DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jasmine Besanko
v
R.B. Aquatics Pty Ltd T/A Swimmers
(U2021/790)

Application for an unfair dismissal remedy – small business fair dismissal code found to apply but was not complied with – dismissal found to be unfair – reinstatement not appropriate – compensation not awarded - no loss of earnings established.

Introduction

[1] On 1 February 2021, Ms Jasmine Besanko (the Applicant) made an application pursuant to s. 394 of the Fair Work Act 2009 (the Act) for a remedy in response to her dismissal by R.B. Aquatics Pty Ltd T/A Swimmers (the Respondent). The application indicated that the date that the Applicant’s dismissal took effect was 16 January 2021.

[2] On 8 February 2021, the Respondent filed its Form F2 response to the unfair dismissal application in which it raised a jurisdictional objection to the application, that being the Respondent was a small business, and that the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).

[3] The matter was listed for Conciliation on 17 February 2021 however, on 8 February 2021 the Respondent requested the conciliation be vacated and that the matter proceed directly to hearing to determine the jurisdictional objection raised.

[4] A member assisted conciliation was conducted on 8 April 2021, but the matter remained unresolved. Consequently, the matter proceeded to be heard by me on 16 April 2021 in advance of which both parties filed written submissions and witness statements.

The Hearing

[5] At a Mention hearing conducted on 23 February 2021, the Commission sought submissions from the parties as to whether the Commission should conduct either a conference (s 398) or a hearing (s 399) in relation to the matter. Taking into account the number of witnesses and the parties wishes, it was decided that a conference would be the most effective and efficient way to conduct the matter.

[6] At the determinative conference held on 16 April 2021, the Applicant gave evidence and was represented by her father Mr Brett Besanko. Mr Robert Bayley, who is the owner and appeared for the Respondent, gave evidence, and also called two other witnesses, Ms Claire Drinkwater (Manager, Senior Instructor) and Helen Aston (Instructor).

Background and evidence

[7] The Respondent commenced operations in 1988 and was purchased by its current owner Mr Bayley in January 1995. The business is a swim school and is located within the city of Melton, Victoria. When it first opened it was the only swim school in the Melton area whereas now there are 3 other swim schools in the Melton area within a 5km radius of the Respondent with which it competes 1. With the exception of one week in January of each year, the Respondent ordinarily operates during gazetted Victorian public school terms only2. The Respondent was forced to close its operations from 23 March 2020 until 9 November 2020 as a consequence of the Covid 19 pandemic restrictions3. During this period the Respondent received and paid its eligible employees JobKeeper benefits4.

[8] The Applicant was, at the time of her dismissal, engaged on a casual basis as a swimming instructor having commenced her employment with the Respondent on 10 December 2017 5. No formal or written contract was entered into. The Applicant’s employment was covered by the Fitness Industry Award 20206 (the Award) and at the date of her dismissal her casual hourly rate of pay under the Award was $21.507, that being 85% of the casual Award Level 2 rate she was entitled to receive as a 19 year old. The hourly rate of pay was however largely irrelevant at the time of her dismissal as she was in receipt of JobKeeper benefits which provided her with a flat weekly amount well in excess of her pre-Covid regular weekly earnings.

[9] The Applicant worked a total of 278 hours over the period of her employment with the Respondent, earning a total gross amount of $3,823.25. Her hours of work varied between 2 and 13 hours per fortnight and averaged 5.5 hours per fortnight when the Respondent was open. The Applicant also received JobKeeper payments from March 23, 2020 up to the date of her dismissal on 16 January 2021, totalling $25,400 8. During the period in which the Applicant received JobKeeper payments she worked 23.5 hours; those hours having been worked following the reopening of the Respondent’s operations on 9 November 2020.

[10] Ms Aston, who is an instructor with the Respondent, was searching her Facebook pages in early January 2021 when she came across a post on the Melton Residents (and surrounding areas) private group on 5 January 2021 in which a person had sought a recommendation for a swimming school in the Melton area suitable for 5 and 7 year old children. Ms Aston posted a recommendation for the Respondent’s business in reply. Having posted a reply to the initial swim school recommendation request, Ms Aston then received “notifications” of all subsequent posts on the same “thread”. On 8 November 2021, Ms Aston checked the notifications and saw that the Applicant had also made a recommendation, for a different swim school in the Melton area, that of Melton Swim School. Ms Aston, who was at that stage unaware that the Applicant was also working for Melton Swim School, took a screen shot of the Applicant’s post and forwarded it to Ms Drinkwater 9.

[11] The Applicant acknowledged that she had made the Facebook post in response to the request for a swim school recommendation in the following terms… “Melton swim school!” 10. During her oral evidence the Applicant was unable to say why she had recommended Melton Swim School in preference to the Respondent and reaffirmed that in doing so, it was not her intention to damage the Respondent’s business. The Facebook group on which the post was made was identified as being a private group with 16,100 members while according to Mr Bayley, the City of Melton and surrounding areas has a population of approximately 160,000 people.

[12] The Facebook “thread” had a balance of recommendations for both the Respondent and Melton Swim School at the point the Applicant made her post. Both the Applicant and Ms Aston had their Facebook profiles on a “private” setting which meant it would not have been apparent to a reader of the “thread” that the Applicant and Ms Aston were employees of the Respondent unless the reader was personally familiar with either or both the Applicant and Ms Aston.

[13] Following her notification of the Applicant’s post by Ms Aston, Ms Drinkwater who is the Respondent’s Manager, accessed the relevant Facebook page and was able to see the full “thread” of posts. She took a series of screenshots of the entire conversation including the initial recommendation request and the Applicant’s reply 11. Ms Drinkwater then contacted Mr Bayley on 12 January 2021 to discuss the Applicant’s post during which conversation Ms Drinkwater and Mr Bayley both felt that the Applicant’s actions were sufficiently serious to justify summary dismissal12. Mr Bayley conceded in his evidence that after being advised of the Applicant’s Facebook post he formed the view that short of it being established that another person had made the Facebook post in question and not the Applicant, the intended sanction of summary dismissal would not be altered.

[14] At 10.24am on 13 January 2021 the Applicant was contacted via text message by Ms Drinkwater requesting that the Applicant attend the Respondent’s premises for a meeting before 12.00 midday that day or between 9.00am and 12.00 midday the following day 13. The Applicant replied that she was unable to come in during those times and asked whether they could discuss the issue over the phone. No reply was received by the Applicant following which she sent a follow up text message on the same day asking what the requested meeting was in relation to14.

[15] On 15 January 2021 Ms Drinkwater and the Applicant had a telephone conversation during which the Applicant was questioned by Ms Drinkwater about the Facebook post. The Applicant states that she felt blind-sided by the subject matter of the meeting and was initially unable to recall the post. After further brief discussion with Ms Drinkwater the Applicant was able to recall the post. The Applicant explained her belief to Ms Drinkwater that she had not done anything wrong and certainly nothing intentional. Ms Drinkwater advised the Applicant in response that her conduct was disloyal in circumstances where she had received JobKeeper payments from the Respondent throughout 2020 and that it was wrong of the Applicant to have made a recommendation for one particular swim school in circumstances where she was working for multiple swim schools. 15

[16] Ms Drinkwater then advised the Applicant that her employment would cease the following day on 16 January 2021 in response to which the Applicant suggested that a lesser penalty of a warning be issued in circumstances where there was no deliberate intention on her part to damage the Respondent. Ms Drinkwater advised in response that the decision to dismiss the Applicant would not be altered 16. A letter issued by Mr Bayley confirming the Applicant’s dismissal was issued on 16 January 2021 in the following terms;

“…………..

As explained to you by Claire Drinkwater, the Manager of SWIMMERS, yesterday, your services are being terminated from 16/01/2021. This is because you recommended on social media another swim school, which you also work at, to a parent making a general enquiry about swimming lessons.

This conduct is completely unsatisfactory and disloyal. Your response unfairly discriminates against SWIMMERS and should not have been volunteered.

Your JobKeeper payment will cease as from 17/01/2021.

……….” 17

[17] The Applicant was also provided with an Employment Separation Certificate on 16 January 2021 which cited the following reason for her employment separation;

“Employee works for multiple swim centres and provided an unsolicited recommendation for another swim centre.” 18

[18] Mr Bayley gave evidence that at the time of the Applicant’s dismissal there were no associated entities and that there were 13 casual employees engaged by the Respondent on 16 January 2021 19. The Applicant challenges that number of employees and states that there were 16 employees engaged at the date of her dismissal. Payroll records were produced for the 6 month period prior to the Applicant’s dismissal which revealed that in in the fortnightly pay period ending 16 January 2021 there were 14 employees engaged20. Of the 14 employees engaged during the pay period ending 16 January 2021 one employee, Ms Celina Scott, tendered her resignation which took effect on 15 January 202121. As a consequence, there were, according to the Respondent,13 employees engaged by the Respondent on 16 January 2021.

[19] The Applicant claims there were 16 employees engaged at the date of her dismissal and provided a list of 16 names that included three additional names that were not on the Respondent’s list of 13 employees. Those three additional names were Eden Noonan, Cheyenne Chapman and Kayla Jones. The payroll records 22 for the 6 month period preceding the Applicant’s dismissal revealed the following;

•  Cheyenne Chapman was not engaged to perform any work in the 6 month period preceding 16 January 2021 and did not receive any JobKeeper benefits in that same period;

•  Eden Noonan did not receive any JobKeeper benefits in the 6 month period preceding 16 January 2021 but did undertake work in the fortnight pay periods ending 21 November, 5 December and 19 December 2020; and

•  Kayla Jones did not receive any JobKeeper benefits in the 6 month period preceding 16 January 2021 but did undertake work in the fortnight pay periods ending 21 November, 5 December and 19 December 2020.

[20] The Applicant gave the following evidence in relation to her employment with Melton Swim School, that being she;

•  commenced employment with Melton Swim School in early 2020;

•  did not perform any work for them in the period from March 2020 to 31 December 2020;

•  was not entitled to receive JobKeeper benefits from Melton Swim School as she had not met the qualifying employment period requirement when JobKeeper commenced in April 2020;

•  had undertaken additional shifts for Melton Swim School in early 2021 immediately following her dismissal by the Respondent;

•  worked 25.75 hours for Melton Swim School in the fortnightly pay period ending 21 February 2021 resulting in gross earnings of $651.05 23, those hours and earnings being typical of her hours and earnings with Melton Swim School since her dismissal by the Respondent; and

•  expected those weekly hours and earnings to continue, subject to her work availability which would be impacted by her ongoing tertiary studies.

Initial matters to be considered

[21] I am required by s 396 of the Act to decide four matters before I consider the merits of the application. There is no dispute between the parties, and I am satisfied on the evidence that:

(a) The application was made within the period required by s 394(2) of the Act;

(b) The Applicant was a person protected from unfair dismissal; and

(c) The Applicant’s dismissal was not a case of genuine redundancy.

[22] I now turn to consider whether the Respondent was a “small business employer” as defined in s 23 of the Act and, if so, whether the Applicants dismissal was consistent with the Code.

Small Business Fair Dismissal Code

[23] Section 388 of the Act provides:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[24] Section 23 of the Act provides a definition of a “small business employer” for the purpose of the Act. Relevantly, s 23(1) of the Act provides that a “national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time”.

[25] For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) all employees employed by the employer at the time (including the dismissed employee who has made the unfair dismissal application) are to be counted subject to the caveat that a casual employee is not to be counted unless, at the time, he or she has been employed by the employer on a regular and systematic basis (ss 23(2) & (4) of the Act); and

(b) associated entities are taken to be one entity (s 23(2) of the Act). The expression associated entity has the meaning given by section 50AAA of the Corporations Act 2001 (Cth) (Corporations Act).

Were there any associated entities?

[26] Mr Bailey gave unchallenged evidence, which I accept, that at the time of the Applicant’s dismissal there were no associated entities.

How many employees were employed by the Respondent and the associated entities?

[27] Mr Bailey gave evidence that there were 13 casual employees engaged at the date of the Applicant’s dismissal. The Applicant contends that three other persons should be included in the list of employees, those being Cheyenne Chapman, Eden Noonan and Kayla Jones who she submits were casual employees. As set out above at [19], none of those three individuals had been or were in receipt of JobKeeper benefits at the time of the Applicant’s dismissal. Cheyenne Chapman had not performed any work for the Respondent in the 6 month period preceding the Applicant’s dismissal and Eden Noonan and Kayla Jones had only performed work in the fortnights ending 21 November, 5 December and 19 December 2021.

[28] None of the three individuals were engaged in the pay period ending 16 January 2021. I am also not satisfied that those three individuals were engaged regularly and systematically in the period prior to the Applicant’s dismissal. It necessarily follows that the three individuals identified by the Applicant are not to be included in the employee numbers for the purpose of determining whether the Respondent was a small business.

[29] I am satisfied on the evidence that the Respondent and its associated entities employed 13 employees on 16 January 2021, including the Applicant. Accordingly, I am satisfied that, immediately before the time of the Applicant’s dismissal, the Respondent was a small business employer within the meaning of the Act.

[30] Having determined that the Respondent and its associated entities employed fewer than 15 employees on 16 January 2021, it is necessary for me to now consider and determine whether the Applicant’s dismissal was consistent with the Code.

Was the dismissal consistent with the Small Business Fair Dismissal Code – Summary Dismissal?

[31] The Code applies to small business employers with less than 15 employees. A person is not unfairly dismissed if the dismissal is consistent with the Code and immediately before dismissal or at the time notice of the dismissal is given, whichever is earlier, the employer is a small business employer. I have already found that the Respondent was a small business employer at the relevant time of 16 January 2021.

[32] The Code declared by the Minister pursuant to s 388(1) of the Act relevantly provides as follows:

“Summary dismissal

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

Other dismissal

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

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

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

Procedural matters

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

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

[33] In Pinawin v Domingo 24, the Full Bench considered whether, in the context of a summary dismissal under the Code, the Commission had to be satisfied that the serious misconduct which was the basis for the dismissal actually occurred:

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

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

…

[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo’s conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well …”

[34] Another Full Bench of the Commission examined the summary dismissal section of the Code in detail in Ryman v Thrash Pty Ltd 25 and concluded as follows:

“[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates the following way:

If a small business employer has dismissed an employee without notice – that is, with immediate effect – on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectivity speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”

[35] The Applicant was dismissed without notice on 16 January 2021 by the Respondent. The Respondent agrees that the second limb of the Code, that dealing with “Other Dismissal”, is not relevant. Consequently, my role in this matter is to determine whether the employer genuinely held a belief that the employee had committed an act of serious misconduct and whether that belief was, objectively speaking, based on reasonable grounds. It is not necessary to determine whether the serious misconduct did in fact occur or that the employer was correct in the belief that it held.

[36] The Respondent submits that the Applicant’s conduct constitutes serious misconduct as defined at Regulation 1.07 of the Fair Work Regulations 2009 (the Regulations) in that it was “wilful or deliberate behaviour” that was “inconsistent with the continuation of the employment contract” and was conduct that would cause “serious and imminent risk to the reputation, viability or profitability of the employer’s business”. Mr Bayley gave evidence that he genuinely held a belief that the conduct of the Applicant was sufficiently serious to justify summary dismissal. Furthermore, that belief was, according to Mr Bayley, formed on reasonable grounds, that being the established fact that the Applicant made the post.

[37] There is no dispute that the Applicant posted a recommendation for a swim school in the Melton area in response to a general request for such a recommendation by a member of the public on a closed Melton community Facebook group. The recommendation made by the Applicant was for Melton Swim School and not the Respondent. I accept that the Facebook recommendation made by the Applicant aggrieved the Respondent for the following particular reasons;

•  The Applicant had worked for the Respondent as an instructor since December 2017, for which role the Respondent provided necessary training at its time and cost;

•  The Applicant commenced working for Melton Swim School in early 2020 but as a consequence of the Covid pandemic restrictions worked no shifts for Melton Swim School between March 2020 and 31 December 2020;

•  As an eligible employee the Respondent arranged for and paid the Applicant JobKeeper benefits totalling $25,400 between April 2020 and her dismissal on 16 January 2021; and

•  The Applicant’s recommendation of a competitor of the Respondent had the potential to damage the Respondent’s business, particularly where members of the public reading the post who knew the Applicant would likely question why she had recommended a different swim school she had barely worked for (Melton Swim School) in preference to the business she had worked for over a 3 year period (the Respondent).

[38] I accept that Mr Bayley held a genuine belief that the Applicant’s conduct was sufficiently serious to justify summary dismissal based on his view that the Applicant had been disloyal and had made Facebook comments likely to damage the Respondent’s business. As set out above in the authorities to which I have referred, Mr Bayley’s genuine belief is not enough in itself to establish that the decisions to summarily dismiss the Applicant was consistent with the Code. It is also necessary for me to be satisfied that the belief was “objectivity speaking, based on reasonable grounds”.

[39] While there is no rule of law that defines the degree of misconduct which would justify dismissal without notice, the identified “touchstone” is that of whether the conduct was of such a grave nature as to be repugnant to the employment relationship 26. The Full Bench in Cole v Roy Hill Station Pty Limited relevantly summarised the principles as follows;

“[95] Serious misconduct as understood in the Code, takes its meaning from Regulation 1.07 and in doing so includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the employment contract. The notion of wilful or deliberate behaviour amounting to serious misconduct is conduct which strikes at the heart of the employment relationship. That notion has been considered in several well-known authorities, which were well traversed in the decision of Emma Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre. I do not intend to repeat the authorities at length, but rely simply on the precepts that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions, and such misconduct must at least have the quality that it is ‘wilful’: it connotes a deliberate flouting of the essential contractual conditions.” 27 (citations omitted)

[40] The Respondent while describing the behaviour as “unsatisfactory and disloyal” in the Employment Termination Letter of 16 January 2021 did not identify whether the conduct was
contrary to any express or implied duties or obligations owed to the Respondent by the Applicant. Further, it was not contended that the Applicant’s conduct was contrary to any terms of her contract of employment or policies and/or procedures of the Respondent. I do however discern from the Respondent’s case that it believed the Applicant had breached her implied duties of fidelity and good faith, although it was not expressed by the Respondent in those terms but rather as “disloyalty”.

[41] In Rose v Telstra Corporation Limited 28 (Rose v Telstra) President Ross (Vice President as he then was) considered an employee’s implied duty of fidelity and good faith when he relevantly stated as follows;

“……………..

In certain circumstances an employee's out of work activities may be in breach of an implied or explicit term of their employment contract. An employee's implied duty of fidelity and good faith is particularly relevant here.¹⁵ One of the most concise and authoritative statements of what is generally encompassed by the duty of fidelity and good faith is to be found in Blyth Chemicals v Bushnells¹⁶. In that case their Honours Dixon and McTiernan JJ said:

"Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty. Or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises."

^{………………….”}

[42] The President went on to summarise the concept of the duty of fidelity and good faith in the following terms;

“The concept of a duty of fidelity and good faith is used as a matter of convenience to subsume a range of obligations which are intended to ensure that the employee renders honest and faithful service to the employer. They include:

- an obligation not to damage the employer's interests by disclosing or using confidential information obtained in the course of employment;

- an obligation to act honestly in handling the employer's property;

- an obligation not to earn any secret profits; and

- an obligation not to engage in employment outside of the hours devoted to their main job where the spare time work is for a competitor of the main employer and may damage the employer's business.” 29

[43] Having regard to the authorities outlined above I now turn to the Applicant’s conduct and whether the Respondent’s genuine belief that the conduct justified summary dismissal was objectively, based on reasonable grounds. On one view it is difficult to reconcile the Applicant’s recommendation for a competitor of the Respondent in circumstances where she had been employed by the Respondent for over 3 years and had been kept “on the books” and paid JobKeeper benefits by the Respondent from April 2020 up to the date of her dismissal.

[44] The Applicant’s behaviour was in my view foolish, naive and ill-judged and a regrettable example of an employee using social media without carefully considering the potential consequences for herself or her employer. Moreover, it almost beggars belief that the Applicant, who had benefited so significantly from the loyalty shown towards her by the Respondent during the Covid pandemic, failed to reciprocate when she recommended another employer who she had barely worked for. That said, I am not persuaded that the conduct was wilful or deliberate in the sense that it was done with the intent or knowledge that it might cause harm to the Respondent. Nor am I satisfied that the conduct was so “grave” or “repugnant” as to be destructive of the employment relationship.

[45] My reasons for the above conclusion are as follows. Firstly, the Applicant did not denigrate the Respondent in the Facebook post. Secondly, beyond mere speculation, there was no evidence of harm or damage to the Respondent’s business. Thirdly, there was no evidence of how widely read the posts were. Fourthly, the Applicant’s Facebook settings were private so it would not have been apparent to persons reading her post, other than those directly familiar with her employment history, that she worked for the Respondent. Fifthly, there was no suggestion that the general elements of fidelity and good faith as set out above at [42] had been breached. Finally, the Applicant appears to have naively and wrongly believed that because she was casually employed by both the Respondent and Melton Swim School, providing a recommendation for one of her employers was not inconsistent with her obligations to both.

[46] While the Applicant’s conduct can be rightly criticised and, in my view, justified disciplinary action, I am not satisfied that the Respondent’s genuine belief as to that conduct warranting summary dismissal was objectively, based on reasonable grounds. It follows from this conclusion that the dismissal was not consistent with the Code. Having reached that conclusion, I must now turn to consider whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust, or unreasonable?

[47] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:

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

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

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

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

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

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

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

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

[48] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me³⁰. I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s 387(a)?

[49] A valid reason for the dismissal of the Applicant need not be the reason given to the Applicant at the time of the dismissal³¹. The reasons should be “…sound, defensible and well founded”³² and should not be “…capricious, fanciful, spiteful or prejudiced.”³³ However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.³⁴

[50] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination³⁵. “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 36

[51] There is no dispute, and I am satisfied that the Applicant made a Facebook post recommending Melton Swim School in response to a general request from a member of the Melton community Facebook group. That recommendation was made against the background of the Applicant having been employed by the Respondent for 3 years and having been in receipt of JobKeeper benefits paid by the Respondent since April 2020. While the Respondent contends there is some significance to the fact the recommendation made by the Applicant was “unsolicited” I am not persuaded that is of any moment. The Applicant freely acknowledged she had made the post but states that in doing so she did not consider that it might have damaged the Respondent’s business.

[52] While the post had the potential to harm the interests of the Respondent, I am not persuaded that the conduct was of such gravity that it established a valid reason for the Applicant’s dismissal. It must be borne in mind that the Applicant is 19 years old and was employed by both the Respondent and the competing swim school at the time the post was made in support of Melton Swim School. It is unlikely she had any understanding of her implied duties of fidelity and good faith. Certainly, there was no evidence that there were any documented policies or procedures in place that were provided to the Applicant by the Respondent, nor was there a written contract of employment in place that set out the Applicant’s obligations to the Respondent.

[53] I accept as a matter of common sense that the Applicant should not have made a post recommending one of her employers in preference to the other. That is the prudent course that should have been taken by the Applicant, who when specifically questioned during her oral evidence could offer no explanation as to why she recommended Melton Swim School over the Respondent. In my view more is required than foolish and naïve conduct by the Applicant to establish a valid reason for her dismissal. As set out above at [45] there is no evidence before me of deliberate or malicious intent held by the Applicant towards the Respondent, or that the Facebook post was widely read or that the Respondent suffered any business harm. Tellingly, the Applicant did not publicly denigrate the Respondent. The complaint is essentially that an adverse inference might be drawn as to the Respondent’s busines by those who may have read the Facebook post knowing that the Applicant worked for the Respondent.

[54] In order to assess whether the conduct founded a valid reason for the Applicant’s dismissal it is necessary for me to consider the gravity of the conduct and whether it struck at the heart of the employment relationship. As set out above, I am not persuaded that the Applicant’s conduct was so serious as to establish a valid reason for her dismissal. The decision to dismiss the Applicant was in my view a disproportionate response to a naïve and ill-advised social media post that was made without adverse intent towards the Respondent. The absence of a valid reason for dismissal weighs strongly in favour of a finding that the dismissal was unfair.

Notification of the valid reason – s 38 7(b)

[55] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 37, in explicit terms38 and in plain and clear terms39. In Crozier v Palazzo Corporation Pty Ltd40, the Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[56] Ms Drinkwater and Mr Bayley both confirmed in their evidence that the decision to terminate the Applicant was made prior to Ms Drinkwater’s discussion with the Applicant on 15 January 2021. That decision was based on their being satisfied that the Applicant had made the Facebook post recommending Melton Swim School. Mr Bayley stated in his evidence that short of it having been established that the Applicant had not made the relevant Facebook post, the decision made to dismiss the Applicant would not have changed as a result of Ms Drinkwater’s discussion with the Applicant on the 15 January 2021.

[57] Having regard to the above I am not satisfied that the Applicant was notified of a valid reason for her dismissal prior to the decision having been made. This weighs in favour of a finding that the dismissal was unfair.

Opportunity to respond to any reason related to capacity or conduct – s 387(c)

[58] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality⁴¹.

[59] As previously set out in the evidence, Ms Drinkwater had a telephone meeting with the Applicant on 15 January 2021 during which discussion Ms Drinkwater questioned the Applicant regarding the Facebook post. The Applicant after brief discussion recalled and admitted having made the post but denied that in making the post she had intended or considered that her post would damage the Respondent’s business. Ms Drinkwater put to the Applicant that her conduct had been disloyal in circumstances where the Respondent had maintained the Applicant on JobKeeper for several months and advised that her employment would be terminated. The Applicant unsuccessfully pressed for a lesser penalty of a warning.

[60] While the above summary of events might suggest the Applicant was afforded an opportunity to respond, in truth it appears that the Applicant’s opportunity to respond had little or no chance of affecting the outcome. That is because the decision to dismiss the Applicant had already been made during a discussion between Ms Drinkwater and Mr Bayley on 12 January 2021 during which discussion they agreed that the Applicant’s conduct warranted summary dismissal. Ms Drinkwater also confirmed to the Applicant in response to the Applicant’s request for a lesser punishment that the decision could not be changed as the decision to dismiss her had already been made.

[61] The opportunity to respond requires more of an employer than simply going through the procedural motions. It requires the employer to actively consider the responses provided by an employee before the decision to dismiss the employee has been taken. In the present case the decision to dismiss the Applicant had already been made by the Respondent and as such any opportunity to respond and influence the decision of the Respondent had no practical relevance. In these circumstances I am not satisfied that the Applicant was afforded a proper opportunity to respond. This weighs in favour of a finding that the dismissal was unfair.

Support person – s 387(d)

[62] I am satisfied that the Applicant was contacted by Ms Drinkwater on 13 January 2021 to arrange a meeting at the Respondent’s business on that day or the following day. The Applicant was unavailable at the times proposed but subsequently spoke with Ms Drinkwater by telephone on 15 January 2021. The Applicant states and Ms Drinkwater agreed that no prior notice was given to the Applicant as to the subject matter of the telephone meeting. I accept the Applicant’s evidence that she felt blind-sided by the lack of notice of the meeting’s purpose.

[63] The evidence of the Applicant as to the lack of prior notice might suggest a request by the Applicant for a support person would have been pointless. However, there was no evidence adduced that a support person was requested or unreasonably refused during the telephone meeting with Ms Drinkwater on 15 January 2021. This criterion is consequently a neutral consideration.

Warnings regarding unsatisfactory performance – s 387(e)

[64] As the dismissal did not relate to unsatisfactory performance this factor weighs neutrally in my consideration.

Impact of the size of the Respondent on procedures followed – s 387(f)

[65] I am satisfied that at the time of the Applicant’s dismissal the Respondent employed 13 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s 387(g)

[66] The Respondent agreed that the absence of human resources specialists/expertise did not impact on the procedures followed. In all the circumstances, I find that the absence of dedicated human resource management specialists in the Respondent’s enterprise did not impact on the procedures followed in effecting the dismissal and as such is a neutral consideration.

Other relevant matters – s 387(h)

[67] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[68] While the Applicant did not contend there were any other relevant matters, the Respondent contended that the size and close knit nature of the Melton community was a relevant matter to be considered. Specifically, the Respondent submits that the Applicant’s Facebook recommendation of Melton Swim School in preference to the Respondent was likely to injure the Respondent in circumstances where the community was close knit.

[69] I accept the Respondent’s contention might have some force if the Melton community was still relatively small as it was when the Respondent’s business commenced in 1988. On the Respondent’s own case however, the City of Melton and the surrounding community now consists of approximately 160,000 people and a fraction of that number (i.e., 10%) are on the Facebook Melton community page. Beyond Mr Bayley’s anecdote as to being routinely recognised in the street when he returns to Melton, there is no evidence before me to suggest that the City of Melton is particularly unique such that the Applicant’s Facebook post would have graver consequences than if it were made in circumstances of an inner city swim school. I do not regard this matter as weighing either for or against a finding that the dismissal was unfair. It is therefore a neutral consideration.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?

[70] I have made findings in relation to each matter specified in section 387 as relevant.

[71] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable⁴². In reaching my conclusion I have had particular regard to the absence of a valid reason for the dismissal and an absence of procedural fairness. This weighs heavily against a finding that the dismissal was not unfair. There are no other factors that militate against a finding that the dismissal was unjust and unreasonable, and I so find.

Conclusion

[72] It follows from the above that I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.

Remedy

[73] Being satisfied that the Applicant:

•  made an application for an order granting a remedy under section 394;

•  was a person protected from unfair dismissal; and

•  was unfairly dismissed within the meaning of section 385 of the Act,

I may, subject to the Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.

[74] Under section 390(3) of the Act, I must not order the payment of compensation to the Applicant unless:

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

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

Is reinstatement of the Applicant inappropriate?

[75] The Applicant does not seek reinstatement and also submits that the manner of her dismissal and the breakdown of her relationship with Mr Bayley means that it would be in the best interests of both parties that they do not work together again. Mr Bayley agreed.

[76] Having regard to the size of the Respondent’s business and the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[77] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”⁴³.

[78] Having found that the dismissal of the Applicant was unjust and unreasonable because of the absence of a valid reason and the manner of her dismissal, it is appropriate for me to consider an award of compensation. For the reasons that follow I have determined not to award any compensation.

Compensation – what must be taken into account in determining an amount?

[79] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:

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

(b) the length of the Applicant’s service;

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

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

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

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

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

[80] I consider all the circumstances of the case below.

Effect of the order on the viability of the Respondent’s enterprise

[81] The Respondent conceded that an award of compensation to the Applicant of the amount sought by her would not affect the viability of the Respondent’s business. I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.

Length of the Applicant’s service

[82] The Applicant’s length of service was approximately 3 years. Neither party submit that the Applicant’s length of service was a factor that weighed in favour of a greater or lesser amount of compensation although the Applicant states, she had been loyal during her period of service and had received no prior warnings, factors she contends weigh in favour of an award of compensation.

[83] I do not regard the Applicant’s length of service of 3 years as either supportive of reducing or increasing the amount of compensation ordered.

Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed

[84] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”⁴⁴

[85] The Applicant submits that had she not been dismissed she would have continued on in her employment with the Respondent at least until the completion of her tertiary studies at the end on 2022. The Respondent did not dispute the Applicant’s evidence on this point and agreed that she had been a good employee and that there were no other grounds related to her performance that would have been likely to lead to the cessation of her employment.

[86] In circumstances where the Applicant was engaged on a casual basis by the Respondent, where she also worked for a competing swim school and was prepared to recommend them over the Respondent despite the loyalty shown towards her by the Respondent, I am unable to conclude that the Applicant would have remained employed for a lengthy period of time. My view on this point is fortified by the uncertainty attaching to casual employment more generally in the current environment where Covid pandemic risks remain real and where JobKeeper payments have ceased. In the circumstances I am of the view that the Applicant would have remained employed for a further period of no longer than 6 months.

[87] Had the Applicant remained employed by the Respondent for a further period of 6 months she would have received JobKeeper benefits of $650 per fortnight up until 28 March 2021. Beyond that date I am satisfied that the Applicant would have likely received earnings similar to the pre-Covid lockdown earnings she received from the Respondent prior to April 2020. Based on her average pre-Covid hours of work with the Respondent of 5.5 hours per fortnight, that equates to earnings of $118.25 per fortnight. It should be noted that those estimated average earnings after JobKeeper benefits ceased are in respect of public school terms only and do not include school holiday periods.

[88] Based on the above I estimate the earnings for the Applicant for the 6 month period following 16 January 2021, had she not been dismissed, as $3959.50 based on the following;

•  16 January to 28 March 2021 – 10 weeks which comprises of 5 fortnightly pay periods at $650.00 (JobKeeper payment) per fortnight which equals $3250.00.

•  29 March to 15 July 2021 – 16 weeks which comprises 8 fortnightly pay periods from which 2 fortnightly pay period. must be deducted due to school holiday terms in which the Respondent does not operate the swim school. This results in 6 fortnightly pay periods the Applicant would have worked at $118.25 per fortnight. This equals $709.50.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

[89] An applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal⁴⁵. What is reasonable depends on the circumstances of the case⁴⁶.

[90] The Applicant gave evidence of her attempts to find employment since her dismissal including having secured additional hours of work with Melton Swim School 47 immediately following her dismissal by the Respondent. The Applicant also states that she made herself available for additional hours with a secondary casual job she holds48 and applied to an employment agency on 21 February 2021 for a casual education support staff role for which she was interviewed on 11 February 202149. I accept in the circumstances that the Applicant has made reasonable efforts to mitigate her losses.

Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation

[91] The Applicant gave evidence that she has earned additional remuneration from her casual job with Melton Swim School since her dismissal. She confirmed in her oral evidence that the payslip tendered for the fortnightly pay period ending 21 February 2021 for her work with Melton Swim School, which revealed earnings of $651.05, was typical of her fortnightly hours and earnings since her dismissal by the Respondent. The Applicant also advised she was content to rely on the tendered payslip as evidence of her fortnightly earnings since her dismissal. She further states that her future work availability with Melton Swim School is likely to be impacted by her tertiary study commitments but conceded this would have also been the case had she remained employed by the Respondent. That evidence is not challenged by the Respondent.

[92] I am satisfied that the Applicant has earned remuneration from other employment since her dismissal in the order of $650 per fortnight. For the 13 week period from 17 January 2021 up to the date of decision this equates to an amount of $4225.00.

Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation

[93] There is some doubt as to the likely earnings of the Applicant in the period between the making of an order for compensation and the payment of compensation. That is due to the nature of her casual employment and her evidence as to the potential impact on her work availability of her tertiary studies. That likely impact was not quantified by the Applicant, in the absence of which I accept that her likely earnings are as worked by her in the pay period ending 21 February 2021. I am satisfied that the Applicant is likely to earn $650.00 per fortnight in the period between the making of an order for compensation and the payment of compensation.

Other relevant matters

[94] No other relevant matters were raised by the parties going to an order for compensation.

Compensation – how is the amount to be calculated?

[95] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg)⁵⁰. This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages⁵¹.”⁵²

[96] The total figure for estimated earnings received in the period since the Applicant’s termination of employment on 16 January 2021 and up to the date of hearing is that of $4225.00 over a 13 week period.

[97] As I have already found, I am not satisfied that the Applicant would have remained employed by the Respondent for more than 6 months beyond 16 January 2021 had her employment not been terminated. During such period she would have received remuneration of $3959.50. In these circumstances, I am not satisfied that the Applicant has suffered any loss of earnings.

[98] Given the Applicant’s earnings since termination and my findings regarding how long the Applicant would have remained employed but for her termination, the other criteria under s 392 in respect of the application of the “Sprigg Formula” are not relevant in these circumstances. Having further considered the particular circumstances of the case, I do not believe that any discretionary adjustment is necessary or appropriate. For this reason, I do not intend to make any order for compensation.

Conclusion

[99] I have found that the Applicant’s dismissal was unfair, and that reinstatement was inappropriate. I have further found that compensation is not appropriate in the circumstances where the Applicant has not suffered a loss of earnings in the period since the termination of her employment. The matter is determined accordingly.

DEPUTY PRESIDENT

Appearances:

B Besanko for the applicant.
R Bayley for the respondent.

Hearing details:

2021.
Melbourne:
April 16.

Printed by authority of the Commonwealth Government Printer

<PR728516>

 1   Exhibit R1, Witness Statement of Mr Robert Bayley, dated 29 March 2021 at [1]

 2   Exhibit R2, Witness Statement of Ms Claire Drinkwater, dated 6 March 2021 at [2]

 3   Ibid at [3]

 4   Exhibit R1 at [11]

 5   Exhibit R1 at [5]

 6   MA000094

 7   Exhibit R1 at [21]

 8   Exhibit R6, Hours Worked and Wages Summary for Ms Besanko

 9   Exhibit R3, Witness Statement of Ms Helen Aston-Prewett, dated 27 February 2021 at [2]-[5]

 10   Exhibit R5, Melton Residents (and surrounding areas) Facebook group thread

 11   Ibid

 12   Exhibit R2 at [5]-[6]

 13   Exhibit A1, Witness Statement of Ms Jasmine Besanko

 14   Ibid

 15   Ibid, Exhibit R2 at [7]

 16   Exhibit A1

 17   Exhibit A1, Annexure 3, Employment Termination Letter – Casual Employee, dated 16 January 2021

 18   Exhibit R7, Employment Separation Certificate

 19   Exhibit R12, List of Respondent’s employees as of 16 January 2021

 20   Exhibit R13, Fortnightly payroll summaries for 6 month period preceding 16 January 2021

 21   Exhibit R10, Celina Scott Resignation, dated 15 January 2021

 22   Exhibit R13

 23   Exhibit A1, Annexure 1

 24   [2012] FWAFB 1359.

 25   [2015] FWCFB 5264.

 26   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [34]

 27   [2019] FWC 5358 at [95]

 28   Dec 1444/98 N Print Q9292

 29   Ibid

30 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith and others v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]

31 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378

32 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

33 Ibid

34 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

35 Edwards v Justice Giudice [1999] FCA 1836, [7].

 36   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 37   Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41]

 38   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151

 39   Previsic v Australian Quarantine Inspection Services, Print Q3730

 40   (2000) 98 IR 137.

41 RMIT v Asher (2010) 194 IR 1, 14-15.

42 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

43 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

44 He v Lewin [2004] FCAFC 161, [58].

45 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

46 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

 47   See above at [19]

 48   Exhibit A1

 49   Applicant’s Outline of Argument at 7d

50 (1998) 88 IR 21.

51 [2013] FWCFB 431.

52 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Allan Humphries [2016] FWCFB 7206, [16].