| [2018] FWC 3087 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dr Emily Williams
v
Southern Cross Veterinary Clinic
(U2018/1731)
DEPUTY PRESIDENT BOOTH |
SYDNEY, 31 MAY 2018 |
Application for unfair dismissal remedy – summary dismissal – dismissal within notice period – dismissal unfair.
[1] Dr Emily Williams was employed by Southern Cross Veterinary Clinic (SCVC) as a veterinary surgeon from 30 January 2017 until her summary dismissal for serious misconduct on 21 February 2018. Dr Williams was approximately two weeks into a four week notice period occasioned by her resignation when she was dismissed. Dr Williams has made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act (2009) Cth (the Act) for an unfair dismissal remedy. SCVC deny that Dr Williams was unfairly dismissed.
[2] I conducted a determinative conference by consent of the parties on 17 May 2018.
[3] At the determinative conference, Dr Williams was self-represented and gave evidence. Ms Audrey Kessell, HR Manager of SCVC and Ms Katie Price, Practice Manager of SCVC, represented SCVC. Ms Price, Ms Nour Lawrence, Mr Philip Layfield and Dr Matthew Wilkinson gave evidence for SCVC.
[4] In compliance with the directions set by the Commission on 26 March 2018, Dr Williams filed submissions on 16 April 2018 and SCVC filed submissions on 7 May 2018. Dr Williams filed further material in reply on 15 May 2018. I have made my decision based on these submissions, along with the evidence and oral submissions given in the determinative conference on 17 May 2018.
[5] For the reasons outlined below I have found that Dr Williams was unfairly dismissed. I found that it would not be appropriate to reinstate Dr Williams and that compensation of $580.88 plus $55.18 in superannuation is appropriate in lieu of reinstatement.
[6] I am satisfied that Dr Williams made her application within 21 days after the dismissal took effect, as required by subsection 394(2)(a) of the Act.
[7] I am satisfied that Dr Williams is a person who was protected from unfair dismissal under section 382 of the Act. Dr Williams had completed a period of employment with SCVC greater than the minimum required period, that is, 12 months. 2 During her employment at SCVC Dr Williams was covered by the Animal Care and Veterinary Services Award 2010.
[8] It is agreed that at the time of Dr William’s dismissal SCVC employed approximately 28 staff, therefore it does not fall within the definition of a small business employer for the purposes of the Act, 3 and the Small Business Fair Dismissal Code is not relevant.
[9] There is no suggestion that Dr Williams’ dismissal was a case of genuine redundancy.
[10] Dr Williams tendered her resignation on 9 February 2018 and was subsequently summarily dismissed on 21 February 2018. It is agreed between the parties that Dr Williams’ employment was terminated on 21 February 2018 on the initiative of SCVC. That is, Dr Williams was dismissed within the meaning of subsection 386(1)(a) of the Act. Her dismissal took place during a period of notice given with her resignation. This does not affect my consideration of the matters I am required to take into account in determining whether her dismissal was harsh, unjust or unreasonable pursuant to section 387 of the Act, to which I will now turn.
[11] The reason given for the summary dismissal of Dr William related to her conduct. I am required to make a finding on the balance of probability about whether the conduct occurred and, if so, whether the conduct provided a valid reason for dismissal. 4 I am not required to make a finding about whether the conduct amounted to serious misconduct justifying summary dismissal.5
[12] A valid reason will be one that is ‘sound, defensible and well founded … in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business’. 6
[13] In a letter from Ms Price to Dr Williams dated 21 February 2018, the reason for termination of Dr Williams’ employment was given as ‘conduct during the past week and weekend’ that ‘caused a serious and imminent risk to the reputation of the business in that you were defaming the clinic to a client and by not providing the clinic’s reputable gold service, the clients that were seen by you may opt to not return in future or may discuss the negative consult with others in the community’. 7
[14] In its written submissions and in evidence and submissions given at the determinative conference on 17 May 2018, SCVC outlined that Dr Williams was dismissed for a change in attitude from her ‘normal demeanour which was positive’ 8 during the period after her resignation. Ms Price gave examples of this change in behaviour including Dr Williams being ‘abrasive’, ‘speaking openly amongst staff about not wanting to work during her notice period’ and causing ‘client distress through a few interactions’.9
[15] Dr Wilkinson, a former colleague of Dr Williams at SCVC, prepared a written statement that was included in the Respondent’s submissions of 7 May 2018 and also gave evidence at the determinative conference.
[16] When asked by Ms Kessell in examination in chief to summarise his statement included in submissions, Dr Wilkinson said ‘…around the notice period I noticed that her [Dr Williams’] work ethic was sort of slightly decreased. So, for example, I would notice, as I said in my statement, allotted lunch times taking slightly longer, be it before the lunch time or after the lunch time, things like that.’ 10
[17] When Dr Wilkinson was asked by Ms Kessell in examination in chief to expand on the word ‘abrasive’ in the statement prepared by him and included in the Respondent’s submissions of 7 May 2018. 11 Dr Wilkinson replied ‘…there’s a slight abrasiveness, I suppose, in the way she conducted herself when being asked, things…’. When I asked Dr Wilkinson to comment on how this was different to his experience of Dr Williams prior to the notice period, Dr Wilkinson said ‘I wouldn’t be able to comment on the sort of abrasiveness towards myself and other members of staff, because I felt that that didn’t particularly change, but certainly throughout employment I noticed these things.’12 I then asked Dr Wilkinson specifically what in the notice period was different, to which he replied ‘I think it was a slight attitude to work that was different, not so much the attitude to other people that I noticed, but in terms of cases.’13
[18] Mr Layfield, Clinic Coordinator at SCVC, gave evidence about a conversation that he had with Dr Williams on 17 May 2018. He said ‘That’s the one time I did actually pull (sic) Dr Williams about that. I did give her a verbal warning, just because I had heard from other staff members as well about her demeanour at that time’. 14 ‘I said to her … please stop being negative around herself and clients because it is a nice place to work.’15 Mr Layfield did not provide specific examples of comments by other employees.16 Under cross-examination by Dr Williams, when asked about a comment that Mr Layfield asserted she had made about Dr Kovac being a ‘bad manager’,17 he did not recall the time or place that the comment was made.18
[19] I consider that there is insufficient evidence to support a finding that Dr Williams was abrasive. Dr Wilkinson’s evidence was equivocal about whether Dr Williams had exhibited a change in behaviour and Mr Layfield’s evidence appeared to rely largely upon the opinions of others who were not themselves giving evidence.
Expressing desire not to be made to work through notice period
[20] SCVC stated their assertion that Dr Williams was reticent to work through her notice period several times throughout its written submissions and contends that this is evidence of Dr Williams’ change in attitude and underperformance of her contractual obligations during the notice period. 19
[21] In Ms Price’s written statement, filed with the Respondent’s submissions, Ms Price outlines the discussion in which it is asserted that it was made clear by Dr Williams that she did not expect to work out her notice period and felt that this requirement was unfair. Ms Price says that ‘on the 16th of February, late afternoon, Emily came into my office to discuss her notice period. Emily said to me “I don’t think it is fair that I have to work out the notice period when other people who have resigned have not had to”. Emily asked me “Do I definitely have to stay and work out my notice period”. I replied to Emily “You are trusted and obligated to work through your notice period, and we require you to do so”.’ 20
[22] Mr Layfield gave evidence about Dr Williams commenting whilst on shift at SCVC that she did not want to be there and she felt it was unfair that she had to stay during the notice period. 21 Mr Layfield asserted that Dr Williams had made comments about Dr Kovac being ‘petty’,22 and also mentioned negativity towards Dr Kovac that Mr Layfield ‘felt’ from Dr Williams.23 In regards to her overall demeanour Mr Layfield said ‘During the period of her resignation period. I did find her demeanour to change quite a bit. I did feel that she was quite negative to myself (sic) and also just around the clinic in general.’24
[23] Mr Layfield provided a statement that was included in the Respondent’s submissions. In that statement Mr Layfield notes that Emily approached him at SCVC during her shift on 17 February 2018 and ‘communicated with me that she was unhappy regarding he fact that she had to continue working during her four-week notice period. Emily expressed to me that she felt it was unfair that she had to work during her notice period and compared it to a completely different scenario of where a few months prior to Emily’s resignation, another staff member within a different role had also resigned but had not been required to complete her remaining shifts. It was at this time that I brought up with her the numerous feedback I had received from staff regarding the impact of her negative attitude around the clinic towards staff and clients. During the conversation I had advised Emily that our discussion would be a verbal warning and to please cease her negative behaviour and continue her notice period in an amicable manner.’ 25
[24] In relation to this evidence this exchange between Ms Kessell and Dr Williams in cross-examination is relevant: 26
MS KESSELL: When you gave that notice, you expected Southern Cross Vets to ask you to leave immediately and be paid out your notice period?
DR WILLIAMS: No, I did not.
MS KESSELL: That was our understanding of what occurred. But you have made reference to other people who had previously left Southern Cross Vet and had been able to leave at the time that they had provided the notice as opposed to working out their notice period.
DR WILLIAMS: As per my outline of submissions, there were I guess, a couple of conversations that were brought to light as part of this case. The first being when I went to Ms Price about my concern regarding Dr Kovac’s behaviour towards me which made me feel uncomfortable. That was a conversation in which I said I did not want to be here because I did feel like I was being treated differently and it was not a nice experience for me.
These other people that I made references to, not that it’s relevant, but they were my friends, so I still speak to them. It was just given the circumstances, I was concerned that something was going to take place that would not enable me to complete my notice period. My start date had been given to RSCPA NSW as 12 March which is in line with my four weeks of notice to Southern Cross Vet Clinic.
This is reflected again in my outline of submissions and my responses. I was unsure of my position; I wanted to confirm that I still had my job for the entire notice period, given that in the past some vets and nurses had been asked not to return and there had been interesting, I guess, situations surrounding their resignations and dismissals. I just wanted to make sure that I was not going to be like them. I wanted confirmation.
[25] Weighing the evidence of Ms Price and Mr Layfield with that of Dr Williams I find on the balance of probability that Dr Williams did have the conversations she was alleged to have had with Ms Price and Mr Layfield.
[26] At the determinative conference, evidence was given by Ms Nour Lawrence in relation to the assertion that Dr Williams caused client distress. Ms Lawrence and her cat Sasquatch are clients of SCVC. Ms Lawrence gave evidence that on 14 February 2018 she received a phone call from Dr Williams regarding the cat Sasquatch who had stayed overnight at SCVC. 27 Ms Lawrence said that Dr Williams informed her ‘that overnight the catheter had been pulled out by the cat’.28 Ms Lawrence said she made the assumption that the catheter was a urinary catheter; something she had not consented to in the treatment of Sasquatch.29 Ms Lawrence said that, while she would have assumed that her shock and worry would have made it clear to Dr Williams that she needed clarification, Dr Williams repeatedly told her words to the effect of ‘Everything has been explained to you,’ and ‘You have been told,’.30 Ms Lawrence describes that Dr Williams ‘got very worked up’ and the call ended.31 Ms Lawrence said that she had the impression that she had upset Dr Williams and after the initial conversation she called back to speak with Dr Williams again.32 On the second occasion, Ms Lawrence said that she apologised and told Dr Williams she wanted her to understand the catheter issue had not been communicated properly and that she now understood that Dr Williams had been referring to a drip rather than a urinary catheter.33 Ms Lawrence said that in response to this, Dr Williams replied with words to the effect of “Everything has been explained to you by Dr Ben yesterday. I don’t know what your problem is”,34 which Ms Lawrence said prompted her to end the phone call and to determine that she would cease to be a client of SCVC.35
[27] Dr Williams gave evidence that she denied saying ‘I don’t know what your problem is’ in the telephone conversation with Ms Lawrence of 14 February 2018. She outlined that as a veterinary surgeon, ‘It is a key trait that I must have to be able to calmly speak to people, and … hold a conversation without using inflammatory language such as that, and I in no way remember or would even think to use language such as this.’ 36
[28] Ms Lawrence gave her evidence in a clear and forthright manner. Dr Williams confirmed that the telephone conversation occurred. Dr William’s disputed the use of the words ‘I don’t know what your problem is’. No reason was advanced as to why Ms Lawrence would invent these words. She was clear about the balance of the conversation and it was confirmed by Dr Williams. For this reason I prefer the evidence of Ms Lawrence over that of Dr Williams. On the balance of probability I find that Dr Williams used these words and caused distress to Ms Lawrence.
[29] Having found that Dr William’s did say ‘I don’t know what your problem is’ to a client and complained about having to work out her notice I must now consider whether this conduct provided a valid reason for her dismissal.
[30] Taking the last conduct first I do not think that making a complaint of this kind constitutes a valid reason for dismissal. It may have been an unwelcome remark on the occasions it was made but it is simply that, the expression of an opinion about the human resource practice of the employer.
[31] Dr Williams’ comment to the client Ms Lawrence is in a different category. It was not a helpful comment. It could be interpreted as ‘I don’t understand your concern’ rather than the more aggressive possible interpretation of ‘What is your problem?’ but nevertheless it was insensitive and uninformative. It is at the lower end of the scale in terms of a valid reason for dismissal (and could not constitute a reason for summary dismissal) but in a small business when client relations are critical and clients are understandably emotional about their pets it constituted a valid reason for dismissal.
[32] Dr Williams said that on 21 February 2018, she had one missed call to her mobile and no voice mail left by Dr Kovac, the owner of SCVC, at 10.30am. At 10.34am, Dr Williams was notified by text that her employment was terminated immediately. 37 The reason given in the text message for her dismissal was unspecified serious misconduct.38 The message read as follows:39
‘We have tried to call you but you haven’t answered. I am dismissing you for serious misconduct effective immediately. You are not to return to work. Details are in an email to follow.’
[33] After receiving the dismissal message Dr Williams spoke to Dr Kovac on the phone. In the phone call Dr Williams said she sought to clarify the reason for her dismissal. 40 Dr Williams gave evidence that in this conversation Dr Kovac told her he had contacted every client that she had attended to on Saturday, 17 February and said words to the effect of ‘not one of them had a nice thing to say about you’.41 Dr Kovac told her that another reason given for her dismissal was that she had been slandering the business and causing the clinic to lose clients.42 Dr Williams gave evidence at the determinative conference that no specific instances of slanderous behaviour or specific client feedback was identified to her as the basis of the alleged serious misconduct.43
[34] Dr Williams said that in the telephone call of 21 February 2018 she repeatedly asked Dr Kovac for evidence of the reasons he gave for her dismissal, namely negative client feedback and slandering the business and causing the clinic to lose clients, but that in response Dr Kovac said words to her to the effect ‘You can see it in court’. 44 Dr Williams said that the phone call lasted approximately five minutes and Dr Kovac ended the conversation by notifying Dr Williams that she would receive an email immediately with her letter of dismissal. Dr Williams received this email approximately 4.5 hours after the telephone call took place.45
[35] The letter of dismissal specified: 46
‘Your conduct during the past week and weekend was wilful and/or deliberate behaviour by you that is inconsistent with your contractual obligations and a continuation of your contract of employment. That she (sic) had caused a serious and imminent risk to the reputation of the business and that you were defaming the clinic to a client and by not providing the clinic’s reputable gold service, the clients that were seen you may opt to not return further or may discuss the negative consult with those in the community.’
[36] I find that Dr Williams was provided with a reason for dismissal but that the reason was not sufficiently specific to allow her to respond to it as I will deal with below.
[37] Dr Williams was not given a reasonable opportunity to respond to the reasons given for her dismissal because she was dismissed by text message and her requests for clarification in a subsequent telephone call were denied. The letter of dismissal that she received via email also lacked sufficient detail. This weighs in favour of the decision being unfair.
[38] On either 15 or 16 February 2018 (disagreement over date outlined in TN PN139 and TN PN247) a brief meeting occurred between Ms Price and Dr Williams, in Ms Price’s office, also known as Consult Room 3. 47 In its written submissions, SCVC says that ‘SCVC clearly warned Dr Williams on 16 February 2018’,48 which indicates that it considered this meeting as one relating to Dr Williams’ dismissal.
[39] Ms Price gave evidence that on 16 February 2018 Dr Kovac came into her office and briefed her on a complaint he had received from a client relating to Dr Williams. 49 Dr Kovac told Ms Price that the client had reported that Dr Williams ‘had spoken to them negatively and caused distress’.50 Ms Price said that Dr Williams was then brought in to her office and a conversation occurred between Dr Kovac and Dr Williams with Ms Price observing. Ms Price contends that this meeting was related to Dr Williams’ dismissal. Ms Price said that ‘Dr Kovac discussed with Dr Williams about the ramifications of the client’s distress and also letting her know that it was a verbal warning at that time and asked for her negative attitude to cease’.51 Dr Williams did not regard this meeting as relating to her dismissal and said in evidence that ‘My termination was not mentioned in this meeting that Ms Price was privy to. I was asked to be an obedient employee … I was offended by that.’52
[40] In a statement filed with the Respondent’s submissions on 7 May 2018, Mr Layfield said that he had a conversation with Dr Williams on 17 February 2018 in which he relayed feedback regarding the impact of Dr Williams’ negative attitude around the clinic from other staff at SCVC. Mr Layfield said that he informed Dr Williams at the time that the conversation constituted a verbal warning and asked her to ‘cease her negative behaviour and continue her notice period in an amicable manner’. 53
[41] I do not consider either of these meeting to be related to Ms William’s dismissal as they occurred well before her dismissal. Since there was no meeting relating to her dismissal this factor is not relevant.
[42] Dr William’s dismissal related to her conduct not her performance so this factor is not relevant.
[43] These factors are appropriate to be considered when an employer is small and/or there is no human resource expertise in the business. These factors sometimes mitigate the absence of rigour in the process of dismissal. These factors will always be weighed against the whole circumstance of the dismissal. In this matter, SCVC employs 28 members of staff, which represents a moderately sized veterinary clinic but in general terms a small business. The clinic only employed a human resources manager after the dismissal. However the conduct of Dr Kovac in dismissing Ms William’s by text with imprecise and exaggerated reasons more than outweighs these factors. The lack of procedural fairness accompanying the dismissal could not be excused by the size of the employer or the absence of a human resource specialist. This factor weighs in favour of the dismissal being unfair.
I find that SCVC did not afford Dr Williams procedural fairness throughout the process of dismissal. A number of the factors above weigh in favour of Dr Williams’ dismissal being considered unjust and unreasonable and so unfair.
Are there any other matters relevant to my consideration of whether Dr Williams was unfairly dismissed? (s.387(h))
[44] Dr Williams gave evidence that she noticed a change in Dr Kovac’s behaviour towards her following her resignation. She said that on 12 and 13 February 2018, Dr Kovac behaved differently towards her ‘in a negative way that made me feel … unwelcome and uncomfortable’. 54 She gave evidence of an occurrence ‘where he physically shouldered past me in the hallway’, and another ‘in which I was attempting to join a conversation and he physically turned his back on me and ignored me’.55 Dr Williams said she brought these incidences to Ms Price’s attention on 13 February 2018.56 Ms Price denied this.57 Dr Kovac did not attend the hearing to give evidence and I prefer the evidence of Dr William’s in relation to his conduct over Ms Price’s. I do not condone retaliation in such circumstances but it would be unsurprising if Dr Williams’ appetite to work with Dr Kovac diminished in the face of this behaviour.
[45] I note Ms Price’s submissions that Dr Kovac dismissed Dr Williams in order to protect the reputation of the business. I also note that Dr Kovac had the option of directing Dr Williams not to work out the remainder of her notice period, which amounted to roughly two weeks. This would have had the same practical effect on the business as did the summary dismissal. Ms Price confirmed in evidence given at the determinative conference that Dr Kovac had considered early cessation of working to address the reputational concerns, 58 but he did not exercise this option.
[46] Taking into account all of the circumstances, I consider that Dr Kovac’s decision to summarily dismiss Dr Williams was a disproportionate response to her conduct in the final weeks of her employment. A proportionate response to the conduct that I found to be a valid reason for dismissal in the normal course of employment would be counselling and at most a warning. With other options available to him to protect the reputation of SCVC, the effect on Dr Williams’ reputation as a reliable employee was put at risk unnecessarily and I consider this harsh.
Conclusion
[47] I have found that there was a valid reason for dismissal at the lower end of the range of valid reasons, that the dismissal was procedurally unfair and that there were other relevant circumstances that mitigated Dr Williams conduct during her notice period. Weighing these considerations I find that her dismissal was harsh, unjust and unreasonable and therefore unfair.
[48] Whilst reinstatement is the primary remedy under the Act, 59 I note that Dr Williams is employed full time with a new employer and accordingly does not seek reinstatement.
[49] In these circumstances I am satisfied that the reinstatement of Dr Williams with SCVC would be inappropriate. I consider that it is appropriate in all the circumstances of the case for me to make an award of compensation to Dr Williams.
[50] I have calculated the amount of compensation to be paid to Dr Williams on the information available to me, based on the criteria contained in the s.392 of the Act and the contemporary application of the Sprigg formula. 60
[51] SCVC is a going concern. The evidence before me was that the business is growing. The amount of compensation awarded is insignificant.
[52] I find that an order for compensation would not affect the viability of SCVC.
[53] Dr Williams was employed by SCVC for just over 1 year. I consider that Dr Williams’s length of service should not affect the amount of compensation to be ordered.
[54] Dr Williams notice period, had it been worked, would have ended on 9 March 2018. But for her dismissal on 21 February 2018 Dr Williams would have remained employed by SCVC until that date, a period of 16 calendar days.
[55] SCVC advised that Dr William’s remuneration had she remained employed until 9 March 2018 would have comprised $3157.89 gross plus $287.81 in superannuation contributions.
[56] In considering whether Dr Williams has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether she acted reasonably in the circumstances. 61 She gave evidence that upon dismissal she contacted her future employer and asked to be able to commence earlier than anticipated. Her start date was brought forward to a date that was suitable to the future employer and she commenced on 27 February 2018.
[57] I am satisfied that she took reasonable steps to mitigate her loss.
[58] Dr Williams informed the Commission that her gross earnings from 21 February 2018 to 9 March 2018 were $2448.73 plus $232.63 in superannuation contributions.
[59] It is necessary to subtract this amount for the remuneration she would have earned had she remained at SCVC for this period.
[60] I consider that it is unnecessary to calculate any income likely to be earned during the period between this order for compensation being made and the actual compensation being received because Dr William’s employment would have ended on 9 March 2018.
[61] As contingencies only apply to the anticipated period of employment, and that has now expired, it is not appropriate to make any further change to the amount of compensation for contingencies.
Dr William’s contribution to her dismissal was not significant and was mitigated by the behaviour of her employer. I do not make any deduction of compensation on this basis.
[62] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress. Section 392(4) of the Act expressly prohibits an award of compensation containing such a component.
[63] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by Dr Williams, or to which Dr Williams was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
[64] The amount of compensation ordered does not exceed either 26 weeks’ pay or the high income threshold. Accordingly no deduction is appropriate.
[65] The compensation payable is the difference between the amount that would have been earned had Dr Williams remained in employment and the amount she earned in her new employment up to the date that her employment would have ended with SCVC had she not been dismissed. I calculate that amount as $580.88 gross, plus $55.18 in superannuation, in compensation. I order SCVC to pay this amount less applicable taxation into the bank account nominated by Dr Williams during her employment. I order SCVC to make the superannuation contribution to the superannuation fund that Dr Williams nominated during her employment.
[66] I will issue an order to this effect.
DEPUTY PRESIDENT
Appearances:
Dr E. Williams on her own behalf.
Ms K. Price on behalf of Southern Cross Veterinary Clinic.
Ms A. Kessell on behalf of Southern Cross Veterinary Clinic.
Hearing details:
2018.
Sydney:
17 May.
Final written submissions:
For the Applicant, 16 April 2018.
For the Respondent, 7 May 2018.
For the Applicant, 15 May 2018.
Printed by authority of the Commonwealth Government Printer
<PR607582>
1 Fair Work Act 2009 (Cth), s.396.
2 Fair Work Act 2009 (Cth), s.383.
3 Fair Work Act 2009 (Cth), s.23.
4 Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7].
5 King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 at [24][26] and [28]; BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]-[34].
6 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at [373].
7 Respondent’s submissions of 7 May 2018, Annexure 1A.
8 Transcript of determinative conference on 17 May 2018, PN96.
9 Ibid.
10 Transcript of determinative conference on 17 May 2018, PN384.
11 Transcript of determinative conference on 17 May 2018, PN386.
12 Transcript of determinative conference on 17 May 2018, PN387.
13 Transcript of determinative conference on 17 May 2018, PN388.
14 Transcript of determinative conference on 17 May 2018, PN338.
15 Transcript of determinative conference on 17 May 2018, PN339.
16 Transcript of determinative conference on 17 May 2018, PN350.
17 Transcript of determinative conference on 17 May 2018, PN329.
18 Transcript of determinative conference on 17 May 2018, PN366-367.
19 Respondent’s submissions of 7 May 2018, 1A, 1C, 2; Transcript of determinative conference on 17 May 2018, PN195 and PN197.
20 Respondent’s submissions of 7 May 2018, 2.
21 Transcript of determinative conference on 17 May 2018, PN329.
22 Transcript of determinative conference on 17 May 2018, PN332.
23 Transcript of determinative conference on 17 May 2018, PN336.
24 Transcript of determinative conference on 17 May 2018, PN337.
25 Respondent’s submissions of 7 May 2018, 2.
26 Transcript of determinative conference on 17 May 2018, PN195-PN200.
27 Transcript of determinative conference on 17 May 2018, PN405.
28 Ibid.
29 Ibid.
30 Ibid.
31 Ibid.
32 Ibid.
33 Ibid.
34 Ibid.
35 Transcript of determinative conference on 17 May 2018, PN412.
36 Transcript of determinative conference on 17 May 2018, PN426.
37 Transcript of determinative conference on 17 May 2018, PN144.
38 Ibid.
39 Transcript of determinative conference on 17 May 2018, PN282.
40 Transcript of determinative conference on 17 May 2018, PN144-145.
41 Transcript of determinative conference on 17 May 2018, PN145.
42 Transcript of determinative conference on 17 May 2018, PN146.
43 Transcript of determinative conference on 17 May 2018, PN149, PN151 and PN155.
44 Transcript of determinative conference on 17 May 2018, PN146.
45 Transcript of determinative conference on 17 May 2018, PN147.
46 Transcript of determinative conference on 17 May 2018, PN274.
47 Date disputed, see transcript of determinative conference on 17 May 2018, PN139 and PN247.
48 Respondent’s submissions of 7 May 2018, 6.
49 Transcript of determinative conference on 17 May 2018, PN247.
50 Ibid.
51 Ibid.
52 Transcript of determinative conference on 17 May 2018, PN293.
53 Respondent’s submissions of 7 May 2018, 3.
54 Transcript of determinative conference on 17 May 2018, PN138.
55 Ibid.
56 Ibid.
57 Transcript of determinative conference on 17 May 2018, PN251.
58 Transcript of determinative conference on 17 May 2018, PN307.
59 Fair Work Act 2009 (Cth), s.390(3)(a).
60 Sprigg v Paul’s Licensed Festival Supermarkets (1998) 88 IR 21.
61 Ellawala v Australian Postal Corporation Dec 421/00 M Print S5109.