1
Fair Work Act 2009
s.604—Appeal of decision
Boris Jurisic
v
ABB Australia Pty Ltd
(C2014/4530)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MCCARTHY
COMMISSIONER BULL
MELBOURNE, 22 AUGUST 2014
Unfair dismissal appeal - s.400 Fair Work Act 2009 (Cth) - valid reason - performance - fair
hearing - permission to appeal refused.
Introduction
[1] Mr Boris Jurisic (the appellant) was terminated from his employment with ABB
Australia Pty Ltd (ABB or the respondent) on 28 October 2013 and his subsequent application
for an unfair dismissal remedy was dismissed by Commissioner Cloghan on 1 May 2014. The
Commissioner published reasons for that decision on 25 July 2014. This decision deals with
Mr Jurisic’s appeal from the Commissioner’s decision.
[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way
of rehearing and the Commission’s powers on appeal are only exercisable if there is error on
the part of the primary decision maker.1 There is no right to appeal, rather an appeal may only
be made with the permission of the Commission. Subsections 604(1) and (2) of the Act deal
with the scope of an appeal and permission to appeal:
“(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under
the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if
the FWC is satisfied that it is in the public interest to do so.”
[2014] FWCFB 5835
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 5835
2
[3] More stringent requirements apply to the grant of permission to appeal in relation to
appeals concerning applications for an unfair dismissal remedy. In respect of such appeals,
s.400 of the Act provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made
by FWA under this Part unless FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWC in relation to a matter
arising under this Part can only, to the extent that it is an appeal on a question of fact, be made
on the ground that the decision involved a significant error of fact.”
[4] Subsection 400(1) manifests an intention that the threshold for a grant of permission to
appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals
generally (compare s.604(2) and s.400). In Coal & Allied Mining Services Pty Ltd v Lawler
and others, Buchanan J (with whom Marshall and Gowdroy JJ agreed) characterised the test
under s.400(1) as ‘a stringent one’.2 Subsection 400(2) operates as a jurisdictional bar in
relation to appeals on questions of fact. Such appeals may only be made on the ground that
the decision at first instance involved a ‘significant error of fact’.
[5] The appellant represented himself and Ms Aistrope a solicitor was granted leave to
appear on behalf of the respondent on grounds identified pursuant to s.596 of the Act
contained in the respondent’s Notice to Seek Permission for Legal Representation. It is
convenient to deal first with the circumstances surrounding the termination of the appellant’s
employment and the Commissioner’s decision, before turning to the grounds advanced on
appeal.
The Facts
[6] The appellant commenced employment with ABB on 14 March 2011 as a ‘Solutions
Manager’ in Western Australia for the Low Voltage Products (LVP) business unit. In essence
the appellant was engaged in a technical sales role selling the respondent’s products. The
appellant worked in a team of 5-6 sales representatives in the LVP sales unit in Western
Australia under the supervision of the WA State Sales Manager for LVP Products, Mr Manjit
(Matt) Saini. Mr Saini reported to Mr Mikks Makarainen. Each sales representative in the
LVP sales team had a dollar budget of sales required for the financial year and also had a
customer list or portfolio from which they were to achieve those sales. In addition to the
dollar budget, there was also a corresponding activity target based on quotations entered into
ABB’s computer system. Each employee had a key performance indicator (KPI) of the dollar
value of quotations they had to have in the system. In other words of all quotes provided to
potential customers on average 1 out of every 4 was successful so if a sales representative’s
budget was $1 million per annum, over the year you would need to put $4 million of
quotations in the pipeline to meet that budget. These KPIs were assessed monthly to see how
each employee was performing.
[7] Mr Saini set the individual budgets and portfolios for his team, including the
appellant’s. The target set for each team member was based on the potential within their
[2014] FWCFB 5835
3
customer portfolio (including projected earnings from existing customers and growth
potential from target customers).
[8] Mr Saini met with the appellant on 21 February 2013. Mr Saini was concerned that the
appellant was falling behind in his sales targets and failing to engage in the activities required
to achieve his budget. In May 2013, Mr Saini and Mr Makarainen met with the appellant and
made it clear that he was not undertaking the level of activity required to achieve the growth
needed to meet his targets.
[9] On 11 June 2013, Mr Saini met with the appellant and placed him on a formal
performance improvement plan. The documents setting out the respondent’s expectation were
signed by the appellant. Mr Saini held regular review meetings with the appellant, usually
weekly, for the duration of the performance management plan.
[10] On 15 June 2013 the appellant was given a first written warning.3 The letter states that
the appellant had failed to meet budget for the previous six months and set out what was
expected of him during the following four weeks. The letter concluded in the following
terms:
“This is your first written warning, and I expect to see a marked improvement in the areas
outlined above...
Failure to make the necessary improvements may place your employment in jeopardy.”
[11] The performance management process continued. On 18 September 2013 the appellant
was given a second and final written warning.4 The letter states that the appellant had failed
to meet budget in the previous 8.5 months and referred to his lack of progress. The letter sets
out what the appellant was expected to achieve during the next four weeks and noted that
failure to make the necessary improvements may place his employment in jeopardy.
[12] On 22 October 2013, Mr Saini, and the respondent’s Human Resources Business
Partner, Ms Stacey, met with the appellant and expressed their concerns at the lack of
improvement in his performance. The appellant was provided with a letter requesting a
response as to why his employment should not be terminated.5 A copy of this letter is set out
at Attachment 1 to this decision.
[13] The appellant corresponded with Ms Stacey over the period 23 to 27 October 2013 and
meetings were held with the appellant and Mr Saini on 23 and 24 October 2013 to clarify the
appellant’s responses. On 28 October 2013, a further meeting was held between the appellant,
Mr Saini and Ms Stacey at which the appellant was advised that his employment had been
terminated.6 The letter terminating the appellant’s employment is set out in Attachment 2 to
this decision. The termination letter was read out to the appellant during the meeting and the
appellant recalled being told that his employment was being terminated due to his
performance and lack of engagement in the process to improve his performance.7
The Decision at First Instance
[14] Section 385 of the Act provides that a person has been ‘unfairly dismissed’ if the
Commission is satisfied that:
[2014] FWCFB 5835
4
(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.
[15] In the context of this matter it is common ground that the appellant had been
dismissed; the respondent was not covered by the Small Business Fair Dismissal Code; and
that no party contended that the dismissal was a genuine redundancy. The issue in contention
was whether the dismissal was harsh, unjust or unreasonable.
[16] In determining whether a dismissal was harsh, unjust or unreasonable s.387 of the Act
requires the Commission to take into account each of the matters in s.387(a) to (g), as well as
any relevant matter within the scope of s.387(h). Section 387 states:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the
FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or
conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person
present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person
had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or
expertise in the enterprise would be likely to impact on the procedures followed in effecting
the dismissal; and
(h) any other matters that the FWC considers relevant.
[17] The words ‘must take into account’ signify that each of the matters mentioned must be
treated as a matter of significance in the decision making process. As a consequence of this
construction of s.387 the Commission is obliged to make a finding in respect of each of the
matters specified in s.387(a) to (g), in so far as each matter is relevant to the factual
circumstances in a particular case.
[18] The central issue for determination in the proceedings before the Commissioner was
whether there was a valid reason for the termination of Mr Jurisic’s employment. The
Commissioner considered the evidence and concluded that the respondent had a sound and
defensible reason to dismiss Mr Jurisic. The appellant challenges this finding and we deal
with that ground of appeal later.
[2014] FWCFB 5835
5
[19] The Commissioner went on to find that the appellant had been notified of the reason
for his dismissal8; was given an opportunity to respond to the performance and conduct issues
relevant to his dismissal9 and had been warned about his unsatisfactory performance before
his dismissal.10 The Commissioner was also satisfied that the respondent had not refused to
allow the appellant to have a support person present to assist at any discussions relating to his
dismissal.11 The matters in ss.387(f) and (g) were not relevant in the circumstances and the
Commissioner did not identify any ‘other matters’ to which he had regard pursuant to
s.387(h). On the basis of the above findings the Commissioner dismissed the application and
made an order in those terms.
[20] We now turn to the appellant’s grounds of appeal.
The Appeal
[21] As the appellant was self represented the Commission assisted him in understanding
the appeal process and adopted a flexible approach to compliance with the Commission’s
rules. The appellant was provided with a copy of the Commission’s Appeal Proceedings
Practice Note and his attention was drawn to the need to identify an error in the decision
subject to appeal and to persuade us that permission to appeal should be granted on the basis
that it was in the public interest to do so. The Commission also prepared an appeal book for
the assistance of the parties.
[22] It is difficult to distil the grounds of appeal from the material filed by the appellant.
We were assisted in this regard by the respondent who filed a written submission which
sought to convert the appellant’s submission into a number of discrete grounds of appeal. We
adjourned the proceedings to provide the appellant with a further opportunity to read the
respondent’s submissions and to consider whether the respondent had correctly characterised
the grounds of appeal. On resumption the appellant confirmed that the respondent had
accurately set out some of his grounds of appeal, but that there were additional grounds. The
appellant then elaborated on the additional grounds.
[23] We now turn to consider the grounds of appeal as best we can ascertain from the
appellant’s written and oral submissions..
Ground 1: Denied a fair hearing
[24] The appellant submits that he did not get a fair hearing because he was only provided
with the respondent’s witness statements the day before the hearing. In considering this
submission it is important to have regard to the relevant context.
[25] Directions requiring the filing of various materials, including witness statements and a
statement of asserted facts, were issued on 31 January 2014. The appellant was directed to
file his material by 10 March 2014 and the respondent was to file its material in reply by 31
March 2014. No material was filed by the appellant by the specified date. The
Commissioner’s associate emailed the appellant on 12 March 2014 inquiring as to why he had
not complied with the directions. The appellant responded the same day setting out a
‘statement of facts summary’, as follows:
[2014] FWCFB 5835
6
Statement of Facts Summary
“1. At the end of May 2013 I received worst performing portfolio in Western Australia
(WA) in terms of sale vs budget key performance indicator (KPI).
2. After September the portfolio was not worst performing in WA in terms of KPI.
3. Over 5 (June to October) months I have improved sale vs budget KPI, while the rest
of the team deteriorated the KPI.
4. Employer sacked me for underperformance despite being the only team member to
improve KPI over the period.
5. The state trend over the period was that of contraction.
6. The state trend in 2012 was also that of contraction.
7. I was only WA’s team member to go against the state performance trend and exceed
KPI target in 2012.”
[26] On 14 March 2014 the Commissioner’s associate sent a further email to the appellant,
as follows:
“The Commissioner advises that he was not seeking your ‘summary’ but a ‘Statement of
Facts’
Secondly, you have not provided a witness statement as required for in compliance with
paragraph [2] of the Directions.
You have until 4:00pm 17 March 2014 to comply with the directions in paragraph [2].”
[27] There were further email exchanges with the appellant, but no witness statements or
other documents were filed by the specified date and on 26 March the respondent sought to
have the application dismissed pursuant to s.399A of the Act. On 9 April the Commissioner’s
associate sent an email to the appellant inviting him to file a submission by 4pm 14 April
2014 as to why he should not dismiss his application pursuant to s.587(2)(b) of the Act (i.e.
on the basis that it had no reasonable prospects of success). In the alternative the appellant
was given until 4pm on 14 April 2014 to fully comply with the directions issued on 31
January 2014.
[28] On 11 April 2014 the appellant provided a response to the Commissioner’s associate
and on 14 April 2014 the parties were advised that in view of the delay the original directions
were varied such that the respondent had until 4pm on Tuesday 29 April 2014 to file its
material. On 29 April 2014 the respondent filed and served its witness statements and outline
of submissions.
[29] It is evident from the foregoing that on two separate occasions the Commissioner
amended the original directions of 31 January 2014 to extend the time within which the
appellant was to file his material. Despite the additional time provided the appellant did not
fully comply with the Commission’s directions. As a consequence of the delay occasioned by
the appellant’s non-compliance the time specified for the respondent to file its material was
extended to 4pm Tuesday 29 April 2014. The respondent’s material was filed late on 29
April 2014 the matter was heard on 1 May 2014.
[2014] FWCFB 5835
7
[30] It is also relevant that the Commissioner provided some assistance to the appellant
during the course of the hearing at first instance.
[31] At the commencement of the hearing the Commissioner outlined the procedure that
would be followed12 and upon being told that the appellant did not intend to call any evidence
in support of his application the Commission informed the appellant that ‘oral or documentary
evidence carries far greater weight than just submissions’.13 The Commissioner then allowed
the appellant to give oral evidence despite the fact that the appellant had not filed a witness
statement in accordance with the Commission’s directions and had previously indicated, on
two separate occasions, that he did not intend to give evidence in the proceedings.14 The
Commissioner also informed the appellant that he would have the opportunity to cross-
examine the respondent’s witnesses15 and that if the employer’s evidence was not challenged
it would be accepted16.
[32] In the course of the appellant’s examination in chief the Commissioner asked him
some questions pertaining to the witness statements filed by the respondent. The relevant
parts of the transcript are as follows:
“The Commissioner: Mr Jurisic, you received copies of the witness statements that the
employer intends to bring as evidence. You have received copies of
those?---
Mr Jurisic: Yes, I have received them yesterday.
The Commissioner: Have you read them?---
Mr Jurisic: Very quickly I did go through them.
The Commissioner: Is there anything you want to say in relating to any particular parts of
those witness statements?---
Mr Jurisic: I wouldn't be able to really remember any specific details.
The Commissioner: Mr Jurisic, I have to say to you if those witness statements are not
contested, then I take that as evidence that's the truth?---
Mr Jurisic: Okay. Well, definitely there is quite a few inaccuracies that I have
seen as part of their statements, but I wouldn’t be able to recall
exactly which parts or whereabouts correct. I will have to basically
go through it and identify and say this part, I disagree with that part. I
did see, I did notice a few inaccuracies.
The Commissioner: Mr Jurisic, it seems to me you haven't prepared yourself very well for
these proceedings, have you?---
Mr Jurisic: I prepared the best I could. I spent a lot of time preparing for the
proceedings. I spent a lot of time on this matter, probably more than I
should have. This is my first time at the hearing, so in terms of my
inexperience, most like I am spending a whole lot of time on activities
that are not work time. What I could do, I could go through the
witness statements and quickly scan through it and find things that I
[2014] FWCFB 5835
8
had, that I'm questioning, that I feel aren't correct. But I wouldn't be
able to remember everything that the other party has said. I was just
given the copies yesterday and I was - - -
The Commissioner: Well, Mr Jurisic, if you have complied with the procedural directions
I had to extend time and time again for you to provide material and
get some clarification. The reason why they were only provided
recently is simply because we couldn't get answers from you?---
Mr Jurisic: I apologise for that.
The Commissioner: You get your laptop and I am going to give you the opportunity of
going through the witness statements and I will give you the
opportunity of pointing out, but you should have done this before
arriving here. This is not something that you just do on the run. It's
your case. You should have been better prepared for this. Permission
for you to leave the witness box and get your laptop.
Ms Aistrope: If it's of assistance, Commissioner?
The Commissioner: Ms Aistrope.
Ms Aistrope: I have folders prepared, including the statements and materials that
we filed. I am not sure whether that might make this process
somewhat more efficient.
The Commissioner: It might be, yes.”17
[33] It is apparent from the above exchange that the appellant had read the witness
statements filed by the respondent and had identified ‘quite a few inaccuracies in the
statements’. The appellant had an electronic version of the respondent’s witness statements
on his laptop. The respondent’s representative provided the appellant with a folder containing
hard copies of the respondent’s witness statements. While the proceedings were not formally
adjourned it is apparent that the Commissioner provided the appellant with some time to go
through the respondent’s statements to identify the matters he wished to challenge.18 At no
stage did the appellant seek an adjournment or more time to go through the respondent’s
material.
[34] In addition, it is also important to note that the respondent’s representative took the
appellant to a number of the critical aspects of the respondent’s evidence during the course of
cross-examination. In particular:
21 February 2013 meeting between the appellant and Mr Saini: it was put to the
appellant that the meeting was to talk about his performance. The appellant recalled
that he had a meeting with Mr Saini around that time but could not recall what was
discussed.19
May 2013 meeting between the appellant, Mr Saini and Mr Makarainen: the
appellant recalled the meeting.20 It was put to the appellant that both Mr Saini and
Mr Makarainen made it clear that ‘they had concerns about where your targets were
[2014] FWCFB 5835
9
going and where your performance was heading’. The appellant replied that he
‘can’t really remember’.21
The appellant agreed that after the May 2013 meeting he continued to have regular
meetings with Mr Saini about his performance22 and that as at May 2013 and into
June 2013 the appellant was a long way off achieving his sales target for the year.23
The appellant agreed that he was put on a performance management plan on 11 June
2013, following a meeting with Mr Saini.24 The appellant also agreed that as part of
that plan he had weekly meetings with Mr Saini during which he was provided with
feedback on his weeks’ performance and suggestions of things to change and
additional things the appellant needed to do.25
15 July 2013 meeting between the appellant, Mr Saini and Ms Stacey: the appellant
was given a first warning at this meeting and was given a copy of a letter setting out
the reasons for that warning.26 The appellant was taken to Ms Stacey’s notes of that
meeting.27 The appellant accepted that during the meeting it was explained to him
that ‘there needs to be a plan and a discussion around getting more quotes to
occur’.28
After the 15 July 2013 meeting the appellant continued to have weekly performance
review meetings with Mr Saini.29 The appellant accepted that at that time (i.e. mid
July 2013) he was not meeting his sales target.30
18 September 2013 meeting between the appellant and Mr Saini: the appellant
agreed that he was given a second and final warning at this meeting31 and recalls
receiving a copy of the second and final warning letter set out at Attachment MS 10
to exhibit R7.32 They agreed that at this stage (i.e. mid September 2013) he was a
long way behind in achieving his sales target.33
22 October 2013 meeting between the appellant, Mr Saini and Ms Stacey: the
appellant agreed that the meeting took place and that he was told that they had
serious concerns about this performance and wanted him to explain why his
employment should not be terminated and that he received a copy of a letter titled
‘Request for Formal Response’.34 The appellant recalled that they (Mr Saini and Ms
Stacey) ‘stressed the seriousness of the meeting’.35
28 October 2013 meeting between the appellant, Mr Saini and Ms Stacey: The
appellant agreed that the meeting took place and that during the meeting he was told
that his employment was being terminated due to his performance and lack of
engagement in the process to improve his performance.36 The appellant agreed that
the termination letter37 was read out to him at the meeting.
The appellant agreed that as part of the performance management process one of the
targets he was set was to achieve 20 customer calls per week.38 The appellant also
agreed that he only met that target on two occasions in the 19 week period from 11
June 2013.39
[2014] FWCFB 5835
10
[35] Against the context set out above we now turn to consider whether there is any
substance to the appellant’s contention that he was not given a fair hearing.
[36] Commission Members are bound to act ‘judicially’ in the sense that they are obliged to
accord parties procedural fairness.40 In essence, a Member has a responsibility to provide a
fair hearing, to both parties. In Rajski v Seitec Corporation41 Samuels JA set out the general
approach to be taken in proceedings involving an unrepresented party:
‘‘. . . the advice and assistance which a litigant in person ought to receive from the court
should be limited to that which is necessary to diminish, so far as this is possible, the
disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent
destruction from the traps which our adversary procedure offers to the unwary and untutored.
But the court should be astute to see that it does not extend its auxiliary role so as to confer
upon a litigant in person a positive advantage over the represented opponent.’’42
[37] What must be done to assist an unrepresented party depends on the nature of the case
and the party’s intelligence and understanding of the case.43 While the appellant was
unfamiliar with the Commission’s processes he is tertiary educated, with qualifications in
science and business, and has been a lecturer in the TAFE system. It is also relevant to
observe that the assistance which can be provided is necessarily limited by the need to balance
the interests of litigants who represent themselves with the provision of procedural fairness to
other parties.44
[38] After reviewing all of the material we are satisfied that the appellant received a fair
hearing in the proceedings at first instance. The Commissioner explained how the
proceedings would be conducted and informed the appellant of the weight to be accorded to
evidence as opposed to submissions and the need to cross-examine the respondent’s
witnesses. The appellant was given a significant amount of latitude in the presentation of his
case, particularly given his failure to comply with the Commission’s directions about the
filing of relevant material.
[39] As to the opportunity to review the respondent’s evidence, we are not persuaded that
the appellant was unfairly treated, having regard to the following matters:
the respondent had the witness statements the day before the hearing and was able to
review them to the extent that he identified what he regarded as ‘quite a few
inaccuracies’;
shortly after the commencement of the hearing the Commissioner provided the
appellant with some time to go through the respondent’s witness statements. The
appellant did not ask for more time to undertake this task and nor did he seek an
adjournment;
during the appellant’s cross-examination the respondent’s representative took him to
a number of the critical aspects of the respondent’s evidence.
[40] We are not persuaded that there is any substance in this ground of appeal.
[2014] FWCFB 5835
11
Ground 2: No valid reason
[41] The appellant submits that the Commissioner erred in finding that there was a valid
reason for the termination of his employment. In support of this submission the appellant
alleges that the Commissioner made a number of factual errors in his consideration of this
issue. It is convenient to deal first with the alleged factual errors.
[42] Before turning to the particular factual errors alleged by the appellant two matters are
relevant to our general consideration of these issues. The first is that the Commissioner
clearly formed an unfavourable view of the appellant’s evidence, for example:
“[53] When cross examined on these meetings, Mr Jurisic’s answers were either irrelevant,
avoided the question or had a lack of recollection ...
[71] Having observed Mr Jurisic, I also noted generally his inability to provide a simple
straightforward answer to a question. Mr Jurisic spent an inordinately long time in answering
questions in cross examination. Consistently, he provided answers which attempted to
distract, confuse or simply agitate an issue whether relevant or otherwise ...”45
[43] A review of the transcript of the proceedings at first instance supports the
Commissioner’s assessment. On at least 10 occasions the appellant had difficulty recollecting
significant events.46
[44] The second general observation is that despite being informed of the importance of
cross examining the respondent’s witnesses, the appellant failed to challenge substantial parts
of the respondent’s evidence. As the Commissioner observed in his decision:
“[66] The applicant chose how to run his case. Mr Jurisic chose not to cross examine Mr
Saini on critical and relevant reasons for his dismissal ...
[67] Ms Stacey gave evidence concerning her involvement in Mr Jurisic’s dismissal.
Similar to Mr Saini, Mr Jurisic did not cross-examine Ms Stacey on those matters which were
relevant to his dismissal ...
[69] Ms Stacey’s evidence remained intact and I find accordingly.”47
[45] We now turn to the particular factual errors alleged by the appellant which are said to
relate to the Commissioner’s finding that a valid reason for the dismissal exists.
[46] At paragraph [24] of the decision the Commissioner says:
“[24] On 22 October 2013, Mr Saini and Ms Stacey met with Mr Jurisic and requested a
formal response to the Employer’s concerns regarding the Applicant’s workplace
performance/behaviour in the following areas:
failure to make sales budget in the last 10 months;
despite coaching, assistance, easier reporting template and review meetings, the Applicant
had failed to show progress; and
not meeting the Employer’s expectation of improvement in performance and behaviour
following the written warnings on 15 June and 18 September 2013.48
[2014] FWCFB 5835
12
[47] The appellant submits that the Commissioner erred in his reference to the coaching
and assistance provided and further that he erred in having regard to Mr Saini’s evidence in
respect of the training provided to the appellant. The appellant submitted that he was
provided with less training during the performance management process than he had received
previously.
[48] There is no substance to this point. Paragraph [24] of the Commissioner’s decision
simply sets out the content of Mr Saini’s letter to the appellant of 22 October 201449, the
Commissioner makes no findings of fact in relation to the provision of training or on any
other matter. Nor does the Commissioner make any reference to Mr Saini’s evidence
regarding the provision of training to the appellant.
[49] In any event this matter was not raised by the appellant in the proceedings at first
instance. An appeal is not the occasion on which to present the case which should have been
put at first instance but was not.
[50] At paragraph [38] of his decision the Commissioner finds that the appellant was
dismissed ‘at the end of an 8 month informal and formal review of his performance’. The
appellant submits that the informal and formal review of his performance took place over a 32
month period.
[51] The appellant was on a formal performance improvement plan from 11 June 2013
until his dismissal on 28 October 2013 (some 4½ months) and his performance was
‘informally’ subject to review from 21 February 2013 to 11 June 2013 (just under 4 months).
On this basis the Commissioner was correct to observe that the informal and formal review of
the appellant’s performance took place over an 8 month period.
[52] The appellant did not refer to any evidence in support of his assertion that the review
of his performance took place over a 32 month period. But even if the appellant was correct it
is difficult to see how such an ‘error’ would assist the appellant. Rather it would show that he
had a longer period in which to address his performance issues.
[53] We are not persuaded that the Commissioner made the error asserted by the appellant.
[54] At paragraph [46] of his decision the Commissioner states:
“Mr Jurisic’s yearly target and sales initially increased by $468,000 from the previous year.
Excluding Ms Saini and a new sales person, of the remaining four (4) sales persons, Mr Jurisic
had the second least sales target increase in dollar terms.”50
[55] The appellant submits that his sales target was initially increased by $895,000 (from
$725,000 to $1,620,000) and that he did not have the second least sales target in dollar terms.
[56] The Commissioner’s findings at paragraph 46 are derived from a table in Mr Saini’s
witness statement (Exhibit R7 at paragraph 12). This aspect of Mr Saini’s evidence was not
challenged during cross-examination. The appellant was taken to this table during cross-
examination and did not challenge its contents other than to criticise the methodology
[2014] FWCFB 5835
13
underpinning the setting of the 2013 budget because it ‘discriminates against high
performance of the previous year’.51
[57] We are satisfied that it was reasonably open to the Commissioner to make the finding
he did at paragraph [46] of the decision. The Commissioner’s finding does not constitute a
significant error of fact.
[58] At paragraph [52] of his decision the Commissioner states:
“Following the 21 February 2013 meeting, Mr Saini monitored Mr Jurisic’s performance
against the assessment criteria of pipeline quotations, customer phone contact, customer visits
and actual sales. The monitoring occurred during weekly meetings that Mr Saini had with all
sales persons.”52
[59] The appellant submits that ‘regular weekly meetings did not occur after 21 February
2013, only monthly meetings to forecast revenue’.
[60] Mr Saini’s evidence is that throughout March 2013 he continued to monitor the
appellant’s performance ‘via the weekly meetings that I have with each team member’.53 The
appellant was placed on a performance improvement plan on 11 June 2013, that plan
envisaged weekly meetings between Mr Saini and the appellant. In his witness statement Mr
Saini says:
“From that point on, in most cases I met with Boris each week to go through his activity plan
and the spreadsheets setting out his quotations and how he was tracking.”
[61] When cross-examined about his meetings with Mr Saini after February 2013 the
appellant said ‘I’m not sure how frequent they were’.54
[62] At paragraph [53] of his decision the Commissioner deals with the conflict in the
evidence regarding meeting frequency:
“When cross examined on these meetings, Mr Jurisic’s answers were either irrelevant, avoided
the question or had a lack of recollection. I prefer Mr Saini’s evidence of the weekly
meetings.”55
[63] We are satisfied that it was reasonably open to the Commissioner to prefer Mr Saini’s
evidence and to make the finding he did at paragraph 52 of the decision. The Commissioner’s
finding does not constitute a significant error of fact.
[64] At paragraph [56] of the decision the Commissioner states:
“In May, the Applicant was a long way off his performance target. For the month of May, Mr
Jurisic had a target sales of $153,00) and had actual sales of $30,000. Mr Jurisic’s ‘Year to
Date’ (YTD) target was $767,000 and he had achieved $303,000 actual sales.”56
[65] The appellant submits that his actual sales for May were $70,000 and that $40,000 of
those sales was reallocated to another salesperson as a result of customer reallocation.
[2014] FWCFB 5835
14
[66] Even if the appellant is correct, it would not constitute a significant error of fact. The
essential proposition in paragraph 56 of the Commissioner’s decision is that as at May 2013
the appellant was ‘a long way off’ his sales performance target. The Commissioner’s finding
is that regard is supported by the appellant’s evidence in the proceedings at first instance,:
“Ms Aistrope: So this is from May. At May and into June you are still not meeting your
targets. You are a long way behind what your target was?---
Mr Jurisic: Basically what happens with this reallocation of customers, the customer that
I have given was meeting budget target, and the customer that I had received
were not meeting targets. So overall, my KPI in terms of parties has been
lower by taking on the customers that I mentioned before - - -
Ms Aistrope: No. But even before there was a reallocation – so let's put that to one side –
even before there was a reallocation, you were a long way off your actual
sales target for the year, weren't you, in May?---
Mr Jurisic: There was a significant way I was taking this knowledge, but I was saying I
believe that I was very (indistinct) and in terms of the budget targets I got, my
really preferred target has been more than double targets for the other
customers that I was (indistinct) average reduced by about 20, 30 per cent. So
that made it more difficult for me to achieve the target because (indistinct)
quite high for it. Other customers as well.
Ms Aistrope: Going back to the question, though. At that time you were already a long way
off your target thing, didn't you? That's right, isn't it?---
Mr Jurisic: Yes.”57
(emphasis added)
[67] We are not persuaded that the Commissioner made a significant error of fact in the
manner alleged by the appellant.
[68] The final alleged error of fact relates to paragraph [73] of the decision which states:
“[73] The Employer did not shy away from the fact that with respect to LVP, no salesperson
met their budget - but, in my view, that is not the point. No LVP employee achieved 100% of
their target, but they were getting 70%-80%23. Irrespective of actual sales, Mr Jurisic was not
demonstrating to Mr Saini that he was putting in the “hard yards” compared to other
employees in relation to the number of calls to customers, structured customer visits,
developing new customers and pipeline quotations. This lack of demonstrable effort led the
Employer to issue warnings and advising Mr Jurisic that his employment was at risk. Despite
giving Mr Jurisic the opportunity to improve his performance, the outcome was neither
sufficient nor indicated any commitment to the process. By late October, Mr Jurisic’s
engagement in the process reached a low point when on 27 October 2013, the Applicant states
that he is disappointed by Mr Saini’s inability to take responsibility for the performance of his
portfolio and choosing to blame team members instead. Finally, Mr Jurisic resorted to making
an assessment between himself and Mr Saini.”58
[2014] FWCFB 5835
15
[69] The appellant challenges two matters in this aspect of the Commissioner’s decision.
The first is the proposition that other employees were achieving 70-80% of their budget. The
second is the proposition that there was a lack of demonstrable effort on the appellant’s part.
[70] We are not persuaded that the Commissioner erred in the manner submitted by the
appellant. The Commissioner’s observations find ample support in the evidence of Mr Saini
and Ms Stacey and in the written warnings provided to the appellant.
[71] Having dealt with the alleged factual errors we now turn to the appellant’s submission
that there was no ‘valid reason’ for his dismissal.
[72] In considering whether a dismissal was ‘harsh, unjust or unreasonable’ the
Commission must take into account, among other things:
“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) (s.387(a)).”
[73] A ‘valid reason’ for dismissal is a reason which is ‘sound, defensible or well founded’.
It must be defensible or justifiable on an objective analysis of the relevant facts.59 In Cosco
Holdings v Thu Thi Van Do60 their Honours Lindgren and Lehane JJ observed, albeit in a
different legislative context, that the word ‘valid’ added a further element, of genuine
foundation.
[74] The word ‘capacity’ in s.387(a) means the employee’s ability to do the work he or she
is employed to do. A reason will be ‘related to the capacity’ of the employee where the
reason is associated or connected with the ability of the employee to do his or her job.61
[75] In the decision subject to appeal the Commissioner correctly stated the requirements
for a ‘valid reason’, considered the evidence and concluded that there was a sound and
defensible reason to terminate the appellant’s employment. Contrary to the Commissioner’s
conclusion the appellant submits that there was no valid reason for his dismissal.
[76] There is no dispute as to the following facts:
by no later than May 2013 the appellant was made aware that the respondent was not
satisfied with his performance;
the appellant was placed on a performance management plan on 11 June 2013,
which clearly set out the respondent’s expectations of him. In his evidence the
appellant agreed that as part of that plan he had weekly meetings with Mr Saini
during which he was provided with feedback on his weeks’ performance and
suggestions of things to change and additional things he needed to do;
the appellant received two written warnings (on 15 June and 18 September 2013),
both of which refer to the appellant’s failure to meet budget and set out what was
expected of him in the following four weeks. Both letters state that a marked
improvement in the appellant’s performance was expected and that a failure to make
the necessary improvements may place his employment in jeopardy;
[2014] FWCFB 5835
16
in his evidence the appellant agreed that as at mid September 2013 he was a long
way behind in achieving his sales target. The appellant also agreed that one of his
KPI’s was to achieve 20 customer calls per week and that in the 19 week period
from 11 June 2013 he only met that target on two occasions.
[77] In these circumstances we are satisfied that there was a valid reason for the appellant’s
dismissal and we are not persuaded that there is any substance to this ground of appeal.
Ground 3: Support person
[78] In considering whether a dismissal was ‘harsh, unjust or unreasonable the Commission
must take into account, among other things:
“any unreasonable refusal by the employer to allow the person to have a support person
present to assist at any discussions relating to dismissal.” (s.387(d))
[79] The Commissioner refers to this issue at paragraphs [62] and [78] of his decision:
“In addition, to the first written warning, I was given, in evidence, Ms Stacey’s detailed
written notes of the meeting on 15 July 2013. Ms Stacey’s notes indicate that: Mr Jurisic
declined a support person, could not see the justification of a warning, agreed with the figures
presented, provided an alternative view of the reasons why the targets had not been met and
would ‘think’ about whether he would sign the first written warning memorandum as a fair
summary of the issues to be addressed....
I am satisfied, on the evidence, that there was no refusal by the Employer to allow Mr Jurisic
to have a support person present to assist in any discussions relating to his dismissal.”62
[80] The evidence in relation to this issue is as follows. At paragraph 19 of her witness
statement Ms Stacey deals with the support person issue in these terms:
“On the 21 October 2013 I booked the video conference rooms for 22 October in
preparation for a formal meeting with Boris. I requested that Matt invite Boris to the
meeting and ensure that a support person was invited. Matt informed me that on 22
October 2013 he had invited Boris to a formal meeting to discuss his performance and
he copied me in on an email to Boris confirming that he could bring a support
person.”63
[81] Ms Stacey’s notes of the 23 October meeting are set out at Attachment BS 5 to Exhibit
R8. Those notes state, among other things, ‘Offered support person declined’. This aspect of
Ms Stacey’s evidence was not the subject of cross-examination by the appellant.
[82] The appellant was taken to this issue during cross-examination. The relevant extracts
from the transcript are set out below:
“Ms Aistrope: ... there was meeting arranged for 28 October between you and Beverley and
Matt?
Ms Jurisic: That is correct.
[2014] FWCFB 5835
17
Ms Aistrope: You were also asked if you wanted to have a support person present in that
meeting and that emailed you to let you know you could have a support
person?
Mr Jurisic: (indistinct) I remember trying (indistinct) I do remember trying to call
(indistinct) support person (indistinct).
Ms Aistrope: But you didn’t actually ask to be able to have a support person present at the
meeting, you didn’t ask either Beverley or Matt and say that you wanted to
have a support person?
Mr Jurisic: When did I ask for ....
Ms Aistrope: You didn’t actually say to Beverley or Matt that you wanted to have a support
person present”
Mr Jurisic: I can’t remember asking (indistinct) options.”64
[83] In relation to this ground the appellant submits that ‘I did not get an option to have a
support person, hence I was not given a chance to say no’.
[84] The appellant’s complaint is directed at an alleged failure by the respondent to inform
him that he could have a support person present at such discussions. Two things may be said
about this submission. The first is that it is misconceived. Section 387(d) is directed at ‘any
unreasonable refusal’ by the respondent to allow the appellant to have a support person
present at discussions relating to have a support person present at discussions relating to
dismissal. The subsection is not concerned with whether or not the employee was informed
that he or she could have a support person present, though that matter may be relevant and
take into account under s.387(h). In this case there is no evidence of any such refusal by the
respondent, let alone any unreasonable refusal.
[85] The second observation to be made is that the appellant’s assertion that he ‘did not get
an option to have a support person’ is contrary to the evidence. Ms Stacey’s unchallenged
evidence was that the appellant was told that he could bring a support person to the meeting
on 23 October 2013. Further, the appellant’s evidence was that he had tried to contact
someone to attend as a support person.
[86] There is no substance to this ground of appeal.
Ground 4: Bullying allegation
[87] The essence of this ground of appeal is that in his original application for an unfair
dismissal remedy the appellant mentioned on a number of occasions that he had been bullied
but this issue was not addressed in the hearing. The appellant referred to the trauma he had
suffered as a result of the bullying and that was why he had difficulty in recollecting certain
events. It was also put that this trauma impacted on his ability to present his case to the best
of his ability.
[88] In his original application the appellant states, among other things:
[2014] FWCFB 5835
18
“I was bullied to accept unrealistic sales targets and the worst performing portfolio ...
I was bullied to accept weakest sales portfolio in respect of all measured parameters (YTD
budget %, YTD sales and full year forecast) on 29 May 2013. On 11 June I was bullied to
accept unrealistic targets ...
I believe Matt has been bullying me.”
[89] The respondent’s response to the appellant’s application states that the respondent
‘denies the applicant’s allegation that the expectations were unreasonable or that he was
bullied by his manager’.
[90] It is important to note that the bullying allegation was not mentioned at all during the
proceedings before the Commissioner. It is difficult to see how it could reasonably be said
that the Commissioner erred in failing to deal with a matter which was not raised in the
proceedings before him.
[91] We are not persuaded that there is any substance to this ground of appeal.
Ground 5: Mr Saini’s evidence
[92] The appellant submits that the Commissioner erred in accepting Mr Saini’s evidence
in circumstances where his credibility had been damaged during cross-examination.
[93] Having reviewed the transcript of Mr Saini’s evidence we are not persuaded that there
is any substance to this ground of appeal.
Ground 6: Exclusion of relevant material
[94] The appellant submits that the respondent had other relevant evidence which was not
disclosed during the proceedings.
[95] The nature of the ‘other relevant evidence’ was not particularised and on the material
provided by the appellant we are not satisfied that the Commissioner was asked to exercise his
power to compel the respondent to disclosure any additional material.
[96] We are not persuaded that there is any substance to this ground of appeal.
Conclusion
[97] As we have noted, the test for permission to appeal in respect of matters of this type is
a stringent one. The Commission must not grant permission to appeal unless it considers that
it is ‘in the public interest to do so’. The task of assessing whether the public interest test is
met is a discretionary one involving a broad value judgment. As their Honours Mason CJ,
Brennan, Dawson and Gaudron JJ said in O’Sullivan v Farrer:
“... the expression ‘in the public interest’, when used in a statute, classically imports a
discretionary judgment to be made by reference to undefined factual matters, confined only ‘in
so far as the subject matter and the scope and purpose of the statutory enactments may enable
[2014] FWCFB 5835
19
... given reasons to be [pronounced] definitely extraneous to any objects the legislature could
have had in view.”65
[98] The public interest test in s.400(1) is not satisfied simply by the identification of error
or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
“... the public interest might be attracted where a matter raises issue of importance and general
application, or where there is a diversity of decisions at first instance so that guidance from an
appellate court is required, or where the decision at first instance manifests an injustice, or the
result is counter intuitive or that the legal principles applied appear disharmonious when
compared with other recent decisions dealing with similar matters...66
[99] The appellant advances two lines of argument in support of his contention that
permission to appeal should be granted in the public interest.
[100] First, it is submitted that the Commissioner erred in concluding that there was a valid
reason for the appellant’s dismissal and that it would be unjust not to grant permission to
appeal in such circumstances.
[101] Second, it is submitted that the decision would create a precedent whereby a ‘top
employee in terms of KPI’s can be dismissed for ‘not having good enough KPI’s’. It is
submitted that allowing the decision to stand would undermine the use of KPI’s which would
be contrary to the public interest.
[102] We are not persuaded that either of these points enlivens the public interest.
[103] As to the first point, for the reasons already given we reject the appellant’s contention
that the Commissioner erred in concluding that there was a valid reason for his dismissal. As
to the second matter, we are not persuaded that the decision subject to appeal would create a
precedent of the type submitted by the appellant.
[104] There was no significant error of fact in the decision subject to appeal and the
appellant has failed to persuade us that the decision was tainted by legal error or that the
discretion miscarried. We are not satisfied that it is in the public interest to grant permission
to appeal. We refuse permission to appeal.
PRESIDENT
Appearances:
Mr Jurisic on his own behalf
Ms Aistrope, solicitor, for the respondent
[2014] FWCFB 5835
20
Hearing details:
2014;
Perth;
August, 12
Further submissions filed:
Wednesday 13 August 2014;
Thursday 14 August 2014;
Monday 18 August 2014;
Thursday 21 August 2014.
Printed by authority of the Commonwealth Government Printer
Price code G, PR554655
[2014] FWCFB 5835
21
ATTACHMENT 1
Request for formal responst 22nd October 2013 Boris Jurisic C/O Malaga, WA Dear Boris Further to our meeting today, this is a formal letter detailing my continued concerns about your workplace performance/behaviour in the following area(s): Sales-Related Deficiencies. You have failed to make your budget for 10 months, I have continued to stress the importance of focusing your attention on our main mission, which is to develop new business for ABB. I have provided coaching, assisted you on sales calls and provided easier reporting templates for you. I have also had regular review meetings with you. During these reviews you were provided and agreed on KPI's which you were expected to meet. Unfortunately, you have continued to not have not shown progress in this area. You were provided a first written warning on the 15" June 2013 and a second written warning on the 18th September 2013. I made it clear in the meetings and letters that I expected to see a marked improvement in the behaviors and targets as agreed. I also made it clear in these meetings and letters that fallure to make the necessary improvements may place your employment in jeopardy. In todays meeting we discussed your stats again (please see attached documentation), and again I am disappointed with your apparent lack of commitment to making a demonstrated change to the behaviors required in this role. I am now formally requesting a response in writing by tomorrow morning 9am (WA time), detailing why I should not terminate your em ployment. Regards Matt Saini
[2014] FWCFB 5835
22
ATTACHMENT 2
ABB
Bons Jur sic C/O Malaga, WA
Dese Borla Termination of employment This letter is to inform you that your employment will be terminated with notice, effective coday 28"" October 2013 I am satisfied that the following conduct breacheryour final writtan warring and causas che corrponytohave a
Employee . Saesreamed deridescies where you have failed to make your budget o Based on the FT 2013 budget, total sales required during the 18 weeks of performancemanagement was $1. 1million. You were expected to achieve a 5/6 milien worth of quintatons in erder in achieve your sales target. Based on a La4 win ratio (25%) set Bsa KPI, youhave achieved $851kin quotaboss which is 18%. ne your win Ratio of 6/76 qunted 851 KV4 1 R M (175%] which is less
than half the number of quotes fin Delle terras) required to edileve your ta gets for Ff 2013. Failure to communicate is an cpen and honest manner concerning known procedures for Quotations rotul:ing In awilful inflation of the quotation figures which sonofit your I'PI's Iem sellfied Het you have been notified of these reasons and been given ample opportunitytorespond to thert - including being proviced with
Meetingwith Myselfand Beverly Stacey (HR Representative) on 22nd October and subsequent meeting Formal written recuest for response dated 22nd October ard A further request for elerification and further information from Beverly Stasay on the 22rd October 2013. However, comgary to your assertions in your responses, as sald out above, emple typurtanty has been provided and
Having taken into account your responses and consicersda range of potentially mitigating fatto's, I am not satisfied that you have provided me with anything that explains or artifias of u timacaly overcomes your lack of performance. I have closely assessed amang other things your age, length of service ,, prospects of altemative employment and appropriateness of alpernadve remedies.
Finally. it is apparent to me that you have demonstrated no ownership in the issues You havenct showr any sort of enntrillen, and the same pattare of conduct simply keeps constantly emerging despite repeated reminders. ccaching and warrings to folow establichec A3B sales processos and procedures tha: are fundamentaltothe smooth rimingg of the Company. ABE Australie Ply Liniad
POIM Actes Telephora Web add 564 Love 20 P.C. Bou R1405 WWW.ASICONM +1 (1) 28215 19 (0)
[2014] FWCFB 5835
23
1 This is so because on appeal FWA has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC
(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
2 (2011) 192 FCR 78 at 90 at paragraph 43.
3 See Attachment MS8 to Exhibit R7.
4 See Attachment MS10 to Exhibit R7.
5 See Attachment MS11 to Exhibit R7.
6 See Attachment MS 13 to Exhibit R7.
7 Transcript, 1 May 2014 at paragraphs 381-393.
8 [2014] FWC 4018 at paragraph 76.
9 Ibid at paragraph 77.
10 Ibid at paragraph 79.
11 Ibid at paragraph 78.
12 Transcript 1 May 2014 at paragraph 23.
13 Ibid at paragraphs 26 and 34.
14 Ibid at paragraphs 28-37, 61 and 63.
15 Ibid at paragraph 24.
16 Ibid at paragraph 70.
17 Ibid paragraphs 67-77.
18 Also see paragraph 82 of the transcript. During the appeal proceedings the parties confirmed that such an opportunity was
provided: Transcript 12 August 2014 at paragraphs 67 and 419 - 427.
19 Transcript, 1 May 2014 at paragraphs 133-134.
20 Ibid at paragraphs 140-142.
21 Ibid at paragraph 143.
22 Ibid at paragraph 158.
23 Ibid at paragraphs 159-161.
24 Ibid at paragraph 172.
ABB In all the circumstances I am satisfied that termination of employment is the only appropriate outcome and will be effective Immediately with 4 weeks' notice. Your final termination payments will be processed and paid to you accordingly. Yours sincerely ABS Australia Pty Limited Matt Saini Beverly Stacey Sales Manager LVP Sales HR Business Partner
[2014] FWCFB 5835
24
25 Ibid at paragraphs 210-211.
26 Attachment MS 8 to Exhibit R7.
27 Transcript, 1 May 2014, at paragraphs 233-243; Attachment BS 5 to Exhibit R8.
28 Transcript, 1 May 2014 at paragraph 240.
29 Ibid at paragraph 221.
30 Ibid at paragraph 217.
31 Ibid at paragraphs 253-259.
32 Ibid at paragraph 259.
33 Ibid at paragraphs 243-252 and 265.
34 Ibid at paragraphs 329-330; Attachment MS 11 to Exhibit R7.
35 Transcript, 1 May 2014, at paragraphs 341 and 352.
36 Ibid at paragraphs 381-393.
37 Attachment MS 13 to Exhibit R7.
38 Transcript, 1 May 2014, at paragraph 317.
39 Ibid at paragraph 325.
40 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re:
Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513; Coal & Allied Mining Services
Pty Ltd v Lawler and others (2011) 192 FCR 78 at [25].
41 Unreported NSW Court of Appeal 16 June 1986.
42 Cited with approval in Morton v Mitchell Products [1996] 828 FCA 1 per Sackville J; and Davidson v Aboriginal and
Islander Child Care Agency (1998) 105 IR 1
43 Abram v Bank of New Zealand (1996) ATPR 42, 340, affirmed on appeal (1998) ATPR 41-507
44 Ibid
45 [2014] FWC 4018.
46 Transcript, 1 May 2014 at paragraphs 131-134, 137, 140, 143, 149, 174, 198, 206, 238, 369 and 382.
47 [2014] FWC 4018.
48 Ibid.
49 Attachment MS 11 to Exhibit R7.
50 [2014] FWC 4018.
51 Transcript 1 May 2014 at paragraph 128.
52 [2014] FWC 4018 at paragraph 52.
53 Exhibit R7 at paragraph 23.
54 Transcript 1 May 2014 at paragraph 137.
55 [2014] FWC 4018.
56 Ibid at paragraph 56.
57 Transcript, 1 May 2014 at paragraphs 159-161.
58 [2014] FWC 4018.
59 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370.
60 (1997) 77 IR 94 at 118
61 Crozier v Palazzo Corporation Pty Ltd [2001] FCA 1031 (1 August 2001) at [14] per Gray, Branson and Kenny JJ
62 [2014] FWC 4018 at paragraphs 62 and 78.
63 Exhibit R8 at paragraph 19.
64 Transcript, 1 May 2014 at paragraphs 366-369.
65 (1989) 168 CLR 210 at 216; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon,
Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] - [46].
66 (2010) 197 IR 266 at paragraph 27.
[2014] FWCFB 5835
25
