1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Shaun Van Malsen
v
Titan Plant Hire Pty Ltd
(U2016/5227)
COMMISSIONER WILSON MELBOURNE, 14 JULY 2016
Application for relief from unfair dismissal.
[1] Shaun Van Malsen was employed by Titan Plant Hire Pty Ltd at its Darwin premises
until his dismissal on 2 March 2016.
[2] The question of whether Mr Van Malsen is a person protected from unfair dismissal is
one of the matters in s.396 of the Fair Work Act 2009 (the Act) requiring determination before
considering the merits of the application. It is argued by Titan Plant Hire that he is not so
protected because his employment dates only from 9 November 2015 and that, as a result, he
has not completed the minimum period of employment. For the reasons set out below I have
found that Mr Van Malsen’s employment commenced on 11 August 2015. He had therefore
completed 6 months employment by the time he was dismissed.
[3] Titan Plant Hire employed around 20 employees at the time of Mr Van Malsen’s
dismissal. Mr Van Malsen has therefore completed the minimum employment period, and
since his employment was also covered by a modern award was thus a person protected from
unfair dismissal at the time he was dismissed.
[4] .Neither party put forward that any of the remaining initial matters required such
consideration. In relation to those remaining elements within s.396, I find that Mr Van
Malsen’s application was lodged with the Fair Work Commission within the 21 day period for
making such applications; and that questions of consistency with the Small Business Fair
Dismissal Code or genuine redundancy do not arise.
BACKGROUND
[5] Mr Van Malsen was first engaged by Titan Plant Hire as a casual employee on 11
August 2015 and became a full-time permanent employee of the company on 9 November
2015. His employment required him to work as a heavy duty fitter, maintaining and repairing
heavy duty diesel equipment.
[6] For the reason that both parties were unrepresented, the matter proceeded by way of
determinative conference before me, with Mr Van Malsen giving evidence on his behalf, as
[2016] FWC 4573 [Note: An appeal pursuant to s.604 (C2016/4614) was
lodged against this decision - refer to Full Bench decision dated
5 September 2016 [[2016] FWCFB 5520] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB5520.htm
[2016] FWC 4573
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did his partner, Rowena Wynveld. Jason Madalena, Titan Plant Hire’s Managing Director,
and Nathan Stretton, Project Manager of Resource Mining, a business related to Titan Plant
Hire, appeared for and gave evidence on behalf of the Respondent.
[7] Titan Plant Hire objected to the evidence of Ms Wynveld as being remote to the
matters in determination in this matter. I accept the evidence in her statement to the extent that
it relates to the matters requiring determination by me, however I accord it less weight than
the evidence of Mr Van Malsen, Mr Madalena or Mr Stretton.
[8] Mr Van Malsen also sought to tender a statement from a former Darwin Branch
Manager of the Respondent, Gary Irving, who was not available for cross-examination of his
written witness statement. Because that was the case, and his statement was largely
unconnected with the matters in dispute in this application, I have had no regard to Mr
Irving’s statement. In forming my decision on this matter, I have given consideration to the
evidence of each and the written submissions and documents filed on behalf of both parties.
[9] Despite directions by the Commission for the Respondent to do so, no merits
submissions were filed by Titan Plant Hire, and no witness statements of any kind were filed
by it. While the Respondent filed two sets of documents, they were each in connection with
its objection that Mr Van Malsen had not completed the minimum employment period. The
Applicant was on notice to an extent of Mr Madalena’s evidence because of an extensive
summary of the Respondent’s position within the Employer Response Form, however there
was no indication prior to the determinative conference that Mr Stretton would be giving
evidence, or on what topics. While this is so, Mr Stretton’s evidence was answered by Mr
Van Malsen in the course of the determinative conference.
[10] Mr Van Malsen’s employment was subject to written letters of offer of employment,
first as a casual and then as a permanent employee. The casual letter of offer refers to
employment initially being offered as a casual position, with the Respondent advising that
“[i]t is anticipated that after a successful trial period you will be offered a permanent position
with Titan Plant Hire”.1 The letter of offer further advised that Mr Van Malsen’s “average
hours of work comprise 38 ordinary hours and up to 9.5 additional hours per week based on
operational requirements”. The letter further sets out that his rate of pay, being a casual rate of
pay, would be $42 per hour, which “includes a loading in lieu of paid leave entitlements. Your
pay rate may be renegotiated on successful completion of your probation period.”2
[11] Mr Van Malsen worked for Titan Plant Hire every week between 11 August 2015 and
8 November 2015. The payslips he introduced into evidence show that his hours of work for
the Respondent were, other than in the first week of the period, at least 38 hours per week.3
He gave evidence that he would be told by his supervisor in the course of the week whether
he was required to work on the coming Saturday; other than that, his hours were constant.
[12] Mr Van Malsen’s employment during his casual period of employment was, it seems,
uneventful. There are no reports of warnings having been given, or other disciplinary events.
[13] In December 2015, Mr Van Malsen was given a letter that informed him that he had
successfully completed his probationary period and that he was, with effect from 9 November
2015, a permanent employee. The letter of offer which communicates this matter is dated 9
December 2015, and was signed by Mr Van Malsen on 14 December 2015. The
correspondence also informed him that his rate of pay remained at $42 per hour, but omits the
[2016] FWC 4573
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reference to the rate including a loading in lieu of paid leave entitlements. I take this to be an
indication that, from 9 November 2015, Mr Van Malsen would be in receipt of the paid leave
entitlements and accruals allowed for by the National Employment Standards.
[14] Both letters of offer refer to Mr Van Malsen’s work encompassing;
“Repairs & Maintenance to all equipment (small engines to earthmoving equipment);
and any other duties as requested by the Maintenance Manager.”4
[15] Mr Madalena gave evidence, which I accept, that, in December 2015, around the time
that the permanent employment letter of offer was provided to Mr Van Malsen, he had a
conversation with the Applicant about the need for him to be available for periodic work at
the Old Pirate Mine. The Applicant does not significantly dispute that there was such a
discussion, or that he accepted the need to make himself available for such work.
[16] The Old Pirate Mine is in Western Australia, in the Tanami Desert, and is a significant
distance from Darwin; 1600 km, in the Applicant’s submission.5
[17] In January 2016, Mr Van Malsen was asked to go to the Old Pirate Mine, which is a
gold mine. Mr Van Malsen agreed to the request. To get there required driving from Darwin
with tools and equipment, including spare parts. He departed on 10 January 2016 and
expected to be there for 12 days. When he arrived, he was inducted, including for
occupational health and safety purposes. While the evidence about the number of people at
the site is inconclusive, the evidence is nonetheless that it was a site involving a relatively
small number of people.
[18] Mr Stretton was one of the people at the site responsible for supervision of Mr Van
Malsen. He gave evidence that Mr Van Malsen’s role including filling-in for another
employee and also ensuring plant at the site was fuelled and maintained. At least part of the
work, prior to the commencement of production work, required ensuring that each item of
plant was refuelled and greased. Mr Stretton was critical of Mr Van Malsen in two respects;
he had difficulty in ensuring the equipment had the requisite pre-production checks completed
before production started and he had to be reminded to wear the necessary personal protective
equipment (PPE) that had been stipulated as a site requirement to Mr Van Malsen when he
undertook the site induction. He resolved the problem of not completing the pre-production
checks within time by allocating a mature-age apprentice to work with Mr Van Malsen on the
duties. The PPE apparently consisted of basic requirements only – hard hat; safety glasses;
boots and full body overalls; and safety gloves when the work required them. Mr Stretton’s
evidence was that he noticed Mr Van Malsen repeatedly forget his hard hat and safety glasses.
When he noticed those things, he reminded Mr Van Malsen, who would then comply. Mr
Stretton gave no evidence that he had warned or disciplined Mr Van Malsen for these
omissions.
[19] Mr Van Malsen’s first rotation at the Old Pirate Mine finished on 22 January 2016,
and he returned to Darwin by road.
[20] On 1 February 2016, Mr Van Malsen was asked again to go to the Old Pirate Mine. He
asked his supervisor, Steve Walker, if he could fly there, however the request was refused. Mr
Madalena’s evidence about flying to the site includes that it would require some weeks
advance notice, and that in any event Mr Van Malsen was required to take his tools with him,
[2016] FWC 4573
4
which might weigh several hundred kilograms. Mr Van Malsen had some misgivings about
going again at the time he was asked, since he had family responsibilities to attend to and,
connected with those responsibilities, Ms Wynveld was away during the same period on a
work trip.
[21] He undertook the trip, leaving on 9 February and arriving back in Darwin on 19
February 2016.
[22] At least part of the need to work at the Old Pirate Mine had been to cover for absences
of another employee, whom Titan Plant Hire put forward as having medical issues requiring
his absence from the site.
[23] However, with connection with the February rotation, Mr Madalena is critical of Mr
Van Malsen, saying that he failed to follow the company’s fatigue management requirements
by driving excessively long distances without a break, or at least without sufficient breaks.
Despite the criticism, the evidence resolves only to the point of it being a concern to the
company, and a matter that was discussed with Mr Van Malsen and potentially Mr Stretton.
The company’s contention is that, despite instruction and contrary to safe practice, Mr Van
Malsen drove the entire distance to Darwin in a single day. Mr Van Malsen concedes he drove
the route in a single day, but disputes both that it was unsafe to do so, or that he had been
instructed not to do so.
[24] In any event, there is no evidence either of disciplinary action or a warning against Mr
Van Malsen for what he did.
[25] Having returned to Darwin, Mr Van Malsen was soon asked to return to the Old Pirate
Mine. That request was made on 1 March 2016, when Mr Walker told him the substantive
employee’s medical conditions required him to again be away and that he, Mr Van Malsen,
needed to be there. Mr Van Malsen says that Mr Walker told him that Mr Madalena would be
in contact with him to discuss the matter with him, but that such never occurred. Instead, what
happened next was entirely the province of conversations on the one part between Mr Van
Malsen and Mr Walker, and Mr Walker and Mr Madalena on the other.
[26] Mr Walker did not give evidence in these proceedings.
[27] On Mr Van Malsen’s version of events, he had heard of a possible need to attend again
when the person he had been replacing had asked him if he was returning to cover his break.
He had asked Mr Walker about the possibility who told him he was not aware of the need. He
did not want to go to the Old Pirate Mine again, or at least so soon after returning. He
especially did not want to go with such short notice, which by the time the final request was
made on 2 March 2016, he regarded as being only 12 hours’ notice, since he would need to
leave the next day. If he had to go there, his preference was to fly and, because of his family
circumstances, would like to negotiate the date he went. Both of the requests were refused. He
also raised with Mr Walker that if he were to go he would like to be paid more for his trouble.
He says Mr Walker consulted with Mr Madalena and relayed back to him that his rate would
be increased to $50 per hour.
[28] Mr Van Malsen says that after considering the Respondent’s requests, and discussing
the matter with Ms Wynveld, he communicated his refusal to go to Mr Walker.
[2016] FWC 4573
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[29] In contrast, Mr Madalena’s evidence is that there had been an agreement with Mr Van
Malsen since December 2015 that he would be available to go to the Old Pirate Mine and that,
with his refusal, he regarded Mr Van Malsen as failing to live up to his side of the agreement.
In any event, Mr Madalena believed the request was reasonable since the company’s
maintenance and repair work on the site was tailing down and likely to finish during March,
or not long after, which it apparently did. He also emphasised that there was a genuine need
for the company to have someone such as Mr Van Malsen at the site.
[30] Mr Madalena stated to the Commission that flying to the site would not be possible
with it being such short notice, as well as because of the need for Mr Van Malsen to take with
him his tools and some spare parts. By refusing to go, Mr Van Malsen was putting the
company in a difficult position when it did not have another person to go to the site when it
already had the substantive employee flying out.
[31] In relation to the question of the rate of pay for Mr Van Malsen at the site, he gives a
different, almost enigmatic, version of events. He says that Mr Walker approached him on the
subject and that he responded with words to the effect that if he is able to perform the duties
of the other fitter then he will pay him $50 per hour. Whatever Mr Madalena meant with such
an elliptical statement, it seems, if Mr Van Malsen is correct, that Mr Walker interpreted it as
meaning that Mr Madalena would agree to pay $50 per hour if Mr Van Malsen agreed to go to
the site.
[32] Mr Madalena also puts forward, through his recollection of what he was told by Mr
Walker, that Mr Van Malsen initially agreed to go for a third rotation and then backed out of
the arrangement. He also relays that Mr Van Malsen was in and out of Mr Walker’s office,
perhaps 6 or 8 times, making various requests about the matter.
[33] Mr Van Malsen is adamant that he never agreed to go to the Old Pirate Mine a third
time.
[34] The parties are agreed that the request for a third rotation was initially made on 1
March 2016, with it culminating on 2 March 2016, along with the expectation that Mr Van
Malsen would travel to the Old Pirate Mine on 3 March 2016. Also agreed is that, on the
afternoon of 2 March 2016, at about 12 PM, Mr Van Malsen was approached with the firm
request to go. By 1 PM or 1:30 PM he had refused, and later that afternoon, at close to 4 PM,
he was handed a letter of dismissal.
[35] The letter of termination was prepared on Mr Madalena’s instructions and
communicated the following;
“2 March 2016
Shaun Van Malsen
[Address]
Dear Shaun,
Re: Termination of Employment
[2016] FWC 4573
6
I advise that your employment with Titan Plant Hire has been terminated. Termination
is effective immediately.
Your employment is terminated for disobeying reasonable work requests and
unsatisfactory work performance.
Refusal to carry out lawful and reasonable instructions that are consistent with your
employment contract is grounds for summary dismissal.
Your final pay will include the hours that you worked on 02.03.16 plus all entitlements
owed. A payslip will be been forwarded to you reflecting the above.
We wish you well in your future endeavours.
Yours sincerely
Jason Madalena
Managing Director”6
LEGISLATION
[36] Two matters require determination in this decision. The first matter is whether Mr Van
Malsen is a person protected from unfair dismissal, with the contention being put that he has
not served the minimum employment period provided for in ss.383 and 384 of the Act for
reason of having worked some of his term of employment as a casual employee. The second
matter arises in the event that Mr Van Malsen is a person protected from unfair dismissal, and
is the consideration of whether he was unfairly dismissed, taking into account the criteria
within s.387 of the Act.
[37] The meaning of the term “minimum employment period” is set out in s.383 of the Act.
That period in this matter is six months, since Titan Plant Hire employed 20 employees at the
time Mr Van Malsen was dismissed and thus is not a small business employer for the
purposes of the Act. A person’s “period of employment” is qualified by s.384 as being their
continuous employment, with certain casual employment being disregarded. So far as is
relevant, s.384 sets this qualification out in the following terms;
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the
period of continuous service the employee has completed with the employer at that
time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the
employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and
systematic basis; and
[2016] FWC 4573
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(ii) during the period of service as a casual employee, the employee had
a reasonable expectation of continuing employment by the employer on
a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of
business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities
when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new
employment started that a period of service with the old employer
would not be recognised;
the period of service with the old employer does not count towards the
employee’s period of employment with the new employer.
[38] Determination of whether a dismissal is unfair requires consideration of the criteria set
out in s.387, which is in the following terms;
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.”
[2016] FWC 4573
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CONSIDERATION
WHETHER MINIMUM EMPLOYMENT PERIOD SERVED
[39] Consideration of this matter first requires resolution of the jurisdictional matter
referred to above; namely that Mr Van Malsen may not have completed the minimum
employment period with Titan Plant Hire of 6 months continuous service.
[40] Mr Van Malsen’s first employment with Titan Plant Hire was on 11 August 2015, and
he finished employment on 2 March 2016. As recorded earlier, he worked initially as a casual
employee and was advised on 9 December 2015 that he had been made a permanent employee
with effect from 9 November 2015.
[41] The questions arise in relation to this of whether, as a casual employee, Mr Van
Malsen’s employment was on a regular and systematic basis and whether during that time he
had a reasonable expectation of continuing employment by Titan Plant Hire on a regular and
systematic basis.
[42] The evidence leads inexorably to positive findings by me on each element.
[43] The Commission’s approach in these matters is well settled.
[44] Although, as a matter of contract, each occasion a casual employee is engaged is a
separate contract of employment,7 the task in matters such as these is to examine the period of
service rather than the period of employment that is relevant.8 If it can be said that
employment was on a regular and systematic basis and there was a reasonable expectation of
continuing employment on a regular and systematic basis then a period of service by a casual
employee will count towards the period of continuous service.9 After that point, continuous
service will only be broken by one party making it clear to the other party that there will be no
further engagements.10
[45] In assessing whether employment was on a regular and systematic basis the
Commission looks for the employment to have been on a regular and systematic basis, not the
hours worked.11 A clear pattern or roster of hours may be strong evidence of regular and
systematic employment. While the term ‘regular’ implies a repetitive pattern it does not mean
frequent, often, uniform or constant.12 The term ‘systematic’ requires that the engagement be
‘something that could fairly be called a system, method or plan’.13
[46] Mr Van Malsen was employed in August 2015 on a casual basis, but subject to a letter
of offer. That letter of offer put forward that while a casual, it was anticipated that after a
successful trial period that he would be offered a permanent position with Titan Plant Hire. It
further stipulated weekly hours of work of 38 ordinary hours and up to 9.5 additional hours,
based on the operational needs of the business. All that was offered, actually occurred. At no
stage was continuous service broken.
[47] I therefore find that, at the time he was dismissed, Mr Van Malsen had completed the
minimum employment period and that he was a person protected from unfair dismissal.
WHETHER UNFAIRLY DISMISSED
[2016] FWC 4573
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[48] Having determined that Mr Van Malsen is a person protected from unfair dismissal, it
is necessary for me to consider whether he was unfairly dismissed.
[49] In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account the criteria within s.387 set out earlier.
[50] A consideration of the evidence presented in this matter leads to the following findings
which will inform my determination of the application;
(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)
[51] As referred to previously, Mr Van Malsen was informed in the letter of termination
that he was “terminated for disobeying reasonable work requests and unsatisfactory work
performance”.
[52] In effect, these reasons amount to three complaints;
that Mr Van Malsen refused to travel to the Old Pirate Mine a third time when he
was asked on 2 March 2016;
that he failed to comply with the company’s directions for the wearing of PPE at the
mine site and that he failed to follow its directions about safe driving and fatigue
management; and
that he performed poorly when working at the mine site, and in particular that he was
too slow in undertaking certain tasks.
[53] Determination of a valid reason involves an examination of whether the reason given
is “sound, defensible or well founded”, within the overall context of the employment
relationship;
“At the same time the reason must be valid in the context of the employee’s capacity or
conduct or based upon the operational requirements of the employer’s business.
Further, in considering whether a reason is valid, it must be remembered that the
requirement applies in the practical sphere of the relationship between an employer
and an employee where each has rights and privileges and duties and obligations
conferred and imposed on them. The provisions must ‘‘be applied in a practical,
commonsense way to ensure that’’ the employer and employee are each treated fairly,
see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when
considering the construction and application of s 170DC.”14
[54] Having been dismissed for misconduct, the Commission is first required to find
whether on the balance of probabilities the alleged misconduct actually occurred.15 In doing
so, the Commission will take into account the need to be properly satisfied of the proofs of the
conduct; without applying a standard of proof higher than the balance of probabilities.16 The
Commission will also take into account the need for honesty on the part of the Applicant
during the course of an investigation.17
[2016] FWC 4573
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[55] Mr Madalena conceded in giving evidence that the primary reason Mr Van Malsen
was dismissed was his refusal to travel to the Old Pirate Mine a third time, and that while the
other complaints had not previously been taken up with Mr Van Malsen they were tipping
factors that contributed to the company’s decision to dismiss him.
[56] The second and third sets of complaint put forward by Titan Plant Hire, of failures to
adhere to its PPE requirements or to its fatigue management policies, and of slowness at
work, amount to not much more than niggles in the employment relationship. They were
never put to him as disciplinary matters and he was not warned about them. Not even a firm
conversation on the subjects is pointed to in assistance of the Respondent’s case. In any event,
each complaint pre-dates the third request to go to the Old Pirate Mine; had they been an
operative reason for his termination, whether individually or collectively, it would be unlikely
that Titan Plant Hire would have been prepared to ask Mr Van Malsen to go to the mine site a
third time.
[57] The highest that these other complaints rise, individually as well as collectively, is that
these imperfections in the employment relationship were matters Mr Madalena took into
account as adding to the reason for the dismissal.
[58] Mr Van Malsen concedes that he refused to go to the Old Pirate Mine when he was
asked on 2 March 2016. The evidence is consistent with there being such a refusal, with Mr
Van Malsen’s evidence on the matter being that he was told that he “was required to go there”
and “to leave the next morning” and that he said “I did not agree to that”.18
[59] To the extent that such refusal is misconduct, I find that it occurred.
[60] However, I am unable to find that Mr Van Malsen’s refusal amounted to a valid reason
for his dismissal.
[61] Mr Van Malsen’s refusal was not serious misconduct within the meaning of the
definition provided for within the Fair Work Regulations 2009. Objectively, his behaviour
was not “wilful or deliberate behaviour by an employee that is inconsistent with the
continuation of the contract of employment”19, and was not a case of an employee “refusing
to carry out a lawful and reasonable instruction that is consistent with the employee’s contract
of employment”.20 Although this was a deliberate refusal by Mr Van Malsen to carry out a
lawful instruction, there is insufficient evidence before me to allow a finding that the
instruction was consistent with his contract of employment. Further, objectively speaking, the
evidence does not allow a finding that the instruction was reasonable. Mr Madalena may well
be correct that there was an agreement made in December 2015 with Mr Van Malsen that he
would be available to go to the Old Pirate Mine, and such is not disputed by Mr Van Malsen.
There is no evidence that, contractually, such obliged Mr Van Malsen to do so at short notice,
and irrespective of concerns he may hold.
[62] While it is contended by the Respondent that the instruction was consistent with the
contract of employment, that proposition is not supported by an examination of the contract.
Other than the term agreed in December that Mr Van Malsen be available for work at the Old
Pirate Mine, the contract of employment consists of the Titan Plant Hire Pty Ltd Employee
Collective Agreement 200821 and the terms set out in the company’s letter dated 9 December
2015 and entitled “Completion of Probationary Period”. Neither document makes reference to
[2016] FWC 4573
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there being an obligation to travel away from Darwin at short notice for an extended period.
Instead, the collective agreement provides the following;
“Location of Employment
5.22 Employees shall initially be located at the site designated in their letter of offer.
The employer is able to vary this location and shall provide them with reasonable
notice of any location variation.”
[63] The December 2015 letter provides that Mr Van Malsen’s employment location is
Darwin, and provides merely the following in relation to his working hours;
“HOURS OF WORK
7am to 5pm week days with a half hour break for lunch. Your average hours of work
comprise 38 ordinary hours and up to 9.5 additional hours per week based on
operational requirements.
Working on the weekend or outside the above stipulated hours will be on an as
required basis and paid at your normal rate of pay.
By accepting this offer of employment you agree that this number of hours is
reasonable.”22
[64] In considering the reasonableness of the direction, it is necessary to take account both
of the company’s need for an employee to urgently travel to the Old Pirate Mine site as well
as Mr Van Malsen’s consideration of the matter and his reasons for refusing to do as directed.
[65] Titan Plant Hire’s need for him to attend the site arose because of the illness of the
substantive employee. While Mr Van Malsen questions the veracity of the company’s
statement on the matter, there is no evidence before me on the subject, other than that of Mr
Madalena, who put forward the following in the company’s Employer Response Form;
“No one has lied to Shaun. On this particular occasion, the Current fitter on site [the
employee] had 'suspected kidney stones' and they were planning on medi vac him off
site for treatment. They took him to Balgo Medical Centre where it was determined
that it could also have been a back strain but due to the remote location the medic
requested that [the employee] see his own GP. This is nothing to do with us - it is
completely controlled by the medics on site. If the medic says that an employee has to
leave site then he must leave. They arranged for him to fly out on the Skippers flight
the following day. This is none of Shaun's concern and he should not be privy to [the
employee’s] medical conditions/ concerns unless [the employee]wishes to tell him
(which it sounds like he didn't).”23
[66] There is no evidence at all before me about what happened to the work that needed to
be done after Mr Van Malsen was dismissed. That is, I am not aware of how the company
dealt with the eventuality of the substantive employee not being on the site.
[67] On balance though, I accept that Titan Plant Hire had a genuine and urgent need for an
employee to go to the Old Pirate Mine site at short notice when it asked Mr Van Malsen to do
so on 2 March 2016.
[2016] FWC 4573
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[68] However, I consider that, in overall context, the direction was unreasonable since it
did not take into account Mr Van Malsen’s circumstances, including that he had returned to
Darwin about 2 weeks previously; that he had not expected or wanted to be traveling away
from Darwin so much when he took the job with Titan Plant Hire; and that his family
circumstances precluded him from doing so. Since his evidence is the only direct evidence of
the conversation with his supervisor, Mr Walker, and it is capable of acceptance, I accept Mr
Van Malsen’s evidence that Mr Walker agreed he could be paid more if he went to the site,
but that he refused the request nonetheless for matters not connected with the question of
payment.
[69] Mr Van Malsen’s evidence is that Mr Walker “required” him to go to the Old Pirate
Mine site a third time and that he “did not agree to do that”.24
[70] There is no evidence that Mr Van Malsen was informed he was being given a direction
which may lead to his dismissal if he refused it.
[71] Dismissal of Mr Van Malsen for the primary reason of his refusal to go to the Old
Pirate Mine site a third time, whether or not connected with the ancillary reasons advanced by
Mr Madalena, was without warning and in any event was disproportionate to his conduct.
Whether for the primary reason, or in connection with the ancillary reasons, Titan Plant Hire
did not, at the time it dismissed Mr Van Malsen, have a valid reason for doing so.
[72] I find therefore that Mr Van Malsen’s dismissal was harsh, because the penalty of
dismissal was disproportionate to his conduct; unjust, because the Respondent did not seek
out or reflect upon his reasons for refusing to go; and unreasonable, because it sought to hold
him to a direction which, in all the circumstances, and objectively viewed, was not reasonable
for the company to make because it was made at short notice and without the opportunity for
Mr Van Malsen to put forward reasons why he should not be compelled to comply.
(b) whether the person was notified of that reason
[73] It is the case that Mr Van Malsen was notified of the reason for his dismissal, however
this occurred with him being provided with the letter of termination when the company had
already made a decision it would dismiss him from employment. In all the circumstances, this
does not amount to the procedural fairness requirement that an employee be notified of a valid
reason for their termination before any decision is taken to terminate their employment in
order to provide them with an opportunity to respond to the reason identified.
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person
[74] Consideration of the criterion of whether an employee has been given an opportunity
to respond to the reason for dismissal is consequential to a finding there is a valid reason for
dismissal, which I have not found.25
[75] In any event, there is no evidence before me that Mr Van Malsen was given an
opportunity, meaningful or otherwise, to reflect upon, consider, or respond to any of the
reasons identified by Titan Plant Hire as grounds for his dismissal.
[2016] FWC 4573
13
(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
[76] Because of the circumstances relating to Mr Van Malsen’s termination he was not in a
position to consider whether he might need to have a support person in attendance. On the
other hand, the evidence indicates that Mr Van Malsen did not specifically request to have a
support person in attendance.
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal
[77] There is no evidence that warnings of any kind were ever put to Mr Van Malsen either
about his refusal to go to the Old Pirate Mine site a third time, being the primary reason for
dismissal relied upon by the Respondent, or about the ancillary reasons relating to his non-
adherence to the company’s policy on the use of PPE and safe-driving and his work
performance while at the mine site.
(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
[78] Titan Plant Hire reports in its Employer Response Form that, at the time it dismissed
Mr Van Malsen, it employed 20 employees. One of its witnesses, Mr Stretton, worked for a
related business, Resource Mining. I am unaware of whether that business employs many
people or whether there are other related entities in the group. In any event, I am satisfied that
the size of the business is small, even though its size exceeds the threshold for a small
business employer set out in the Act of “fewer than 15 employees”.26
[79] Despite the size of the business, Mr Madalena gave evidence that before he instructed
Mr Van Malsen be dismissed, he (or someone else in the business) sought advice on the
matter from an unnamed external adviser. I am unaware of the nature of the advice, or of
whether the advice was heeded.
[80] While that may be the case, I am satisfied as a result that the size of the employer’s
enterprise appears to have impacted upon the decision to terminate Mr Van Malsen’s
employment, and the way in which it was implemented.
(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;
[81] I find that the absence of dedicated human resource management specialists or
expertise most likely impacted on Titan Plant Hire’s decision-making.
(h) any other matters that the FWC considers relevant
[82] A relevant consideration in this matter is that I do not find that Mr Van Malsen's
conduct was sufficient to warrant summary dismissal.
[2016] FWC 4573
14
[83] Having considered all of the criteria within s.387, I am of the view that in all the
circumstances Mr Van Malsen was unfairly dismissed by Titan Plant Hire. Accordingly, I
turn to consider the question of remedy for his dismissal.
REMEDY
[84] The sections of the Act dealing with remedy once a finding of unfair dismissal has
been made are as follows;
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for
remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer
at the time of the dismissal reinstate the person
by:
(a) reappointing the person to the position in which the person was employed
immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the
dismissal is no longer a position with the person’s employer at the time of the
dismissal; and
(b) that position, or an equivalent position, is a position with an associated
entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed
immediately before the dismissal; or
[2016] FWC 4573
15
(d) appoint the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do
so, the FWC may also make any order that the FWC considers appropriate to maintain
the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection
(1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do
so, the FWC may also make any order that the FWC considers appropriate to cause the
employer to pay to the person an amount for the remuneration lost, or likely to have
been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the
FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the order
for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the
person during the period between the making of the order for reinstatement and
the actual reinstatement.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in lieu
of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the
FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
[2016] FWC 4573
16
(e) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the order
for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would otherwise
order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must
not include a component by way of compensation for shock, distress or humiliation, or
other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must
not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during
the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken to
have been received by the employee for the period of leave in accordance with
the regulations.
[85] Pursuant to s.390(3) an order for the payment of compensation to a person must not be
made unless the Fair Work Commission “is satisfied that reinstatement of a person is
inappropriate” and also that the Commission “considers an order for payment of
compensation is appropriate in all the circumstances of the case.”
[86] Mr Van Malsen submits that in all the circumstances it would be inappropriate to
reinstate him. While his application form referred to reinstatement as being his preferred
remedy, he did not put this forward in the determinative conference conducted by me, instead
submitting that he did not think the relationship between the parties could be re-established to
make reinstatement viable. Accordingly, Mr Van Malsen sought an award of compensation
for his unfair dismissal.
[2016] FWC 4573
17
[87] Titan Plant Hire similarly submits it would be inappropriate to reinstate Mr Van
Malsen to his former position.
[88] The issue of when reinstatement is inappropriate and the related question of the need
for trust and confidence between the parties was considered by the Full Bench of the
Commission in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese
Community Ethnic School South Australia Chapter.27 Having regard to the criteria set out
within that decision, I am satisfied that in this particular case reinstatement of Mr Van Malsen
to his former position would be inappropriate and that instead I should give consideration to
an order for the payment of compensation
(a) the effect of the order on the viability of the employer’s enterprise
[89] While Titan Plant Hire did not make any particular submissions about the effect that
an order for compensation may have on the viability of its enterprise, it put to me in
submissions that it had a business to run in that it was subject to the usual economic and
competitive strictures.
[90] Notwithstanding those generalised submissions, there is nothing before me which
would indicate that an order of compensation in and of itself would negatively affect the
viability of the employer’s enterprise.
(b) the length of the person’s service with the employer
[91] Mr Van Malsen’s employment with Titan Plant Hire was for a short period only,
between 11 August 2015 and 2 March 2016, being a period of only slightly longer than six
months.
(c) the remuneration that the person would have received, or would have been likely to
receive, if the person had not been dismissed
[92] In matters in which compensation is a consideration, the Commission ordinarily makes
an assessment of remuneration the employee lost through dismissal, which in turn requires a
finding in relation to “anticipated period of employment”. The Full Bench of the Australian
Industrial Relations Commission has observed the following in relation to these matters;
“[33] The first step in this process - the assessment of remuneration lost - is a necessary
element in determining an amount to be ordered in lieu of reinstatement. Such an
assessment is often difficult, but it must be done. As the Full Bench observed in
Sprigg:
". . . we acknowledge that there is a speculative element involved in all such
assessments. We believe it is a necessary step by virtue of the requirement of
s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to
most assessments of compensation or damages in courts of law."
[34] Lost remuneration is usually calculated by estimating how long the employee
would have remained in the relevant employment but for the termination of their
employment. We refer to this period as the "anticipated period of employment". This
[2016] FWC 4573
18
amount is then reduced by deducting monies earned since termination. Only monies
earned during the period from termination until the end of the "anticipated period of
employment" are deducted. An example may assist to illustrate the approach to be
taken.” 28 (endnotes omitted)
[93] The available evidence shows that notwithstanding that Mr Van Malsen was dismissed
unfairly, there were stressors in the employment relationship emerging at that time.
[94] Mr Van Malsen had refused a direction from his employer. Even if that refusal had
been accepted by Titan Plant Hire it would likely impact on the quality of an ongoing
employment relationship. More likely it would lead to disciplinary action by the Respondent
against Mr Van Malsen. Perhaps it would have led either to an ultimatum by the company or a
renewed request from them at a later time and put forward somewhat more reasonably. In
relation to that second prospect, I note that Mr Van Malsen had not refused to go ever again;
but rather he had refused to go on the occasion directed.
[95] Further Mr Madalena, relying upon information provided to him by Mr Stretton, had
identified work performance concerns. Even though those matters had not been put to Mr Van
Malsen, the criticisms about him appear reasonably founded and capable of being put forward
as the basis of performance or conduct-related conversational warnings.
[96] While not directly related to Mr Van Malsen’s employment, it was also the case that,
in early March 2016, Titan Plant Hire’s work at the Old Pirate Mine was beginning to reduce
and that the work it had associated with production activities had concluded by the start of
April 2016.
[97] Mr Madalena gave evidence that part of the reason Mr Van Malsen had been asked to
be involved in work at the Old Pirate Mine had been to ensure that he was productively
employed over the Darwin Wet season when work in the Darwin branch was otherwise
reduced. It therefore cannot be ruled out that redundancy of Mr Van Malsen may have
occurred, whether on the basis of the available work in Darwin after the conclusion of the Wet
season or because of the influence on the Northern Territory branch of the loss of the work
associated with the Old Pirate Mine.
[98] The combination of these matters leads to the probability that Mr Van Malsen’s
employment with Titan Plant Hire would not have continued indefinitely at the time he was
dismissed.
[99] More likely, Mr Van Malsen’s employment future from early March 2016 was to be a
matter of months.
[100] In overall context I estimate that overall range as being as little as one month and
perhaps only as much as three months.
[101] On balance, the overall evidence leads me to find the anticipated period of
employment at the time Mr Van Malsen was dismissed was a further ten weeks with the equal
possibility that he may have resigned at that point; been dismissed for performance-related
matters; or been dismissed for reason of genuine redundancy.
[2016] FWC 4573
19
[102] I therefore determine the anticipated period of employment as being ten weeks and
will deal with the possibility of termination payments being due to Mr Van Malsen at the end
of that period through the consideration of contingencies.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of
the dismissal
[103] Mr Van Malsen submits that he has diligently endeavoured to obtain employment
since leaving Titan Plant Hire’s employment in March 2016. He has applied for about 10 jobs
as a fitter and has had two interviews for employment, but so far has been unsuccessful. At
the time of the determinative conference he was 42 years of age. Titan Plant Hire queries his
post-termination employment efforts, submitting that they “find it very unusual that Shaun
has not been able to gain employment”.
[104] Given his occupation, location and age, Mr Van Malsen’s post-termination experience
is not unusual. In all the circumstances I am satisfied that Mr Van Malsen has taken
reasonable efforts to mitigate the loss he has suffered as a result of his dismissal.
(e) the amount of any remuneration earned by the person from employment or other work
during the period between the dismissal and the making of the order for compensation
[105] Having been summarily dismissed, Mr Van Malsen did not receive any termination
payment upon his dismissal, other than what I understand to be relatively small amounts of
accrued leave.
(f) the amount of any income reasonably likely to be so earned by the person during the
period between the making of the order for compensation and the actual compensation
[106] There is no evidence before me in this regard, since at the time of the hearing Mr Van
Malsen indicated that he was not employed.
[107] I find the compensation I propose does not need to be adjusted to take account of
income he might receive between the making of the order for compensation and the actual
compensation.
(g) any other matter that the FWC considers relevant
[108] I am not aware of any other considerations which might be relevant to the order of
compensation, and have considered all of the circumstances of the case in determining an
appropriate remedy.
CONCLUSION AND ORDERS
[109] After consideration of the foregoing issues, I find that the Applicant was dismissed
and that it was unfair within the meaning of the Act.
[110] I find that reinstatement is not an appropriate remedy in this case.
[111] I find that compensation is appropriate.
[2016] FWC 4573
20
[112] The approach by the Fair Work Commission in these matters, and which I follow here,
is to estimate the remuneration the employee would have received if they had not been
dismissed (usually calculated by estimating how long the employee would have remained in
the relevant employment but for the termination of their employment); deduct any
remuneration earned by the employee since their dismissal until the end of the anticipated
period of employment; deduct an amount for contingencies; consider the impact of taxation
and adjust the figure accordingly; and assess the figure against the compensation cap set by
s.392(5).29
[113] The Full Bench in the Haigh v Bradken Resources Pty Ltd30 reiterated the principles
for the assessment of compensation and connected issues that require consideration. It
reinforced that any deduction on account of misconduct is also applied before the application
of the legislative cap and, further;
“The assessment of the amount the employee would have received if the employment
had not been terminated is referable to the entire circumstances including the basis on
which the termination was found to be unfair. Where a procedural defect is the main
reason for the termination being held to be unfair, this is a factor to be taken into
account in determining the estimate of loss arising from the unfair dismissal.”31
[114] The reasoning associated with an adjustment for contingencies was referred to in the
matter of Slifka v J W Sanders Pty Ltd.32 With reference to consideration of the calculation of
compensation for the loss of wages and bonus and the loss of long service leave (paragraphs
(d), (e) and (g) in the passage below), North J found;
“In relation to the items referred to in pars (d), (e) and (g), some allowance should be
made for the contingency that the applicant may not have served the whole of the
remaining 2½ years as an employee of the respondent, for reasons such as ill health,
lawful termination by the respondent, voluntary resignation, or closure of the
respondent’s business. None of these contingencies should attract a high allowance.
Finally, some allowance should be made for the fact that some part of the
compensation will be received up to 2½ years earlier than if the applicant had
completed his employment with the respondent.
In all the circumstances, it appears to me that an appropriate reduction for
contingencies relating to the future is 25 per cent. As the total of the items referred to
in pars (d), (e) and (g) is $30,000, a reduction of 25 per cent brings these items to a
total of $22,500.”33
[115] In Ellawala v Australia Postal Corporation34, the Full Bench considered the
application of a factor for “contingencies”, noting that a certain percentage discount for
contingencies was generally appropriate, subject to adjustment up or down to take account of
an applicant's particular circumstances.35 The Full Bench held that assessment of
contingencies was to be made at the time of hearing, at which time any impact for reason of
the various probabilities that might affect an employee’s earning capacity would be known.
Such assessment would not be “a matter of assessing prospective probabilities but of making
a finding on the basis of whether the applicant's earning capacity has in fact been affected
during the relevant period”.36 The Full Bench in Bowden v Ottrey Homes37 endorsed the
[2016] FWC 4573
21
reasoning that “any discount for contingencies depends upon the circumstances of each
particular case”.38
[116] In relation to the matter of contingencies, reasons for a reduction of compensation
include the possibility of there being a shorter anticipated period of employment for some
reason like that which I have established. In favour of a contingency increase is the possibility
that the period is longer or that termination payments might increase the payments otherwise
due to Mr Van Malsen at the point his employment ended. After consideration of the relative
merits of an adjustment for the reason of contingencies, whether that be a decrease or an
increase in the amount of compensation, I consider it appropriate on this occasion to make no
adjustment to the compensation awarded.
[117] Section 392(3) requires that if the FWC is satisfied that misconduct of a person
contributed to the employer’s decision to dismiss the person then the FWC must reduce the
amount it would otherwise order by an appropriate amount on account of the misconduct.
While I have not found that Mr Van Malsen’s conduct was serious misconduct, it is capable
of being found as misconduct.
[118] The section requires that consideration be given by the Commission to whether
misconduct contributed to the decision to dismiss an employee even where it has been found
there was no valid reason for the termination.39 The absence of a valid reason may be relevant
to the appropriate amount by which compensation should be reduced.40
[119] I have found Mr Van Malsen’s refusal to go to the Old Pirate Mine the third time was
misconduct, but not serious misconduct that warranted summary dismissal. As a result, I must
reduce the amount of compensation by an appropriate amount.
[120] I consider Mr Van Malsen’s misconduct was a product of his own genuine beliefs,
both about the reasonableness of his need to address his personal circumstances, as well as
what he perceived to be the unreasonableness of what was being demanded of him by Titan
Plant Hire to again go to the Old Pirate Mine at short notice.
[121] In all, I consider the severity of Mr Van Malsen’s misconduct to be at the lower end of
the scale. Accordingly, I consider it appropriate to make a reduction of 5% to the amount of
compensation I would otherwise order on account of his misconduct.
[122] Having regard to the considerations established by s.392 of the Act, and the criteria
established by the FWC, I find that compensation should comprise a payment by Titan Plant
Hire Pty Ltd to Mr Van Malsen calculated as follows:
[123] Mr Van Malsen’s rate of pay was $42 per hour, or $1,596 per week, excluding
overtime or weekend work. The order for compensation will be 10 weeks at the rate of $1,596
per week, with a further amount of 9.5% for the purposes of superannuation,41 which is a total
of $17,476. There will be a 5% deduction for misconduct and no reduction for contingencies,
which reduces the total amount to be ordered to $16,602. I will take account of the impact of
taxation by requiring that the amount to be paid to Mr Van Malsen be taxed according to law.
1. Estimate the amount the
employee would have received
or would have been likely to
10 weeks projected lost income at
the rate of $1,596 per week42
$15,960.
[2016] FWC 4573
22
receive if the employment had
not been terminated
9.5% Employer superannuation
contribution on above
+ $1,516
Deduction for misconduct (5%)43 – $874
2. Deduct monies earned
since termination
– $0
3. Deductions for
contingencies
– $0
TOTAL $16,602
[124] The above amount does not exceed the compensation cap applying at the time of
dismissal.
[125] An order requiring Titan Plant Hire to pay to Mr Van Malsen the total amount of
$16,602, taxed according to law, is issued in conjunction with this decision. The total will be
ordered to be split between a payment directly to him, and a payment to his superannuation
account, on his behalf.
[126] In accordance with this decision, $15,162, less taxation, is to be paid directly to Mr
Van Malsen, and $1,440 is to be paid to his superannuation account. The order will require
the payments to be made within 14 days of the date of this decision.
COMMISSIONER
Appearances:
Mr S Van Malsen, with Ms R Wynveld (support person) for the Applicant.
Mr J Madalena on behalf of the Respondent.
Hearing details:
2016.
Darwin:
9 June.
Final written submissions:
Applicant: 22 & 24 June 2016.
Respondent: 22 June 2016.
Printed by authority of the Commonwealth Government Printer
Price code C, PR582560
AIR « THE FAIR FAIM WORK O COMMISSION THE SEAL NOISS
[2016] FWC 4573
23
1 Exhibit A7, 10 August 2015 Initial Contract of Employment.
2 Ibid.
3 Exhibit A10, Payslips of Shaun Van Malsen.
4 Exhibit A8, 9 December 2015 Full-Time Contract of Employment.
5 Applicant’s Further Written Submissions, 22 June 2016.
6 Exhibit A9, 2 March 2016 Termination Letter.
7 Shortland v Smiths Snackfood Co Ltd, [2010] FWAFB 5709, (2010) 198 IR 237 at [10].
8 Ibid [12].
9 Ibid.
10 Ibid [13].
11 Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, (2006) 149 IR 399 at [65].
12 Ibid [68].
13 Ibid [91].
14 Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373.
15 Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].
16 Budd v Dampier Salt Ltd (2007) 166 IR 407 at [15]; with reference to Briginshaw v Briginshaw (1938) 60
CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.
17 Streeter v Telstra Corp Ltd (2008) 170 IR 1.
18 Exhibit A3, Witness Statement of Shaun Van Malsen.
19 Fair Work Regulations 2009 reg 1.07(2)(a).
20 Ibid reg 1.07(3)(c).
21 Form F3 - Employer Response Form, item 1.1; see WPA ID: CAEN084937842.
22 Exhibit A8.
23 Form F3, item 3.2.
24 Exhibit A3.
25 Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41].
26 Fair Work Act 2009 (Cth) s 23(1).
27 [2014] FWCFB 7198.
28 Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33]-[34].
29 See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal
Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].
30 [2014] FWCFB 236.
31 Ibid [12].
32 (1995) 67 IR 316.
33 Ibid, p.328.
34 [2000] AIRC 1151, Print S5109.
35 Ibid [42].
36 Ibid [43].
37 (2013) 229 IR 6, [2013] FWCFB 431.
38 Ibid [53]-[55].
39 Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762 [83].
40 Ibid.
41 See https://www.ato.gov.au/Rates/key-superannuation-rates-and-
thresholds/?page=21#Super_guarantee_percentage.
42 Exhibit A1, Applicant’s Outline of Argument: merits, [4].
43 Haigh v Bradken Resources Pty Ltd [2014] FWCFB 236 [12]; Read v Gordon Square Child Care Centre Inc.
[2013] FWCFB 762 [83].
https://www.ato.gov.au/Rates/key-superannuation-rates-and-thresholds/?page=21#Super_guarantee_percentage
https://www.ato.gov.au/Rates/key-superannuation-rates-and-thresholds/?page=21#Super_guarantee_percentage
