Linfox’s officers, employees and agents, from all present and future disputes over the employment relationship, and any liability to the extent permitted by law, arising from, within the duration of, in connection with either directly or indirectly, the Employment, the Resignation or the events prior to, around the time of or after the Resignation (including but not limited to a claim in contract, tort or statute), by the Employee or representative of the Employee.

29. The terms of clause 2 are broad in respect to the type of proceedings they purport to cover but do not expressly extend to the termination of Mr Howell’s employment by Linfox or an unfair dismissal claim. On its terms, cl 2.1(a) relates to:

(a) Disputes over the employment relationship;

(b) Liability arising from, within the duration of, in connection with either directly or indirectly, the Employment; and

(c) The Resignation or the events prior to, around the time of or after the Resignation.

30. The term “Employment” is not defined. It is submitted that it should be taken to mean the duration of the employment relationship and not extend to termination.

31. The term “Resignation” is defined as set out above. It is submitted that the term here would not extend to the termination of Mr Howell’s employment by Linfox. That is so notwithstanding that the purported release extends to the events prior to, around the time of or after the Resignation. Termination of employment is entirely separate and distinct from resignation. If the parties intended the release to extend to that separate act, one would expect to see this in clear terms.

32. Likewise, clauses 2.1(c) and 2.3(a) must be read together with cl 2.1(a). The contents of the purported release are contained in cl 2.1(a). Clauses 2.1(c) and 2.3(a) are “acknowledgment” about further acts by Linfox. These do not contain any separate and standalone obligation or restraint upon Mr Howell.

(ii) The agreement may be read down

33. Further and in the alternative, Linfox cannot rely on the general words of the release agreement as a means of escaping obligations outside the true purpose of the transaction, as ascertained from the nature of the instrument and the surrounding circumstances, including the state of knowledge of the parties and Mr Howell’s actual intention. A release in general terms will, in an appropriate case, be read down to conform to the contemplation of the parties at the time the release was executed.

34. Mr Howell’s evidence is that he did not intend to prevent himself from pursuing an unfair dismissal claim against Linfox and that he would not have signed the document if he knew that this would have been the result. The absence of any reference in the agreement to the termination by Linfox, or unfair dismissal proceedings reaffirms this

35. The Commission should also have little hesitation reading down the agreement in circumstances where it is not disputed that Mr Howell did not have independent advice as to the meaning of the document and where (on his evidence) it was not explained to him and he was not offered the opportunity to obtain legal advice or to sign the agreement at a later time.”

[34] In reply, Linfox further submitted that,  51

“17. In this case, no duress or undue influence was applied. In particular, it is the evidence of the Respondent that:

(a) the Applicant was provided with, and invited to seek advice on the deed;

(b) no time limit was imposed on the Applicant to sign and return the deed; and

(c) the terms of the Deed clearly state that the Applicant had the opportunity to seek advice on its terms and the Applicant gave a warranty to that fact; and

(d) there was no illegitimate threat to detain goods as the Applicant submits.

18. The Applicant had a practicable or reasonable alternative available to him – to refuse to sign the Deed and maintain his right to take legal action. In order to achieve the better financial result, the Applicant chose to sign the Deed of Release and obtain an extra four weeks' pay in return.

19. There is also no allegation by the Applicant that the Respondent failed to discharge its obligations under the deed. The Commission can assume the Respondent fully discharged its obligations under the Deed.

20. In Pacrim Charters Limited v Taylor (2003) 174 QGIG 1132, it was stated that to renege on the terms of a deed is to compromise the other party who was relying on the terms of the deed:

‘Pacrim have been compromised by the actions of Taylor. It has paid out monies on certain terms. Those terms have been breached by Taylor accepting all of the proceeds of the cheque and continuing with his application for reinstatement. Once a party has accepted monies tendered on clear and unambiguous terms then all parties to the bargain should be certain that the terms have also been accepted. In my view it is unconscionable for Taylor to seek to pursue his application for reinstatement when he has cashed a cheque tendered upon the basis that it settled outstanding claims between him and Pacrim including the cessation of his employment. It is not in the public interest to allow the application for reinstatement which had in effect been settled to proceed.’

21. As Kirby P said in Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 at 133:

‘It is an attribute of a free society, as we know it, that it is generally left to parties themselves to make bargains. It is therefore left to them sometimes to fail to make bargains or to fail to agree on particular terms. Well meaning, paternalistic interference by courts in the market place, unless authorised by statute or clear authority, transfer to the court the economic decisions which our law, properly in my view, normally reserved to parties themselves.’

22. The Respondent submits that the Commission should take these factors into account.

Proper construction of the Deed

23. At paragraph 25 of the Further Submissions, the Applicant submits that the Deed,

properly construed on its terms, does not extend to bar the current proceeding because:

(a) it does not apply to Mr Howell's termination of his employment; and/or

(b) the deed should be read down so as not to extend to an unfair dismissal proceeding.

24. For the reasons expressed above, it is the primary submission of the Respondent that the Applicant resigned his employment. Therefore, the Respondent submits that it is not necessary for the Commission to consider whether the Deed of Release applied in a situation where the Applicant's employment was terminated at the initiative of the Respondent.

25. In the event that the Commission is satisfied that the Applicant's employment was terminated at the initiative of the Respondent, the Respondent submits that a proper construction of the Deed of Release bars the Applicant from bringing this claim.

26. The terms of the Applicant's release and future conduct are set out in clause 2 to the deed.

Clause 2.1(a) states that the Applicant:

releases and forever discharges Linfox…from all present and future disputes over the employment relationship, and any liability to the extent permitted by law, arising from, with the duration of, in connection with either directly or indirectly, the Employment, the Resignation or the events prior to, around the time of or after the Resignation (including but not limited to a claim in contract, tort or statute).

27. The term 'Resignation' is defined in Item A of the Background to the Deed in the following manner: 'The Employee resigned from Linfox on 7 August 2017 in accordance with the 'Leaving Linfox' provision contained within the Employees Letter of Offer (the Resignation).

28. It is clear that when the definition above and clause 2.1(a) of the Deed are read together, the release is intended to cover, relevantly, any claim arising from the Applicant's cessation of employment.

29. The evidence of the Respondent is that the Applicant was willing to walk away from his rights on the most favourable terms he could afford. The Respondent offered a financial incentive and other benefits to the Applicant in exchange for the security that no claim would follow the cessation of Employment.

30. Further, the resignation occurred as a result of discussion freely entered into with the Applicant. The resignation did not just come with financial benefits. It enabled the Applicant to represent to any future employer that he left Linfox's employment voluntarily.

31. Having obtained the significant benefits that he did, the Applicant now seeks to have the Commission construe the release in such a manner that he retains all the benefits of the negotiated settlement, but does not fulfil his part of the bargain.

32. In all the circumstances, it is submitted that is plain that the release extends to cover the release of any claims arising from the cessation of the Applicant's employment, be that by way of termination, resignation or otherwise.

33. For the reasons stated above, the Deed of Release should also not be read down.

34. If it is true that the Applicant failed to read the deed, then that does assist him. In Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd & Ors, the High Court observed:

'The general rule…is that where there is no suggested vitiating element, and no claim for equitable or statutory relief, a person who signs a document which is known by that person to contain contractual terms, and to affect legal relations, is bound by those terms, and it is immaterial that the person has not read the document.'

35. Further, as an express clause of the deed (clause 5), the Applicant warranted that he had:

(a) read and understood the terms of the deed;

(b) that Linfox, nor Linfox's officers, employees or agents had been a party to any conduct that is material to the Applicant entering into the deed;

(c) had an adequate opportunity to obtain independent legal advice about the terms and effects of the deed; and

(d) was aware that Linfox would rely on these warranties.

36. It has been held that it is public policy in favour of enforcing releases in documents such as a deed.

37. In circumstances where the evidence of the Respondent is that the Applicant had the meaning and purpose of the Deed explained to him, and he was offered the opportunity to take the Deed away and to obtain legal advice,17 the Respondent submits that the Commission should adopt the public policy approach and not read the Deed of Release down.”

Consideration

[35] I have already made a finding that, in none of the meetings, was Mr Livingstone overbearing. It was Mr Howell’s evidence that the meetings were “amicable.” 52 Mr Howell agreed with a proposition that, during the meetings, he appeared “calm and collected.”53 In fact, it was Mr Howell’s evidence that, during the meetings, he said to Mr Livingstone “not to be stressed, that it was a process.”54 At one point in the hearing I asked Mr Howell if it “would be fair to say that during the meeting your demeanour was as calm as it is now?”55 He said “It would have been calmer.”56

[36] Having regard to the account of the meetings proffered by Mr Howell, Mr Livingstone and Ms Bianchi, I conclude that they were calm and amicable. There was no overbearing conduct. There was a negotiation over the cessation date and agreement reached that it would be 18 August 2017. Admittedly Mr Howell was at a disadvantage. There was an inequality in bargaining power as between him and the representatives of Linfox. However there were no unlawful threats. There were no threats to retain the data on the Linfox Laptop. There was no illegal pressure that caused Linfox to benefit from the release agreement. There was no unconscionable conduct.

[37] The situation in relation to the Release Agreement was different to that relating to the resignation. There was pressure to resign. Mr Howell had effectively no choice but to resign. That was the only way he was going to secure the additional month payment. However, not even that pressure was illegitimate. In contrast, there was no pressure to sign the Release Agreement. Nothing in the conduct of Mr Livingstone or Ms Bianchi constituted economic duress.

[38] Further, there was no undue influence. The account of the meeting by all who attended it does not lead to a conclusion that Mr Howell’s judgemental capacity was markedly substandard.

[39] Coming to the proper construction of the Release Agreement, having found that as a matter of fact Mr Howell resigned from his employment (albeit that resignation constituted a dismissal under the FW Act) the definition of “Resignation” in the Release Agreement accords with the factual circumstances. There is no reason to read that clause down. Mr Howell did resign from Linfox on 7 August 2017 as the background in the Release Agreement accurately records.

[40] Under s.587(1)(c) of the FW Act, the Commission may dismiss an application before it if it has no reasonable prospects of success. I do not consider that Mr Howell’s application has any reasonable prospects of success, for the following reason.

[41] The effect of the Release Agreement, with its release and bar to any future proceedings in relation to claims associated with Mr Howell’s employment and, what the Release Agreement described as “the Resignation”, operates as a complete answer to Mr Howell’s unfair dismissal application. Mr Howell signed up to a waiver in circumstances where he knew what a waiver was. 57

[42] In Australian Postal Corporation v Gorman, 58 the Federal Court (Besanko J) said:

“[31] An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.

[32] It seems to me that the fact of an accord and satisfaction can either be raised under the Act at an ‘interlocutory’ stage and at the final hearing or it cannot be raised at all. As it is a complete answer to a claim there would be no reason why it could be raised at a final hearing but not at a preliminary stage under a section such as s 587.

[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”

[43] Through his solicitors Mr Howell complained about the Release Agreement. There is authority for the proposition that a deed of release containing mutual obligations as between the parties may, like an ordinary contract, be terminated by one party where the other party repudiates its obligations and that repudiation is accepted. 59 However, I do not consider that there is evidence of repudiatory conduct on the part of Linfox. The settlement payment was made. Mr Howell accepted the benefit of the same.

[44] Accordingly Mr Howell’s application is dismissed.

[45] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

McKenna, J on behalf of the applicant.

Katsifolis, G on behalf of the Respondent.

Hearing details:

Melbourne

11:00am Thursday, 1 February 2018

11:00am Thursday, 22 February 2018

Printed by authority of the Commonwealth Government Printer

<PR606669>

 1   [2017] FWC 5995

 2   [2018] FWCFB 464

 3   Transcript PN300 - 301

 4   Transcript PN626

 5   Transcript PN627

 6   Transcript PN755

 7   Transcript PN313

 8   Transcript PN656

 9   Transcript PN630

 10   No one took any notes of the meetings that occurred on 7 August 2017. By the time the matter was heard before me, the events of 7 August 2017 were 6 months in the past. It is understandable that the recollection of the actors in these events had diminished with the passage of time. That does not mean that they were lying. In fact, all three witnesses impressed me with their efforts to be truthful. Under questioning from me both Mr Livingstone and Ms Bianchi gave honest answers even when they were contrary to the interests of Linfox. But, there were differences in the recollections as between Mr Howell and the Linfox witnesses. Consequently, it is common practice to look to documents or other evidence that might support one account over another. That is what I have done in this matter. However, where that has not been possible, I have tended to prefer the evidence of Mr Howell. This is because his account of the events was recorded by his solicitors more closely in time than the recollection of the Linfox witnesses. It was provided to Mr Howell’s solicitors at least before 18 August 2017. On that date Mr Howell’s solicitors provided that account to Linfox. By the time the Respondent witnesses came to record their recollection of events nearly 2 months had already passed since the events of 7 August 2017. I was also struck by the concerning similarity between the first witness statements of Mr Livingstone and the witness statement of Ms Bianchi. It was suggestive of them not having independently prepared their witness statements from their own recollection of events, nor in their own words. Under cross examination they could not explain why their witness statements were so similar. However, this is to be contrasted with their supplementary statements in answer to Mr Howell’s evidence. The level of detail in the supplementary statements was greater and broadly consistent with the oral evidence they gave under pressing cross-examination by Mr McKenna and questioning from me.

 11   He had initially intended to go to the Linfox Linehaul (Intermodal) depot in West Footscray, but because he could not contact the managers he needed to work with there, he decided to go to Essendon Fields.

 12   Transcript PN659

 13   Exhibit A6

 14   Exhibit A6

 15   Exhibit A4, para 31

 16   Exhibit R3, para 28 and Transcript PN522

 17   Transcript PN1178 and 1203

 18   Transcript PN1376

 19   Transcript PN393

 20   Exhibit R7, para 16

 21   Transcript PN552 and 770

 22   Transcript PN423

 23   Subsequently, this did not occur.

 24   Exhibit R4, para 38

 25    [2017] FWCFB 3941

 26   [2017] FWC 5522

 27   Transcript PN372 - 375

 28   Transcript PN140

 29   Transcript PN625 - 629

 30   Transcript PN143

 31   Transcript PN629.

 32   Transcript PN446

 33   Exhibit R3

 34   Exhibit R6

 35   Exhibit A4, Transcript PN787

 36   Transcript PN447 - 449

 37   Transcript PN790 and 793

 38   Exhibit A4

 39   Exhibit A4, para 31

 40   Transcript PN1173

 41   Transcript PN1313 - 1317

 42   Transcript PN1121 and

 43   Transcript PN1357 - 1359

 44   Transcript PN1309 - 1311

 45   Transcript PN1310

 46   Exhibit A4, para 31

 47   Transcript PN1486

 48   Transcript PN1359 - 1361

 49   Exhibit R1

 50   Exhibit A2

 51   Exhibit R2

 52   Transcript PN118

 53   Transcript PN1260

 54   Transcript PN1214

 55   Transcript PN1405

 56   Ibid

 57   Transcript PN1490

 58   [2011] FCA 975, 196 FCR 126.

 59   See Seven Network (Operations) Limited v Amber Harrison [2017] NSWSC 129 at [37]-[42].