1
Fair Work Act 2009
s.394—Unfair dismissal
Hammam Hijazi
v
Calvary Health Care ACT Limited
(U2020/1873)
DEPUTY PRESIDENT DEAN SYDNEY, 6 JANUARY 2021
Application for an unfair dismissal remedy – dismissal not unfair – application dismissed.
[1] Mr Hamman Hijazi was dismissed from his employment with Calvary Health Care
ACT Limited (Calvary) on 10 February 2020, following an investigation that concluded he
bullied two colleagues.
[2] Mr Hijazi applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work
Act 2009.
[3] The evidence was heard by Deputy President Kovacic on 24 and 25 July 2020. The
matter was subsequently re-allocated to me following the death of the Deputy President.
[4] The parties agreed that a rehearing was not necessary and consented to the application
being determined based on the evidence and submissions filed and the transcript of the
hearing.
[5] For the reasons set out below, I find that the dismissal of Mr Hijazi was not unfair and
accordingly I will dismiss his application.
Background
[6] The matters set out below are uncontested.
[7] Mr Hijazi commenced employment with Calvary in April 2009. He held the role of
Director Medical Imaging at Calvary Public Hospital (the Hospital) operated by Calvary. He
reported directly to Calvary’s Director Clinical Services, Professor Frank Bowden.
[2021] FWC 13 [Note: An appeal pursuant to s.604 (C2021/386) was
lodged against this decision - refer to Full Bench decision dated
9 April 2021 [[2021] FWCFB 1920] for the result of the appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb1920.htm
[2021] FWC 13
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[8] On 29 April 2019 Mr Hijazi was issued with a Notice of Investigation by way of a
letter signed by Mr Mark Dykgraaf (General Manager of the Hospital). The letter advised that
Calvary had engaged Mr Ken Grime of Katemaru Legal and Investigations to investigate a
complaint made by staff which claimed that Mr Hijazi had engaged in bullying and harassing
behaviour (the Grime Investigation).
[9] On 27 June 2019, Mr Hijazi, accompanied by his brother (a lawyer), attended a
meeting with Professor Bowden and Ms Kylie Gardner (a HR personnel of Calvary). At the
meeting, Mr Hijazi was handed two letters.
[10] The first letter, dated 17 June 2019 and titled ‘Investigation into Allegations of
Misconduct’, was written by Mr Grime, the Investigator. The letter referred to allegations
made pursuant to section 9 of the ACT Public Sector Management Act 1994 (PSM Act) and
set out relevant legislation and policies of Calvary pertaining to workplace bullying and
harassment. The letter concluded with the following statements:
You have 21 days from the date of this letter to provide your response to me. Your
response can be written, or I can meet with you (and your representative) to take
down your oral response, if that is preferred.
As I have indicated above, my task is to make findings on the allegations as detailed
above, not to determine disciplinary action if I find the allegations proven. Given the
matters that are canvassed in the allegations, you should be aware that a finding of
serious misconduct may be made with potential disciplinary consequences including
termination of employment.
[11] The second letter, dated 26 June 2019 and titled ‘Allegations of Misconduct and
Suspension From Duty’ was written by Mr Dykgraaf. The letter included the following
statements:
As you are aware Mr Ken Grime from Katemaru Legal and Investigations was
engaged to undertake an investigation into complaints made about your
behaviour. As a result of the investigation Mr Grime has reached the view that
you may have a case to answer. The allegations of misconduct are enclosed. Mr
Grime will also provide the allegations directly to your legal counsel. Should
these allegations be proven, it may constitute a finding of misconduct under
Section 9 of the ACT Public Sector Management Act 1994 (attached).
Attachment A presents the details of the alleged behaviour. I invite you to respond to
the allegations in writing by 5pm on 10 July 2019. If you do not respond to the
allegations I will make a decision without your response.
In light of the allegations and your role as the Director of Medical Imaging, I have
decided to suspend you with pay from the workplace until this matter has completed.
The suspension will take effect from delivery of this letter.
[12] Enclosed with the second letter was the particulars of allegations.
[2021] FWC 13
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[13] On 9 July 2019 Mr Hijazi through his brother sought from Mr Grime further time to
respond to the allegations and was granted an extension to provide a response by 19 July
2019.
[14] On 22 July 2019, Mr Hijazi’s solicitor, Mr John Wilson, wrote to Mr Dykgraaf. In that
letter, it was contended that Mr Hijazi was not a public servant and as such allegations could
not be made against him pursuant to the PSM Act. The letter demanded that Mr Hijazi’s
suspension be immediately lifted and a meeting be arranged to discuss a resolution of the
dispute in accordance with clause G6 of the ACT Public Sector Health Professional
Enterprise Agreement 2018-2021 (the Agreement).
[15] On 24 July 2019, Mr Dykgraaf wrote to Mr Hijazi’s solicitors. In that letter, Mr
Dykgraaf apologised for providing Mr Hijazi with the ‘wrong’ letter, noted that Mr Hijazi was
to be provided with the correct letter, and that he would be given a further 21 days to respond
to the allegations. The letter rejected the propositions made by Mr Hijazi’s solicitors in terms
of the interaction between part G and part H of the Agreement.
[16] On 31 July 2019, Mr Hijazi through Mr Wilson lodged a dispute notification with the
Commission. I note the dispute notification had the effect of causing an extended delay in
concluding the investigation.
[17] On 19 September 2019, Mr Hijazi through his lawyer provided written submission in
response to the allegations.
[18] By letter dated 26 November 2019 Mr Hijazi was advised that Calvary had received
Mr Grime’s report and having considered the contents of the report, found on the balance of
probabilities that Mr Hijazi had engaged in behaviour that did not comply with:
a) Section 9 of the PSM Act;
b) Section 28 of the Workplace Health and Safety Act 2011;
c) The Calvary Values;
d) The Calvary Code of Conduct; and
e) Relevant Calvary policies
[19] Specifically, Mr Hijazi was found to have engaged in bullying and harassment of staff
arising from a Riskman1 entry on or about 3 March 2019 (Allegation 1) and bullying and
harassment of staff arising from a Riskman entry about his conduct on or about 18 April 2019
(Allegation 2).
[20] Allegation 1 was in the following terms:
[2021] FWC 13
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“A Riskman report was made concerning the treatment of a patient in the Medical
Imaging Department of 3 March 2019 (‘the 3 March incident’). A copy of the report is
Annexure 1. You were the radiographer who failed to check the patient ID prior to a
procedure (cannulisation) and the patient was only saved from being scanned by Mr
Cuong (Bill) Trinh who took over the scanning procedure from you carrying out
correct patient ID procedures. Mr Trinh lodged a Riskman report which named you
and Mr Malcolm Bull, a Wards Service Officer as being involved.
Following the 3 March incident you are alleged to have repeatedly blamed Mr Bull for
the incident, publicly berating and belittling him to the point of bullying and
harassment. In addition, you are alleged to have deliberately harassed and intimidated
him through isolation by ignoring him and staring him down”.
[21] The Grime Investigation found that Mr Hijazi had engaged in bullying Mr Bull from
March 2019 until 18 April 2019 when Mr Bull was removed from the radiography ward, and
this was in breach of clause H6.5.1 of the Agreement and the Calvary Code of Conduct by:
a. Staring at Mr Bull rather than engaging in their usual method of greeting (ie
isolating him);
b. Repeated, unwarranted questioning about whether Mr Bull had identified the
right patient in a heated and stern tone; and
c. Intimidating Mr Bull by the mocking ‘crys and hugs’ comment.
[22] Allegation 2 related to Mr Hijazi’s alleged behaviour following the lodging of a
Riskman entry on 18 April 2019 by Ms June Mo, Mr Bull’s supervisor, in respect of Mr
Hijazi’s conduct toward Mr Bull. Ms D’Arx, a witness, was also referred to in the Riskman
report. The bullying found to have occurred involved staring at Mr Bull and Ms D’Arx rather
than engaging in their usual form of greeting, and intimidating Mr Bull and Ms D’Arx by
contacting them and questioning them about the lodgement of the Riskman entry.
[23] Mr Hijazi was advised that a proposed determination that misconduct had occurred
had been made, and invited Mr Hizaji to provide a response before a final decision as to
misconduct was made.
[24] A copy of the Grime Investigation report was also attached with the letter.
[25] On 10 December 2019 Mr Hijazi’s lawyers provided a very detailed response. In
summary, it argued that for the reasons set out therein, a finding of misconduct could not be
made out on the facts.
[26] By letter dated 16 December 2019, Calvary advised Mr Hijazi’s lawyers that it was
satisfied Mr Hijazi had in fact engaged in misconduct and the matter was to be referred to Mr
Dykgraaf to determine what, if any, sanction should be imposed.
[2021] FWC 13
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[27] On 19 December 2019, Calvary wrote to Mr Hijazi’s lawyers indicating that the
proposed sanction was the termination of Mr Hijazi’s employment, and set out the matters
which were considered in coming to that position. Mr Hijazi was given 7 days to provide a
response to the proposed sanction.
[28] A response was made on 6 January 2020.
[29] On 10 February 2020 Calvary wrote to Mr Hijazi informing him that the proposed
decision to terminate his employment was affirmed, and that his employment was terminated
with effect from that date. He was paid four weeks’ pay in lieu of notice.
Relevant policies etc
[30] The following policies and instruments are relevant.
H1.1 of the Agreement:
H1.1. All employees have a common interest in ensuring that workplace behaviours
are consistent with, and apply the values and general principles set out in
Division 2.1 of the PSM Act 1994 and the ACT Public Service Code of
Conduct and Signature Behaviours. This involves the development of an
ethical and safe workplace in which all employees act responsibly and are
accountable for their actions and decisions. Bullying, harassment and
discrimination of any kind will not be tolerated in ACTPS workplaces. It is
recognised that bullying, harassment and discrimination in the workplace has
both emotional and financial costs and that both systemic and individual
instances of bullying and harassment are not acceptable.
H6.5.1 of the Agreement:
H6.5.1 the employee fails to meet the obligations set out in section 9 of the PSM Act
1994;
Division 2.1 (‘Public Sector Standards’) of the PSM Act:
7 Meaning of public sector values
(1) The public sector values are—
(a) respect; and
(b) integrity; and
(c) collaboration; and
(d) innovation.
….
[2021] FWC 13
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9 Public sector conduct
(1) A public servant must—
…
(c) when acting in connection with the public servant’s job—
(iv) treat all people with courtesy and sensitivity to their
rights and aspirations;
…
(2) A public servant must not—
(a) behave in a way that—
(i) is inconsistent with the public sector values; or;
(ii) undermines the integrity and reputation of the service; or
…
(e) when acting in connection with the public servant’s job—bully,
harass or intimidate anyone; or
…
Section 28 of the Work Health and Safety Act 2011 (ACT):
28 Duties of workers
While at work, a worker must—
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely
affect the health and safety of other persons; and
(c) comply, so far as the worker is reasonably able, with any reasonable
instruction that is given by the person conducting the business or
undertaking to allow the person to comply with this Act; and
(d) cooperate with any reasonable policy or procedure of the person
conducting the business or undertaking relating to health or safety at the
workplace that has been notified to workers.
Calvary’s Code of Conduct:
i. Hospitality: Avoiding negative behaviours such as:
ignoring others
using inappropriate communication
intimidating or talking down to others
ii. Healing: Being expected to:
demonstrate ownership of our role and responsibilities
show care for our colleagues, people in our care and their family
take accountability for our actions
[2021] FWC 13
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iii. Stewardship: Being expected to:
meet our responsibilities to contribute to patient, resident, client and staff
safety and wellbeing by diligently managing risks and immediately reporting
hazards, incidents, serious near misses, accidents, illness or injury
actively support our team’s development and performance
act lawfully in everything we do and adhere to the Code and other directions
of Calvary
Avoiding negative behaviours such as:
placing the health, safety or welfare of ourselves or others at risk, in breach
of laws that govern the workplace
breaching policies, procedures and guidelines
withholding information or being neglectful of roles and responsibilities
iv. Respect: Being expected to:
be team players, valuing each other’s contribution
behave in an open, equitable and fair manner
Avoiding negative behaviours such as:
blaming others when things go wrong
bullying or harassing others
victimising others if they make a complaint or give evidence against another
person. including a complaint under discrimination or safety laws
Calvary’s Prevention of Workplace Discrimination Bullying and Harassment Policy:
4. Policy
…
Bullying and harassment is a breach of the discrimination and equal opportunity
legislation and may lead to breaches of WHS legislation and any other relevant
legislation. Bullying and harassment is also a breach of Calvary’s Code of Conduct
and employment conditions. CPHB considers discrimination, bullying and harassment
as unacceptable behaviours and has zero tolerance of these behaviours in the
workplace. CPHB has a stated expectation that employees neither ignore nor condone
poor behaviour. In line with this expectation, employees who observe, or are advised
of unacceptable behaviour have an obligation to report that behaviour. This reporting
can occur via the employee’s manager or through Calvary’s Riskman Staff to Staff
Incident Behaviour Reporting Module. …
…
4.3 Bullying
Bullying can be a range of undesirable behaviours which a reasonable person
considers to be offensive, intimidating, humiliating or threatening. Bullying generally
has the following key features: it is repeated, unwelcome and unsolicited. Bullying can
take many forms, including jokes, teasing, nicknames, emails, pictures, text messages,
[2021] FWC 13
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social isolation or ignoring people, or unfair work practices. Bullying behaviour can
create a risk to health and safety (including physical or psychological harm). If
someone is being bullied because of an attribute protected by equal opportunity law
(as above), it is a form of discrimination.
Under Federal law, this behaviour does not have to be repeated to be discrimination –
it may be a one-off event.
Behaviours that may constitute bullying include:
sarcasm and other forms of demeaning language
threats, abuse or shouting
coercion
isolation
inappropriate blaming
ganging up
constant unconstructive criticism
deliberately withholding information or equipment that a person needs to do
their job or access their entitlements
unreasonable refusal of requests for leave, training or other workplace
benefits.
4.4 Harassment
Harassment is unwanted or unwelcome behaviour that a reasonable person,
having regard to all circumstances, would consider offensive, insulting,
humiliating or intimidating. There does not have to be an intention to offend or
harass for harassment to occur. Behaviour that is deemed harassing in nature
can range from serious to less significant. Harassment may be a repeated or a
single event. Harassment may also be a result of a person’s attitude to some
real or perceived attribute, difference or characteristic as outlined in this policy
in accordance with Territory and Federal legislation. Harassment may also take
other forms, for example:
insulting comments or teasing about characteristics, abilities or mannerisms
of an employee
disparaging comments about an employee’s work or capacity for work
teasing or spreading of malicious rumours or public statements of a
derogatory nature about an employee
interference with an employee’s workplace, work materials, equipment or
property
exclusions from normal conversation, workplace activities or work- related
social activities without good reason
offensive images, text messages, emails, screensavers, posters or other hard
or soft copy material
making a vexatious or malicious complaint against a person, and
causing detriment to a person because they have made a complaint in faith.
Evidence and Submissions
[31] Evidence was given by:
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a) Mr Hijazi;
b) Mr Mark Dykgraaf;
c) Mr Ken Grime;
d) Mr Brian Keech;
e) Ms Michelle Vella; and
f) Professor Frank Bowden.
[32] Detailed written submissions were filed by both parties.
Submissions on behalf of Mr Hijazi
[33] The primary contention of Mr Hijazi is that there was no valid reason for his dismissal.
In this regard, he contended his dismissal was unjust because he was not guilty of the
misconduct on which Calvary acted, and unreasonable because it was decided on inferences
which could not reasonably have been drawn from the material before Calvary.
[34] Mr Hijazi submitted that it was extraordinary that Calvary had not provided to the
Commission any first-hand evidence of the alleged misconduct, instead relying entirely on the
Grime Investigation. In this regard, reference was made to a number of decisions of the
Commission which were submitted to be authority for the proposition that while the
Commission may consider an employer investigation in determining whether a valid reason
for a dismissal exists, “the Commission’s overarching task is to determine whether, on the
evidence received by it through first-hand witnesses upon hearing, the misconduct occurred,
regardless of the findings of any employer investigation and, if it did occur, whether it found a
valid reason for the dismissal”.2
[35] It was also submitted that the Commission could not reasonably reach the conclusion
that Mr Hijazi had bullied Mr Bull and Ms D’Arx because:
a. Calvary provided no first-hand evidence of the alleged misconduct through any
of its witnesses before the Commission;
b. The Grime Investigation was inadmissible; and
c. The Grime Investigation was fatally flawed.
[36] The basis for this submission included that:
a. Calvary did not call either of the alleged victims to give evidence nor any
witnesses of the alleged conduct;
b. The Grime Investigation was hearsay and was inadmissible;
c. The Commission was unable to fulfil its fact-finding function as required by
the Act because the Commission was being asked to accept the Grime Investigation as
definitive of the misconduct occurring.
[37] There were no decisions of the Commission, it was submitted, in which a valid reason
for a dismissal has been established on the product of an investigation conducted by or on
[2021] FWC 13
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behalf of the employer alone, in the absence of any evidence from persons said to be the
subject of the alleged misconduct or to have witnessed it first-hand. Accordingly, it followed
that the Commission should find that Mr Hijazi’s alleged misconduct did not occur because
there was no evidentiary basis for the Commission to hold otherwise, and therefore Calvary
lacked a valid reason for his dismissal.
[38] On behalf of Mr Hijazi it was submitted that the following was apparent:
a. In respect of the allegation that Mr Hijazi bullied and harassed Mr Bull
through staring at him rather than engage in their usual greeting, the allegation was
denied by Mr Hijazi and no first-hand witness was called by Calvary to give evidence
in support of it.
b. In respect of the allegation that Mr Hijazi bullied and harassed Mr Bull
through repeated, unwarranted questioning about whether Mr Bull had identified the
right patient including in a heated and stern tone, Mr Hijazi denied the questioning
was unwarranted or amounted to bullying. Even if Mr Hijazi did use a heated and stern
tone, this could not be found to amount to bullying and harassment.
c. As to the allegation that Mr Hijazi bullied and harassed Mr Bull by mocking
him (‘crys and hugs’ comment), the allegation was denied by Mr Hijazi and he was
not cross examined on the allegation, and no first-hand witness evidence was called by
Calvary to give evidence in support of the allegation.
d. As to the bullying and harassment allegation related to Mr Hijazi staring at Mr
Bull and Ms D’Arx rather than their usual greeting, the allegation was denied by Mr
Hijazi and no first-hand evidence was called by Calvary.
e. Finally, in respect of the allegation involving Mr Hijazi contacting Mr Bull and
Ms D’Arx and questioning them about the lodgement of the Riskman entry, Mr Bull
and Ms D’Arx’s statements to Mr Grime did not suggest either felt bullied, harassed or
intimidated by Mr Hijazi, and no first-hand evidence was called by Calvary in support
of this allegation.
f. It was submitted on behalf of Mr Hijazi that only two things could be
established based on the evidence of witnesses called before the Commission. First,
Mr Hijazi did question Mr Bull more than once as to whether he had brought the
correct patient to the radiography department, because he felt Mr Bull had been
involved in a number of incidents of bringing incorrectly identified patients to the
radiography department, and that it was not unreasonable for him to do so given the
errors made by Mr Bull in the past. It was accepted that Mr Hijazi did not raise his
concerns about Mr Bull with Mr Bull’s supervisor, but that did not prove his concerns
were not legitimate. Second, as to Mr Hijazi contacting Mr Bull and Ms D’Arx on 18
April 2019, Mr Hijazi admitted this was an error of judgment on his part, and
explained that it was a result of his concern that an inaccurate Riskman had been
submitted. He acknowledged in cross examination that it would be intimidating for a
witness to be approached by him in that context.
[2021] FWC 13
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[39] It was contended that this could not amount to bullying because there was no
repetition of the behaviour.
[40] In terms of the inadmissibility of the Grime Investigation, it was submitted on behalf
of Mr Hijazi that while the rules of evidence do not apply in a strict sense, they cannot be set
aside where to do so would cause unfairness to a party. Almost everything in the Grime
Investigation, it was contended, was first-hand hearsay, and it would be appropriate for the
Commission to either exclude the Grime Investigation or give it little or no weight, as to do
otherwise would be unfair to Mr Hijazi.
[41] Further, it was contended that the Grime Investigation was substantively and
procedurally flawed. Accordingly, the Commission could not rely on it to find that Mr
Hijazi’s alleged misconduct occurred.
[42] Overall, the Commission was urged not to rely on the Grime Investigation at all as the
findings were not based on reasonable grounds. As a result of this, and the lack of any first-
hand evidence of Mr Hijazi’s alleged misconduct, it was impossible for the Commission to
find that a valid reason existed for Mr Hijazi’s dismissal.
[43] If a valid reason was found to exist, it was contended that the dismissal was still unfair
because it was harsh. It was harsh because it was disproportionate to the gravity of the
misconduct and because it had considerable consequences for the personal and economic
situation of Mr Hijazi. In terms of disproportionality, it was submitted that at its highest, the
Grime Investigation provided evidence that:
a. on a handful of occasions, Mr Hijazi did not engage with Mr Bull and Ms
D’Arx when walking past them in a corridor,
b. Mr Hijazi used a stern tone when questioning Mr Bull about patient
identification,
c. Mr Hijazi made one inappropriate comment re ‘crys and hugs’, and
d. Mr Hijazi contacted Mr Bull and Ms D’Arx following the lodgement of a
Riskman report, noting that the Grime Investigation provided no evidence that these
exchanges were anything other than civil and polite.
[44] It was also submitted that the fact that Calvary became aware of the incidents in April
2019 but took until June 2019 to take any steps to investigate them demonstrates the
allegations were not serious enough to justify dismissal. Further, during the time in question,
Mr Hijazi continued to attend work. If the allegations were as serious as Calvary now
suggests, it grossly neglected its obligations to staff by failing to act swiftly. Accordingly,
dismissal was disproportionate given the totality of the circumstances.
[45] In response to Calvary’s claims that there were other reasons which would ground a
finding that there was a valid reason for Mr Hijazi’s dismissal, it was submitted that these
other reasons should be rejected. The claims included that Mr Hijazi was responsible for
several incidents where a failure to correctly identify patients was not notified through
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Riskman, and that Mr Hijazi failed to apply for a Radiation Source Registration and failed to
have a CT scanner registered, which had considerable financial consequences for Calvary (in
the order of $93,000).
[46] On behalf of Mr Hijazi it was submitted that there was considerable doubt Mr Hijazi
was actually responsible for any of these matters and even if he was, there was insufficient
evidence before the Commission to ground a valid reason on these allegations. Alternatively,
it would be unfair to now rely on these matters given Calvary was aware of the allegations
prior to his dismissal but did not provide him with an opportunity to respond.
[47] Mr Hijazi argued that reinstatement was the appropriate remedy, along with an order
to maintain continuity of service and restore his lost pay.
Calvary’s submissions
[48] Calvary submitted that there was a valid reason for Mr Hijazi’s dismissal, and it was
not otherwise harsh.
[49] In response to the contention that it had provided no first-hand evidence of the alleged
misconduct, Calvary submitted that nothing in its submissions disputed the uncontroversial
proposition that the Commission must determine on the evidence before it whether the alleged
misconduct occurred. Calvary contended that it had not suggested that the Commission
should hand over its fact-finding role to Mr Grime. In reliance on the decision in Department
of Social Security v Uink3 (Uink), it contended that the reason why the findings of an
investigation are ‘relevant to’ the Commissions task is because they constitute relevant
evidence on the issues in dispute. Calvary argued that the Grime Investigation is evidence on
which Calvary is entitled to rely, together with the other witness evidence given at the
hearing.
[50] In terms of the contention that the Grime Investigation contains hearsay evidence and
should not be relied upon, Calvary argued that there is nothing preventing the Commission
from relying on hearsay evidence, and indeed the statutory regime specifically allows for it,
noting that the Commission is not bound by the rules of evidence and that the Commission
may inform itself in relation to any matter before it in such manner as it considers appropriate.
Calvary noted that the Commission may elect to give hearsay evidence less weight than direct
testimony.
[51] Calvary also referred to a number of decisions in which the Commission found a valid
reason for a dismissal in circumstances where the employer failed to call first-hand evidence
of misconduct, instead relying on the evidence of an external investigator. For example, in
Chris Rodger v ACT Government4, the employer did not call as witnesses any of the
employees who witnessed the alleged misconduct, and instead relied upon evidence from its
investigator. The decision was appealed, and permission to appeal was refused.
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[52] Calvary contended that nothing in any of the decisions relied on by Mr Hijazi’s
representatives stand for the proposition that in order for the Commission to make a
determination as to whether misconduct occurred, it must be given the evidence through first-
hand witnesses of the alleged misconduct.
[53] In respect of the two allegations found to be substantiated, Calvary highlighted that Mr
Hijazi admitted he had spoken to Mr Bull in relation to patient misidentification on multiple
occasions, and that in doing so, spoke in a heated and stern tone. In his submissions to the
Grime Investigation, Calvary highlighted that Mr Hijazi conceded he spoke to Mr Bull more
than other wardsmen regarding patient misidentification, and noted that at no stage did Mr
Hijazi raise his concerns about Mr Bull with his supervisor, Ms Mo.
[54] Calvary submitted that the issue was not whether Mr Hijazi intended to bully or harass
Mr Bull, but rather whether a reasonable person would consider the behaviour to be offensive,
intimidating, humiliating or threatening. So, regardless of whether Mr Bull had committed
more errors of patient misidentification, Mr Hijazi’s conduct in repeatedly raising the issue
with Mr Bull remained plainly unwarranted in circumstances where:
a. he was not the supervisor of Mr Bull,
b. he had not taken up the issue with Mr Bull’s supervisor,
c. he had conceded that the responsibility for correct patient identification was
with the radiographer (and not the wardsman),
d. the issue of patient misidentification was a problem with the systematic
processes and not individual error, requiring Mr Hijazi as the director responsible for
the Department to be focussing on the process rather than Mr Bull,
e. Mr Hijazi had conceded that in raising the issue of patient misidentification by
reference to his job being ‘on the line’, Mr Bull could reasonably construe the
comment to mean that Mr Bull’s job was also on the line; and
f. There was a significant power differential between Mr Hijazi as the director of
the Department and Mr Bull, an unqualified wardsman who took instructions from
qualified staff.
[55] Calvary also pointed to the evidence of witnesses interviewed as part of the Grime
Investigation who observed Mr Hijazi making comments to Mr Bull, suggesting that Mr
Hijazi’s comments were not made in a constructive or positive manner.
[56] Calvary argued that the Commission was not bound to give hearsay evidence less
weight in circumstances where the evidence was ‘inherently believable’, given that consistent
evidence was given by numerous witnesses and these witnesses had no vested interest in the
outcome of the investigation, and their evidence was not inconsistent with what Mr Hijazi
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himself had conceded he had engaged in, that being repeated questioning about patient
misidentification.
[57] In relation to the allegation that Mr Hijazi isolated Mr Bull by staring at him, Calvary
submitted that it was Mr Hijazi’s contention that it was actually impossible to tell the
difference between looking at someone and staring at them was unconvincing.
[58] In relation to Allegation 2, Mr Hijazi conceded he contacted Mr Bull and Ms D’Arx in
response to the lodgement of the Riskman entry, in which it was reported that Mr Bull was
feeling harassed and uncomfortable as a result of the repeated comments from Mr Hijazi
about patient misidentification, and where Ms D’Arx was noted to be a witness. Mr Hijazi
initially denied it would be intimidating for Mr Bull, a junior employee and the person who
made a complaint about him, to be approached by him and questioned about the complaint,
but later conceded it would be intimidating. Mr Hijazi also conceded that such behaviour
possibly gave rise to the serious consequence that staff may be discouraged from lodging
reports in Riskman in the future.
[59] Calvary contended that Mr Hijazi’s evidence that his behaviour had changed in light
of the pressure he was under, and that staff may have misconstrued his ‘sombre mood’ as
‘freezing out’, demonstrated a failure on his part to take any responsibility for his behaviour
in light of the senior position he held as director of the Department. It submitted that “a senior
manager who is the head of the Department is not free to be ‘sombre’ towards, ‘withdraw
from’ or ‘limit interactions with’ junior staff – for the obvious reason that it is likely to impact
them adversely”. Calvary also pointed to the fact that Mr Hijazi had confirmed he had been
reminded of the relevant Calvary policies and Values in the months leading up to the
complaints.
[60] In relation to the contention by Mr Hijazi that the Grime Investigation was
inadmissible, Calvary said that the real issue was that there was no compelling reason as to
why hearsay evidence should not be admitted in this matter. In relation to the contention that
the Grime Investigation was flawed, Calvary submitted that Mr Hijazi had not pointed to any
way in which Mr Grime failed to comply with the procedural requirements imposed on him
under the Agreement, and that there was nothing in his investigation process that was unusual
or inappropriate.
[61] Calvary rejected the contention that the dismissal was harsh, citing its zero tolerance
approach to bullying as outlined in the Agreement, its Code of Conduct, and its Workplace
Discrimination Bullying and Harassment Policy. In terms of the sanction that was imposed,
being dismissal, Calvary argued that a dismissal is not rendered harsh simply because a lesser
sanction may be open to the employer. It submitted that Mr Dykgraaf carefully considered the
options and Mr Hijazi’s responses before deciding on dismissal.
[62] Calvary also argued that Mr Hijazi did not have a ‘clean slate’ in terms of conduct
matters and had been the subject of allegations of inappropriate conduct in November 2018.
[2021] FWC 13
15
In that matter, a decision had been made to counsel Mr Hijazi rather than make a finding of
misconduct. Calvary also pointed to Mr Hijazi’s lack of cooperation and the ‘remarkable
features of the manner in which he responded to the allegations…”, including:
a. Focusing on scrutinising or challenging the language that Mr Bull, Ms D’Arx
and other witnesses used, including the meaning of ‘suggest’, ‘badgering’,
‘repeatedly’, ‘barbed’ etc, rather than addressing the substance of the allegations;
b. Answering the allegations in a defiant manner by posing a series of apparently
rhetorical questions rather than addressing the substance of the allegations;
c. Repeatedly suggesting that hearsay evidence could not be relied on,
notwithstanding Mr Grime was not conducting a court proceeding;
d. Stating that he had ‘no involvement whatsoever’ in the 3 March 2019 incident
involving misidentification of a patient, notwithstanding he was the radiographer on
duty and the director of the Department; and
e. Stating that his behaviour could not be in breach of the Agreement because the
latest date the conduct alleged to have occurred was 22 April, and the Agreement
commenced on 5 June 2019, notwithstanding that equivalent provisions were
contained in the former Agreement.
[63] It was clear then, contended Calvary, that Mr Dykgraaf took little comfort in Mr
Hijazi’s promise to act with ‘the utmost propriety’ going forward, or to participate in any
training that Calvary might provide to him.
[64] In terms of remedy (if the Commission were to find the dismissal unfair), Calvary
submitted that it had lost confidence and trust in Mr Hijazi and accordingly reinstatement was
impracticable.
Reliance on the Grime Investigation
[65] It is useful to deal first with what, if any, reliance the Commission should have on the
Grime Investigation.
[66] As outlined earlier, it was submitted on behalf of Mr Hijazi that while the rules of
evidence don’t apply in a strict sense, they cannot be set aside where to do so would cause
unfairness to a party. Almost everything in the Grime Investigation, it was contended, was
first-hand hearsay, and the Commission should either exclude the Grime Investigation or give
it little or no weight, as to do otherwise would be unfair to Mr Hijazi. Further, it was
contended that the Grime Investigation was substantively and procedurally flawed.
Accordingly, the Commission could not rely on it to find that Mr Hijazi’s alleged misconduct
occurred.
[2021] FWC 13
16
[67] Conversely, Calvary contended that there was no compelling reason as to why hearsay
evidence should not be admitted in this matter. In relation to the contention that the Grime
Investigation was flawed, Calvary submitted that Mr Hijazi had not pointed to any way in
which Mr Grime failed to comply with the procedural requirements imposed on him under the
Agreement, and that there was nothing in his investigation process that was unusual or
inappropriate.
[68] Having reviewed in detail the material filed in this regard, I am satisfied that the
Grime Investigation was conducted in an appropriate manner and consistent with the
requirements of the Agreement. There is no basis in my view to criticise the method or
approach taken by Mr Grime in conducting the investigation, or Calvary’s reliance on it in
deciding to terminate Mr Hijazi’s employment. Mr Hijazi was given a more than adequate
opportunity to provide a response to the allegations, and to the findings prior to a final
decision being made as to Mr Hijazi’s ongoing employment. He had the benefit of legal
representation and assistance, both from his brother, a partner in a law firm, and his lawyer
Mr Wilson, throughout the lengthy process.
[69] In terms of the submission that the Grime Investigation was fatally flawed, I do not
consider this submission has merit. There is nothing unusual about the method undertaken in
the investigation process, and again, the investigation process provided Mr Hijazi with a
proper opportunity to respond to the allegations made against him. Further, it is clear that
Calvary took account of his responses prior to making a decision about what sanction it would
impose.
[70] However, the more important issue for this Commission is whether the Grime
Investigation should be accepted as evidence of the conduct in question.
[71] There is no dispute that the Commission is not bound by the rules of evidence,
however the rules are not irrelevant and do provide general guidance to the Commission as to
the manner in which it informs itself.5
[72] Evidence will be relevant if it could affect, directly or indirectly, the assessment of the
probability of the existence of a fact in issue.
[73] In terms of hearsay evidence, the Commission has confirmed that hearsay evidence
can be adduced, but will generally be given limited weight. In Pearse v Viva Energy Refining
Pty Ltd6 the Commission said:
“….. In any event, there is no automatic prohibition in proceedings before the
Commission on the reliance on hearsay or opinion evidence. The Commission is
obliged by statute to perform its functions in a manner that is fair and just pursuant to
s.577(a) of the Act. Although it is not bound by the rules of evidence and procedure,
the Commission tends to follow the rules of evidence as a general guide to good
procedure. However, that which is ultimately required is judicial fairness, and that
which is fair in a given situation depends on the circumstances.”7
[2021] FWC 13
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[74] Both parties referred to the decision of a Full Bench in Uink. Relevantly, the
Commission in that decision said:
“In our view the question of whether or not a termination was `harsh, unjust or
unreasonable’ within the meaning of s.170CG is to be determined on the basis of the
circumstances in existence when the decision to terminate the employment was made.
In this regard the Commission is not bound by any determination of facts made by an
inquiry conducted by the employer.
The Commission is bound to consider whether, on the evidence in the proceedings
before it, the termination was `harsh, unjust or unreasonable’ provided that the
evidence concerns circumstances in existence when the decision to terminate the
employment was made.
Facts which existed at the time of the dismissal but which only come to light after the
dismissal might either:
justify the dismissal when otherwise it would be harsh, unjust or unreasonable; or
render the dismissal harsh, unjust or unreasonable.
Findings made by an inquiry established by the employer will be relevant to the
Commission’s determination of the issues before it provided it is established that:
- the employer conducted a full and extensive investigation into all of the
relevant matters as was reasonable in the circumstances;
- the employer gave the employee every reasonable opportunity to respond
to allegations; and
- the findings were based upon reasonable grounds.
As we have already noted that above elements were not present in the inquiry relevant
to this case.
Even where the findings of an employers enquiry are reasonable the Commission may
conclude that a termination of employment on the basis of those findings was harsh
because the penalty was disproportionate to the misconduct [Byrne v Australian
Airlines Ltd at 465 per McHugh and Gummow JJ].”8
(emphasis added)
[75] I do not accept the proposition put on behalf of Mr Hijazi that in order for the
Commission to make a determination as to whether misconduct occurred, it must only accept
evidence through first-hand witnesses of the alleged misconduct. This proposition cannot be
supported particularly in light of the cases referred to above.
[2021] FWC 13
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[76] Additionally, in jurisdictions where the rules of evidence do apply, hearsay evidence is
accepted in certain circumstances. Courts will consider a range of factors including whether
the evidence is relevant, its probative value, and whether the statement in question was made
in circumstances that make it probable that the statement is reliable. To suggest, therefore,
that the Grime Investigation should not be admitted simply because it contains first-hand
hearsay evidence is wrong.
[77] Further, I note that Mr Hijazi’s legal representative, Mr Wilson, did not object to the
tender of the Grime Investigation during the hearing, having been specifically asked whether
he wished to object by Deputy President Kovacic. In this regard, it was submitted that Mr
Wilson understood the question posed by the Deputy President to be referring to the bare fact
that an investigation was conducted and a report produced, rather than evidence of what
various witnesses said or did. This assumption was not clarified by Mr Wilson when
answering the question of the Deputy President.
[78] The Grime Investigation is in my view relevant to the Commission’s determination of
the issues which need to be decided. I am satisfied in this regard that the Grime Investigation
constituted a full and extensive investigation, that Mr Hijazi was given a reasonable
opportunity to respond, and that the findings were based upon reasonable grounds. It is,
however, appropriate to place less weight on the Grime Investigation than might otherwise be
the case because it is hearsay, which I have done. This is particularly so given Mr Hijazi was
unable to test the evidence by way of cross examining those who complained about his
conduct.
Consideration
Protection from Unfair Dismissal
[79] There is no dispute and I am satisfied that Mr Hijazi is a person protected from unfair
dismissal by virtue of s.382 of the Act.
[80] I will now consider if the dismissal of Mr Hijazi was unfair within the meaning of the
Act.
Was the dismissal unfair?
[81] A dismissal is unfair if the Commission is satisfied on the evidence before it that the
circumstances set out at s.385 of the Act existed. Section 385 provides the following:
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
[2021] FWC 13
19
(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.
[82] There is no dispute that Mr Hijazi was dismissed and that subsection (c) and (d) do not
apply.
Was the dismissal harsh, unjust or unreasonable?
[83] The criteria the Commission must take into account when assessing whether the
dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
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.
[84] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd9 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
[2021] FWC 13
20
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.”
[85] I am required to consider each of these criteria in reaching my conclusion10, which I
now do.
Valid reason - s.387(a)
[86] Calvary must have a valid reason for the dismissal of Mr Hijazi, although it need not
be the reason given to him at the time of the dismissal.11 The reason(s) should be ‘sound,
defensible and well founded’12 or justifiable on an objective analysis of the relevant facts, and
should not be ‘capricious, fanciful, spiteful or prejudiced’.13
[87] The question I must address here is whether there was a valid reason for the dismissal
related to his conduct (including its effect on the safety and welfare of other employees).
[88] In cases concerning conduct, the Commission must determine whether, on the balance
of probabilities, the conduct allegedly engaged in by the employee actually occurred14. The
test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that
the employee was guilty of the conduct and therefore acted in the belief that the termination
was for a valid reason. The Commission must make a finding as to whether the conduct
occurred based on the evidence before it15.
[89] Further, the Commission does not ‘stand in the shoes’ of the employer but will need to
be satisfied that the termination of the employee was for a valid reason16.
[90] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or
weight than any of the other criteria in s 387. It is well settled that the statutory requirement to
‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight
as a fundamental element in the decision-making process. Even if it is found that there was a
valid reason for the dismissal, an overall assessment must be made as to whether the dismissal
was harsh, unjust or unreasonable.
[91] In this case I am satisfied and find that there was a valid reason for the dismissal
related to Mr Hijazi’s conduct.
[92] I am satisfied that the matters which are not disputed or are conceded by Mr Hijazi,
combined with limited reliance on the Grime Investigation, is sufficient to ground a finding
that there was a valid reason for his dismissal.
[93] There are a number of matters arising from Mr Hijazi’s evidence, and from the non-
contentious facts that, when taken as a whole, support a finding that his conduct warranted
dismissal. These include the following:
[2021] FWC 13
21
a. Mr Hijazi was in a senior leadership role and was the director of the
Department. There was a significant power imbalance between him and Mr Bull (a
wardsman) and Ms D’Arx (a nurse).
b. Mr Hijazi conceded he spoke to Mr Bull about patient misidentification on
multiple occasions and that he spoke in a stern and ‘heated tone’ to him.
c. At no time did Mr Hijazi raise his concerns about Mr Bull with Mr Bull’s
supervisor.
d. Mr Hijazi spoke to Mr Bull on multiple occasions about patient
misidentification notwithstanding he was not Mr Bull’s supervisor.
e. Mr Hijazi conceded he was ultimately responsible for patient identification,
not the wardsmen. By repeatedly raising patient identification with Mr Bull, he was
effectively blaming Mr Bull for the 3 March 2019 incident. This conduct, in my view,
was highly inappropriate.
f. Mr Hijazi conceded that in raising with Mr Bull that Mr Hijazi’s job might be
‘on the line’ because of the patient identification issues, Mr Bull might have
reasonably construed his comment to mean that his job could also be ‘on the line’.
g. Mr Hijazi did not dispute he contacted Mr Bull and Ms D’Arx about the
Riskman entry (Allegation 2). It was highly inappropriate to do so in circumstances
where Mr Hijazi was aware that Mr Bull felt bullied by him, having already made a
complaint to that effect the previous month.
h. Mr Hijazi had been warned previously about his conduct. Specifically, he gave
evidence there had been two complaints about him. The investigation into the second
complaint was concluded on 25 March 2019 with a letter to Mr Hijazi outlining the
investigation findings. The conduct in question involved an interaction between Mr
Hijazi and another employee in which he raised his voice at her. The trigger for the
interaction was adverse comments that had been made by the other employee about
Mr Hijazi which had been reported to him. In the letter Mr Hijazi was advised that it
was open for Calvary to make a finding of misconduct, however the decision maker
decided instead to counsel him as to his conduct.
i. Calvary’s policies relevant to the conduct and set out earlier in this decision
clearly state what behaviour may constitute a breach. There is no dispute Mr Hijazi
was aware of these requirements. For example, the Code of Conduct requires
employees to avoid negative behaviour such as ignoring others, using inappropriate
communications, and blaming others when things go wrong. It is clear, and I find, that
Mr Hijazi’s conduct, particularly in repeatedly questioning Mr Bull regarding patient
identification and contacting him about Allegation 2 in circumstances where he was
aware Mr Bull felt bullied by him, was in breach of the Code of Conduct.
[94] In terms of the Grime Investigation, the statements made by those interviewed as part
of the investigation support a finding that the conduct of Mr Hijazi was inappropriate,
particularly where those statements are materially consistent, and where the witnesses had no
vested interest in the outcome of the investigation.
[95] Mr Hijazi was the director of the Department and part of the senior leadership team. It
was incumbent on him to at all times behave in a way that was consistent with the relevant
Calvary policies including its Code of Conduct, and the Agreement. In this regard I agree with
the submission made by Calvary that Mr Hijazi, as the head of the Department, was not free
[2021] FWC 13
22
to be ‘sombre’ towards, ‘withdraw from’ or ‘limit interactions with’ junior staff – for the
obvious reason that it is likely to impact them adversely. I also accept that Mr Hijazi had been
reminded of the relevant Calvary policies and Values in the months leading up to the
complaints. His conduct, in my view, was conduct that a reasonable person would consider to
be humiliating and intimidating, thus breaching Calvary’s Code of Conduct, Values, and the
Calvary Prevention of Workplace Discrimination, Bullying and Harassment Policy.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
[96] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made,17 in explicit terms18 and in plain and clear
terms.19 In Crozier v Palazzo Corporation Pty Ltd20 a Full Bench of the Australian Industrial
Relations Commission dealing with similar provision of the Workplace Relations Act 1996
stated the following:
“[73] As a matter of logic procedural fairness would require 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. Section 170(3)(b) and (c) would have very little (if any) practical
effect if it was sufficient to notify employees and give them an opportunity to respond
after a decision had been taken to terminate their employment. Much like shutting the
stable door after the horse has bolted.”21
[97] An employee protected from unfair dismissal must also be provided with an
opportunity to respond to any reason for dismissal relating to the conduct or capacity of the
person. Such requirement will be satisfied where the employee is aware of the precise nature
of the employer’s concern about his or her conduct or performance and has a full opportunity
to respond to this concern.22 This criterion is to be applied in a common sense way to ensure
the employee is treated fairly and should not be burdened with formality.23
[98] The requirement to notify of the reason, together with the requirement to provide an
opportunity to respond to the reason, involves consideration of whether procedural fairness
was afforded to Mr Hijazi before his dismissal was effected.
[99] On the evidence before me, I am satisfied that Mr Hijazi was notified of the reason for
his dismissal and was given an opportunity to respond to the reason. I also note there is no
suggestion by Mr Hijazi to the contrary.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[100] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, the employer should not unreasonably
refuse that person being present.
[2021] FWC 13
23
[101] There is no dispute that Mr Hijazi was provided with the opportunity to have a support
person.
Warnings regarding unsatisfactory performance - s.387(e)
[102] Mr Hijazi was not dismissed for unsatisfactory performance and this factor is therefore
not relevant in my consideration.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of
dedicated human resources management specialist/expertise on procedures followed
(s.387(g))
[103] I am satisfied that the size of Calvary and its dedicated human resource expertise did
not impact on the procedures followed by it in effecting the dismissal.
Other relevant matters - s.387(h)
[104] Section 387(h) of the Act provides the Commission with a broad scope to consider any
other matters it considers relevant.
[105] Mr Hijazi submitted that if there was a valid reason for his dismissal, then the
dismissal was harsh because of the consequences for him personally and economically, and
the dismissal was disproportionate to the gravity of the misconduct in respect of which
Calvary acted.
[106] Clearly, there are personal and economic consequences arising from most dismissals.
There was nothing put by Mr Hijazi which in my view would elevate the consequences for
him to be sufficient to support a finding that his dismissal was harsh in the circumstances. In
terms of the argument that the dismissal was disproportionate to the gravity of the
misconduct, I am not satisfied that this was disproportionate. The misconduct in my view was
sufficient to warrant his dismissal, particularly given the seniority of his position.
Conclusion
[107] Having considered each of the matters specified in s.387 of the Act and for the reasons
set out above, I am satisfied that the dismissal of Mr Hijazi was not unfair and accordingly I
dismiss his application. An order to that effect will be issued with this decision.
R OUMISSION THE FAIR THE SEALO
[2021] FWC 13
24
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR725949
1 Riskman is the name of Calvary’s system of recording incidents, near misses and the like.
2 See Applicant’s submissions of 27 Aug 2020 at para 19.
3 (1997) 77 IR 244.
4 [2018] FWC 6970.
5 Wong v Taitung Australia Pty Ltd [2017] FWCFB 990.
6 [2017] FWCFB 4701.
7 Ibid at [14].
8 (1997) 77 IR 244.
9 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
10 Sayer v Melsteel [2011] FWAFB 7498.
11 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
12 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
13 Ibid.
14 Edwards v Giudice (1999) 94 FCR 561.
15 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000)
Print S4213 [24].
16 Miller v University of New South Wales (2003) 132 FCR 147
17 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
18 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
19 Previsic v Australian Quarantine Inspection Services Print Q3730.
20 (2000) 98 IR 137.
21 Ibid at 151.
22 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
23 RMIT v Asher (2010) 194 IR 1, 14-15.
