DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amit Shur
v
Innovit Australia Pty Ltd
(U2020/10470)

Application for an unfair dismissal remedy.

[1] An application was filed on 1 August 2020 (the Application), by Mr Amit Shur (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), following his dismissal on 12 July 2020, by Innovit Australia Pty Ltd (the Respondent). The Applicant seeks unfair dismissal remedies primarily of reinstatement, continuity of service and lost remuneration, or in the alternative, compensation. In these proceedings the Applicant represented himself, and the Respondent was granted permission to be represented by Mr Leaver of Counsel, instructed by Goldrick Farrell Mullen solicitors.

[2] The Applicant commenced employment with the Respondent on 9 March 2010, in its Redfern office in Sydney, Australia. In 2012, the Applicant relocated to Israel and continued to be employed by the Respondent from there until his dismissal. The Applicant was terminated on the ground of redundancy on 17 April 2020 and was paid an amount equivalent to 12 weeks’ pay as a redundancy payment.

[3] On 7 October 2020, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 21 October 2020, the Applicant filed an Outline of Submissions (the Applicant’s Submission), a statement of the Applicant dated 21 October 2020, a statement of Mr Zach Engel dated 21 October 2020, and a document titled Applicant Documentary Material;

(b) On 4 November 2020, the Respondent filed an Outline of Submissions (the Respondent’s Submission), a statement of Mr Dat Hoang, and a statement of Mr Bang Chau, both dated 4 November 2020 as well as a number of supporting documents;

(c) On 11 November 2020, the Applicant filed a Submission in reply, and a further set of supporting documents.

[4] The Respondent raised two jurisdictional objections to the Applicant’s application. Firstly, the Respondent says that the Applicant is not a National System Employee and therefore is not protected by the unfair dismissal provisions of the Act (the “Geographical Objection”). Secondly, the Respondent says that the Applicant’s termination was a genuine redundancy (the “Genuine Redundancy Objection”).

The Evidence of the Witnesses

(a) The Applicant

[5] The Applicant noted that he started working for the Respondent on 9 March 2010, as a software developer/engineer. In 2012, the Applicant relocated to Israel, and was working as an employee of the Respondent from Israel until he was dismissed. He stated that when he relocated to Israel, it was by an agreement with the Respondent’s CEO, Mr Bang Chau that he would remain an employee of the Respondent. From the beginning of his employment until 31 May 2013, the Applicant was a part‐time employee, working four days a week. From 1 June 2013 until his dismissal the Applicant was a full‐time employee, working five days a week.

[6] The Applicant submitted that his entire employment connection throughout his time in Israel was with Australia. His salary was paid from the Respondent to his Australian bank account, and in Australian dollars. The Respondent issued pay‐slips on a monthly basis. The Applicant’s entire team was based in Australia, as were his team leaders and managers.

[7] The Applicant’s role involved several aspects of the software development process, however he was predominantly engaged in “back‐end development” (software logic), with “frontend development” (user interface) being second. The main technologies which he utilised during his work were Java and Python programming languages. The Applicant was in charge of implementing data synchronization to global and local (Australian) standards in the Respondent’s software products. These standards change on a regular basis and must be implemented to ensure the Respondent’s products remain certified.

[8] The Applicant stated that in the first three years of his employment he received four performance‐based pay‐rises. On 1 January 2013, his annual salary was set at $72,823.00 AUD. In the 7.5 years since then, until his dismissal, he only had one minor CPI‐related adjustment of 0.58% to his salary, setting it at $73,245.00 from 1 September 2017 until he was dismissed.

[9] The Applicant’s salary package included employer Superannuation contributions to his Australian Superannuation fund. Since his relocation to Israel, his salary package also included home‐office and internet costs. During the first five years after his relocation to Israel, his salary package also included the covering of other home‐office expenses of rent (pro‐rata), council fees (pro‐rata) and electricity (pro‐rata).

[10] In December 2013, the Applicant stated he was requested by Mr Chau to travel to Australia to assist in a project for the South Australia government. He and Mr Chau travelled together to Adelaide to meet with clients. Altogether he was in Australia for a month, which included attending the Respondent’s premises for work.

[11] The Applicant stated that in early 2015, he confronted Mr Chau over an alleged unkept promise for a pay‐rise. Thereafter, the Applicant claimed he started receiving a significant and unprecedented volume of emails containing negative feedback on almost every aspect of his work from Mr Chau. Mr Chau’s emails included allegations of poor customer support, non‐compliance with company standards and policies, poor communications, ignoring management directives and insubordination.

[12] The Applicant claimed a recurring motif in Mr Chau’s emails was his pursuit of an end to the Applicant’s employment at the Respondent, be that by way of his resignation (both implicit calls as well as explicit ones) or by way of dismissal.

[13] The Applicant stated he was later denied a customer project commission payment of over 2,070 Euros by Mr Chau, who claimed: “the customer wasn’t happy with your work, and Innovit incurred losses as a result of your poor performance in the project,” although the customer informed the Applicant that they were happy with his work.

[14] The Applicant noted that in 2017, Mr Chau stopped covering the home‐office expenses that Respondent had been paying since 2012, and also stopped his superannuation payments. The superannuation payments subsequently resumed.

[15] Later in 2017, the Applicant stated the Respondent initiated a Performance Management Plan to address what they described as “Innovit’s dissatisfaction with your work performance.” Soon after that the Applicant said he was also accused of “bullying” the Sydney office manager at the time. He claimed that without any investigation and without even asking for his position he was found “guilty.”

[16] The Applicant stated that in 2018, further allegations were made against him regarding a breach of the Respondent’s code‐of‐conduct with respect to both confidentiality and email etiquette, because he responded to an email sent to him by the Office Manager on the very same day that the Office Manager left the Respondent. He received an “official warning,” and thereafter in July of 2018, he received a “third warning,” specifying that “any further breach… will lead to disciplinary action which may include termination.”

[17] In 2019, the Applicant lodged a General Protections application pursuant to s.372 of the Act, however the Respondent declined to attend a conciliation conference.

[18] The Applicant claimed that the Respondent gradually excluded him from general company‐related procedures. His last Performance Review was in late 2017, and the last time he was invited to a company all‐staff meeting was in mid‐2018.

[19] The Applicant claimed that at the time just before he was notified of his dismissal, he possessed the highest level of knowledge on the global and local (Australian) standards that the Respondent’s software products had to comply with. Further, at the time just before he was notified of his dismissal, the Applicant claimed only three members of the Respondent’s software development team had a longer period of service at the Respondent.

[20] The Applicant claimed he possessed various software development capabilities and also knowledge in various software technologies, which had been acquired both during his university degree years as well as his employment years, including at the Respondent, where he learned the Python programming language without any previous knowledge. The Applicant stated there was no inability to deploy him in any software development related position at the Respondent, including such positions involving the use of the Angular software development framework.

[21] On 20 April 2020, the Applicant received an email from the Respondent, advising him of his dismissal due to a redundancy of his position of software engineer. His last working day would be 12 July 2020. The Applicant stated that no one at the Respondent ever initiated a discussion with him on an upcoming plan to “restructure,” its effect on his employment, or any steps to minimise the potential negative effects on him. He claimed his employment history at the Respondent and the “banal” way he was notified of his dismissal raised his concerns that the redundancy was not genuine.

[22] The Applicant, by letter dated 1 May 2020, requested the Respondent reconsider the decision to dismiss him and raised his concerns on the genuineness of his redundancy. The Applicant stated the Respondent did not respond for two months, and in their response did not address any of the specific concerns he had raised, simply stating “your assertions concerning the redundancy not being genuine are incorrect, the redundancy is genuine.” The Applicant also requested the Respondent postpone his termination date for six weeks as he was concerned about the effect of COVID‐19 on the chances of finding new employment quickly. That request was rejected.

[23] The Applicant claimed he was told by a fellow employee who was made redundant by the Respondent a short time before his dismissal, that she had two managers approach her to discuss the redundancy before she was sent the official notice of dismissal.

[24] The Applicant asserted that on 3 June 2020, more than a month after he was advised of his dismissal, the Respondent announced the hiring of a new software developer. Further, at the time of his dismissal and thereafter, the Applicant saw that Respondent was publicising four open positions for software engineers/developers in Sydney on its website, two of them for back‐end Java roles.

[25] Until the day of his dismissal, the Applicant was working on the development and maintenance of the Respondent’s live products which were being used by the vast majority of their clients.

[26] The Applicant stated that no one at the Respondent conducted a leaving interview with him, nor did Mr Chau or his own team leader initiate any sort of communication to say goodbye.

[27] Regarding the remedy sought, the Applicant stated:

“Whilst pursuing reinstatement, it is not feasible to commence employment elsewhere until a FWC decision is given. Nevertheless I have been holding conversations with relevant friends and acquaintances concerning potential job opportunities if reinstatement is not ordered.”

(b) Mr Zach Engel

[28] Mr Engel worked with the Applicant for just under three years from July 2005. The relevance of Mr Engel’s evidence was therefore limited. He made general observations about the Applicant’s professional skills and capabilities. He stated that a software developer with the experience and skills of the Applicant should not be significantly challenged by the Angular framework for software development. Mr Engel was not required for cross-examination.

(c) Mr Bang Chau

[29] Mr Chau stated that he co-founded the Respondent with Mr David Do in January 2000. He is currently one of six shareholders of the company. As at 4 November 2020, the Respondent had 13 employees. On 20 April 2020, The Respondent had 14 employees. The Respondent has no internal Hunan Resources expertise.

[30]
The Respondent acquired its first commercial customer in 2001 and became a major player in Australia for Master Data Management (MOM) and Product Information Management (PIM) software. As competitors started to appear in Australia and New Zealand (ANZ), the Respondent responded to the competition by expanding into US and EU markets in 2014 when several Australian customers like 3M, Bio-Rad and B. Braun purchased the Respondent’s software. Mr Chau relocated to San Francisco with his family in 2016 to focus on growing lnnovit's business in the US and EU markets.

[31] Mr Chau gave detailed evidence regarding the financial performance of the Respondent for the past five years, and the strategy developed to reduce costs by offshoring. His statement contained the following tables.

Australian Profit & Loss Summary (AUD):

Recurring Software Revenue for ANZ products (AUD):

Australian Revenue Reduction due to COVID-19:

[32] Mr Chau stated that over the past four to five years, as competition has intensified, the Respondent’s software products developed specifically for the ANZ market had progressively lost market share to lower cost alternatives. This had resulted in stagnation or decline in software revenues and mounting losses in Australia since 2017. From 2016, the Respondent’s annual revenue from products developed for, and sold, in ANZ had dropped significantly by 42.8% from $634,376 in 2016 to $362,987 in 2020; and the number of ANZ customers had dropped by 51.5% (from 101 customers in 2016 to 49 customers in 2020). The Respondent identified a need to reduce the cost of developing and supporting ANZ products. Staffing and payroll costs account for over 70% of the Respondent’s expenses. Two redundancies, including that of the Applicant, were made in April 2020 to reduce costs by at least $200,000 per year.

[33] Mr Chau also stated that COVID-19 had dramatically accelerated the revenue decline in Australia and exacerbated the Respondent’s financial losses as customers were switching to lower-cost alternatives. The comparison of revenues between the fiscal quarter of 1 April 2020 until 30 June 2020 against to the corresponding fiscal quarter of 2019, showed a 50.8% reduction. COVID-19 had also caused the Respondent’s revenues from US and EU markets to fall dramatically, and financial losses increase substantially, with additional losses of $385,565 between March to September 2020, over and above Australian losses.

[34] The Respondent is in receipt of JobKeeper payments because of its decline in revenue. Without the assistance of JobKeeper and the support of the Respondent’s workforce in agreeing to a temporary reduction in its payroll expense, the Respondent would have been forced to substantially reduce headcount from 1 June 2020 - in addition to the redundancies already made in April 2020.

[35] Mr Chau stated that the Respondent held two meetings on 3 and 14 April 2020, to discuss implementation of their offshoring and expense reduction strategy. Minutes were produced of each meeting. Relevantly, the minutes of the 14 April 2020 meeting contained the following notation:

(7) The following three roles, and the respective individuals in those roles have been initially identified as candidates for offshoring:- (a) BAU developer, (Amit Shur), (b) QA - manual tester (Usharani Nishchal), and (c) Tier2 Support (Jaffy Anithottam).

(8) Roles (a) and (b) can be actioned immediately, however, role (c) needs further consideration as there are many dependencies between Tier2 support and customer project work that's in progress as the present time. Additionally, the ramp up time for Tier2 support is longer than BAU development and manual testing.

[36] On 20 April 2020, The Respondent sent the Applicant a letter in the following terms:

“Dear Amit,

REDUNDANCY OF YOUR POSITION OF SOFTWARE ENGINEER WITH INNOVIT AUSTRALIA PTY LTD.

It is with regret that Innovit advises it is undertaking a redundancy program and that your job is one of the positions which are redundant.

The Reason for the Redundancy

Innovit is focusing on the USA and Europe markets. To succeed in these markets Innovit needs to restructure to lower costs due to competition pressures which require a lower product and services pricing. To compete in these markets, we are outsourcing more work and have entered into a contract with a new outsourcing company. The outsourcing agreement will reduce duplication and inefficiency across the company to enable us to provide a better customer experience.

Implementing the Redundancy

Your twelve (12) week notice period will commence today and you will be required to work until 12^th July 2020 (last working day and termination date).

The other estimated details of your redundancy package are set out below:

(1) Payment for all unused annual leave accrued to the termination date. This amounts to 343.37 hours and is valued at $12,091 (gross), less any annual leave you may take from now to your last working day;

(2) A redundancy payment of twelve (12) weeks’ pay in accordance with the National Employment Standards valued at $16,903 (gross);

(3) A payment for long service leave of eight (8) weeks’ pay under the Long Service Leave Act (NSW)1955 in the sum of $11,268 (gross)

You must also ensure that any expenses are fully reconciled and submitted before your last working day.

You have an entitlement under the award of up to one day per week during your notice period to search for employment. Please note that after the first day is taken under this award entitlement you are entitled to be paid only if you provide written evidence in English proving that you attended an interview.

Please note that leave applications must be made in advance as per the Company’s standard approval process.

Of course, on your last working day, you would also be required to hand back all company equipment, including and not limited to, computers, laptop bags & accessories, phones, SIM, phone charges, keys, company cards, access cards, parking cards. You must also ensure all expenses are up to date and approved by your Manager as per company policy.

Finally, Amit, we wish to record our thanks for the work performed by you for Innovit and to wish you well for the future.”

[37] Regarding the Applicant’s employment, Mr Chau noted that the Applicant informed him around November 2011 that he intended to return to Israel, and he left Australia on 9 March 2012.

[38] In early 2014 there was correspondence between Mr Chau and the Applicant where the Applicant advised that he was not liable to pay tax in Australia as he was domiciled in Israel, and he would have to lodge tax returns in Israel after having returned to live there for nearly two years. The Applicant also advised: "Due to the fact that my work is generated outside of Australia, no withholding of tax is required, nor is superannuation." Mr Chau directed that the Applicant’s wage to no longer have Australian tax deducted from 1 February 2014.

[39] As to the Applicant’s skills compared to other employees, Mr Chau noted the existence of test results for the technical assessment of Back-end Developers undertaken on a system called CodeSignal, which is an independent, third-party system. The Respondent used these tests to calibrate the CodeSignal system for the level of difficulty and competence of a software developer relative to other developers. Mr Chau stated the Applicant’s test results indicated that his skills were significantly below the other employee's standard. The test results were as follows:

[40] Mr Chau noted that Java Swing technologies are obsolete, and will be phased out over the next 12 months. The Applicant’s only skills and experience are with products using Java and therefore since 2017, he had been assigned to product maintenance for legacy products using these outdated Java technologies. The Respondent plans to ultimately upgrade all of its products to a pure cloud-based architecture, called "Serverless architect," using AWS Lambda technologies (Amazon Web Services). The Applicant does not have any skills or experience using these technologies.

[41] Regarding the remedy of reinstatement, Mr Chau noted the Respondent is a small business, with only 13 employees in Australia. It has extensively outsourced or offshored in order to reduce costs, so as to remain financially viable and solvent. If the Applicant were to be reinstated, it would add at least $100,000 per year in salaries and on-costs, and the Respondent would have to make another even more essential role that is domiciled and based in Australia redundant.

[42] Mr Chau stated that the Applicant had always insisted that he would only work 9am-5pm Israeli time meaning he was unavailable for significant part of the working day in Australia for any customer-facing work during Australian normal working hours. He would be unable to provide Tier2 technical support for ANZ customers from Israel.

[43] Regarding the Applicant’s breach of email policies, Mr Chau stated that over the years, the Applicant has written numerous aggressive and abusive emails to the Respondent’s personnel and their business partners. Mr Chau expressed concern that, if the Applicant were to be reinstated, he would continue to engage in bullying behaviour.

(d) Mr Hoang

[44] Mr Hoang merely noted that he attended the meetings of 3 and 14 April 2020. He annexed the minutes to his statement and attested that they accurately reflected his recollection of what was discussed at those meetings.

Witness Credibility

[45] The Applicant, Mr Chau and Mr Hoang gave evidence at the hearing of the matter, and were each cross examined. Where there were material differences between the evidence of the Applicant and Mr Chau, I have preferred the evidence of Mr Chau. He gave his evidence in a straightforward and considered way, readily making concessions that he was aware were against the Respondent’s interests where appropriate. The Applicant, on the other hand, clearly sought to tailor his evidence to suit what he thought to be the form that would best advance his arguments, regardless of its veracity.

Applicant’s Submissions

[46] Regarding whether he was a National System Employee, the Applicant submitted that the Act at s. 380, for the purpose of unfair dismissal laws coverage, defines “employee” as a national system employee, and “employer” as a national system employer. The Act, at s.14(1)(a) defines a national system employer as a constitutional corporation, so far as it employs an individual. The Applicant submitted the Respondent is a constitutional corporation, and is therefore a national system employer.

[47] The Applicant noted the Act sets no limitations on the residency of an employee for the purpose of coverage. He is an Australian citizen, and when he relocated to Israel, it was pursuant to an agreement with Mr Chau that he would remain an employee of the Respondent. No governing law clause was added to his employment contract upon relocating to Israel.

[48] The Applicant submitted his entire employment connection throughout his time in Israel was with Australia. His salary was paid to his Australian bank account in Australian dollars. An Australia pay‐slip was issued to him on a monthly basis. His entire team was based in Australia

[49] Contrary to the Respondent’s assertion in their response form (F3), according to the s.391 of the Act, the Commission has jurisdiction to order the reinstatement of an employee to the position in which the person was employed immediately before the dismissal. The Act does not set any limitation on the physical location of an employee for the purpose of making such an order.

[50] Regarding the issue of genuine redundancy, the position of the Applicant was probably best stated in the following exchange in his cross-examination at the hearing. 1

“So do I take it from that that your view is that this redundancy is just a ploy to terminate you, but the real reason for your termination is because Innovit has it in for you?---Correct.”

[51] The Applicant submitted that his job at the Respondent still had to be done by someone. He argued the claim by a software company that a position of a software engineer is redundant was absurd, and contradicts the very core of the Respondent. On 3 June 2020, more than a month after the Applicant was advised of his upcoming dismissal, the Respondent announced the hiring of a new software developer.

[52] The Applicant submitted that the claim by the Respondent that its redundancy program is aimed to “lower costs” was absurd considering his annual salary had only increased by $422.00AU in 7.5 years.

[53] The Applicant contended he was covered by the Professional Employees Award 2010 (the Award), as set out in clauses 4.1 and 4.2 of the Award. The Award sets no limitation on the physical location of an employee for the purpose of coverage. The Respondent was aware of the coverage by the Award as it was used by them as a reference upon directing the Applicant to take annual leave.

[54] The Award at clause 9.1, sets out the requirements concerning the employer’s obligation to consult regarding major workplace changes. According to that clause, where an employer has made a definite decision to introduce major changes in structure that are likely to have significant effects on employees, such as termination of employment, they must discuss with the employees affected the introduction of these changes, the effects the changes are likely to have on them, and measures to avert or mitigate the adverse effects of such changes on them. The employer must also give prompt consideration to matters raised by the employees in relation to the changes. The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes. None of the Award’s requirements were complied with.

[55] The Applicant made no specific submissions regarding s.387 of the Act.

Respondent’s Submissions

(i) The Geographical Objection

[56] The Respondent accepted that it is a national system employer by reason of section 14(1)(a) of the Act. It submitted, however, that the Applicant is not to be regarded as a national system employee. Section 13 of the Act provides:

“A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 13, by a national system employer, except on a vocational placement.”

[57] The Respondent submitted the Acts Interpretation Act 1901, as in force on 25 June 2009, applied to the Act. It submitted (as noted below, incorrectly) “At that time (and now), section 21(1)(b) of the Acts Interpretation Act 1901 provided” (emphasis added):

(1) In any Act, unless the contrary intention appears:

…

(b) references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.

[58] The effect of section 21 of the Acts Interpretation Act 1901 is that it limits the territorial application of Commonwealth legislation to matters and things that occur “in and of” the Commonwealth of Australia. The Respondent submitted that this limitation must be applied to section 13 of the Act so that references to an individual’s employment are construed as references to employment “in and of the Commonwealth.”

[59] The Respondent noted that Section 34(3) of the Act provides that operation of the Act can be extended by regulation to areas outside the territorial limits of the Commonwealth, but only in relation to an “Australian employer” and an “Australian-based employee.” The term “Australian-based employee” is defined by ss.35(2) and (3) of the Act. The operation of the unfair dismissal provisions of the Act are given extra-territorial extension by r 1.15F(5) of the Fair Work Regulations 2009 (FW Regulations).

[60] The Respondent submitted that:

(a) Because of section 21(1)(b) of the Acts Interpretation Act 1901, the Applicant is not to be regarded as a “national system employee” because notwithstanding the fact that the Respondent is domiciled in Australia, the employment relationship has an insufficient connection with Australia to regard the Applicant’s employment as being “in and of the Commonwealth” and hence the Applicant is not to be regarded as a “national system employee;” and

(b) The applicant does not meet the definition of an “Australian-based employee” because he was engaged outside Australia to perform duties outside Australia (see section 35(3)), and so the extra-territorial extension of the Act facilitated by r 1.15F(5) of FW Regulations does not operate to extend the operation of the Act to the Applicant’s employment.

(b) Genuine Redundancy

[61] The Respondent submitted the Applicant’s termination was a genuine redundancy. The Respondent had been facing difficult market conditions over an extended period. The markets that it operated in were diminishing and the products it supplied to those markets were subject to heavy competitive pricing.

[62] COVID-19 had a further detrimental effect of the Respondent’s business and had caused a further substantial reduction in its revenue. To remain in business and keep existing staff employed, various further steps were necessary. In that context, the Respondent determined in April 2020 to make three positions, including the Applicant’s position, redundant. The Respondent has not employed anyone to take over the Applicant’s job, and is currently performing the work the Applicant did with existing employees.

[63] The Respondent submitted that the Award did not apply to the Applicant because Clause 4.2 of the Award indicates that it covers “employers throughout Australia principally engaged in the information technology industry …. And their employees who are covered in the classifications in Schedule B.” Clause 3.1 of the Award defines “employee” to mean “national system employee within the meaning of the Act.” For the reasons set out under the heading “The Geographical Objection,” the Applicant is not covered by the Award.

[64] In the alternative, the Respondent submitted that the Award does not apply to the Respondent’s employees if they are not employed or domiciled within Australia.

(c) Dismissal not Harsh, Unjust or Unreasonable

[65] The Respondent submitted that in the event the Commission finds that the Applicant’s dismissal was not a case of genuine redundancy (on the basis that the consultation obligations under the Award were applicable and the Respondent failed to comply with them), the dismissal was nonetheless not harsh, unjust or unreasonable. Although a failure to consult is not a trivial matter, if the consultation was highly unlikely to have negated the operational reasons for dismissal or lead to any other substantive change, the failure may not lead the dismissal to be unfair. 2

(d) Orders Sought by the Applicant

[66] The Respondent says it is beyond the power of the Commission to order the reinstatement of the Applicant to a position to be performed in Israel, which is what the Applicant seeks. The power of reinstatement in section 391(1) of the Act must be read consistently with section 21(1)(b) of the Acts Interpretation Act 1901. References to “matters and things” must be construed as matters and things “in and of the Commonwealth” unless the contrary intention appears. No contrary intention is apparent in respect of section 391 of the Act. The power to reappoint a person to a position must therefore be construed as a power to reappoint a person to a position “in and of the Commonwealth”. A position performed in Israel, regardless of whether the employer is in Australia, is not a position “in and of the Commonwealth.”

[67] Alternatively, the Respondent submitted the Commission ought not order the Applicant’s reinstatement as the position the Applicant was employed in immediately before the dismissal is no longer available and that there are no longer any other positions available within the Respondent’s business that would be suitable for him.

[68] Ordering that the Respondent reinstate the Applicant to work in Israel would impose a material and unreasonable burden on the Respondent and an unreasonable burden on its other employees.  3

[69] If the Commission was minded to order compensation, the Respondent submitted for the purposes of s.392 of the Act that:

(a) the evidence establishes that the Respondent has suffered a long period of declining revenues and losses, exacerbated by the COVID-19 crisis;

(b) the Applicant has received a redundancy payment of $16,903, equivalent to 12 weeks’ pay; and

(c) the Applicant says in his statement at paragraph [40] that “Whilst pursuing reinstatement, it is not feasible to commence employment elsewhere until a FWC decision is given.” In his Application at part 2.1, he wrote “If no reinstatement is ordered by the Commission, I plan to look for new employment as soon as the decision is given”. The Applicant has made a conscious decision not to seek alternative employment pending the outcome of these proceedings or taken any other reasonable steps to mitigate his loss.

[70] In circumstances where a failure to consult has rendered a dismissal by way of redundancy unfair, it may be appropriate to limit the remedy to compensation for a reasonable period of consultation to have occurred. 4

CONSIDERATION

(a) Preliminary findings

[71] As noted above, the Respondent raised two jurisdictional objections to the Applicant’s application in the form of the Geographical Objection and the Genuine Redundancy Objection. Otherwise, I am satisfied that:

(a) The Applicant was dismissed at the initiative of the employer (ss.385(a) 386(1)(a));

(b) His unfair dismissal application was lodged within the 21-day statutory time limitation found at s.394(2) of the Act; and

(c) The Applicant is a person protected from unfair dismissal in that he had completed the minimum employment period set out in ss. 382 and 383 of the Act.

(b) The Geographical Objection

[72] Part 3-2 of the Act deals with unfair dismissal. Section 380 of the Act provides that references to ‘employee’ and ‘employer’ in Part 3-2 of the Act are to be taken to mean ‘national system employees’ and ‘national system employers’ respectively. However, s.34(3) and (3A) of the Act provide:

34 Extension of this Act beyond the exclusive economic zone and the continental shelf

…

Extensions prescribed by regulations

(3) Without limiting subsection (1), if the regulations prescribe further extensions of this Act, or specified provisions of this Act, in relation to all or part of the area outside the outer limits of the exclusive economic zone and the continental shelf, then this Act, or the specified provisions, extend accordingly to:

(a) any Australian employer; and

(b) any Australian-based employee.

(3A) For the purposes of extending this Act in accordance with subsection (3):

(a) any reference in a provision of this Act to an employer is taken to include a reference to:

(i) an Australian employer; and

(ii) an employer of an Australian-based employee; and

(b) any reference in a provision of this Act to an employee is taken to include a reference to:

(i) an employee of an Australian employer; and

(ii) an Australian-based employee.

[73] Regulation 1.15F(5) of the FW Regulations relevantly provides:

1.15F Extension of Act beyond the exclusive economic zone and the continental shelf

…

(5) For subsection 34(3) of the Act, Part 3-2 of the Act, and the rest of the Act so far as it relates to that Part, are extended to an Australian-based employee in relation to the employee's Australian employer in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf.

Note: Part 3-2 of the Act relates to unfair dismissal.

[74] Section 35 of the Act defines ‘Australian employer’ and ‘Australian-based employee’:

35 Meanings of Australian employer and Australian-based employee

(1) An Australian employer is an employer that:

(a) is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(b) is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(c) is the Commonwealth; or

(d) is a Commonwealth authority; or

(e) is a body corporate incorporated in a Territory; or

(f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or

(g) is prescribed by the regulations.

(2) An Australian-based employee is an employee:

(a) whose primary place of work is in Australia; or

(b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or

(c) who is prescribed by the regulations.

(3) However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.

[75] It follows that for the Applicant’s application to be within jurisdiction, I must find that The Respondent was an Australian employer and also that the Applicant was an Australian-based employee. I note the Respondent accepts that it is an Australian employer.

[76] I reject the Respondent’s submission that s.21 of the Acts Interpretation Act 1901 limits the territorial application of Commonwealth legislation to matters and things that occur “in and of” the Commonwealth of Australia, or that it applies to s.13 of the Act so that references to an individual’s employment are construed as references to employment “in and of the Commonwealth.” The Respondent referred to the text of the Acts Interpretation Act 1901 as it existed in 2009. The full text of s.21 of the Acts Interpretation Act 1901 as it exists at the present time is as follows:

Office etc. means office etc. of the Commonwealth

(1) In any Act:

(a) references to any officer or office shall be construed as references to such officer or office in and for the Commonwealth; and

(b) references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.

(2) In this section:

“office” includes a position occupied by an APS employee.

“officer” includes an APS employee.

[77] The words “unless the contrary intention appears” that were previously included in sub-section (1) were removed from s.21 by Acts Interpretation Amendment Act 2011. That removal did not, however, have the effect of prescribing disregard of contrary intentions expressed in other legislation. While the Acts Interpretation Amendment Act 2011 removed the phrase “unless the contrary intention appears,” or similar wording, from numerous provisions of the Acts Interpretation Act, 5 it inserted at s.2(2) what was described in the Explanatory Memorandum to the Acts Interpretation Amendment Act 2011 as a “general ‘contrary intention’ provision qualifies all relevant provisions of the Acts Interpretation Act.”

[78] Sections 33 and 35 are explicit provisions in the Act which extend it extra-territorially to Australian ships, Australia’s exclusive economic zone, the waters above the continental shelf and by regulation to Australian employers and Australian based employees. 6 Those sections, together with Regulation 1.15F(5), express a clear intention to extend the operation of the Act in unfair dismissals beyond the exclusive economic zone and the continental shelf for Australian based employees.

[79] Regarding the Respondent’s second submission, because the Respondent accepts that it was an “Australian employer” as defined, it follows that the Applicant fell within s.35(2)(b) of the Act. However, the question is whether the Applicant was engaged outside Australia to perform duties outside Australia, and so is excluded by the operation of s.35(3) of the Act from the scope of the definition of an “Australian-based employee.”

[80] The relevant focus in the determination of the relevant connection for the purposes of s.35 of the Act is on the employment relationship between the Applicant and the Respondent. As Buchanan J found in Fair Work Ombudsman v Valuair Ltd (No 2): 7

I accept the respondents’ contention that the FW Act and the Award apply to employment relationships rather than simply to particular work, so that it is necessary first to identify an appropriate connection linking the employment relationship sufficiently with Australia. In my view, the applicant’s approach ignored the overall employment relationship and the contractual setting which underpinned it and should not be accepted.

[81] The exclusion in s.35(3) has two limbs, both of which must be satisfied in order for the exclusion to operate. The first is that the employee is “engaged outside Australia and the external Territories.” The second is that the engagement is to “perform duties outside Australia and the external Territories.” Regarding the meaning of “engaged,” in Munjoma v Salvation Army (NSW) Property Trust. 8 Vice President Hatcher held:

“An approach which has the first limb of the exclusion referring to the location of the formation of the employment contract gives it separate and distinct work to do. It conforms to the ordinary meaning of the word “engaged”. And because an employment relationship formed in Australia between an Australian employer and a person located in Australia at that time can be characterised as having a “substantial connection to Australia”, it conforms to the intention of the legislature as stated in paragraph 168 of the explanatory memorandum.

[82] The Applicant was initially contracted to work for the Respondent in Australia. No new employment contract was executed when the Applicant moved to Israel. 9 Notwithstanding his move to Israel, the Applicant continued to be paid by the Respondent in Australia, with deposits being made to his Australian bank account. Throughout his employment the Applicant remained on the Respondent’s Australian email list.

[83] It was in response the questions regarding the Applicant’s connection with Australia while working in Israel that the candid and honest answers of Mr Chau most assisted the Commission. They included the following exchanges:

“Why does it matter for the purpose of talking about my connections with Australia, whether I actually had face-to-face encounters with clients or I was doing behind the scenes work for them?  How does that change things in terms of my connections with Australia?

…

THE WITNESS:  I don't know; I can't answer.  From my perspective, I can only say your role is part of maintenance work over Australian products or products that we sell in Australia.  That's all I can say.  I don't know what the legal ramification of that.

That's all right, thank you.  You mentioned that some of my work was not for Australia, which is true.  Was I the only one from the development team that, from time to time, was assigned tasks that were not related to Australia?---No, we rotate those tasks across the entire team as we need to.” 10

[84] I consider that there was a substantial connection between the Applicant’s employment and Australia. The contract of employment in existence throughout the Applicant’s employment was that contract entered into when he was an employee of the Respondent based in Australia. He was clearly part of the Australian team of the Respondent, and performed maintenance over Australian products or products sold in Australia. Due to the nature of the work performed by the Applicant, he was able to perform that work from Israel, and the Respondent allowed him to perform the work from Israel. The Applicant was an Australian based employee as defined by s.35(2) of the Act, and the Respondent’s geographical objection is rejected.

(c) The Genuine Redundancy Objection

[85] Section 389 of the Act provides:

Meaning of genuine redundancy

(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer's enterprise; or

(b) the enterprise of an associated entity of the employer.

[86] It is apparent that there are three relevant considerations arising from s. 389. They are:

(a) Does the person’s job no longer exist;

(b) Was there consultation about the redundancy; and

(c) Was it reasonable in the circumstances to redeploy the person.

(i) Did the Applicant’s Job no Longer Exist?

[87] In Ulan Coal Mines Ltd v Howarth, 11 a Full Bench of the Commission considered the
meaning of the term “the person’s employer no longer required the person’s job to be performed by anyone” in section 389(1)(a) of the Act. In paying particular attention to the Explanatory Memorandum, the Full Bench observed:

“Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy.

1547 Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548 The following are possible examples of a change in the operational requirements of an enterprise:

•  A machine is now available to do the job performed by the employee;

•  The employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

•  The employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.”

[88] It is abundantly clear that there existed changes in the operational requirements of the Respondent. The minutes of the two meetings on 3 and 14 April 2020, clearly outline the circumstances facing the Respondent and the choices made to deal with those circumstances by making three of the 14 employees redundant. The Respondent had been facing difficult market conditions over an extended period, and the markets that it operated in were diminishing and the products it supplied to those markets were subject to heavy competitive pricing. COVID-19 had a further detrimental effect of the Respondent’s business and had caused a further substantial reduction in its revenue.

[89] I reject the Applicant’s claim that his redundancy was a “ploy” 12 to get rid of him. In a statement made at the conclusion of his evidence, effectively as re-examination, the Applicant stated:13

“I think what's relevant to the case is to remember that there was a conflict and the problem that they were - sorry, the fact that there was a conflict is not disputed by anyone.  I don't think Mr Chau would deny that, that there as a conflict between us.  That is the context that I want you to know about, when determining whether my dismissal was fair or not.  At the end of the day, after all these warnings that I received, I was not dismissed.  No employer in the world would keep an employee if they are so bad for such a long time and not dismiss them.  It just doesn't make any sense - not to mention the fact that a redundancy dismissal is much more costly to the employer than a performance dismissal.”

[90] The Applicant’s position is devoid of any sense. It is clear that the Applicant was a difficult employee. He seems to accept that. The emails from the Applicant that were included in the evidence disclosed quite intemperate communications, even after warnings regarding email etiquette. But the Applicant’s case would involve the Respondent not acting on the Applicant’s conduct, but rather waiting a number of years to find a more expensive way to terminate the Applicant by way of redundancy, and then covering their tracks by also terminating other, seemingly innocent, employees as well. There is no substance to that allegation. I find that the Applicant’s job no longer existed.

(ii) Was there Consultation about the Redundancy

[91] It is readily apparent that the consultation provisions of the Award have their genesis in the Termination, Change and Redundancy Test Case (the TCR Case). 14 In considering other provisions similarly based on the TCR case, in Maswan v Escada, 15 (“Maswan”), Vice President Watson found as follows:

“These provisions are of long standing, emanating from the Termination, Change and Redundancy test case in the early 1980s and from time to time have been reflected in legislation. The requirement to discuss proposed changes and consult about the changes has been held to require meaningful consultation and not merely an afterthought. Consultation after an irrevocable decision has been made has been held to not amount to meaningful consultation.

[20] As Sachs LJ observed in Sinfield v London Transport Executive [1970] [at 558]:

"Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start accordingly from the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals - before the mind of the executive becomes unduly fixed.”

(Emphasis added. Footnotes omitted.)

[92] The Respondent noted that Clause 3.1 of the Award defines “employee” to mean “national system employee within the meaning of the Act.” The Respondent correctly conceded that if it failed in its arguments regarding the Geographical Objection, the Award would apply to the Applicant.

[93] Mr Chau readily conceded that the Respondent failed to consult as required by the Award. In cross-examination his evidence was as follows: 16

“So, what do you think happened here with the consultation?  Is it something that - how did - if someone knew about the annual leave requirements and if someone knew about the day a week that I could search for new work, how did that get lost, you know, that consultation thing that needed to happen?  Can you explain that?---I don't have an explanation for it, other than the fact that we didn't do it, right.  My impression was that, or at least the way that I was told, was if it was involuntary redundancy, we would just issue the involuntary redundancy and pay out all the redundancy payments, pay out all the eligible termination payments.  We didn't do it, and that's just a mistake on our side.  I accept that.  I don't have a reason why we didn't do it other than the fact that we didn't know that we had to, if we were going down the path of involuntary redundancy.”

[94] The Applicant was not precluded from consultation because he received 12 weeks notice of the cessation of his employment, and in that period he did by his letter of 1 May 2020 seek to challenge the dismissal. But the fact that the termination letter predated any such consultation means the dismissal cannot be a genuine redundancy.

(iii) Was it Reasonable to Redeploy the Applicant

[95] In Ulan Coal Mines Limited v Honeysett & Ors , 17 the Full Bench found as follows in relation to deployment pursuant to s.389(2):

“It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.”

Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.”

[96] There existed a genuine need to reduce the workforce of the Respondent. It was not a circumstance where redeployment of the Applicant could have been considered.

Was the Dismissal Harsh, Unjust or Unreasonable?

[97] Having concluded that the dismissal was not a genuine redundancy, I must consider the question of whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable,’ and therefore an unfair dismissal, pursuant to the considerations outlined in s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair.

[98] Section 387 of the Act identifies the matters that the Commission must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable:”

(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.

(a) Valid reason

[99] Section 387(a) of the Act is relevant to the matter of whether there was a valid reason for the dismissal in relation to the person’s capacity or conduct, and does not go to the process for selecting the person for redundancy. The reasons for the dismissal of the Applicant by the Respondent were not related to his capacity or conduct (including its effect on the safety and welfare of other employees). In the circumstances of this case, it is a neutral matter with respect to the consideration of whether the Applicant’s dismissal was harsh, unjust or unreasonable.

(b) Notification

[100] The Applicant was notified of the of the reasons for termination by the letter dated 20 April 2020.

(c) Opportunity to Respond

[101] Section 387(c) is predicated on there being a reason for dismissal related to the capacity or conduct of the employee. It follows that s 387(c) is a neutral factor in relation to the question of whether the Applicant’s dismissal was harsh, unjust or unreasonable.

(d) Support person

[102] The Applicant did not request to have a support person. As no request was made I consider this a neutral consideration.

(e) Warnings

[103] The Applicant’s actual dismissal related to redundancy, and not to his unsatisfactory performance, and so this matter is not relevant to my consideration as to whether the Applicant’s dismissal was harsh, unjust or unreasonable.

(f/g) Size of the business/human resources

[104] The Respondent is a small company. As made clear by the evidence of Mr Chau recorded above regarding consultation, there were gaps in the corporate knowledge of the Respondent relating to the correct method of implementing a redundancy. This factor weighs in the Respondent’s favour.

(h) Other relevant matters

[105] There were sound, defensible and well-founded reasons for the Applicant’s dismissal, relating to the downturn in business suffered by the Respondent, and it was not reasonable in all the circumstances to relevantly redeploy him. Those are matters telling against a conclusion that the dismissal was harsh, unjust or unreasonable.

[106] The failure to consult with the Applicant was a breach of the Award, however the effect of that breach was mitigated by the 12 week notice period prior to cessation of employment, and the fact that the Applicant was able to challenge his dismissal during that long period of notice. I further conclude that had the appropriate consultation have occurred, due to the sound basis on which the Respondent had made its decision, there would have been no change to the Respondent’s decision to dismiss the Applicant on the basis of redundancy. As Vice President Watson observed in Maswan: 18

“In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.”

[107] One final relevant matter for consideration is that the Applicant appears to have been paid 12 weeks redundancy pay where no such entitlement existed. The evidence was that the Respondent in April 2020 had 14 employees, and there was some effort to finally establish the exact number of employees in the proceedings. 19 While the Respondent referred to the NES in the letter of 20 April 2020, when granting the Applicant redundancy pay, it would seem it was in error as, being a small business employer, there was no such entitlement.

Conclusion on Dismissal

[108] Taking into account the matters referred to above, I do not consider the dismissal of the Applicant was harsh unjust or unreasonable. The Respondent had a sound reason to reduce its workforce, and it was dealing with the very difficult business environment in March/April 2020. The Respondent’s failure to comply with its consultation obligations in relation to the Applicant did not practically deny the Applicant the opportunity to secure a different outcome.

[109] The Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR727036>

 1   Transcript PN 193.

 2   See Maswan v Escada Textilvertriev T/A ESCADA [2011] FWA 4239 at [39]; David Arnold v Real Estate Mt Hawthorn Pty Ltd T/A Oxford Property Group [2019] FWC 5446.

 3   Smith v Moore Paragon Australia (2004) 130 IR 446.

 4   Mr Paul Dale v Marky Industries Pty Ltd [2019] FWC 8446 at [79].

 5   See, for example, amendments to Sections 15C, 16, 16A, 16B, 16C(2), 16c(3), 18a, 19a(1), 20, 23.

 6   Fair Work Ombudsman v Valuair Ltd (No 2) (2014) 244 IR 227, at [71].

 7  (2014) 244 IR 227, at [75].

 8   [2013] FWC 3337, at [46]

 9   Transcript PN 594.

 10   Transcript PN 624, 629 and 630.

 11   [2010] FWAFB 3488 at [16] and [17].

 12   Transcript PN 193.

 13   Transcript PN 311.

 14   (1984) 8 IR 34; (1984) 9 IR 115.

 15   [2011] FWA 4239, at [19] and [20].

 16   Transcript PN 741.

 17   [2010] FWAFB 7578 at [34] and [35].

 18   [2011] FWA 4239, at [39].

 19   Transcript PN 316.