Wakefield, Russell v Sunraysia Institute of TAFE - [2019] FWC 4979

1

Fair Work Act 2009 
s.394—Unfair dismissal

Russell Wakefield

v

Sunraysia Institute of TAFE
(U2019/29)

COMMISSIONER LEE MELBOURNE, 18 JULY 2019

Application for relief from unfair dismissal - whether dismissal was harsh, unjust or 
unreasonable – not satisfied key reason for dismissal a valid reason - satisfied there is a valid 
reason for dismissal - dismissal disproportionate response to the misconduct in all the 
circumstances - dismissal unjust and harsh - reinstatement ordered with an order for 
restoration of lost pay with deductions for misconduct. 

Introduction

[1] This is an application for unfair dismissal remedy made pursuant to s.394 of the Fair 
Work Act 2009 (the Act). Mr Russell Wakefield (the Applicant) was dismissed on 12 
December 2018 from his employment with Sunraysia Institute of TAFE Pty Ltd (the 
Respondent).1

[2] The matter was heard before me in Mildura on 1 May 2019. The Applicant was 
represented by Mr McIver from the Australian Education Union. Mr Powles was given 
permission to appear for the Respondent pursuant to s. 596 (2) (a). With the agreement of the 
parties, the matter proceeded by way of hearing rather than determinative conference. 

[3] The Applicant gave evidence on his own behalf. Evidence for the Respondent was 
provided by Ms Shauna Picken, Manager, HR Services, Mr Geoffrey Dea, Chief Executive 
Officer and Mr Robin Kuhne, General Manager. 

[4] The matter was also listed for hearing on 28 June 2019, where the parties were 
provided an opportunity to make final submissions. 

[5] The Applicant was employed by the Respondent as a teacher between 21 August 2017 
and 12 December 2018. The Respondent dismissed the Applicant for alleged serious 
misconduct.2 The Respondent asserts that it was entitled to dismiss the Applicant summarily,
however decided to pay the Applicant four weeks’ pay in lieu of notice. The serious 

[2019] FWC 4979

DECISION


E AUSTRALIA FairWork Commission




 



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misconduct alleged was that the Applicant had used the name of a local farmer, Mr O’Day, 
when he was explaining to his students, by way of example, an event that had occurred some 
years before (the O’Day incident). In summary, the Applicant’s evidence is that, Mr O’Day 
was spraying a herbicide known as 24D in an adjacent paddock to where the Applicant and 
his staff were working. The Applicant’s account of the O’Day incident was to the effect that 
the herbicide spray had drifted onto his employees resulting in one of his staff having a blood 
nose and another feeling nauseous. The O’Day incident is described in more detail later in the 
decision. In the termination letter, the Mr Kuhne stated, “Your account of the incident got 
back to Mr O’Day and he was very upset that this had been shared.”3 The termination letter 
also raised concerns about tardiness in arriving at scheduled training sessions and refers to a 
warning letter sent to the Applicant in March 2018 as a result of the Applicant sending an 
email from his SuniTAFE account that dealt with a personal issue with a previous employer, 
in breach of the Respondent’s email policy. 

[6] While the letter shows that the Respondent had concerns about issues other than the 
O’Day incident, it is apparent that the naming of Mr O’Day in a training session was the 
central concern of the Respondent. This is reflected in the following paragraph from the
termination letter: 

“Russell, the issues relating to tardiness and how you run your training delivery is of 
concern, however, using the name of an individual in a training environment 
demonstrates poor judgement and lack of professionalism which has a serious 
implication to the reputation of SuniTAFE. This key issue is what concerns SuniTAFE 
greatly and is viewed as serious misconduct.”4

[7] The letter of dismissal stated that while there was no requirement to pay the Applicant 
notice, as the Respondent viewed the conduct (regarding the naming of Mr O’Day) as serious 
misconduct, that they would pay the Applicant four weeks in lieu of notice given the 
closeness of the dismissal to the Christmas holiday period. 

[8] The Applicant submits that the dismissal was unfair. The primary remedy sought by 
the Applicant is reinstatement and financial reimbursement for loss of income.5

[9] The Respondent submitted that in all the circumstances, the Fair Work Commission
(the Commission) should find that the Applicant engaged in serious misconduct and that the 
dismissal was not unfair. In the event that the Commission found the dismissal was unfair, 
reinstatement is strongly opposed by the Respondent and they submit any financial 
compensation awarded should be subject to significant deductions.

The law to be applied

[10] Under the Act, a person is protected from unfair dismissal if:

“382 When a person is protected from unfair dismissal

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

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








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(b) one or more of the following apply:

(i) a modern award covers the person;

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

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

[11] I find that the Applicant is a person protected from unfair dismissal as he had 
completed the minimum employment period and his earnings were less than the high-income
threshold. The Applicant was also covered by the Victorian TAFE Teaching Staff Agreement 
2018.

[12] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out 
what constitutes an unfair dismissal:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: 
see section 388.”

[13] With regard to s.385, it is not in dispute that the Applicant was dismissed by the 
Respondent in line with the meaning of dismissal outlined in s.386(a) of the Act.

[14] With regard to s.385(c) of the Act, the Respondent is not a small business. The Small 
Business Fair Dismissal Code does not apply in this matter. 

[15] With regard to s.385(d) there was no suggestion that the Applicant’s dismissal was a 
case of genuine redundancy. Section 385(d) does not apply in this matter.

[16] The only matter for consideration is whether the dismissal was harsh, unjust or 
unreasonable (s.385(b) of the Act).

[17] Section 387 of the Act provides as follows:

“387 Criteria for considering harshness etc.








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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.”

The Evidence

Background

[18] The Applicant commenced employment with the Respondent in August 2017. At the 
time of his dismissal, the Applicant was a level 3.3 teacher under the Victorian TAFE 
Teaching Staff Agreement 2018. The salary level for this position at the time the Applicant 
was dismissed was $92,236. 

[19] The Applicant was a vocational education teacher who was employed as someone 
who had extensive experience in the industries in which he taught.6 The Applicant holds
various certificate and diploma level qualifications in areas such as irrigation and production 
horticulture and a Diploma in Vocational Education and Training.7

[20] During the hearing, the Applicant agreed with the general proposition that he worked
at “a high level.”8 The Applicant agreed he was required to show judgement, initiative and 
work independently.9

[21] The Applicant stated that his performance was satisfactory.10 The evidence of the 
Applicant is that there were no performance reviews conducted during his employment with 
the Respondent. While the letter of appointment11 referred to a minimum of two reviews that 








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were to be completed during the Applicant’s probationary period, the Applicant’s 
uncontradicted evidence is that none were undertaken. Nor was the Applicant provided with 
the mentoring that Mr Dea indicated he would be provided with when he was appointed.12

[22] The Applicant agreed in evidence that in general terms the features of his job meant 
that:

 The Respondent was required to have significant levels of trust in the Applicant in
the exercise of his role;13

 That the role required him to exercise his judgment at a high level with 
initiative;14 and 

 In the event that he exercised that judgment poorly, this could have the capacity to 
damage the organisation.15

The O’Day incident

[23] It is not in contest that the only direct evidence on this matter, referred to by the 
parties as “the O’Day incident,” is the evidence provided by the Applicant.16

[24] In summary the facts pertaining to the O’Day incident are as follows:

 The Applicant was providing training to students in Auschem on 23 October 
2018. Ms Annette Lambert, the nominated contact for the Millewa-Carwarp 
Landcare Group contacted the Applicant to arrange the training.17

 The Applicant as a part of his teaching, was telling the students that chemicals 
affect people differently.

 The Applicant provided an example of a local farmer, Mr James O’Day, who 
had been spraying a herbicide known as “24D” on his land when the Applicant
had two employees working nearby. 

[25] The Applicant’s evidence as to what he told the students on that day is as follows:

“On the first day of training, I told the students that different chemicals affect people 
differently. I provided an example of a local farmer, James O'Day, had been spraying 
a herbicide on his land (2,4-Dichlorophenoxyacetic acid (known as "2,4-D" or 24D))
when I and some employees of mine were working nearby. I told the students that my 
employees had been affected differently by the 24D. I said words to the effect that one 
employee got a blood nose, another got a headache and another felt nauseous. In my 
experience as a teacher of students in vocational education settings that they learn best 
when they are provided with real life examples by me and other students.”18

[26] The event the Applicant was describing had in fact occurred more than 20 years 
earlier when the Applicant was not working for the Respondent.

[27] The Applicant elaborated as to the events that occurred 20 years ago during the 
hearing:








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“Yes?  -He was spraying. I had two guys working with me. I could smell the smell, and 
I said to the other guys, “How are you feeling?” and one bloke was wiping his nose, 
and his nose was bleeding. Could’ve been the night before, could have been anything.
The other guy was nauseous. And I said to him I said, “Well what do you want to do?
Do you want to shift to another patch?” and they said, “We’ve got to get this 
finished”, you know, being good employees. So I said - I didn’t know who was over 
there spraying. I knew whose place it was. At the time James O’Day was leasing the 
place, he was share farming, so I rang up the land owner, he gave me James O’Day’s 
number. I rang James O’Day up and I said to him, I said, “What are you spraying over 
there, mate?” and he said “I’m just putting out a bit of weed spray”. I said, “Yes, I can 
tell that”. I said, “I’ve got a couple of guys over here, one is crook, one is feeling 
nauseous, the other guy, his nose has just started dripping”, and I said, “I’m not 
feeling real good”. And I said to him, I said, “Is there anywhere else you can spray?”, 
because I said, “We’re actually working here”. And it was on a weekend. But part of 
the chemical uses is you’ve got to be - let all stakeholders know around you if you’re 
spraying, and I asked him if he could shift somewhere else, and he said, “Yes, no 
worries, I can shift to another paddock so that it’s not blowing your way”. And that 
was the conversation.”19

[28] The Applicant considered that a real-life, practical example would assist the students’
comprehension of the subject matter of the course.20In that context, the Applicant says that he 
did not use Mr O’Day an example in a derogatory way.21

[29] On cross examination, the Applicant was asked why he used Mr O’Day’s name. His 
answer was:

“The prime reason was because some of these young people would know him,
and go, “Gee, it can happen to him”, and he’s one of these farmers out here
that, you know, has been farming for years.”22

[30] It seems that a relative of Mr O’Day was apparently attending the course and that 
person contacted Mr O’Day at the end of the day and told him about the Applicant 
mentioning his name during the course and the example that was given. Later that evening,
Mr O’Day called the Applicant. The Applicant’s evidence as to what happened is as follows:

“Later that evening I received a call from Mr O’Day. Mr O’Day was angry that I had 
mentioned his name. I told Mr O’Day that I had used his name in the context of 
explaining that different chemicals affect people differently. I asked Mr O’Day, “Do 
you remember that day when I called and asked what you were spraying?” Mr O’Day 
said that he did remember. I said, “You said that you would move to another 
paddock”. Mr O’Day said that he remembered. I said to Mr O’Day that I was trying to 
put the spraying of chemicals and their effects in a context and that 24D affects people 
differently. Mr O’Day said words to the effect that he had looked up 24D and that it 
doesn’t give people a blood nose. He also said that he didn’t like me mentioning his 
name.

I apologised to Mr O’Day and said words to the effect that I should not have used his 
name. I said that I would apologise to the class the next day and that I would tell the 
class that Mr O’Day had not done anything wrong. I asked Mr O’Day if he would be 
happy with that. Mr O’Day said “yes”. We then spoke about the drought and his crops 








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and sheep.

The next morning I apologised to the class and stated that Mr O’Day had not done 
anything wrong. Ms Lambert stated words to the effect that “this is where it all ends 
and nothing would go further”. I took it from this conversation that Ms Lambert did 
not intend to take the issue further.”23

[31] I note that Ms Lambert and her role in the matter will become clear later in the 
decision. 

[32] The Respondent focussed on the concession by the Applicant that Mr O’Day was 
upset,24 and that he did not like the Applicant using his name. The Respondent also focused 
on the fact that Mr O’Day said he “looked it up” and 24D did not cause nose bleeds, and that 
the Applicant conceded that Mr O’Day made these comments in an attempt to defend himself
20 years later.

[33] The Respondent notes that the Applicant concedes that he said after he made the 
apology to the class, that he also said, “but it did happen.”25 The Applicant disagreed that 
such a statement would undermine or negate the apology, and that he did not know whether 
Mr O’Day would have been still satisfied with the apology.26

[34] The Respondent claims that there are numerous discrepancies within the Applicant’s
evidence relating to the O’Day incident. In particular, the Respondent submits that “what 
should be objectively inferred from the surrounding evidence” is that the Applicant said that 
he used Mr O’Day’s name as a “slip of the tongue,” and he concedes that he could have 
referred to the “farmer next door.”27

[35] However, the Applicant’s evidence was also that he used Mr O’Day’s name as he was 
well known to the participants and they would think, “Gee it could happen to him,” and he is 
one of these farmers out there that has been farming for years” and that even “a bit of a 
stalwart …[can] make mistakes.”28

[36] The following exchange during cross examination provides some context for the 
Applicant mentioning Mr O’Day by name:

“MR POWLES: So to fulfil that purpose you didn’t need to say that it was James 
O’Day, did you?  -Generally as I said to you I use myself as the example but because I 
was in that environment at the time it was just a - I couldn’t say it was a slip of the 
tongue. I thought well, a lot of these people out here will know him, and so in the 
context of explaining that he’d done this it wasn’t derogatory. It was just saying that 
anyone - it can happen to anyone and chemicals have effects on different people and 
that was when the guy raised the thing about he opens a can of this particular chemical 
and he gets a headache, then he gets a migraine.

So you knew that people would know James O’Day?  -Yes, in that area. Yes. Yes.

But really it didn’t - to have the same effect, the story, you didn’t need to say who it 
was?  -No, I could have said the farmer next door and that was what I’d stated to James 
O’Day when I rang him up.








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Right?  -Yes.

And so is there a reason why you did use his name?  -The prime reason was because 
some of these young people would know him, and go, “Gee, it can happen to him”, and 
he’s one of these farmers out here that, you know, has been farming for years.

And you intentionally used his name because people would know him?  -I used his 
name because, yes, these people could understand that someone that’s, you know, a bit 
of a stalwart out there will make mistakes. And as I said to you as part of the AusChem 
the idea is that you’re supposed to let stakeholders, farms around, know that you’re 
actually spraying, which is one of those things that he hasn’t done. But at the time it 
wasn’t implemented as harsh as it is now.”29

[37] The Respondent submits that the Applicant’s claim that the comments were not 
derogatory sits in conflict with his explanation that Mr O’Day had done the wrong thing and 
that his actions were a mistake which had caused significant physical harm to his 
employees.30

[38] It is also submitted by the Respondent, that the Applicant’s evidence that he told Mr 
O’Day about the nosebleed during the phone call 20 years ago does not accord with his 
witness statement.

[39] A part of the Applicant’s response to Ms Picken, the HR Manager, at the time of the 
inquiry in relation to the O’Day incident, was that he needed more training about the 
difference between working in the public sector and the private sector, but then later 
indicated that it was probably not appropriate to use someone’s name in the private sector 
either. The Applicant stated that he had learnt from the experience and said he could benefit 
from additional training about the expectations of his conduct by the Respondent, beyond the 
induction process that was offered.31 Overall, it was apparent from the evidence that the 
Applicant was unsure about the Respondent’s expectations of him in regards to the O’Day 
incident.

[40] The Respondent’s submissions on the point conclude with the following three 
paragraphs: 

“Ultimately, Mr Wakefield contended that it was SuniTAFE’s responsibility to explain 
to him, in advance of any incident, that he was not to name individual members of the 
community during training,32 preferably through its induction system.33 The effect of 
this contention, was for Mr Wakefield to demonstrate that he did not truly believe he 
was at fault.34

In the light of these discrepancies, it is the Respondent’s submission that Mr 
Wakefield’s evidence was entirely self-serving. His various attempts to ‘play down’
the severity and derogatory nature of his comments about Mr O’Day, as well as Mr 
Wakefield’s assurances that Mr O’Day was satisfied with the apology and the matter 
was resolved, should not be accepted. 

Further, this evidence demonstrates that Mr Wakefield has not appropriately 
acknowledged any wrong-doing in relation to either the Matthews and Associates 
email (which resulted in his warning), or the O’Day incident (which resulted in 








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dismissal). In light of this, the Commission should not accept Mr Wakefield’s 
assurances that his lapses in judgement, which each had the potential to damage the 
interests and reputation of the organisation, would not reoccur.”35

[41] At the final hearing, the Respondent said the valid reason was , “…about the fact that 
he was causing - he was making comments to a class that had the capacity to anger 
community members to the extent that they would call him and demand an apology.”36

[42] The Applicant submits that the Respondent has not discharged its onus to establish 
that the Applicant engaged in serious misconduct, that the Respondent did not call various 
witnesses that were in its camp and that it is open to the Commission to draw Jones v 
Dunkel37 inferences in relation to, among other things, the evidence of Mr Beard and the 
O’Day incident. On this point it is not clear that Mr Beard, another employee of the 
Respondent who was present at the training,38 is in the Respondent’s camp. The other 
“various witnesses” said to be in the Respondent’s camp were not named. In the 
circumstances, I have not drawn a Jones v Dunkel inference in relation to any witness.

[43] The Applicant also submits that no objective evidence was led to support the notion 
that the Respondent could no longer trust the Applicant to uphold its reputation. There is no 
evidence before the Commission of any damage to the Respondent’s reputation. The 
Applicant describes the mentioning of Mr O’Day’s name as an “ill-advised comment,” which 
the Applicant took immediate and effective steps to correct.39 Further, the Applicant contends 
that the O’Day incident is not properly characterised as one that relates to misconduct.40

The Matthews and Associates email

[44] Immediately prior to the Applicant’s employment with the Respondent, he worked as 
a trainer and assessor for Matthews and Associates Pty Ltd (Matthews and Associates). This
organisation provided TAFE teaching services to the Wodonga institute of TAFE. The 
Applicant said that he left Mathews and Associates because he believed that they did not pay 
him bonuses he was owed and did not pay him superannuation.41 The Applicant says that he 
has not recovered his employee entitlements from Mathews and Associates.42 At some point, 
Wodonga TAFE and Mathews and Associates entered into an arrangement with the 
Respondent. This is relevant as the Applicant was then involved in the provision of teaching 
services to Matthews and Associates, but now as an employee of the Respondent.43

[45] On the 14 March 2018, while the Applicant was working for the Respondent, Phil 
Matthews, the director of Matthews and Associates emailed the Applicant at the Applicant’s 
SuniTAFE email address and asked him to advise on the status of certain work and when it 
would be completed by the Respondent. The Applicant replied to that email, also from his 
SuniTAFE email account stating that he understood Mr Matthews’ concerns and that 
everything would be done when outstanding amounts owed (“the deed”) were paid for work 
completed. The full text of the email follows: 

Phil Matthews on 14 March 2018 at 2:32pm

“Good Afternoon Russell
Could you please advise the current situation and what work has been completed for 
the above. I note that we are midway through March and all work as promised will 
need to be completed by the end of April. 








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If you have any students that you will not complete could you advise us immediately. 
Yours sincerely
Phil Matthews
Director”44

The Applicant on 15 March at 8:27am 

“Good Morning Phil, 
I understand your concerns, and everything will be done when outstanding amounts 
owed (‘the deed’) for 2015, 2016, 2017 and 2018 are paid for work completed. 
I note I am also waiting for a response from Michael to an email sent on 19/02/2018 
in relation to licences and competencies!
Which were offers to these students at the time of enrolment to help in their work, and 
how they are to be completed. 
Kind regards
Russell Wakefield
Teacher – Primary Industries”45

[46] The Respondent submits that the Applicant conceded in evidence that the intention 
and effect of this email, was that he threatened to withdraw the services of the Respondent to 
Matthews and Associates, in his capacity as an employee of the Respondent, until such time 
as his private debt from Matthews and Associates had been paid.46 Further, that this threat 
was made in spite of the fact, as acknowledged by the Applicant, that he was under an 
obligation to the Respondent to complete that work.47 The Respondent also points out that the 
Applicant conceded in evidence that this conduct had led to a warning, for reasons relating to 
poor judgement.48 and also conceded that the warning related to the fact that his 
communications reflected poorly on the Respondent.49

[47] The Respondent also submits that despite the concessions referred to above the 
Applicant did not concede that he had done anything wrong by this email exchange, and 
maintained that he was ‘autonomous’ in providing the work to Matthews and Associates.50

He also appeared to maintain that it was his right to threaten to withdraw work from 
Matthews and Associates, until he was paid.51

[48] The Respondent notes that the Applicant also:

“contended that this course of action was ‘supported’ by SuniTAFE, which was in spite 
of Mr Wakefield’s subsequent other admissions that SuniTAFE was unaware of the 
conduct until after it had occurred,52 and that the conduct had ultimately resulted in a 
formal written warning.”53

However, “Mr Wakefield maintained that he had learnt from this mistake and that 
SuniTAFE could trust him in the future not to make similar errors of judgement.”54

[49] The email policy that the Applicant is said to have not acted in accordance with is not 
in evidence. The warning letter sent to the Applicant stated that the Respondent’s records 
show that the Applicant had completed an induction which included the Respondent’s email 
policy. The warning letter from Mr Khune indicates that he is mindful that the Applicant may 
have forgotten or was unclear about the policy. Mr Khune stated during cross examination
that there are over 400 policies in existence at the employer.55 There were arrangements made 








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for the Applicant to complete a “new induction module” to refresh his understanding of the 
policy. The letter notes that irrespective of the Applicant’s familiarity with the policy, that he 
“had received verbal direction not to behave in that manner.”56 However, the Applicant says 
he does not recall conversations about the policy.57 The Applicant was not cross examined 
and Mr Kuhne gave no evidence on this point.

[50] In any case, the Applicant complied with the direction to complete a training module 
in relation to the Respondent’s policy and code of conduct.58 The evidence is that the 
Applicant has not repeated anything like this behaviour subsequent to that time.59

[51] The Applicant submits that it is not clear if Matthews and Associates was an approved 
training provider and it is not clear what “delicate arrangements” were at risk as a 
consequence of the Applicant’s email.60. The Applicant submits that to the extent that the 
Respondent relies upon the March 2018 warning, the conduct was of a disparate nature and 
the Commission does not have sufficient evidence before it to find that the warning was 
valid. That is the warning relates to breaches of an email policy that is not in evidence. In any 
event, the Applicant complied with the direction and, as Mr Kuhne acknowledged in cross 
examination, there was not a continuing issue relating to the Applicant’s use of email.

Lateness for training

[52] The termination letter referred to the Applicant’s alleged lateness to the training 
sessions with Landcare (which appears to have been on two occasions) and that he was late to
the Select Harvest training. The termination letter refers to information that the Applicant 
provided as to the reason for lateness, being problems with a car booking one day and the 
need to pick up a sprayer on another day. The reason given for lateness with Select Harvest 
was because the students were arriving late and if he arrived on time, he was waiting for 
them. There is no indication in the termination letter as to whether these explanations were 
accepted or not by the Respondent. All that is said is that the “issues relating to tardiness and 
how you run your training delivery is of concern.”61 The rest of the letter focuses on the 
naming of Mr O’Day. Nor did the Respondent’s witnesses provide any evidence on the point.
While the Applicant conceded he was late on some occasions, he has provided reasons for 
such lateness. He was not cross examined on that evidence. I am not satisfied his lateness for 
some training sessions, given the explanations provided, can be considered a valid reason for
dismissal. In any case, the Respondent’s submission was ultimately that there was one valid 
reason for dismissal, which is the O’Day incident and the “other matters” are contextual.62

The process leading to the dismissal

[53] The starting point for the events that lead to the dismissal was a complaint that was 
made by Ms Lambert. Ms Lambert was the nominated contact for the Millewa-Carwarp 
Landcare Group. The nature of the complaint was ascertained via a meeting between Mr 
Khune, Ms Picken, Ms Lambert and her colleague Ms Pryce. That meeting took place on 7 
December 2018.63 The complaint was made some weeks after the training conducted by the 
Applicant took place. There were a number of concerns that came out of that conversation 
according to Ms Picken, including the key reason ultimately relied upon for the dismissal, the 
naming of Mr O’Day.64








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[54] I note that Ms Picken was unclear in her evidence as to what aspects of that complaint 
she considered truthful or meritorious. This is reflected in the following exchange on cross 
examination: 

“Yes, and you don’t know if any of those matters are true, it’s just - it’s a complaint 
that you received?  -Any of the matters that are true? Sorry, I don’t understand - - -

Sorry, any of the matters that were raised by Ms Lambert and Ms Price?  -I don’t know 
if the matters are true.

Yes, but whether there’s any merit to their concerns?  -Probably not in all aspects, but 
in the key aspects I would say we were convinced that there was truth to them.”65

[55] The evidence of Ms Picken most clearly sets out the process followed after the 
meeting with Ms Lambert on 7 December 2018: 

 On 10 December, the Applicant was sent an email requesting him to attend a 
meeting on 11 December 2018 to discuss concerns relating to the recent training 
he provided for Land Care.66

 The purpose of the meeting was to allow the Applicant to put his version of 
events.

 The Applicant was afforded the opportunity to bring a support person. 
 At the meeting, the Applicant was afforded the opportunity to respond to the 

details of the complaint put to him at the meeting.
 After the meeting, Ms Picken sent to the Applicant and other attendees a copy of 

her notes of the meeting that outlined the list of concerns and the Applicant’s 
responses.67

 Ms Picken states that the purpose of this was to provide any further opportunity 
for the Applicant to respond to the matters raised.

[56] Ms Picken followed up with the Applicant by phone a couple of hours after sending 
the email,68 and the Applicant provided further commentary for his response to matters 
raised. According to Ms Picken, the Applicant’s response was minimal. During the phone 
call, Ms Picken discussed with the Applicant that “Mr Khune and Mr Dea were very 
concerned about the comments made regarding the prominent local farmer and that particular 
matter is regarded as a disciplinary matter and we would need to talk to him about that the 
following morning.”69 An email confirming the meeting,70 was sent inviting the Applicant to 
a meeting the following morning at 10.30am. The email confirmed that “we are especially 
concerned with the comments made about Mr O’Day and as such feel that this is a 
disciplinary matter” and the purpose of the meeting was “to discuss this matter further.”71

[57] At the meeting on 11 December 2018, Ms Picken highlighted the concern that the 
Applicant had used the name of a local farmer in a training session and gave the Applicant a 
further opportunity to provide further information. 

[58] Ms Picken’s evidence as to what then transpired is as follows: 

“Mr Wakefield admitted that he did use the name of the local prominent farmer as an 
example of how some people are affected by chemicals, that the farmer had called 
him to request an apology, which was provided and that Mr Wakefield considered the 








[2019] FWC 4979

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matter resolved. Mr Wakefield agreed the use of the farmer’s name was 
unprofessional. Mr Wakefield did not supply any further information that 
substantially changed his version of events.

As there was no new information to consider, Mr Wakefield was advised that his 
employment was terminated effective immediately for serious misconduct as 
SuniTAFE could no longer trust him to uphold the reputation of SuniTAFE. As the 
timing of this decision was close to the Christmas holidays SuniTAFE provided Mr 
Wakefield with four weeks’ pay ex-gratia in addition to the pay out of his standard 
entitlements.

The meeting concluded and Mr Wakefield was escorted back to his desk by his 
Manager, Terry Sparrow to collect his personal effects.

I drafted a formal letter of termination on Mr Kuhne’s behalf based on the 
conversation at the meeting and emailed it to Mr Wakefield’s personal email address 
later that day.”72

[59] As mentioned earlier, the termination letter73 refers to the warning letter from March 
2018 about the use of emails and makes a general reference to the complaint of the client 
including tardiness at arriving at a “scheduled training session.” There is also reference to 
negative feedback from training given to Select Harvest and concerns about lateness to 
training sessions. 

[60] Importantly, the termination letter includes the following: 

“Russell, the issues relating to tardiness and how you run your training delivery is of 
concern, however, using the name of an individual in a training environment 
demonstrates poor judgement and lack of professionalism which has a serious 
implication to the reputation of SuniTAFE. This key issue is what concerns
SuniTAFE greatly and is viewed as serious misconduct.”74

Impact of the termination on the Applicant

[61] Since the dismissal, the Applicant has been successful in obtaining casual 
employment as a truck driver and working on farms in the area.75 He has secured worked at a 
transport company, Philips transport from mid-January 2019 until about the end of March 
2019. It appears he was paid $5,277.47 during that period.76 The Applicant remains a casual 
employee of that company but had not been offered any work since the end of March until at 
least the date of the hearing on 1 May. The Applicant has also secured work at a winery as an 
Operations Manager where he has worked from 25 February 2019 until the time of the 
substantive hearing77 (1 May 2019). The Applicant’s rate of pay at the winery is 
approximately $38 per hour. Based on a 38 hour week, this would annualise to approximately 
$75,000 per annum, which is somewhat less than the $92,000 per annum the Applicant was 
earning with the Respondent when he was dismissed. I note that in the first monthly pay 
period the Applicant worked 195 hours which increased his earnings for that month, but that 
his earnings in April reflected a 38 hour week.78

Consideration








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14

Was the dismissal harsh, unjust or unreasonable?

[62] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal 
was explained in Byrne & Frew v Australian Airlines Ltd79 by McHugh and Gummow JJ as 
follows:

“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but 
not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the 
concepts will overlap. Thus, the one termination of employment may be unjust 
because the employee was not guilty of the misconduct on which the employer acted, 
may be unreasonable because it was decided upon inferences which could not 
reasonably have been drawn from the material before the employer, and may be harsh 
in its consequences for the personal and economic situation of the employee or 
because it is disproportionate to the gravity of the misconduct in respect of which the 
employer acted.”80

[63] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must 
be had. 

Section 387(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)

[64] There must have been a valid reason for the dismissal related to the Applicant’s 
capacity or conduct, although it need not be the reason given to the Applicant at the time of 
the dismissal.81 To be a valid reason it must be “sound defensible or well founded.” The test 
is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the 
Applicant was guilty of the conduct. Where serious misconduct is alleged the test for a valid 
reason for dismissal does not change. The test remains whether the reason was “sound, 
defensible or well founded”.82 A valid reason for dismissal does not require conduct 
amounting to a repudiation of the contract of employment.83 The Commission must make a 
finding as to whether the conduct occurred based on the evidence before it.84

[65] It is apparent from the evidence the Respondent focused on, that the O’Day incident
was the reason for dismissal. It is clear from the termination letter that the other matters 
raised were “of concern.” However, the O’Day incident was the central focus. It is the only 
issue mentioned in the evidence of the Mr Dea. This is important as Mr Dea made the 
ultimate decision to dismiss the Applicant. The Respondent confirmed at the final hearing, its 
primary submission is that the O’Day incident is a valid reason for the termination, and that 
the context of that decision was made taking into account a whole range of other matters,
including a previous disciplinary warning and performance concerns that were put to the 
Applicant during the disciplinary meeting as well.85

[66] All aspects of the alleged conduct and performance of the Applicant need to be 
considered when considering if there was a valid reason or reasons for the dismissal. It is 
convenient to start with a consideration of the O’Day incident. 

The O’Day incident








[2019] FWC 4979

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[67] The evidence in respect to the event surrounding the “naming” of the farmer is fairly 
straightforward. The Applicant conceded from the outset that he referred to Mr O’Day by 
name at the training course. His reason for doing so was that he wanted to relate a real-life
practical example. The evidence of the Applicant is that Mr O’Day would be known to the 
participants and that they would understand that even someone of his experience, “a bit of a 
stalwart” could make mistakes.86 The Applicant did say that after he had named the farmer,
he thought he probably should not have done so. The reasons that the Respondent witnesses
gave as to why Mr O’Day should not have been named, are related to the fact Mr O’Day is by 
all accounts a prominent farmer and a well-respected in the community. 

[68] In any case, once the Applicant had mentioned Mr O’Day, he thought the “horse has 
bolted” and continued with the class.87 He conceded in the subsequent discussions with the
Respondent that he should not have mentioned his name and that to do so was unprofessional.
However, he felt the matter was resolved as a result of Mr O’Day calling him, the two men
having a discussion, the Applicant apologising to him for mentioning his name and following 
up with his promised apology to the class the next day. 

[69] The Applicant’s evidence as to the content of the conversation with Mr O’Day was 
consistent and compelling and there was no evidence contradicting this. Nor is there any 
evidence contradicting the Applicant’s recalling of the events of 20 years ago, of which the 
key elements are:

 That Mr O’Day was spraying 24D in the vicinity of where the Applicant was 
working with his employees;

 That Mr O’Day did not notify the neighbouring properties but should have done 
so;

 That there were adverse health effects on the Applicant and his employees at the 
time including nausea and a blood nose; and 

 That the Applicant called up Mr O’Day, informed him of the situation and Mr
O’Day promptly moved the location of his spraying having become aware of the 
predicament of the Applicant and his employees.

[70] The Respondent seeks to cast doubt on the reliability of the Applicant’s evidence. I do 
not accept the submissions of the Respondent to the effect that the Applicant’s evidence 
contained discrepancies. He provided a cogent explanation as to why he used the name of Mr 
O’day. However, he questioned in his own mind the wisdom of doing so. While the 
Applicant has conceded he should not have used Mr O’Day’s name, it is not apparent to me 
as to why he should not have mentioned Mr O’Day. Essentially, the Applicant has retold an 
actual event, using the actual name of the person involved. The telling of the story can hardly 
be said to be derogatory or even defamatory, as the Respondent at one point claimed, when
the facts before me demonstrate that the event actually occurred as stated by the Applicant.

[71] The Respondent claims that the Applicant’s evidence as to whether he told Mr O’Day
when he spoke to him 20 years ago about the employee with the nosebleed, is inconsistent 
with the Applicant’s witness statement. This is erroneous. The Applicant has not referred in 
his witness statement to telling Mr O’Day about the nosebleed in his recalling of the incident. 
He was asked in cross examination whether he had told Mr O’Day at the time, 20 years ago. 
His reply was clear that he had and “that is why he shifted paddocks.”88 This can hardly be 
described as a discrepancy. It is also not the responsibility of the Applicant to explain why 
Mr O’Day challenged whether 24D causes nosebleeds during their phone conversation 20 








[2019] FWC 4979

16

years after the event and not before. This does not demonstrate, as the Respondent contends,
a discrepancy in the Applicant’s evidence. 

[72] The Applicant’s statement that he needed more training as to the differences between 
the private sector and the public sector, but then conceding that it was probably not 
appropriate to use someone’s name in the private sector is, given the context, understandable.
In my view, the Applicant is being responsive to the Respondent putting to him that he has 
done something seriously wrong, but its apparent that the Applicant is not entirely sure what 
is expected of him.

[73] Overall, the Respondent’s submission that the Applicant’s evidence was self-serving
and tried to “play down” the severity and derogatory nature of his comments about Mr O’Day
is not accepted. The Applicant’s evidence is not contradicted. His account of what happened 
both on the day, 20 years ago and what happened during the phone call on the evening Mr
O’day contacted him, is not contradicted and I think truthful. The submission that I should 
not accept the assurances that Mr O’Day was satisfied with the apology and the matter was 
resolved cannot be accepted. The only evidence before me is that is precisely what occurred,
and I have no reason to not believe the Applicant’s evidence on the point. The Applicant was 
a most credible witness and I see no reason to doubt his evidence.

[74] The Respondent focussed on the fact that the Applicant apologised to the class and 
said that Mr O’Day had done nothing wrong and then say, “but it did happen.” The 
Applicant’s uncontested evidence was that there was a requirement to notify neighbouring 
landowners about the spraying chemicals and that Mr O’Day had not done so. To that extent, 
the evidence is that Mr O’Day had in fact done something wrong. However, the evidence also 
makes clear that Mr O’Day did not realise his spray drift was impacting on the Applicant and
his employees. When Mr O’Day was told about it by the Applicant, he took evasive action 
and sprayed in another paddock. In that context, the Applicant was not inconsistent in 
apologising and saying that Mr O’Day had done nothing wrong but also saying “but it did 
happen.” As the facts are that the events did occur, there is no apparent reason why he should 
not have made that statement.

[75] One qualification to this finding is the matter of the nosebleed. On the Applicant’s 
own evidence, he appeared to suggest that his employee’s nosebleed “could’ve been the night 
before, could have been anything.”89 In other words, the spraying of chemicals may or may 
not have caused the nosebleed. Therefore, to the extent that the Applicant inferred in retelling 
the story, that the cause of the nosebleed was the spraying of 24D by Mr O’Day, it was ill-
advised of him to do so. 

[76] Put simply, the Applicant has retold to his class an actual event that occurred in order 
to underline the importance of following procedure when handling chemicals. In doing so, he 
mentioned the events that had occurred with respect to Mr O’Day 20 years earlier. It is not 
apparent why using someone’s name as part of the retelling a factual story is misconduct at 
all, let alone serious misconduct. The Applicant was not to know that Mr O’Day would be 
upset by him speaking of the event. Nevertheless, the Applicant, when confronted during a 
phone call from an upset Mr O’Day, a man who by all accounts is a significant member of 
the Mildura community, takes an entirely sensible and reasonable approach. He apologises
directly to Mr O’Day for using his name and tells him he will apologise to the class. The 
Applicant follows through with his promise. He also makes clear that the events did happen. 
As it is apparent that they did, I see nothing wrong with him doing so. In his view the matter 








[2019] FWC 4979

17

was resolved. In that context, the Applicant saw no reason to raise the matter with his 
employer. Ms Lambert told him the matter was resolved.90

[77] The complaint of the Respondent, that it was wrong of the Applicant to not raise the 
matter with his superiors also has to be seen in the context of the clear evidence that the 
applicant had resolved the matter. There is no evidence that Mr O’Day made any further 
contact with the Applicant or the Respondent after he had spoken to the Applicant, which is 
consistent with the claim of the Applicant that the matter was resolved. 

[78] Given the circumstances surrounding the O’Day incident, I am not satisfied that there 
was any real risk of reputational damage to the Respondent. Mr Dea provided evidence that 
Mr O’Day is successful, well respected, a spokesperson for the industry and that his family 
and business is enormously well respected.91 Mr Kuhne gave evidence that the Respondent 
had been working hard to develop positive relations with their stakeholders and this was why 
the “poor judgement” of the Applicant was of such concern.92

[79] However, in light of the fact the events did occur, there is no evidence of any risk to 
the reputation of the Respondent as a result of the incident. Mr O’Day received a direct and 
immediate apology for mentioning his name from the Applicant, whether the apology was 
warranted or not, and the matter was satisfactorily resolved. There is no evidence as to what 
the risk of reputational damage was. 

[80] In light of the consideration above, I am not satisfied that the conduct of the Applicant 
surrounding the O’Day incident could be construed as misconduct. Nor am I satisfied in all 
the circumstances that it is a sound, defensible or well-founded reason. At worst it could be 
described as ill advised. In all of the circumstances, I am not satisfied that the O’Day incident
is a valid reason for dismissal. 

Was the Matthews and Associates email sent in March a valid reason for dismissal?

[81] The Respondent did not assert that the Matthews and Associates email constituted a 
valid reason for dismissal but that it and other matters formed part of the context. The events 
surrounding the email that the Applicant sent to his former employer, Matthews and 
Associates have been set out in detail above. The Applicant is said to have breached sections 
3.2 and 3.3 of the Respondent’s email policy. The Respondent provided no evidence as to 
what that policy says and did not provide a copy of the policy. In the circumstances, I am not 
in a position to determine if the sending of the email was a breach of the email policy as as 
the policy was not in evidence. Nor is there any evidence that the Applicant completed the 
module on the email policy, other than the claim in the letter93 that the records demonstrate
that the Applicant had undertaken the training. 

[82] The warning the Applicant received regarding the email included Mr Kuhne 
referencing multiple conversations with the Applicant regarding keeping his personal issues 
seperate from the Respondent’s business. The Applicant said he did not recall conversations 
with Mr Khune about the use of his email,94 and there was no evidence contradicting this.
The Respondent conceded in the warning letter that the Applicant may have forgotten or been 
unclear about the policy. This would seem a reasonable concession when one of the 
Respondent’s witnesses, Mr Kuhne, conceded that the organisation has over 400 policies.95








[2019] FWC 4979

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[83] However, Mr Khune stated in his witness statement that he expressed to the Applicant
the fact that he had raised a personal financial issue with Mathews and Associates via his 
SuniTAFE email was “unprofessional” and “represented a risk to the relationship between 
SuniTAFE and Matthews and Associates.”96 . That said, one could reasonably infer from the 
surrounding circumstances that to the extent that the Applicant was sending emails from his 
work email to an organisation which the Respondent was involved in some sort of contractual 
relationship, and was threatening to withhold his services to Matthews and Associates, there 
would be a risk to the relationship between the two organisations. In my view, it is the 
threatening of the withholding of services to Mathews and Associates by the Applicant, 
driven by his desire to put pressure on them to pay him money he was allegedly owed, that is 
most certainly misconduct. It is a misuse of his position with the Respondent to engage in 
such conduct. In the circumstances, Mr Kuhne was justified in warning him that his 
performance was below the required standard and stressed his expectation that it not occur
again. 

[84] I have taken into account that the Applicant did not engage in this behaviour again,
having been warned about it back in March 2018. While this is a factor to be taken into 
account in considering the fairness or otherwise of the dismissal, that does not alter the case 
that the Applicant engaged in the conduct. I am satisfied that his conduct in sending the email 
was a misuse of his position and raised the risk of reputational damage with an organisation 
that his employer was engaged in a contractual relationship with. Such conduct was 
inconsistent with the Applicant’s contract of employment which requires him to, among other 
things, “provide exceptional customer service to all internal and external stakeholders and to 
represent the institute professionally at all times.”97 In all of the circumstances, for these 
reasons I consider the sending of the Matthews and Associates email to be a valid reason for 
dismissal.

[85] As discussed above, while other concerns such as lateness were raised in the 
termination letter, the Respondent did not press that these constituted valid reasons for 
dismissal but rather were part of the context that led to his dismissal. I have dealt with the 
issue of the Applicant’s lateness for some sessions of training above and do not consider that 
constituted a valid reason for the reasons stated. All of the other matters raised regarding the 
Applicant’s conduct and performance, largely through the complaint of Ms Lambert, were 
not the subject of any evidence beyond the record of those matters being put to the Applicant 
and him responding to them. There is no evidence as to whether the Applicant’s responses to 
the complaints were accepted or not by the respondent. Further and as disclosed earlier, Ms
Picken was unsure as to whether the complaints were truthful or not. In the circumstances I 
am not satisfied that any other allegation raised in the proceedings as to the Applicant’s 
performance or conduct constitutes a valid reason for dismissal. The only valid reason for the 
Applicant’s dismissal is the Matthews and Associates email. 

387(b) whether the person was notified of that reason and 387 (c) whether the person 
was given an opportunity to respond to any reason related to the capacity or conduct of 
the person 

[86] Notification of the valid reason to terminate must be given to the employee before the 
decision to terminate is made,98 in explicit terms and in plain and clear terms.99 The 
requirement on notification is expressed by his honour CJ Wilcox in Gibson v Bosmac Pty 
Ltd:








[2019] FWC 4979

19

“Ordinarily, before being dismissed for reasons related to conduct or performance, an
employee must be made aware of the particular matters that are putting his or her job
at risk and given an adequate opportunity of defence. However, I also pointed out that
the section does not require any particular formality. It is intended to be applied in a
practical commonsense way so as to ensure that the affected employee is treated
fairly.”100

[87] The Applicant attended meetings on 11 and 12 December 2018 and provided answers 
to questions about Ms Lambert’s complaint. The Applicant complains that it is not clear from 
the evidence that the Respondent specifically put to the Applicant, that as a result of his
conduct, that it had lost confidence in the capacity of the Applicant to uphold the reputation
of the Respondent prior to his dismissal. The proposition was put to Ms Picken who said, “I 
would say yes, that would have been the tone of the discussion. Yes. Yes.”101 I think that Ms
Picken stating that it would have been the tone of the discussion is well short of a recollection 
that it was actually put. However, it is clear that the Applicant was told that they were 
concerned that the comments would hurt the Respondent’s reputation.102 It is also clear from 
the evidence of Ms Picken that the allegations were put to the Applicant and he was afforded 
the opportunity to respond to the concerns in relation to the O’Day incident.

[88] Also, it is apparent that the notification of the purported valid reason was limited to 
the O’Day incident and not any other reason. This is clear from Ms Picken’s statement where 
she states, “…I discussed with him [the Applicant] that Mr Kuhne and Mr Dea were very 
concerned about the comments made regarding the prominent local farmer and that particular 
matter is regarded as a disciplinary matter…”103 It is clear from the following exchange 
during the hearing that the O’Day incident was the focus of the meeting that preceded the 
dismissal: 

“Now you receive a letter and it’s an invitation to another meeting. Now, in this letter 
they’ve indicated that they’re really concerned about the fact that you named Mr 
O’Day. So they’re not talking about the other stuff anymore. They’re just talking 
about the incident of Mr O’Day; is that right?  -Yes. Yes, Mr O’Day incident. Yes.

And it doesn’t talk about the other performance stuff that’s been raised Annette 
Lambert, does it? It just talks about the O’Day - - -?  -That’s correct. Yes

And it points out that it’s become a disciplinary matter. That’s in the second 
last - - -?  -Yes, statement down the bottom.

And they talk about that as being about the disciplinary issue, the Mr O’Day
comment, isn’t it?  -That’s correct.

It wasn’t about being late or enrolments or the other stuff?  -No.

No?  -No.”104

[89] Overall, it is clear that the Applicant was put on notice that the O’Day incident was 
the particular matter that was putting his job at risk and was given an adequate opportunity to 
defend himself in respect to that matter and other matters raised as part of the the complaint
made by Ms Lambert. However, I am not satisfied that the same opportunity was provided 








[2019] FWC 4979

20

for him to do so with respect to the Matthews and Associates email. The focus of the 
notification and the opportunity to respond was focussed on the O’Day incident.

387 (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

[90] There was no refusal to allow the Applicant to have a support person present. 

387(e) if the dismissal related to unsatisfactory performance by the person - whether the 
person had been warned about that unsatisfactory performance before the dismissal

[91] This factor is not relevant as the termination related to allegations of misconduct. I 
note that the sending of the email was characterised by the Respondent in the warning letter 
the Applicant received in March 2018 as a “performance matter.” However, for the reasons 
set out above I am satisfied that the sending of the email was misconduct. 

387 (f) the degree to which the size of the employer’s enterprise would be likely to 
impact on the procedures following in effecting the dismissal; and 387 (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

[92] The Respondent is a large organisation. There is no suggestion that the factors in 
s.387(f) and (g) would have had an impact on the procedures followed in effecting the 
dismissal. These are neutral considerations. 

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

[93] Section 387(h) provides the Commission with broad scope to take into account any 
other matters it considers relevant. I have also taken into account the following matters:

Impact on the Applicant’s personal or economic situation:

[94] The impact of the dismissal on the Applicant’s personal or economic situation may be 
taken into account.105 The Applicant had at the time of the hearing secured some work as an 
Operations Manager at a winery. However, this is at a lower rate of pay than he enjoyed with 
the respondent. He has also secured some work with a transport company. The details of the 
Applicant’s employment since dismissal are set out later in the decision. The Applicant is 55 
years old. It is submitted that there is a comparatively small labour market in Mildura 
particularly for vocational education and training. The Applicant was paid four weeks’ pay at 
the time of immediate dismissal which also needs to be taken into account.

The Applicant’s work history:

[95] The Applicant’s work history is a factor which can be taken into account in 
determining whether the dismissal is unfair.106 Other than the events surrounding the O’Day 
incident, the Applicant has been subject to one warning for misuse of his email as discussed 
above during his time working for the Respondent. The Applicant has a relatively short 
period of employment with the Respondent. The Applicant’s performance was on his own 








[2019] FWC 4979

21

evidence, satisfactory. However, the Respondent had not conducted any performance 
appraisals with the Applicant or provided the promised mentor. 

Other matters: 

[96] The Applicant submits that the Respondent failed to follow its own complaints 
process in dealing with the complaint about the Applicant. This may or may not be correct,
but irrespective, is of little consequence. It is clear that there was a procedure followed in 
putting allegations in writing to the Applicant and then giving him an opportunity to respond. 
In that context, whether or not the particulars of the Respondent’s complaints process were 
followed is of no great consequence. In any case, on the final day of hearing the Applicant
rightly conceded it was not a determinative matter.107

[97] The Applicant also submitted that the decision to dismiss him was not lawful as it 
does not appear that Mr Dea made the ultimate decision to dismiss him, and it is only Mr Dea 
who has the authority to dismiss employees under the Respondent’s constitution. However,
during closing submissions, the Applicant conceded that the evidence supported a finding 
that Mr Dea was the decision maker.108 That being the case, this matter does not require 
further consideration. 

Level of insight of the Applicant:

[98] The evidence of Mr Kuhne was that the Applicant came across in his responses like 
he was blaming Respondent and was not adequately taking responsibility for his wrongdoing. 
I do not accept that that is the case in circumstances where the O’Day incident was not a valid 
reason for dismissal. If the Applicant was not taking responsibility for his wrongdoing on that 
matter, it was understandable as I am not satisfied he had done anything beyond making a 
comment which at worst could be described as ill advised.

I do have a concern about the level of insight of the Applicant as to his conduct surrounding 
the email sent to Matthews and Associates. I agree with the Respondent that certainly at the 
time of the incident, the Applicant seemed to think that he was justified in sending the email. 
During the hearing, the Applicant asserted that he was “autonomous” in respect to the 
Mathews and Associates work. I am not satisfied that was the case. However, the Applicant 
was quite clear in his evidence that he could now be trusted regarding that kind of conduct 
into the future. There was certainly no evidence that he has done otherwise since he was 
warned about his conduct in March 2018. 

Conclusion 

[99] The valid reason for the Applicant’s dismissal, the email sent to Matthews and 
Associates, is a matter that weighs against a finding that the dismissal was unfair. I have also 
taken into account the gravity of the misconduct of the sending of the email. I consider the 
conduct to be of some significance and the warning given for it was warranted. However, the 
gravity of the misconduct is sending the Mathews and Associates email is not of a level 
which would warrant a dismissal. At the time the email was sent, it raised a risk of 
reputational damage. However, there was no evidence that there was any actual damage done 
to the relationship between Mathews and Associates and the Respondent, from an email that 
was sent over 12 months before the hearing in this matter. While the Applicant’s attempts to 
justify the conduct are of concern, it is clear that he has not repeated such conduct and it only 








[2019] FWC 4979

22

occurred on that single occasion. These factors weigh towards a finding the dismissal was 
unfair. 

[100] The Applicant was notified of the reason for his dismissal and given an opportunity to 
respond, however this was focussed on the O’Day incident, which as stated above, was not a 
valid reason. He was not notified during the meetings preceding his dismissal that his conduct 
nine months earlier in sending the Mathews and Associates email was putting his 
employment at risk. The applicant was warned in March 2018, that a repeat of that type of 
conduct would put his employment at risk but having not repeated the conduct since that 
time, the Applicant could hardly have been aware that he was at risk of dismissal for that
conduct. Further, I am not satisfied the Applicant was specifically told that the employer had 
lost trust in confidence in him. Overall, these factors weigh towards a finding of unfairness 
but not significantly so.

[101] The size of the employer and its human resources expertise are neutral factors.

[102] The Applicant’s age and his inability to find comparable work in the comparatively 
small labour market of Mildura weigh towards a finding the dismissal was unfair. The 
Applicant has sought to mitigate his loss and has secured employment though at a lower rate 
of pay than he enjoyed with the Respondent. The Applicant has a relatively short period of 
employment with the Respondent which weighs against the finding that the dismissal was 
unfair. He was paid four weeks’ pay in lieu of notice which I have taken into account. 

[103] Considering all of these factors, I consider the dismissal of the Applicant to be unjust 
as the Applicant was not guilty of the key misconduct relied upon for the dismissal relating to 
the O’Day incident.109 I am also satisfied that the dismissal is harsh as it is disproportionate to 
the gravity of the misconduct of the sending of the one email for which he was given a 
warning at the time it occurred. That single instance of insolence does not justify 
dismissal.110. 

[104] I find that the dismissal of the Applicant was unjust and harsh. It follows that the 
Applicant was unfairly dismissed.

Remedy

[105] I now turn to consider the question of remedy.

The statutory provision 

[106] Section 390 of the Act sets out the circumstances in which I may make an order for 
reinstatement or compensation: 

“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 








[2019] FWC 4979

23

(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.”

[107] Given my earlier conclusions, the matters set out in ss.390(1) and (2) are satisfied. 
Therefore, the jurisdictional preconditions to the order of an appropriate remedy are satisfied. 
The question of whether to order a remedy in a case where a dismissal has been found to be 
unfair remains a discretionary one. I consider that a remedy is appropriate in all the 
circumstances of this case.

[108] Subsection 390(3) of the Act underscores the primacy of reinstatement as a remedy 
for an unfair dismissal. The discretion to order a remedy of compensation may only be 
exercised if the Commission is satisfied that reinstatement is inappropriate. In this matter, the 
Applicant seeks reinstatement. The Respondent opposes reinstatement on the basis that there 
has been a loss of trust and confidence in the Applicant.111

Loss of trust and confidence

[109] There is no doubt that a loss of trust and confidence is an important factor in 
considering whether reinstatement is appropriate. There are a number of authorities that 
provide guidance on consideration of a submission that there is a loss of trust and confidence 
on the question of whether reinstatement is an appropriate remedy. These cases are 
conveniently summarised in the Fair Work Commission Benchbook and are replicated below: 

“‘Trust and confidence is a necessary ingredient in any employment relationship …’112

Where trust and confidence have been lost, reinstatement may be impractical.113 The 
reason for the loss of trust and confidence must be ‘soundly and rationally based’.114

An employer who has accused an employee of wrongdoing justifying summary 
dismissal may be reluctant to change their opinion regardless of a court finding.115

Consequently it is important to carefully scrutinise any claim by an employer that 
reinstatement is impractical because of a loss of confidence in the employee.116

The fact that it may be difficult or embarrassing for an employer to re-employ an 
employee whom the employer believed to have been guilty of serious wrongdoing or 
misconduct is not necessarily indicative of a loss of trust and confidence so as to make 
restoring the employment relationship inappropriate.117








[2019] FWC 4979

24

The loss of trust and confidence is a relevant factor to be considered ‘but it is not 
necessarily conclusive’.118

Ultimately, the question is whether there can be a sufficient level of trust and 
confidence restored to make the relationship viable and productive. In making this 
assessment, it is appropriate to consider the rationality of any attitude taken by a 
party.”119

[110] I rely on those authorities in considering the matter of loss of trust and confidence and 
its impact on whether reinstatement is an appropriate remedy.

[111] As noted above, the Respondent has submitted that reinstatement as a remedy is 
inappropriate because there has been a loss of trust and confidence in the Applicant.

[112] The Respondent submitted that:

“if the Applicant were to be reinstated to his position as an employee of the 
Respondent, he would be required to provide training and teaching on behalf of the 
Respondent and would be seen in public as a representative of the Respondent. The 
Respondent has lost all trust and confidence in the Applicant to do so because: 

a. the Applicant’s conduct has damaged the Respondent’s reputation 
with the O’Day family and the local community; 

b. the Respondent’s relationship with several key stakeholders such as 
local business, employers and regional industry would be damaged if the 
Applicant were to be seen continuing in his teaching role; 

c. the Applicant’s conduct shows a severe lack of judgement on his 
behalf and the Respondent would have no trust and confidence in him to act as 
its representative in public; 

d. the Applicant has a history of exercising poor judgement in 
situations where he should have been more cognisant of the importance of the 
Respondent’s reputation in the community.”120

[113] I have considered these factors in light of the facts of the case. I have determined that 
the Applicant’s single act of misconduct in sending the email to his previous employer was a 
valid reason for dismissal. However, the Applicant’s single act of misconduct is not a 
sufficient basis to establish that the employment relationship is beyond repair. There was no 
evidence from any of the Respondent’s witnesses that there was any impact whatsoever on 
the relationship between the Respondent and Matthews and Associates. 

[114] As to the claim of the Respondent that the Applicant’s conduct has damaged the 
Respondent’s reputation with the O’Day family and the local community, there is simply no 
evidence to support that proposition. Nor is there any evidence that the Respondent’s 
relationship with several key stakeholders such as local businesses, employers and regional 
industry would be damaged if the Applicant were to be seen continuing in his teaching role. 








[2019] FWC 4979

25

[115] I agree with the Respondent that the Applicant’s conduct showed a lack of judgement 
in sending the email to his former employer. However, considering all of the circumstances, 
particularly that the Applicant has been responsive to the warning given, has refreshed his 
knowledge of the email policy and has not engaged in such activity since that time, I am not 
satisfied the circumstances surrounding the sending of the email provides a basis for finding 
that the Respondent could have no trust and confidence in him to act as its representative in 
public.

[116] The claim that the Applicant has a history of exercising poor judgement in situations 
where he should have been more cognisant of the importance of the Respondent’s reputation 
in the community is overstated in light of my findings as to the extent of misconduct of the 
Applicant above. 

[117] Taking into account all of the factors, I am not satisfied that reason for loss of trust 
and confidence is soundly and rationally based. I do not consider that reinstatement is 
inappropriate. Consequently, an order for reinstatement will be made to reappoint the 
Applicant to the position in which he was employed immediately before the dismissal. 

Continuity of employment

[118] Section 391(2)(a) of the Act provides discretion to the Commission to determine if it 
is appropriate for an order maintaining the Applicant’s continuity of employment and 
continuous service with the Respondent. 

[119] An order for continuity is an exercise of discretion “separate and distinct from the 
decision to reinstate the employee”.121 This means that a person may be reinstated with or 
without an order for continuity of employment.122 An order for continuity “ensures that the 
period specified is taken into account in determining any entitlement to service related 
benefits”.123

[120] In this case, the Applicant was a full-time employee and had been employed with the 
Respondent for approximately 15 months. The absence of an order for continuity would 
operate as a penalty and adversely affect the Applicant’s entitlements that are based on a 
period of continuous employment. No submission was made to the effect that if reinstatement 
were determined to be the appropriate remedy that an order for continuity should not be 
made. I am unaware of any discretionary reasons as to why an order for continuity in the 
circumstances of this case should not be made and I propose to make such an order.

Restoration of lost pay

[121] Section 391(3) of the Act provides the Commission with discretion, where 
appropriate, to make an order causing the Respondent to pay the Applicant an amount for the 
remuneration lost, or likely to be lost, by the Applicant because of the dismissal. Section 
391(4) of the Act sets out factors which must be taken into account in determining the 
amount under s.391(3). These factors are:

 Any remuneration earned by the employee between the dismissal and making the 
order for reinstatement; and 

 Any remuneration reasonably likely to be earned between making the order for 
reinstatement and the actual reinstatement. 








[2019] FWC 4979

26

[122] As I have indicated, an order to restore lost pay is discretionary. The Commission may 
take into account ‘all of the circumstances of the case, including the conduct’ of the employee 
that led to the dismissal.124 Any misconduct by the employee that has led to the dismissal 
may reduce the amount ordered.125

[123] I propose to take into account the Applicant’s misconduct in sending the email to his 
former employer. While I am satisfied the Applicant has learnt from his error, a reduction in 
the amount of lost pay is warranted in all the circumstances of this case. The deduction will 
reinforce to the Applicant the importance of not repeating this behaviour in the future.

[124] I am satisfied that the Applicant has made reasonable efforts to secure other 
employment. In the circumstances, I propose to reduce the order that I will make for lost pay 
by 25%.

[125] The Applicant was dismissed on 12 December 2018 and was paid four weeks’ pay in 
lieu of notice. I propose that the order for reinstatement will take effect on Wednesday 24
July 2019. This should allow sufficient time for the Respondent to make arrangements for the 
reinstatement of the Applicant. Therefore, the period for which a restoration of pay order will
be made is 32 weeks. With the 25 % reduction that I propose, the order for restoration of pay 
will be for 24 weeks at the Applicant’s ordinary rate of pay. For the avoidance of doubt this is 
75% of the amount the Applicant would have earned in the period 12 December 2018 until 24 
July 2019. From this I propose to deduct any income that the Applicant has earned between 
the date of dismissal and the date on which the reinstatement order takes effect. The earnings 
to be deducted will include the amount paid in lieu of notice. In order that the total deductions 
are properly calculated I require the Applicant to verify by affidavit, the sources and sums of 
any income that he has earned (or will likely have earned) for the period since his dismissal
until 24 July 2019. The affidavit must be filed in my chambers and served on the Respondent
within five days of the date this decision.

[126] This remedy will ensure a fair go all round is accorded to both the employer and 
employee concerned. 

Conclusion

[127] For the reasons earlier given, I am satisfied that dismissal of the Applicant by the 
Respondent was unfair. I am also satisfied in the circumstances that a remedy is appropriate, 
and that reinstatement is not inappropriate. The Applicant seeks reinstatement. I propose to 
order reinstatement, continuity of service and partial restoration of pay. The reinstatement 
will take effect on Monday, 24 July 2019 and the restoration of pay order will be 24 weeks’
pay at the Applicant’s ordinary rate of pay less any income earned between 12 December 
2018 and 24 July 2019.

[128] The Applicant is required to file and serve an affidavit verifying the sources and sums 
of any income that he has earned (or will likely have earned) for the period between 12 
December 2018 and 24 July 2019 within five days of the date of this decision.

[129] Orders giving effect to this decision will be separately issued.








[2019] FWC 4979

27

COMMISSIONER

Appearances:

Mr McIver for the Applicant

Mr Powles for the Respondent 

Hearing details:

2019
Mildura
1 May.

Final written submissions:

1 June 2019

Printed by authority of the Commonwealth Government Printer

PR710418
                                               
1 Exhibit A2, Witness Statement of Russell Wakefield at [7].
2 Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-1. 
3 Ibid. 
4 Ibid. 
5 Applicant’s Outline of Submissions, filed 5 March 2019 at [38].
6 Exhibit A2, Witness Statement of Russell Wakefield at [14] - [16].
7 Ibid at [3].
8 PN256.
9 PN254. PN256
10 Exhibit A2, Witness Statement of Russell Wakefield, [19].
11 Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-3.
12 Exhibit A2, Witness Statement of Russell Wakefield at [19]; Annexure RW-2.
13 PN257. 
14 PN254.
15 Outline of Respondent’s Closing Submissions, 1 June 2019 at [11]; PN259.
16 PN1213 – PN1221.


OF THE FAIR WORK THE SEAL MISSION




 



[2019] FWC 4979

28

                                                                                                                                                 
17  Exhibit A2, Witness Statement of Russell Wakefield at [32].
18 Ibid at [35].
19 PN324.
20 PN356.
21 PN365; PN496. 
22 PN368; PN369.
23 Exhibit A2, Witness Statement of Russell Wakefield at [36] - [38].
24 PN378.
25 PN417- PN419.
26 PN424.
27 PN364 - PN366.
28 PN368 -PN369.
29 PN364-PN369.
30 Outline of Respondent’s Closing Submissions, filed 1 June 2019 at [47]; PN400.
31 Applicant’s Closing Submissions, filed 17 May 2019 at [9]; PN501.
32  Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-1.
33 PN498.
34 PN505.
35 Outline of Respondent’s Closing Submissions, filed 1 June 2019 at [51] – [53].
36 PN1246.
37  (1959) 101 CLR 298.
38 Applicant’s Closing Submissions, filed 17 May 2019 at [57].
39 Applicant’s Closing Submissions filed 17 May 2019 at [63].
40 PN1123 – PN1124.
41 Exhibit A2, Witness Statement of Russell Wakefield at [12].
42 Ibid at [12] – [13].
43 Ibid at [21].
44 Exhibit R1, Email exchange of Phil Matthews and Russell Wakefield, forwarded from Robin Kuhne to Shauna Picken,  

dated 20 March 2018.
45 Ibid. 
46 Outline of Respondent’s Closing Submissions, filed 1 June 2019 at [17]; PN476-483.
47Ibid at [18]; PN460 - PN461.
48 Ibid at [19] – [20]; PN483.
49;PN484. 
50 PN476.
51 PN479 - PN480.  
52 PN470.
53 PN483.
54 PN490 - PN491; PN500; PN516.
55 PN872.
56 Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-5.
57 Exhibit A2, Witness Statement of Russell Wakefield at [30].
58 Ibid at [31].
59 PN505.
60 Applicant’s Outline of Submissions, filed 5 March 2019 at [10].
61 Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-1.
62 PN1165 - PN1173.








[2019] FWC 4979

29

                                                                                                                                                 
63 Exhibit R2, Witness Statement of Shauna Picken at [5]
64 Exhibit R2, Witness Statement of Shauna Picken.
65 PN668 - PN670.
66 Exhibit R2, Witness Statement of Shauna Picken, Annexure SP-1
67 Exhibit R2, Witness Statement of Shauna Picken, Annexure SP-2.; PN274.
68 Ibid. 
69 Exhibit R2, Witness Statement of Shauna Picken at [14].
70 Exhibit R2, Witness Statement of Shauna Picken, Annexure SP-3.
71 Ibid. 
72 Exhibit R2, Witness Statement of Shauna Picken at [16] – [19].
73 Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-1.
74 Ibid. 
75 Ibid at [45].
76 Exhibit A3, Phillips Transport Payroll Transaction Details.
77 PN97.
78 Exhibit A4, Payslip For Period 1 March 2019 To 31 March 2019 From Wingarra Wine Group;  Exhibit A5, Payslip For 

Period 1 April 2019 To 30 April 2019 From Wingarra Wine Group.
79 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410.
80 Ibid at [465].
81 Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21 (4 June 1931), [(1931) 45 CLR 359 at pp. 373, 377‒378
82 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373]; cited in Annetta v 

Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) [10] [(2000) 98 IR 233].
83 Annetta v Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 

98 IR 233].
84 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at para. 24
85 PN1165.
86 PN369.
87 PN289.
88 PN386.
89 PN324.
90 Exhibit A2, Witness Statement of Russell Wakefield at [32]; PN430–434.
91 Exhibit R3, Witness Statement of Geoffrey Dea at [5].
92 Exhibit R4, Witness Statement Robin Kuhne at[11].
93 Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-5.
94 Exhibit A2, Witness Statement of Russell Wakefield at [30].
95 PN872.
96 Exhibit R4, Witness Statement of Robin Kuhne at [5] – [6]. 
97 Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-4.
98 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, 

Acton SDP, Cribb C, 11 May 2000) at paras 70–73, [(2000) 98 IR 137]
99 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
100 (1995) 60 IR 1, 7.
101 PN699.
102 PN310.
103 Exhibit R2, Witness Statement of Shauna Picken at [14].
104 PN298 – PN303.








[2019] FWC 4979

30

                                                                                                                                                 
105 Ricegrowers Co-operative Limited v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 

2001) at para. 26; citing Byrne v Australian Airlines Ltd [1995] HCA 24 (11 October 1995), [(1995) 185 CLR 410]; 

Gasz v Mobil Refinery Australia Pty Ltd PR960826 (AIRCFB, Watson SDP, Hamilton DP, Lewin C, 1 August 2005) at 
para. 17; Ashley v Statewide Autistic Services Inc PR959835 (AIRCFB, Ross VP, O’Callaghan SDP, Cribb C, 7 July 

2005), at para.110
106 Streeter v Telstra Corporation Limited [2008] AIRCFB 15 (Acton SDP, Cartwright SDP, Larkin C, 24 January 2008) at 

para. 25, [(2008) 170 IR 1]; Cunningham v Australian Bureau of Statistics (2005) 148 IR 20; Gasz v Mobil Refinery 

Australia Pty Ltd PR960826 (AIRCFB, Watson SDP, Hamilton DP, Lewin C, 1 August 2005) at para. 17
107 PN1141.
108 PN1108.
109 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410.
110 Rankin v Marine Power International (2017) 274 IR 123.
111 Outline of Respondent’s Closing Submissions, filed 1 June 2019 at [120] – [123].
112 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] 

FWA 3354 (Bissett C, 3 June 2011) at para. 24; Note: Perkins was decided under legislation with different wording to 

the current wording, using ‘impracticable’ rather than ‘inappropriate’. The Full Bench in Australia Meat Holdings Pty 

Ltd v McLauchlan Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), [(1998) 84 IR 1 at p. 18], 

found that the observations in Perkins were still relevant to the question of whether reinstatement was inappropriate.  
113 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] 

FWA 3354 (Bissett C, 3 June 2011) at para. 40 
114 Ibid.
115 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191.
116 Ibid.
117 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] 

FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 27; citing Perkins v Grace Worldwide 

(Aust) Pty Ltd (1997) 72 IR 186, 191.
118 Australia Meat Holdings Pty Ltd v McLauchlan Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), 

[(1998) 84 IR 1 at p. 17].
119 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] 

FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 28 
120 Outline of Respondent’s Submissions, filed 17 March 2019 at [77].
121 Kenley v JB Hi Fi (unreported, AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) Print S7235 at para. 27.
122 Ibid.
123 Ibid at [34] 
124 Kenley v JB Hi Fi (unreported, AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) Print S7235 at para. 36.
125 Ibid.

Cases cited by this decision: