DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Davide La Terra Poidomani
v
Piccoli Lussi T/A Arancini Art
(U2021/4129)

Application for an unfair dismissal remedy – dismissal for misconduct – whether harsh, unjust or unreasonable – seriousness of conduct provides valid reason for dismissal –dismissal not unfair – application dismissed.

[1] Piccoli Lussi Pty Ltd which trades as Arancini Art (Respondent) produces, imports and sells a range of traditional Italian food including arancini – which are deep fried stuffed rice balls coated with breadcrumbs – pizza bases, calzoni, lasagna, biscuits and sweets. The Respondent employed Davide La Terra Poidomani (Applicant) commencing on 7 October 2019 initially as a storeman and later assigning additional duties involving the delivery of its products to clients. The Applicant was a full-time employee who was required to work between 6:00am to 2:00pm Monday to Friday. His annual salary was $78,500.00 exclusive of any superannuation contributions.

[2] The Applicant was dismissed from his employment summarily by the Respondent with effect on 10 May 2021. The reason for the dismissal is set out in a letter of termination of the same date. Essentially the Respondent maintained that the Applicant, contrary to “clause 19” of his employment contract, sold products of another entity and competitor of the Respondent, to clients of the Respondent while making deliveries to these clients for the Respondent.

[3] The Applicant has applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. He contends that his dismissal was harsh, unjust or unreasonable. He does not seek an order for reinstatement. Instead, he seeks an order for compensation.

[4] Section 396 of the Act requires that certain matters must be determined by the Commission in relation to any unfair dismissal remedy application before the merits of the application may be considered. In respect of the matters identified in paragraphs (a), (b), (c) and (d) of s.396, it was not in dispute and I find that:

1. The application was made on 13 May 2021 which was within the 21-day period allowed in s.394(2)(a);

2. The Applicant was a person “protected from unfair dismissal” within the meaning of that expression in s.382 at the time of his dismissal by the Respondent; and

3. Although the Respondent was at the time of the Applicant’s dismissal, a “small business employer” within the meaning of s.23 of the Act 1, it did not contend that it complied with the Small Business Fair Dismissal Code in dismissing the Applicant. The question of compliance therefore does not arise; and

4. The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.

[5] For the reasons which follow, I have concluded that the Applicant’s dismissal was not unfair.

Factual background and findings

[6] As earlier noted, the Applicant commenced employment with the Respondent on 7 October 2019. 2 On commencing the employment the Applicant worked in the Respondent’s storeroom between 6:00am to 2:00pm Monday through Friday.3 Prior to commencing the employment the Applicant was working at Flora Cheese and had heard that the Respondent needed someone to work in its storeroom.4 At some point prior to the employment commencing, the Applicant went to see Mr Riccardo Siligato, the Respondent’s director, about a job in the Respondent’s storeroom.5 At or about the time of the beginning of the employment the Applicant and Mr Siligato agreed on a “price” and hours of work.6 The “price” was $78,500.00 per annum.7

[7] The Applicant’s wife conducts a business trading as Dolci Momenti which produces and sells cannoli and other Italian style foods. Prior to October 2020, Dolci Momenti was a wholesale supplier of cannoli to the Respondent, which the Respondent would repackage and sell to its customers. 8 Since that time the Respondent has sourced cannoli from other suppliers. The Respondent and Dolci Momenti are in competition,9 which the Applicant described as a “war”, started by the Respondent when it stopped sourcing cannoli from Dolci Momenti, and instead sourced cannoli from elsewhere and began selling it at “thirty cents”.10 The Applicant’s statement filed in support of his application also acknowledges that there is competition between the Respondent and Dolci Momenti inasmuch as he alleges that the Respondent was fixated on a neighbouring sole tradership, Dolci Momenti, and was determined to undermine any competition.11

[8] Mr Siligato gave evidence that at the beginning of the Applicant’s employment, the Applicant was given a written contract of employment to sign. 12 He said the Applicant took the contract away but did not sign it or return it though he was asked to do so.13 Mr Siligato did not sign the contract nor did any other person from the Respondent sign it.14 An unsigned copy of the purported employment contract in PDF format which Mr Siligato said he gave to the Applicant was produced in evidence.15

[9] The Applicant said that the purported employment contract was never given to him. 16

[10] It is not necessary to resolve the controversy over whether the written contract was given to the Applicant. It is sufficient that I conclude the written contract did not govern the relationship for the following reasons.

[11] First, the written contract was said to have been given to the Applicant with a requirement that it be signed and returned. Neither party signed the contract which would usually be an indication of the acceptance of its terms. There is also no evidence that the Respondent followed up with the Applicant to obtain a signed contract.

[12] Second, the terms of the written contract are inconsistent with the evidence, which was not contested, about the working arrangements that were agreed at the commencement of employment. As noted earlier the agreement was that the hours of work would be 6:00am to 2:00pm Monday to Friday. The written contract provides that working hours will be 7:00am to 3:00pm Monday to Saturday.

[13] Third, the contract of employment produced in evidence was not the document purportedly given to the Applicant nor a copy of it. It was sent to the Commission in PDF format and its properties indicate that it was first created on 11 May 2021 and was modified a few minutes after creation. The document’s progeniture is thus very questionable.

[14] Fourth, at my request, a word version of the purported employment contract was produced. 17 Its properties indicate that it was first created on 7 October 2019 and modified at 10:41am on 2 September 2021 – an hour before it was sent to my chambers. There are material differences between the PDF and word versions of the purported employment contract including the following:

[15] No satisfactory explanation has been provided for these differences 18 which underscore the unreliability of both documents as evidence of any written employment contract between the Applicant and the Respondent. As with the earlier document, the hours of work provision in the word version of the purported employment contract is also inconsistent with the undisputed evidence about the agreed hours of work. The agreed hours of work were 6:00am to 2:00pm Monday to Friday.

[16] But even if the written contract governed the employment of the Applicant, little turns on this because at the heart of this case is a question whether the Applicant engaged in conduct which was incompatible with or in conflict with the fulfilment of his duty to the Respondent. The duty to which I refer is the duty of fidelity and loyalty. This duty is given voice in clause 5 of the purported employment contract which relevantly provides that the employee will “at all times act faithfully, honestly and diligently”, “devote the whole of your time . . . To the performance of your obligations”, “use all proper means to maintain, improve and promote” the Respondent’s business and not do anything “contrary to the interests of the” Respondent.

[17] Here though there is no written contract of employment, the law nonetheless imposes on an employee several obligations including relevantly the duty of fidelity and loyalty. This duty will prohibit conduct which is inconsistent with the employee’s obligation to the employer, including for example engaging in conduct during employment which involves soliciting the employer’s customers for the purposes of diverting those customers or business opportunities for their own business or for the business of another.

[18] By correspondence dated 6 May 2021 19 sent by email by the Respondent to the Applicant, the Respondent advised the Applicant that an allegation of serious misconduct had recently been brought to its attention and that it “is alleged that you sell your products when making deliveries for the Company and you provide customers with your contact details in order to benefit from their business”. The Applicant was advised that a meeting would be held at 12:30pm on 10 May 2021 to discuss the allegations and that he was welcome to bring a support person to the meeting if he chose to do so.

[19] The meeting occurred as scheduled and minutes of the meeting were prepared. 20 The Applicant attended the meeting without a support person and he did not request a support person.21 There is no evidence, nor does the Applicant contend, that the Respondent refused to allow the Applicant to have a support person with him at the meeting and indeed the letter of 6 May 2021 specifically informs the Applicant of his right to bring a support person with him to the meeting. Moreover, the minutes of the meeting disclose that the Respondent’s representative at the meeting noted that the Applicant had attended the meeting without a support person and asked whether the Applicant was willing to continue the meeting without a support person. The minutes record the Applicant’s response was “yes, no problem”.22

[20] During his evidence the Applicant accepted that the minutes of the meeting which occurred on 10 May 2021 accurately set out the questions that were put to him by the Respondent during the meeting and his responses. 23 The Respondent’s director Mr Ricardo Siligato gave evidence that the minutes of the meeting which he signed were accurate and he declined an invitation to make any corrections.24

[21] Without reproducing the minutes of the meeting it is to be observed that the allegations put to the Applicant by the Respondent were general in nature and lacked specificity. At the meeting the Applicant was shown two text messages. 25 The first was from Ms Alessandra D’Angelo26 which said that she had purchased products from the Applicant ‘sometimes’ and that he (the Applicant) had given her his business card at a festival two years ago. The text message said that Ms D’Angelo did not know that these products were also sold or commercialised by the Respondent and that the Applicant did not say anything. The second text message was from the owner of Cucina & Co (Mr Peter Aloi) but was not produced in evidence. The only evidence about its content is the recollection of the Applicant which was to the effect that the text message alleged that the Applicant had been offering products to Cucina & Co.27 The allegations in both text messages, like the general tenor of the meeting, as disclosed by the minutes of the meeting, are vague, imprecise and not particularised. This makes responding to the allegations difficult and unfair.

[22] During the hearing the Respondent led evidence from several of its customers variously alleging that the Applicant had sought to sell or promote products produced by Dolci Momenti, that in some cases he left contact details and in all cases that he did so while making deliveries to these clients for the Respondent. Evidence was also led about the Applicant allegedly seeking to obtain recipes for some of the Respondent’s products. The evidence given by each of these witnesses will be later discussed but for present purposes it is clear that the allegations made by Mr Jatinder Rattan, 28 Mr Fabian Manno,29 Mr Donato Cofano30 and the particulars of the allegations made by Ms D’Angelo31 were not put to or discussed with the Applicant during the meeting on 10 May 2021.32 Nor were any of the allegations particularised in the letter of 6 May 2021.

[23] Following the meeting, Mr Siligato gave consideration to the Applicant’s responses and decided to dismiss the Applicant. 33 The minutes record the Applicant denied the allegations.

[24] Mr Siligato first became aware that the Applicant may have been engaging in conduct involving the Applicant attempting to sell Dolci Momenti products to some of the Respondent’s customers whilst delivering the Respondent’s products to those customers in or about March 2021. 34 The concerns were raised with Mr Siligato by Mr Massimo Minutoli, the Respondent’s Managing Director.35 Mr Minutoli had been informed about the Applicant’s dealings with some customers by Mr Aloi, the owner of Cucina and Co,36 Mr Manno, the owner of Antipasti Deli Cafe37 and Ms D’Angelo, the owner of Osteria Italiana, who also sent a text message to Mr Siligato on 16 March 2021 advising Mr Siligato that she had purchased some product from the Applicant but she did not know that the Respondent was also selling the same product and the Applicant did not tell her.38

[25] Mr Siligato said that when these issues were first brought to his attention by Mr Minutoli, Mr Siligato did not want to believe the allegations and sought to resolve the issues through two “informal meetings” with the Applicant. These meetings were said to have occurred over the last two months prior to the Applicant’s dismissal. 39

[26] Mr Siligato gave the following evidence about the substance of the informal meetings:

Did you invite the Applicant to a meeting? Did you have a discussion with him? Was anyone else present? How did these things occur?  -So, when he came back from his deliveries, we asked if we could talk. So, it was myself, Massimo Minutoli and my wife, and Davide La Terra.

What happened?  -So, we explained to him and we asked him if he had anything to say, because we had some stuff in our possession. So, we said to him, just tell us the truth and he denied it. We begged him to stop because in our business, we are a family. It wasn’t a good action for us, or towards us. So, he denied everything first meeting and the second meeting. 40

[27] There is some corroboration of the two meetings having been held. 41 The Applicant initially denied that he participated in any informal meetings.42 However he subsequently recalled that about a month before his dismissal he had participated in a meeting with the Respondent about the issues of concern to Mr Siligato and accepted that his earlier evidence was not accurate.43

[28] I accept Mr Siligato’s evidence that he held two informal meetings with the Applicant. Mr Siligato explained that he wanted to approach the concerns informally because he considered the Applicant to be “family” 44 and as he did not want to believe the allegations, he sought to resolve the concerns in this way.45 Mr Silgato’s evidence about the informal meetings is corroborated by another attendee and despite an initial denial, the Applicant now recalls participating in one of the meetings about which Mr Siligato gave evidence. On the whole, Mr Siligato’s evidence is inherently more likely to be correct.

[29] Returning to the dismissal, the Applicant was notified of his dismissal by correspondence from the Respondent dated 10 May 2021. Relevantly the dismissal notification provided as follows:

We refer to our letter concerning an allegation of serious misconduct dated 6th May 2021.

A subsequent disciplinary meeting was convened on 10th May 2021 at 12.30 pm, for the purposes of allowing you an opportunity to respond to this allegation of serious misconduct.

The allegation, together with our findings, are noted following:

It is alleged that on several occasions people have overheard you discussing that you are selling the Company customers your products without our knowledge or approval. Specifically, it is alleged that you sell your products when making deliveries for the Company and you provide customers with your contact details in order to benefit from their business. This is in breach of Clause 19 Restraint of the employment contract. Such conduct has the potential to cause serious and imminent risk to the reputation, viability and profitability of the employer’s business.

As per the evidence provided to you from two of our customers, they have confirmed you have been selling them cannoli on occasions although this is a product the Company sells. This allegation is substantiated.

At that meeting you were advised that, in view of the above matters, that we proposed to terminate your employment summarily and you were provided with an opportunity to respond to that proposal.

In the circumstances, and for the reasons as outlined above, we maintain the view that it is appropriate that your employment should be terminated with immediate effect and without notice. [Bold text in the original]

[30] The case advanced by the Respondent at the hearing is that the conduct in which it is alleged the Applicant engaged was broader than the two customers to which reference is made in the dismissal notification. Ultimately it is necessary for me to consider whether I am satisfied that the conduct in which the Applicant is said to have engaged occurred. An examination of the evidence underpinning the allegations follows.

[31] Ms D’Angelo gave evidence that on several occasions while the Applicant was delivering the Respondent’s products to her restaurant, the Applicant proposed to her to sell and supply her with “his own products”. 46 Ms D’Angelo said that every time the Applicant came to her restaurant, he was driving the Respondent’s truck.47

[32] During her oral evidence Ms D’Angelo produced several text messages in which are recorded orders for cannoli made by her to the Applicant and requests for their delivery on particular days. Text messages also record the Applicant responding in the affirmative. 48 The text messages are from 12 and 16 December 2019, 1 November 2020, 12 November 2020, 16 December 2020 and 3 February 2021. Ms D’Angelo also produced tax invoices49 which she said were given to her by the Applicant on delivery of the products that she ordered from him while he was also delivering product that she had ordered from the Respondent and for which she paid cash to the Applicant.50 Three of the tax invoices coincided with the dates for delivery specified in orders made by Ms D’Angelo in the above-mentioned text messages.

[33] One of the transactions bears some further examination. On 16 December 2020, Ms D’Angelo sent a text message at 7:45pm to Mr Siligato in which she ordered some ricotta and asked that it be delivered “tomorrow before lunch”. Mr Siligato responds to the effect that delivery will be made at around 8:00am. Ms D’Angelo replies by asking “Will Claudio be delivering?” To which Mr Siligato responds it will be “Davide”, which uncontroversially is a reference to the Applicant. 51

[34] Earlier on 16 December 2020 at 10:08am Ms D’Angelo sent a text message to the Applicant ordering 30 large cannoli for delivery “tomorrow”. The Applicant confirmed almost immediately with “ok”. Later that evening at 7:42pm Ms D’Angelo sent a text message to the Applicant enquiring “what time will you be coming? I’m here until 10:00am, will you be able to bring to me before one”.

[35] There is no dispute that delivery of the product the subject of the above-mentioned text message occurred and was undertaken by the Applicant. One of the invoices to which reference is made is dated 17 December 2020 which corresponds with the Thursday referred to in Ms D’Angelo’s text message and is for “30 big cannoli” for a total of $39.00.

[36] The Applicant agreed that the above-mentioned text messages were between he and Ms D’Angelo. 52 However his evidence was that he would make deliveries on behalf of Dolci Momenti only in the afternoon.53

[37] He said in relation to the delivery made on 17 December 2020 that despite Ms D’Angelo’s request for delivery in the morning he delivered the product in the afternoon. 54

[38] Ms D’Angelo’s evidence about the timing of the delivery made on 17 December 2020 was as follows:

THE WITNESS: Sorry, Davide said that he deliver me the stuff in the afternoon and afternoon start after 12 o’clock. Usually we don’t receive the stuff from the supplier after 3 o’clock, never, because is already working time. Anyway, in the message of 16 December I ask him to bring me the cannoli and the meantime I ask Riccardo to bring me the ricotta, because I need to serve ricotta with the cannoli and it was also special occasion. He bring me the ricotta with the cannoli, Riccardo, early in the morning.

. . .

THE WITNESS: I ask the ricotta to Riccardo the day before, in the night, and I ask to Davide - ask Davide the cannoli. Also I ask Riccardo - because usually they deliver very early and I couldn’t stay there, so I said him, ‘At what time?’ He said, ‘At 8 o’clock.’ I ask him, ‘Claudio was deliver the ricotta?’ and he reply to me, ‘No, Davide.’ I wrote again to Davide. I said, ‘Davide, tomorrow you able to bring me the cannoli?’ and the day later, the 17th, it arrived in my restaurant the cannoli and ricotta with the truck of Arancini Art, and Davide delivered them. 55

[39] Earlier in his evidence the Applicant said that he denied engaging in conduct which involved him trying to sell products of Dolci Momenti to customers of the Respondent whilst he was working for the Respondent. 56 In his written statement57 the Applicant said “I disagree with [the Respondent’s] accusation of me selling or promoting another company. It was clear and obvious to me from the very beginning that such practice would be conflict of interest and a wrong thing to do and I have been very careful when it comes to that particular area. I take my job very seriously and haven’t engaged in such foolish behaviour”.

[40] Following the production during Ms D’Angelo’s evidence of the text messages and invoices to which reference is earlier made, the Applicant was recalled. While the Applicant maintained that he did not deliver Dolci Momenti products while delivering products for the Applicant he now said that would make Dolci Momenti product deliveries in the afternoon, presumably after he had finished working for the Respondent. 58

[41] In essence the Applicant’s evidence changed from absolute denials to qualified denials.

[42] As noted above Ms D’Angelo maintained that the Applicant made deliveries in the morning. Mr Cofano, whose evidence I will deal with later, also said that his interaction with the Applicant was in the morning. 59

[43] I found Ms D’Angelo’s evidence supported by documents to be cogent and I consider reliable. In contrast the Applicant’s evidence was to say the least inconsistent. I accept Ms D’Angelo’s evidence and on the basis of that evidence conclude that the Applicant engaged in conduct which involved accepting orders from Ms D’Angelo, a customer of the Respondent, on behalf of and delivering products for Dolci Momenti during working hours for the Respondent and whilst delivering products for the Respondent to Ms D’Angelo’s restaurant. The response by the Applicant to the order placed on 16 December 2020 by Ms D’Angelo plainly occurred during hours when he was supposed to be working for the Respondent. He confirmed the order at 10:08am.

[44] But even if some of the conduct occurred during hours when he was not working, he was plainly engaging in assisting a business which was competing with the Respondent without the Respondent’s knowledge or consent.

[45] Mr Aloi gave evidence that on an occasion when the Applicant was delivering products from the Respondent to his restaurant the Applicant asked him if he would be interested in purchasing some cannoli shells and other products from Dolci Momenti. 60 Mr Aloi said that this had occurred in or around September or October 2020.61

[46] In the Applicant’s written statement, he alleged that Mr Aloi was dishonest 62, but during cross-examination despite being given ample opportunity to ask questions of Mr Aloi and to put propositions to him, the Applicant did not put this allegation to Mr Aloi. Mr Aloi is a business associate and customer of the Respondent. Mr Aloi said that he has no relationship with the Respondent’s directors other than a business relationship.63 I accept Mr Aloi’s evidence and am unpersuaded by the Applicant’s suggestions that Mr Aloi’s evidence about his interaction with the Applicant in about September or October 2020 was dishonest.

[47] I am therefore satisfied on the basis of this evidence, that Mr Aloi is a customer of the Respondent and that the Applicant, while making deliveries of the Respondent’s product to Mr Aloi in about September or October 2020 asked Mr Aloi whether he would be interested in purchasing some cannoli shells and other products from Dolci Momenti.

[48] Mr Cofano gave evidence that on a couple of occasions when the Applicant was making deliveries on behalf of the Respondent, the Applicant told Mr Cofano about his pastry products and on one occasion the Applicant gave him a business card from Dolci Momenti. 64 Mr Cofano said that this had occurred during deliveries made in July or August of 2020.65

[49] During his oral evidence Mr Cofano elaborated on the interactions as follows:

Yes, all right. Thank you. You say that when he was making deliveries, it was on behalf of Arancini Art. Is that right?  -Yes.

And you say that he did so a couple of times, this is when he told you about pastry products that he processes in his - when he was driving (indistinct)?  -Yes. I saw him a couple of times. One time in this couple of times, because I don’t know Davide was Davide from Dolci Momenti.

Yes, yes?  -I think the second time we meet, I have a few - yes, second time we meet, we have just a little bit, we go and touch on the business he run too, yes.

So he told you about another business, did he?  -Yes.

Do you remember - did he tell you a name?  -Yes. He gave us all the card, I remember. Yes.

Yes. Do you remember the name?  -Dolci Momenti. Because I don’t know - I know Dolci Momenti through the Facebook, and I don’t know Davide was the one that run the Dolci Momenti. It was the first times that I know him like, the one that runs Dolci Momenti, yes.

When you say he was telling you about his pastry products?  -Look, was a little bit casual. Because what happened, I made myself some biscuit, some Sicilian biscotti, all this stuff here.

Yes?  -And I have some of this biscotti on my bar. He asked, where do you buy this? You know, because I do the same. I am - Davide asked. Okay, you are Davide from Dolci Momenti? And we started to speak about the other product which he made, yes.

I buy my biscotti from - I think it’s Mama Brothers in Prahran, so - - -?  -Yes.

He was just telling you about them? He wasn’t trying to sell them to you, was he?  -We speak about it, yes. But after then he said, okay, if you need maybe some things, you can call back to me. But it was only - the only times we speak about this, yes. Because after that, just because he come sometimes earlier, I don’t meet anymore. Like, I meet a couple of times, and I was always on - on rush, and don’t - we don’t speak. This times, yes, I remember very clearly what happened, yes. 66

[50] Mr Cofano also said that on one occasion he recalls that the discussion occurred between he and the Applicant in “the morning when he met me at the shop”. 67

[51] The Applicant denies engaging in the conduct alleged and said that Mr Cofano is dishonest. 68 He also contended that the business card that Mr Cofano produced during his evidence was at least five years old.69 Mr Cofano said that the card he produced was the one given to him by the Applicant during one of their exchanges which occurred in the morning.70 Despite my encouragement to the Applicant that he put his allegation of dishonesty to Mr Cofano, no such direct allegation was put.71

[52] I accept Mr Cofano’s evidence and am not persuaded by the Applicant’s denials or by his attack on the credit of Mr Cofano which was without foundation. Moreover, Mr Cofano has a specific recollection that one of the interactions about which he gave evidence occurred in the morning, which is also inconsistent with the Applicant’s changed position (from - I did not engage in the conduct at all, to - I did deliver products for Dolci Momenti, but only in the afternoon). On the basis of Mr Cofano’s evidence, I accept that in about July or August 2020, whilst making deliveries to Mr Cofano’s restaurant on behalf of the Respondent, the Applicant made enquiries of Mr Cofano whether he would be interested in purchasing products of Dolci Momenti and that on one such occasion he gave Mr Cofano a business card from Dolci Momenti.

[53] Mr Manno gave evidence that the Applicant, while delivering products on behalf the Respondent to Mr Manno’s café, “came to my store to try to sell his biscuits and products”. 72 Mr Manno said that he asked the Applicant whether he was working with the Respondent to which the Applicant replied “yes but this is what I’m doing”.73 Mr Manno said that the Applicant told him that he was already supplying stores nearby and then the Applicant gave Mr Manno his business card.74 Mr Manno said that this approach had been made sometime in the first half of 2020.75

[54] Although the Applicant denied the allegation, when given an opportunity to cross-examine Mr Manno the Applicant did not seriously challenge his evidence, indeed during cross-examination the Applicant advanced the absurd proposition that he did not even know Mr Manno 76 but later conceded that he had met Mr Manno.77 The Applicant also did not put to Mr Manno the evidence of Ms Katia Cerioni, discussed further below.

[55] There is no good reason why I would not accept the evidence of Mr Manno and I reject the denials of the Applicant. On the basis of Mr Manno’s evidence I accept that at a point in time during the first half of 2020, the Applicant while delivering the Respondent’s product to Mr Manno’s café attempted to persuade Mr Manno to purchase biscuits and other products sold by Dolci Momenti and that the Applicant left Mr Manno with a business card.

[56] The Respondent also made an allegation to the effect that the Applicant had persuaded another client, Mr Poalo Ciacciarelli, to stop purchasing product from the Respondent and to begin purchasing product from Dolci Momenti. The evidence adduced by the Respondent in support of this allegation was at best speculative, very thin and is insufficiently probative to make good the allegation. It is therefore unnecessary to delve deeper into the reasons given by Mr Ciacciarelli during his evidence for his decision to stop doing business with the Respondent or the Respondent’s evidence which sought to undermine the credibility of the reasons given.

[57] I should note however that Mr Ciacciarelli’s oral evidence was also unhelpful to the Applicant in that it described conduct which was similar to the conduct described by some of the Respondent’s witnesses noted above. Specifically, Mr Ciacciarelli gave the following evidence:

THE DEPUTY PRESIDENT: Mr Ciacciarelli, I just want to be absolutely clear about how it is that you entered into a business relationship with Dolci Momenti. You say that you had heard about them through festivals and through other contacts. Is that right?  -Correct.

How did you come to enter into the relationship? Who did you have a conversation with? Did you attend the premises? What happened?  -I think at that point I knew already the business, the business name, so I know that Davide was the husband of Patrizia, anyway, so I started talking probably - I don’t remember exactly, but I think we had a normal conversation with Davide, cause he was - anyway he was coming over my place, so we started - - -

You have a relationship with him outside of business?  -No, no. Not any - - -

He was coming to your place, your business place, your home place, what?  -To deliver goods.

To deliver goods from whom?  -For Arancini Art.

Then you had a conversation with him?  -Yes, I ask him, I enquire him about the Dolci Momenti produce, and at that point he said that himself, he was a business owner, but because he was selling Arancini and other products for Arancini Art, he was delivering goods like Arancini olives, all this stuff for Arancini Art, that he wasn’t allowed to sell me any of those. So, he never proposed me this kind of products. But I asked, I enquired him about cannoli and then we started the relationship just with cannolis.

So, you enquired of him about where to source cannoli, and he referred you to his wife, correct?  -Right, that’s correct.

Did Davide tell you that his employer also sells cannoli?  -No, he didn’t. He didn’t, because I believe that at that stage, he wasn’t, I don’t think. He never told me that - - -

He wasn’t what?  -I don’t think they were selling any. I didn’t have any - - -

But when did this conversation - when did you make enquiries about sourcing cannoli with Davide?  -Again I need to double check when - because my business was fresh, brand new, so yes, we’re talking about the beginning of September, I believe.

All right. So, the answer to my question is that he didn’t - he referred you to his wife’s business and he didn’t tell you that his current employer could also supply cannoli. Is that right?  -Correct. 78

[58] During the hearing I also summarised Mr Ciacciarelli’s evidence for the benefit of the Applicant as follows:

THE DEPUTY PRESIDENT:  All right.  Well, look for the applicant's benefit, can you just try and - I'm going to try and summarise Mr Ciacciarelli's evidence in response to my questions and Mr Ciacciarelli, at the end, I'm going to ask you whether I've accurately summarised it, okay.  But I'll do it in small chunks so that the interpreter can translate.  So perhaps you might translate that bit.

Mr Ciacciarelli said that in or about early September 2020, you were delivering products from the respondent to Mr Ciacciarelli at his home.  During one such delivery Mr Ciacciarelli had a conversation with you and he enquired of you about where he might source cannoli.  He said in his evidence that you referred him to your wife's business, Dolci Momenti, as a place where he could source cannoli.  He also said that during that conversation you did not tell him that your then current employer could supply cannoli.

Now, Mr Ciacciarelli, have I accurately summarised your evidence?---Yes. 79

[59] The Applicant did not dispute Mr Ciacciarelli’s account.

[60] It is clear from Mr Ciacciarelli’s evidence, a witness called by the Applicant in order to disprove allegations that he was attempting to divert business away from the Respondent, gave evidence to the contrary. As the passages above demonstrate, the Applicant was delivering products on behalf the Respondent to Mr Ciacciarelli in or around September 2020 and whilst doing so, albeit in answer to questions by Mr Ciacciarelli, promoted products of Dolci Momenti to Mr Ciacciarelli, who was plainly a customer of the Respondent at the time, and did not disclose to Mr Ciacciarelli that the Respondent also could supply the product about which the enquiry was made.

[61] This conduct is consistent with the conduct described by other customers of the Respondent discussed above and provides a further basis for accepting their evidence in preference to the Applicant’s denials.

[62] Ms Katia Cerioni was called by the Applicant to give evidence responding to evidence to be given by Mr Manno. Her evidence was to the effect that she had dropped off some crostoli and biscotti samples to Mr Manno on the same day that is the subject of his allegations. She said that that day was 27 October 2020. 80 Ms Cerioni did not explain how it is that she came to believe that the matters about which she gave evidence occurred on the same day as the conduct about which Mr Manno would give evidence. This is particularly curious given that Mr Manno’s statement, which is all that was available at the time Ms Cerioni was giving evidence did not specify a date on which the conduct alleged was said to have occurred.81 In any event Mr Manno’s evidence was that the conduct which was the subject of his evidence occurred in the first half of 2020. Ms Cerioni’s evidence therefore cannot be responsive to the matters alleged by Mr Manno.

[63] The Respondent also called Mr Rattan, the Respondent’s cook who gave evidence that the Applicant had on several unspecified occasions asked him for recipes and mixing procedures for certain of the Respondent’s products. 82 The suggestion underpinning the evidence was that the recipes were intellectual property of the Respondent which the Applicant tried to obtain. The suggestion that the recipes were intellectual property is somewhat undermined by the fact that Mr Rattan gave the recipes to the Applicant when he asked. There is no evidence that any action was taken against Mr Rattan for sharing so-called intellectual property with the Applicant and there is no evidence that the Applicant made any use of the so-called intellectual property. The evidence given by Mr Rattan is probative of very little other than that he and the Applicant had conversations in the Respondent’s kitchen about recipes pertaining to some of the Respondent’s products. The evidence does not disclose any conduct which would warrant discipline of the Applicant much less dismissal.

Whether dismissal was unfair

Protection from Unfair Dismissal

[64] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act and that the dismissal was unfair.

[65] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[66] There is no dispute, and I am satisfied, that the Applicant was, on 10 May 2021, protected from unfair dismissal within the meaning of s.382.

[67] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out in s.385 of the Act existed. Section 385 provides:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[68] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act. As I have previously indicated, the Respondent does not contend it complied with the Small Business Fair Dismissal Code, and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act. The Applicant was dismissed for reasons relating to his conduct.

Harsh, unjust or unreasonable

[69] In considering whether a dismissal was harsh, unjust or unreasonable, the following matters in s.387 of the Act must be taken 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.”

[70] Each of the matters identified in s.387 of the Act must be taken into account and each must be given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ and is a matter which the decision maker is bound to take into account. 83 To take into account the matters set out in s.387 means that each of the matters must be treated as a matter of significance in the decision-making process84 and to evaluate it and give it due weight, having regard to all other relevant factors.85 In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualifications, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.86

[71] The meaning of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 87 by McHugh and Gummow JJ as follows:

“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 88

[72] Ultimately, it is the matters set out in s.387 of the Act to which regard must be had in assessing whether a particular dismissal was harsh, unjust or unreasonable. I consider these matters below.

Valid reason – s.387(a)

[73] Where, as here, a valid reason for dismissal is said to relate to conduct the Commission must find that the conduct occurred and that the conduct justified dismissal. The essence of a valid reason is that the reason is a sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced. 89 Whether conduct which founds a valid reason occurred is to be determined based on the evidence in the proceedings assessed on the balance of probabilities taking into account the gravity or seriousness of the allegations.90 The test is not whether the employer, after a sufficient investigation, had a reasonably held belief that the conduct occurred.91 A reason relating to conduct would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination.92 It is not necessary to show the misconduct as sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).93 An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s.387(a) will be a relevant matter under s.387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.94

[74] For the reasons set out in [31] – [43] I am satisfied that at various times between December 2019 and 3 February 2021, the Applicant engaged in conduct which involved accepting orders from Ms D’Angelo a customer of the Respondent on behalf of and delivering products for Dolci Momenti during working hours for the Respondent and whilst delivering products for the Respondent to Ms D’Angelo’s restaurant.

[75] For the reasons set out in [45] – [47] I am satisfied that in about September or October 2020 the Applicant engaged in conduct, while making deliveries of the Respondent’s product to Mr Aloi (a customer of the Respondent), involving the Applicant asking Mr Aloi whether he would be interested in purchasing some cannoli shells and other products from Dolci Momenti.

[76] For the reasons set out in [48] – [52] I am satisfied that in about July or August 2020, the Applicant engaged in conduct while making deliveries to Mr Cofano’s restaurant on behalf of the Respondent, which involved the Applicant made enquiries of Mr Cofano (a customer of the Respondent) whether Mr Cofano would be interested in purchasing products Dolci Momenti and that he gave Mr Cofano a business card from Dolci Momenti.

[77] For the reasons set out in [53] – [55] I am satisfied that at a time during the first half of 2020, the Applicant engaged in conduct, while delivering the Respondent’s product to Mr Manno’s café, involving the Applicant attempting to persuade Mr Manno (a customer of the Respondent) to purchase biscuits and other products sold by Dolci Momenti and that the Applicant left Mr Manno with a business card.

[78] For the reasons set out in [57] – [60] I am satisfied that in or around September 2020 the Applicant was delivering products on behalf the Respondent to Mr Ciacciarelli and whilst doing so, albeit in answer to questions by Mr Ciacciarelli, promoted products of Dolci Momenti to Mr Ciacciarelli, who was a customer of the Respondent at the time, and did not disclose to Mr Ciacciarelli that the Respondent also could supply the product about which enquiry was made.

[79] Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between the employee’s interest and the duty to the employer, or impedes the faithful performance of the employee’s obligations, or is destructive of the necessary confidence between the employer and employee, is a ground for dismissal. The conduct itself must involve the incompatibility, conflict, or impediment or be destructive of confidence. It is the actual repugnance of the employee’s acts viewed against the employee’s relationship with the employer and the duties under that relationship that is relevant. 95

[80] The conduct in which I have found the Applicant to have engaged is conduct of the kind described above. The conduct taken together is plainly inconsistent with the Applicant’s duties as an employee to the Respondent as his employer. The conduct constitutes a breach of the Applicant’s duty of fidelity and loyalty and is in my view destructive of the necessary confidence between the employer and employee.

[81] The conduct taken together provides a valid reason for dismissal and I am therefore satisfied that there was a valid reason for dismissal relating to the Applicant’s conduct. I am also satisfied that the conduct in which the Applicant engaged provided a sound basis for summarily dismissing the Applicant.

[82] That there was a valid reason for the Applicant’s dismissal weighs in favour of a conclusion that the dismissal was not unfair.

Notification of the reason for dismissal and opportunity to respond – s.387 (b) – (c)

[83] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 96 in explicit terms,97 and in plain and clear terms.98 This is an element which may be described as procedural fairness in order that an employee may respond to the reason. Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment in order to provide them with an opportunity to respond to the reason identified. Section 387(b) and (c) would have little practical effect if it was sufficient to notify an employee and give them an opportunity to respond after a decision had been taken to terminate employment.99 An employee protected from unfair dismissal should also be given an opportunity to respond to any reason for dismissal relating to the employee’s conduct or capacity.

[84] As I have noted earlier at [21] – [22] the allegations of misconduct put to the Applicant at the meeting which occurred on 10 May 2021 were vague and not particularised. They did not include much of the conduct which was the subject of evidence in this proceeding. Plainly in these circumstances the Applicant was not effectively notified of the reason for his dismissal nor given a proper opportunity to respond to the reason. A cursory glance at the letter of dismissal discloses flaws in the procedure because it makes reference to a provision in the purported contract of employment, which the Applicant is said to have breached, but which relates to restraints which come into effect only after employment has ended.

[85] That the Applicant was not properly or effectively notified of the reason for his dismissal or given a proper or effective opportunity to respond weighs in favour of the conclusion that the dismissal was unfair, however, in light of the seriousness of the conduct in which he engaged, the procedural defects in what is otherwise a justifiable dismissal, that is to say, for a valid reason, do not weigh significantly.

Any unreasonable refusal by the employer to allow the person to have a support person – s.387(d)

[86] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. This consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, this section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 100

[87] As noted at [18]-[19] above, the Applicant was advised of his right to have a support person present during the meeting which occurred on 10 May 2021, he attended without a support person and confirmed at the commencement of the meeting that he was content to proceed with the meeting without a support person. There was no denial or refusal by the Respondent to allow a support person.

[88] In these circumstances I consider this matter weighs in favour of a conclusion that the dismissal was not unfair.

Warnings regarding unsatisfactory performance – s.387(e)

[89] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 101

[90] This is a dismissal which involves allegations of misconduct not unsatisfactory performance. In the circumstances this consideration does not arise.

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

[91] The consideration in s.387(f) is not concerned with standards but with the likely impact on the procedures followed of the size of the employer’s enterprise. 

[92] The Respondent conducts a very small enterprise and is rather unsophisticated in its approach to employee relations. This is certainly reflected in the manner in which it dealt with the Applicant and in obtaining information about the Applicant’s conduct. The Respondent’s size therefore likely impacted on the procedure that it adopted during the meeting of 10 May 2021. Therefore, this consideration operates by way of mitigation in the weighing of these matters when weight is attributed to the procedural defects which I have earlier described.

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

[93] The Respondent is a small business employer which does not have any dedicated human resources specialists who supported and guided the procedures in effecting the dismissal. This consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have the identified impact. The Respondent had recourse to Ms Vittoria Maragno, who is not an employee of the Respondent but who provided some advice and assistance to the Respondent in effecting the dismissal. That advice was also unsophisticated and did not result in an effective or fair procedure being adopted in relation to the allegations which founded the dismissal. The level of unsophistication is evident from the following exchange during Ms D’Angelo’s evidence:

THE DEPUTY PRESIDENT:  And that was the first occasion you met the applicant?---Yes.  I think so, yes.

So you say that the next occasion you met him was sometime in November 2020 when he came to your restaurant?---Yes.  For sure the following time that we talk each other.  I don't know if we meet in some other fair but the other time that I talked to him was in my restaurant.

Yes.  Just bear with me, I'm trying to find a document.  All right.  So again, he came to your restaurant in November 2020 and you say you met him two years earlier?---Yes.

At the market, all right.  At the festival market, all right?---Yes.

And you say that at that stage he was working for Arancini Art?---Sorry?

You say at that festival he was working for Arancini Art?---No, no, no, he was not working for them.  No, there were two stands, Arancini Art, and beside Arancini Art there was a Dolci Momenti stand.

So he wasn't working for Arancini Art at that time?---I don't know if he was working for them, but - - -

Well, he started with them on 2 October 2019.  That was only a year earlier, so two years earlier he wouldn't have been working for them, would he?---I didn't say that.  I said the stand - - -

I didn't say you say that, I'm asking - - -?---Okay.  Okay.

Because you gave the impression that he was somehow giving you the business card at a time when he was working for Arancini Art?---No.  No - - -

Well, then why is it relevant at all?---No, he gave me to just before I call him to buy the - I didn't - I never called him.

Yes, all right?---No, no one said that these are related.

Yes, all right.  So you say on several occasions, so the first occasion was in November 2020?---Yes.

Did you buy any products from him on that day?---Okay, I bought products from him I think seven or eight times.  I have all the message in my phone (indistinct).  Sorry.  I used to place the order by message, and I have a message in my phone and I have the invoices that he gave me when I bought the cannoli.

Yes, all right.  So you've got messages between you and him placing orders.  Is that right?---Yes, there is a lot.  Yes, (indistinct) yes.

Ms Maragno, are you there?

MS MARAGNO:  Yes, I am.

THE DEPUTY PRESIDENT:  Why isn't this evidence, which is much more relevant than the vague statements, in evidence?---No one ask me.

MS MARAGNO:  No, we didn't ask them.  So that's us dealing for the first time with such a situation and not being prepared - - -

THE DEPUTY PRESIDENT:  Right, okay?---Sorry, no one ask me.

Well, I'm asking you now?---Okay.

So are you able to provide that material to Ms Maragno so she can send it to me, and obviously the applicant will have to have a proper opportunity to respond to that material. 102 [Underlining added]

[94] Again, the absence of dedicated human resources management specialist expertise had a deleterious effect on the procedure adopted by the Respondent in effecting the dismissal. As with the previous matter, this consideration operates by way of mitigation in the weighing of these matters when weight is attributed to the procedural defects which I have earlier described.

Any other matters that the Commission considers relevant – s.387(h)

[95] Neither the Applicant nor the Respondent identified any other matter which might be relevant.

[96] I do not consider that the Applicant’s age nor his length of service add any significant weight to an assessment of whether the dismissal was unfair in the circumstances. Nor do I consider the fact that the Applicant is unemployed during a period where obtaining alternative employment will be difficult because of restrictions on economic activity, weigh significantly in favour of the conclusion of the dismissal was unfair in circumstances where the conduct in which he engaged is so serious. The position in which he finds himself is not the result of any unfairness, but the result of the conduct in which he engaged and for which he was caught out. I also do not consider that summary dismissal was a disproportionate response to the nature and seriousness of the conduct in which I have found the Applicant to have engaged.

Conclusion

[97] In my view the seriousness of the conduct in which the Applicant engaged, and which provides a valid reason for his dismissal, significantly outweighs the procedural defects apparent in the dismissal process. The weight that I would otherwise attach to these defects is in any event diminished having regard the ameliorating effect of considerations relating to impact that the size of the Respondent and the absence of dedicated human resources management expertise had on the procedure adopted by the Respondent to effect the dismissal.

[98] For the reasons stated I am not persuaded that the dismissal of the Applicant was harsh, unjust or unreasonable. Therefore, the dismissal of the Applicant by the Respondent was not unfair and the application for an unfair dismissal remedy should be dismissed.

Order

[99] The application for an unfair dismissal remedy in U2020/4129 is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr D La Terra Poidomani on his own behalf
Ms V Maragno and Ms A Preece on behalf of the Respondent

Hearing details:

2021
Melbourne
26 August and 3 September

Written submissions:

Applicant, 27 July 2021 and 18 August 2021
Respondent, 11 August 2021

Printed by authority of the Commonwealth Government Printer

<PR733682>

 1   See Employer response to unfair dismissal application – Form F3- answer to Q1.7

 2   Transcript PN66

 3   Transcript PN69 – PN70

 4   Transcript PN71 – PN72

 5   Transcript PN72

 6   Transcript PN75-PN76

 7   Transcript PN78

 8   Transcript PN297, PN1154 – PN1167

 9   Transcript PN1154 – PN1170

 10   Transcript PN1154 – PN1157

 11   Attachment to Exhibit 1 responding to respondent's materials

 12   Transcript PN442 – PN444

 13   Transcript PN448 – PN449

 14   Transcript PN429 – PN433

 15   Attachment to Exhibit 4, Transcript PN425

 16   Transcript PN167, PN586

 17   Exhibit 13

 18   Transcript PN1038 – PN1057

 19   Third attachment to Respondent’s list of documents

 20   Exhibit 5

 21   Transcript PN234

 22   Exhibit 5

 23   Transcript PN166

 24   Transcript PN475 – PN483

 25   Transcript PN105 – PN124

 26   Exhibit 6

 27   Transcript PN123 – PN124

 28   Exhibit 19

 29   Exhibit 17

 30   Exhibit 18

 31   Exhibit 8

 32   Transcript PN492 – PN567

 33   Transcript PN576 – PN577

 34   Transcript PN570 – PN574

 35   Transcript PN477 – PN467, PN1221

 36   Transcript PN1339 – PN1343

 37   Transcript PN1423 – PN1425

 38   Exhibit 6, Transcript PN699 – PN726

 39   Transcript PN467 – PN471

 40   Transcript PN472 – PN473

 41   Transcript PN1253

 42   Transcript PN226 – PN229

 43   Transcript PN1251 – PN1276

 44   Transcript PN585

 45   Transcript PN467

 46   Exhibit 8

 47   Transcript PN973

 48   Exhibit 10

 49   Exhibit 12

 50   Transcript PN941 – PN954

 51   Exhibit 11

 52   Transcript PN1069

 53   Transcript PN1070

 54   Transcript PN1081 – PN1089

 55   Transcript PN992 – PN995

 56   Transcript PN201

 57   Exhibit 1

 58   Transcript PN170

 59   Transcript PN1497

 60   Exhibit 16

 61   Transcript PN1337

 62   Exhibit 1

 63   Transcript PN1379

 64   Exhibit 18

 65   Transcript PN1488

 66   Transcript PN1478 – PN1487

 67   Transcript PN1497, PN1503

 68   Exhibit 1

 69   Transcript PN1502

 70   Transcript PN1503

 71   Transcript PN1501 – PN1502

 72   Exhibit 17

 73   Ibid

 74   Ibid

 75   Transcript PN1418

 76   Transcript PN1445

 77   Transcript PN1447 – PN1453

 78   Transcript PN308 – PN318

 79   Transcript PN321 – PN323

 80   Transcript PN358 – PN367

 81   See Exhibit 17

 82   Exhibit 19

 83   Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 84   Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

 85   Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184

 86   Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]

 87   (1995) 185 CLR 410

 88    Ibid at 465

 89   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371 at 373

 90    Briginshaw v Briginshaw [1938] 60 CLR 336

 91   King v Freshmore (Vic) Pty Ltd Print S4213 at [23]-[24]

 92   Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26]

 93   Ibid

 94   Ibid

 95   See Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 at 81-82

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

 97   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [150]–[151]

 98   Previsic v Australian Quarantine Inspection Services Print Q3730

 99   See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 which was dealing with the corresponding provisions in s.170CG(3)(b) and (c) of the Workplace Relations Act 1996

 100   See also Fair Work Bill 2008 – Explanatory Memorandum at [1542]

 101   Annetta v Ansett Australia (2000) 98 IR 233 at 237

 102   Transcript PN746 – PN767