1
Fair Work Act 2009
s.394—Unfair dismissal
Michael Nasr
v
Mondelez Australia Pty Ltd
(U2021/569)
DEPUTY PRESIDENT YOUNG MELBOURNE, 1 JULY 2021
Application for an unfair dismissal remedy – no dismissal – application dismissed.
[1] On 21 January 2021, Mr Michael Nasr made an application to the Fair Work
Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a
remedy, alleging that he had been unfairly dismissed from his employment with Mondelez
Australia Pty Ltd (Mondelez). Mr Nasr seeks reinstatement.
[2] Mondelez submits that Mr Nasr’s employment with the Respondent ended through the
effluxion of time upon the expiry of Mr Nasr’s maximum term contract.1 Accordingly, it
submits that Mr Nasr was not dismissed from his employment with Mondelez within the
meaning of section 386(1) of the Act.2 In the alternative, Mondelez submits that Mr Nasr was
employed under a contract for a specified period of time within the meaning of section
386(2)(a) of the Act and his employment terminated at the end of that period. Therefore, in
accordance with section 386(2)(a) of the Act he was not dismissed.3 In the further alternative,
Mondelez submits that if Mr Nasr was dismissed, his dismissal was not harsh, unjust or
unreasonable.4
Hearing and Witnesses
[3] Mr Nasr’s application was the subject of a hearing before me on 6 May 2021.
[4] Pursuant to section 596 of the Act, Mr Barry Terzic of “Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing
Workers’ Union appeared on behalf of Mr Nasr. Mr Rick Catanzariti of DLA Piper appeared
on behalf of Mondelez.
[5] Mr Nasr gave evidence on his own behalf.
[6] The following witnesses gave evidence on behalf of Mondelez:
Mr Anjum Shahzad – Area Manger Ground Floor Enrobing Starch, Mondelez.
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DECISION
E AUSTRALIA FairWork Commission
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Mr Sher Mansoor Khan – Human Resources Manager, Mondelez.
[7] In accordance with directions issued by the Commission, Mondelez filed its outline of
arguments, witness statements of Mr Shahzad and Mr Khan and supporting material on 26
March 2021. Mr Nasr filed submissions and a witness statement on 13 April 2021. Mondelez
filed its outline of arguments in rely and a supplementary statement of Mr Shahzad on 20
April 2021.
Dismissal
[8] I have concluded that employment relationship between Mr Nasr and Mondelez came
to an end by the effluxion of time and Mr Nasr’s employment was therefore not terminated on
the employer’s initiative. Accordingly, I have concluded that Mr Nasr was not dismissed
within the meaning of section 386(1)(a) of the Act. These are my reason for that conclusion.
Factual settings and findings
Background
[9] Mondelez manufactures and sells chocolate and other confectionary items across
Australia and New Zealand. Mondelez has five manufacturing plants in Australia, including
plants at Ringwood and Scoresby in Victoria.5 Mondelez employs approximately 125
employees in the production area of the Scoresby plant, including employees engaged on
maximum term contracts.6 The site operates 24 hours a day, with employees working one of
three eight hours shifts.7
[10] Mr Nasr was born in Egypt8 and migrated to Australia in 2009.9 Arabic is his first
language.10 Mr Nasr was employed by Mondelez at the Scoresby plant from 2 July 2018 until
31 December 2020 in the role of Confectioner. Prior to 2 July 2018 Mr Nasr was employed by
a labour hire firm (Programmed) as a casual employee and placed at Mondelez’ Scoresby
plant for a number of years.11
Nasr’s contracts of employment
[11] It is uncontested that Mr Nasr’s was employed with Mondelez from 2 July 2018 to 31
December 2020 pursuant to eight maximum term contracts as follows:
1. a 3-month maximum term contract from 2 July 2018 to 7 October 2018 (First
Contract);
2. a 3-month maximum term contract from 8 October 2018 to 25 November 2018
(Second Contract);
3. a 12-month maximum term contract from 26 November 2018 to 22 November 2019
(Third Contract);
4. a 3-month maximum term contract from 23 November 2019 to 22 February 2020
(Fourth Contract);
5. a 3-month maximum term contract from 23 February 2020 to 23 May 2020 (Fifth
Contract);
6. a 1-month maximum term contract from 24 May 2020 to 23 June 2020 (Sixth
Contract);
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7. a 3-month maximum term contract from 24 June 2020 to 24 September 2020 (Seventh
Contract);
8. a 3-month maximum term contract from 25 September 2020 to 31 December 2020
(Eighth Contract), (collectively, the Contracts).
[12] The expiry date was clearly articulated in each of the Contracts12 and it is not
contended that there was any ambiguity about the relevant expiry dates, including the expiry
date of the Eighth Contract.13 The First and the Second Contract expressly stated that Mr
Nasr’s employment was “temporary for the maximum period” specified in the contract and
was offered “on the basis that there can be no guarantee of further employment beyond that
period.”14 In relation to termination, the First and Second Contract relevantly provided as
follows:
“This is a Maximum Term contract and your employment will terminate at the end of
the period outlined on the first page of this contract (the “Maximum Term”).
Either party may terminate this contract prior to the Maximum Term by providing
notice in accordance with the Enterprise Agreement.” (Termination Provision).15
[13] The Third to Eighth Contract each provided that it extended Mr Nasr’s “temporary
employment” for the maximum period specified in the contract and also that the “contract is
being extended on the basis that there is no guarantee of future employment beyond the
mentioned period.”16 They further provided that “All other terms and conditions of
employment remain as per your temporary employment contract.”17 Under cross examination
Mr Nasr agreed that he read18 and signed19 each of the Contracts, that he understood that each
of the Contracts was for a fixed period of time,20 and that there was no guarantee of
employment after the date on which the Contracts expired.21
[14] Accordingly, I find that the terms of the Eighth Contract were clear and unambiguous
and clearly stated that it would end on 31 December 2020. It is uncontested, and I find, that
the Third to Eighth Contract contained the Termination Provision as a term of the contract. I
find that Mr Nasr read each of the Contracts, including the Eighth Contract, and understood
that each of the Contracts, including the Eighth Contract, was for a fixed period of time and
would expire on the date specified in the Contracts. I also find that Mr Nasr understood when
he entered into each of the Contracts, including the Eighth Contract, that there was no
guarantee of employment after the expiry date in the contract.
Enterprise Agreements
[15] Mr Nasr’s employment was also governed by the Mondelez Australia Pty Ltd
Ringwood & Scoresby Confectioners Agreement 2016-2018 (2016 Agreement) and
subsequently by the Mondelez Australia Pty Ltd Ringwood & Scoresby Confectioners
Agreement 2018 (2018 Agreement) (collectively, Agreements).
[16] Clause 17 of the Agreements, relevantly, provides as follows:
“17. Mondelez Contractors
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Employees may be engaged by the company for a period, project, season or job
(“Mondelez Contractors” for the purpose of this clause).
…”
[17] It is uncontested that the Applicant was engaged in reliance on clause 17 of the
relevant agreement. I address this matter later in this decision.
Roles undertaken by Nasr
[18] Under the First and Second Contract22 Mr Nasr was engaged to work day shift in the
MOGUL department. Under the Third, Fourth, Fifth and Sixth Contract23 Mr Nasr was
engaged to work night shift in the Ground Floor Enrobing Starch (GFES) department. Under
the Seventh and Eighth Contract24 Mr Nasr was engaged to work day shift in the GFES
department. Whilst working in the GFES department Mr Nasr was performing manual
packing duties.25
[19] The GFES department produces marshmallow eggs, chocolates and enrobed jelly
products.26
[20] Mr Nasr’s evidence was that around mid-2018 a new line, called GFES was
introduced at the Scoresby plant and employees in the MOGUL department were transferred
to work in the GFES department.27 As a result he says that he was offered a contract of
employment with Mondelez for a 3 month period to work day shift in the MOGUL
department,28 which was then extended for a further 3 months.29 Consistent with the evidence
of Mr Nasr, Mr Khan’s evidence was that in 2018 a new line of confectionary products was
introduced to the Scoresby plant resulting in a new production line, the GFES line.30 The
GFES line had previously been located at the Mondelez site in Dunedin, New Zealand. That
site was closed and the GFES line was relocated to Scoresby.31 The GFES line was a separate
department of the Scoresby plant.32 Mondelez deployed approximately 30-4033 existing
permanent employees from the MOGUL department to work in the GFES line.34 Mondelez
also transferred eight employees from the New Zealand site to work on the GFES line.35 As a
result, Mondelez had to backfill the roles left vacant by the deployment of employees from
the MOGUL department to the GFES department.36 It was anticipated that automation
projects would result in operations being able to be resourced by existing employees and for
this reason existing employees were redeployed to the GFES line.37 Mr Nasr was offered
temporary employment to backfill in the MOGUL department.38 The First Contract was
extended on 8 October 2018 to manage ongoing production requirements in the MOGUL
department.39
[21] Mr Khan’s evidence was that at the conclusion of the Second Contact the role Mr Nasr
had been performing in the MOGUL department was no longer required.40 Mr Nasr was
offered the Third Contract in the GFES department to assist with manual packaging.41 The
Third Contract was for a 12 month period due to an automation project on the GFES line that
was anticipated to be completed within 12 months.42
[22] Mr Khan’s evidence was that Mr Nasr was offered the Fourth Contract as a result of
volume on the GFES line being greater than anticipated. Mr Khan’s evidence was that as the
line was new to the Australian plant predicting volumes was difficult and volumes tended to
be more volatile than previously estimated.43 Mr Shahzad’s evidence was that he was
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involved in the decision to offer Mr Nasr the Fourth to Eighth Contracts and that contracts for
periods between 1 to 3 months were offered because of the unpredictable nature of the work
at the Scoresby plant.44 In relation to the Fourth Contract Mr Shahzad’s evidence was also
that there was an unexpected increase in the volume of work in the GFES department and for
this reason Mr Nasr was offered a further contract extension for 3 months.45
[23] As to the Fifth to Eighth Contracts, Mr Khan’s evidence was that these contract
extensions were based on work volume or anticipated volume46 which was not predictable and
could only be anticipated on a short term basis. Consequently he said that the Fifth to Eighth
Contacts were for periods spanning 1 month to 3 months.47 Mr Shahzad’s evidence was also
that the anticipated volume of work in 2020 was not predictable48 and there was a short-term
increase in volume “because people were sitting at home” due to COVID-19.49 His further
evidence was that a significantly larger than usual number of staff took leave during 2020 due
to COVID-19 and Mondelez implemented policies to reduce the number of new staff
attending its sites and attempted to restrict staff transfers amongst departments to address
concerns around the potential spread of COVID-19. As a result, Mr Nasr was offered the Fifth
to Eighth Contracts for periods of 1 and 3 months duration.50
[24] Mr Khan’s evidence was that at the conclusion of the Eighth Contract the volume of
product on the GFES line had reduced and additional marshmallows eggs were not required to
be produced. The reduction in volume was due to the seasonal nature of marshmallow egg
production and improvements in the GFES line operation through technology which meant
that overall manning requirements for the department were reduced.51 Consequently, the work
Mr Nasr had been performing was no longer required to be performed.52
[25] The evidence of Mr Khan and Mr Shahzad as to the above matters was not seriously
challenged and where Mr Nasr gave evidence about those matters, other than in relation to the
number of temporary employees who were not offered further employment (a matter which I
address later in this decision) it is broadly consistent with the evidence of Mr Khan and Mr
Shahzad. I accept their evidence as to these matters.
Seasonal nature of the work of the GFES department
[26] Mr Shahzad’s evidence was that the GFES department is seasonal. His evidence was
that the peak season is from August to December during which time all of the Easter products
are produced. At this time the plant operates six days per week. Between January and April
volumes are reduced and “it’s very quiet” as there is no upcoming season and the Easter
products have been completed. May to August is a further peak season during which time the
Christmas products and products for the New Zealand market are produced. At this time the
plant operates five to five and one-half days per week.53 I accept that evidence.
Explanation of the Contracts
[27] As set out above, Mr Shahzad’s evidence was that he was involved in the decision to
offer Mr Nasr the Fourth to Eighth Contracts.54 Mr Shahzad is the Mondelez signatory for the
Sixth to Eighth Contracts. Mr Nasr’s evidence was that he dealt with Mr Shahzad in relation
to each of these Contracts. In his witness statement Mr Nasr says that on each occasion when
Mr Shahzad provided him with a contract he said words to the effect of “Don’t worry, you’re
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with us now – you’ll be staying”55 (First Representation). Mr Shahzad denied that he said
words to this effect56 and said that he did not tell Mr Nasr anything about his future with
Mondelez.57 Mr Shahzad’s evidence is that between April 2020 and September 2020 prior to
the expiry of each of the relevant Contracts he met with Mr Nasr and explained the reasons
for the further offer of employment. Under cross examination he said that this is “a standard
process we need to follow.”58 Mr Shahzad’s evidence is that in relation to the Sixth to Eighth
Contracts he explained the reasons for the duration of the contract as set out in paragraph [23]
above.59 He says that he reiterated that Mr Nasr’s employment would cease at the expiration
date contained in the relevant contract.
[28] Mr Nasr’s evidence on this point was, ultimately, that Mr Shahzad did explain the
reason for the 1 month duration of the Sixth Contract60 but did not explain the reasons for the
duration of the other contracts.61 I reject that evidence. Under cross examination Mr Nasr’s
evidence on this point was difficult. He was somewhat obstructive and unresponsive and
repeatedly did not answer the question that was asked of him,62 preferring to provide
responses of his own choosing and advancing other matters he considered relevant. Having
observed Mr Nasr giving evidence, I am satisfied this was not the result of any language
difficulties or the fact that English is not Mr Nasr’s first language. Accordingly, I consider
that Mr Nasr’s evidence on this point is unreliable and I prefer the evidence of Mr Shahzad.
Accordingly, I find that Mr Shahzad did explain to Mr Nasr the reasons for the duration of the
Sixth to Eighth Contracts and did not make the First Representation. Further, Mr Nasr’s
evidence was that he knew that there was no guarantee of employment beyond the expiry date
of the relevant Contracts.
Cessation of employment
[29] It is uncontested that Mr Nasr’s employment ceased upon the expiry of the Eighth
Contract. In his witness statement Mr Nasr says that in mid-December 2020 he met with Mr
Shahzad “a couple of times” and Mr Shahzad told him that he would not be offered a further
period of employment beyond the expiry of the Eighth Contract. He says that he contested
this, asking why he had been selected to go. He says that in reply Mr Shahzad said words to
the effect of “I promise you, every day, like before, I will get you work, not much different, but
don’t tell anyone and don’t talk to other people.” Mr Nasr says he understood this to mean
that Mr Shahzad was implying that he would be able to work at the plant as a casual employee
through a labour hire arrangement.63 In his witness statement Mr Nasr says that he worked his
last day at the plant on 18 December 2020. He says that in the afternoon Mr Shahzad called
him into the office and said words to the effect of:
“I promise you Michael, you will be coming everyday like before, the same job, but it’s
casual – not contract. A very important thing: don’t tell anyone, don’t talk about
what’s happened with you at the site. You will be safe to come back to work every day.
I’ve sent an email to Programmed for you to start after Christmas.”64
[30] Mr Nasr’s evidence is that he re-registered with Programmed early in the new year.65
He was offered casual work at the Scoresby plant on two occasions in January 2021,
undertaking cleaning work, which he accepted. He was then offered a further day’s work at
the Scoresby plant on a Saturday, again to undertake cleaning work, but declined this work.66
[31] Mr Shahzad’s evidence is that on 14 December 2020 he attended a labour planning
meeting for the Scoresby plant. It was determined that the GFES department required two less
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employees because of the downturn following the completion of the marshmallow egg
production.67 He selected Mr Nasr and one other maximum term contract employee in the
GFES department. His evidence was that due to the projected reduction in volume the
additional manual packaging line run for marshmallow eggs during peak season was not
required from January 2021 and as such the employees performing these tasks were also not
required.68
[32] Mr Shahzad says that on 16 December 2020 he met with Mr Nasr in his office and told
him that he would not be offered further employment. His evidence is that he told Mr Nasr
this was because there was no work for him to perform in the GFES department or anywhere
else at the Scoresby plant. He says Mr Nasr asked him if there was any temporary work in the
MOGUL department.
[33] Mr Shahzad says that on 17 December 2020 he met with the MOGUL department area
manager and inquired if there were any opportunities for Mr Nasr. The area manager told him
there were no opportunities because of a downturn in projected volume for the first quarter for
2021.69
[34] Mr Shahzad says that on 18 December 2020 he met with Mr Nasr and told him that
there was no further requirement for additional labour in the MOGUL department and that he
would not be offered further employment after 31 December 2020.70 His evidence is that he
did not say words to the effect asserted by Mr Nasr.71 He maintained this denial under cross
examination saying he was sure he did not say anything like that to Mr Nasr.72 His evidence
was that he did mention to Mr Nasr that if additional work became available this could be
accessed through Mondelez’s casual labour agency. 73
[35] For the reasons that follow, I prefer the evidence of Mr Shahzad over that of Mr Nasr
as to the events of 16-18 December 2021. Firstly, Mr Shahzad’s recollection of these events
was considerably more comprehensive and detailed than that of Mr Nasr’s. Secondly, other
than in relation to the statements he allegedly made to Mr Nasr, Mr Shahzad’s evidence as to
these events was not seriously challenged under cross examination. However, in response to
that which was challenged, he gave clear, firm and credible evidence consistent with his
witness statement. Thirdly, under cross examination Mr Nasr’s evidence was that Mr Shahzad
did not tell him in mid-December that his contract would not be renewed;74 rather Mr Shahzad
told him on 18 December, “the last day” that his contract would not be renewed.75 This is
inconsistent with Mr Nasr’s evidence in his witness statement where he says that he met with
Mr Shahzad “a couple of times” in mid-December 2020 and he was told that his contract
would not be renewed.76 Fourthly, under cross examination Mr Nasr also said that in the
meeting of 18 December 2020 he asked Mr Shahzad him why his contract would not be
renewed but others contracts were77 and told Mr Shahzad “You promised me. Don’t worry
about it. Every time. Don’t worry. You worry too much Michael. You stay with us.”78 Further,
under cross examination Mr Nasr agreed that in the meeting on 18 December 2021 Mr
Shahzad told him that there was no temporary work in the MOGUL department. None of
these matters are included in Mr Nasr’s witness statement. Accordingly, in a number of
respects, Mr Nasr’s evidence under cross examination is inconsistent with that in his witness
statement. Fifthly, following Mr Nasr’s cessation of employment he was offered a limited
number of shifts at the Scoresby plant through Programmed. This is consistent with Mr
Shahzad’s evidence regarding the reduction in work volume, the consequent reduced need for
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labour and the reason for not offering Mr Nasr further employment. It is also entirely
inconsistent with Mr Nasr’s contention that he was told he would “come back to work every
day” and that Mr Shahzad would inform Programmed of this. Finally, under cross
examination Mr Nasr’s evidence on this point also was difficult, somewhat obstructive and
unresponsive. Accordingly, in my view, Mr Nasr’s evidence as to these events is unreliable
and ought not be preferred where there is a conflict between his evidence and the evidence of
Mr Shahzad.
[36] Accordingly, I find that due to a reduction in work, on 14 December 2021 it was
determined that the labour requirement in the GFES department was to be reduced by two
employees. Mr Shahzad selected Mr Nasr as one of two employees not to be offered further
employment due to the projected reduced need for manual packing. I find that Mr Shahzad
met with Mr Nasr on 16 December 2021 and told him that he would not be offered a further
contract due to lack of work in the GFES department. At that meeting Mr Nasr enquired as to
whether there was any temporary work in the MOGUL department. I find that on 17
December 2020 Mr Shahzad enquired of the MOGUL department area manager whether there
was any temporary work for Mr Nasr and was told there was not. I find that on 18 December
2021 Mr Shahzad met with Mr Nasr and told him that there was no further requirement for
additional labour in the MOGUL department and that he would not be offered further
employment after 31 December 2020. I find that Mr Shahzad did not make the statements
asserted by Mr Nasr on 16 December 2020 or 18 December 2020.
Number of employees not offered further employment
[37] Mr Nasr’s evidence was that he was the only employee who was not offered further
employment at the expiry of his contract.79 Mr Khan’s evidence was that over the course of
2020 “about” five “temporary” employees were not offered further contracts, with three of
those employees having their employment end in December 2020.80 He gave further evidence
that manning levels for permanent employees were fairly constant but manning level for
employees engaged on maximum term contracts fluctuate in accordance with the
requirements of the departments.81 I accept Mr Khan’s evidence on this matter. Firstly, it was
broadly consistent with Mr Shahzad’s evidence which was that there were “around two”
temporary employees in December 2020 who were not offered further employment82 and
around five temporary employees who were not offered further employment during the course
of 2020.83 Secondly, Mondelez employs approximately 125 employees in the production area
at the Scoresby plant.84 Mr Nasr worked on only one of three shifts in the GFES department.
In those circumstances, I consider it unlikely that he would be aware of all the circumstances
of all employees engaged by Mondelez at the Scoresby plant such that he would have an
accurate knowledge of who was or was not offered further employment. Accordingly, I
consider the evidence of Mr Khan to be more reliable.
Legislative Context
[38] Part 3-2 of the Act contains the statutory scheme concerning access to remedies for
unfair dismissal. Section 394(1) of the Act provides that “A person who has been dismissed
may apply to the Commission for an order under Division 4 granting a remedy.” Section 385
of the Act provides that a person has been unfairly dismissed if the Commission is satisfied as
to four specified matters, the first of which is that “the person has been dismissed”.
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[39] Section 386(1) of the Act, relevantly, defines when a person has been dismissed as
follows:
“Section 386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative;
…
(2) However, a person has not been dismissed if:
(b) The person was employed under a contract of employment for a specified
period of time, for a specified task, or for the duration of a specified
season, and the employment has terminated at the end of the period, on
completion of the task, or at the end of the season;
…”
Consideration
Section 386(1)(a) – Termination at the initiative of the employer
[40] It is uncontested that Mr Nasr was employed on a series of eight maximum term
contracts. It is also uncontested that Mr Nasr’s employment ended concurrently with the
expiry of the Eighth Contract. At issue, in the first instance, is whether the expiry of Mr
Nasr’s maximum term contract constitutes a termination on the employer’s initiative for the
purposes of section 386(1)(a) of the Act. It is common ground between the parties that that
question is to be determined with reference to the Full Bench decision in Khayam v Navitas
English Pty Ltd t/a Navitas English85 (Navitas) and the principles set out in that decision.86
Navitas
[41] In Navitas the Full Bench said:
“that the mere fact that an employer has decided not to offer a new contract of
employment at the end of a time-limited contract which represents a genuine
agreement by the parties that the employment relationship should come to an end not
later than a specified date will not by itself constitute a termination at the initiative of
the employer.”87
[42] The Full Bench then set out the following principles which apply to the interpretation
of section 386(1)(a) of the Act:88
“[75] Having regard to these propositions and the court decisions to which we have
earlier referred, we consider that s 386(1)(a) should be interpreted and applied as
follows:
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(1) The analysis of whether there has been a termination at the initiative of the
employer for the purpose of s 386(1)(a) is to be conducted by reference to
termination of the employment relationship, not by reference to the termination
of the contract of employment operative immediately before the cessation of the
employment. This distinction is important in the case of an employment
relationship made up of a sequence of time-limited contracts of employment,
where the termination has occurred at the end of the term of the last of those
contracts. In that situation, the analysis may, depending on the facts, require
consideration of the circumstances of the entire employment relationship, not
merely the terms of the final employment contract.
(2) As stated in Mohazab, the expression “termination at the initiative of the
employer” is a reference to a termination that is brought about by an employer
and which is not agreed to by the employee. In circumstances where the
employment relationship is not left voluntarily by the employee, the focus of the
inquiry is whether an action on the part of the employer was the principal
contributing factor which results, directly or consequentially, in the
termination of the employment.
(3) In Mahony v White the Full Court stated that a termination of employment
may be done at the initiative of the employer even though it was not done by
the employer. In circumstances where the parties to a time-limited contract
have agreed that their contract will expire on a specified date but have not
agreed on the termination of their employment relationship, it may be the case
that the termination of employment is effected by the expiry of the contract, but
that does not exclude the possibility that the termination of employment
relationship occurred at the initiative of the employer - that is, as a result of
some decision or act on the part of the employer that brought about that
outcome.
(4) Where the terms of an operative time-limited contract reflect a genuine
agreement on the part of the employer and employee that the employment
relationship will not continue after a specified date and the employment
relationship comes to an end on the specified date, then, absent a vitiating or
other factor of the type to which we refer in (5) below, the employment
relationship will have been terminated by reason of the agreement between the
parties and there will be no termination at the initiative of the employer.
Further, in those circumstances a decision by the employer not to offer any
further contract of employment will not be relevant to the question of whether
there was a termination of employment at the initiative of the employment. The
decision not to offer further employment is separate and distinct from the
earlier agreement between the parties to end the employment relationship on a
particular date (Griffin/Fisher). However if the time-limited contract does not
in truth represent an agreement that the employment relationship will end at a
particular time (as, for example, in D’Lima), the decision not to offer a further
contract will be one of the factual matters to be considered in determining
whether an action on the part of the employer was the principal contributing
factor which results, directly or consequentially, in the termination of the
employment.
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(5) In some cases it will be necessary to go further than just examining the
terms of any contract in which the parties have ostensibly agreed to terminate
the employment relationship at a particular time. It is not necessary or
appropriate that we attempt to identify exhaustively all relevant matters, but
the authorities to which we have earlier referred indicate that the following are
likely to be relevant and may in some cases be determinative:
(a) The time-limited contract itself may be vitiated by one of the
recognised categories by which the law excuses parties from
performance of a contract. The categories potentially relevant in an
employment context include the following:
• the employee entered into the contract as a result of
misrepresentation or misleading conduct by the employer;
• the employee entered into the contract as a result of a serious
mistake about its contents or subject matter;
• there has been unconscionable conduct associated with the making
of the contract, which may relevantly include that the employer took
advantage of a disability affecting the employee such as lack of
education, lack of information, lack of independent advice or
illiteracy;
• the employment contract was entered into by the employee under
duress or coercion (which might include the types of coercion
prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate
pressure on the part of the employer;
• the employee lacked the legal capacity to make the contract; or
• the contract was a sham in the sense that it was not intended by the
parties to give legal effect to its apparent terms or in the broader
sense dealt with in Pt 3-1 Div 6 of the FW Act. If any of the above
applies there will be no legally effective time-limit on the
employment (Fisher).
(b) The time-limited employment contract may be illegal or contrary to
public policy (for example, it contains relevantly objectionable terms
as defined in s 12 of the FW Act or has the purpose of frustrating the
policy or operation of the FW Act or preventing access to the
Commission’s unfair dismissal jurisdiction). Whether the
employment was constituted by successive short term contracts or
the use of time-limited contracts was appropriate in the relevant field
of employment may be some of the considerations relevant to an
examination of the employer’s purpose for entering into such
contracts (D’Lima/Fisher).
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(c) The contract may have been varied, replaced or abandoned by way
of a separate agreement, whether in writing and/or orally, such that
its ostensible time limit no longer applies (Fisher).
(d) The employment contract may not be limited to the terms of a written
document and may, for example, be one of a series of standard-form
contracts which operated for administrative convenience and did not
represent the reality or the totality of the terms of the employment
relationship (Fisher/D’Lima).
(e) During the term of the employment relationship the employer may
have engaged in conduct or made representations (for example,
representing to the employee that the employment will continue
subject to conduct and performance notwithstanding a contractual
time limit on the employment) which provide a proper legal
foundation to prevent the employer from relying upon the terms of
the contract as the means by which the employment relationship has
been terminated (Fisher).
(f) The terms of the contract time-limiting the employment may be
inconsistent with the terms of an award or enterprise agreement
given effect by the FW Act which prohibit or regulate fixed-term
employment, in which case the terms of the award or agreement will
prevail over the contract (Fisher).”
[43] I refer to each of the above principles as Principle 1-5, in the order and in accordance
with the numbering in which they are referred to above.
Submissions Principles 1-4
Applicant’s submissions
[44] The Applicant submits that the focus of Principle 1 is on the termination of the
employment relationship, rather than the termination of the contract of employment. He
submits that this is of particular relevance in circumstances where the employment
relationship is made up of a sequence of maximum term contracts.89 I accept those
submissions. It is uncontested that Navitas determined that in considering whether there had
been a dismissal for the purposes of section 386(1)(a) focus on the employment contract and
its termination was not supported by the words of the section and that the proper focus was on
the termination of the employment relationship.
[45] The Applicant submits that his employment carried on “largely seamlessly over 2 and
a half years” and that the Contracts rolled over in a “perfunctory way.” He further submits
that while the introduction of the GFES line may have been the impetus for his initial
employment there is no direct or compelling linkage between the introduction of this line and
the Applicant’s function and role.90 He submits that the Eighth Contract was simply a “rehash
of what went before” and that he quite reasonably could have thought that he would be offered
a further period of employment.91 It is submitted that by early December 2020 he would have
had a reasonably held expectation that his employment was by then in reality, on-going.92 The
[2021] FWC 2802
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Applicant submits that his employment was “obviously” continuous as his employment
separation certificate provides payment for accrued but unused sick leave and annual leave on
the basis of two and one half years employment.93 He submits that the number of contract
extensions offered to the Applicant was “extraordinary within the business.”94 He further
submits that if there was a “mutual expectation” that the Eighth Contract would end the
employment relationship upon expiry it would not have been necessary to advise the
Applicant of this two weeks prior.95 The Applicant submits that he protested upon being told
that his employment would end at the expiry of the Eighth Contract and that the Respondent
organised for labour hire work at the factory as a substitute for direct employment.96 Further,
the Applicant submits that it is difficult to characterise the Contracts as a genuine agreement
for employment for a limited period of time. It is submitted that the Applicant’s decision to
accept the Contracts was a rational one and “he took the best deal on offer”.97 Finally, the
Applicant submits that in later exchanges regarding the Contracts the Respondent made oral
assurances to the Applicant that gave the impression that by about 2020 the employment was
permanent.98
Respondent’s submissions
[46] The Respondent submits that the terms of the Eighth Contract reflected a genuine
agreement that the employment relationship would end on 31 December 2020.99 It submits
that the fact that the parties entered into a series of maximum term contracts is not
determinative that there was an on-going employment relationship.100 The Respondent
submits that there were clear operational reasons for each of the Contracts and that these
reasons, and that the employment relationship would cease upon the expiry date, were
articulated to the Applicant.101 It submits that the terms of the Contracts were unequivocal that
the employment relationship would cease at the expiry of each of the Contracts and there was
no guarantee of further employment.102 The Applicant accepted each of the Contracts on those
terms and the fact that it was “the best deal on offer” is irrelevant to the legitimacy of the
terms of the Contracts.103 It submits that there is no valid basis for the Applicant to assert that
his employment would continue after the expiration of the Eighth Contract. It submits that no
promise was given to the Applicant about further work with the Respondent outside the
parameters of the Contract.104 As to the meeting on 16 December 2020, the Respondent
submits that the meeting was to remind the Applicant that his employment would end
pursuant to the terms of the Eighth Contract and further work would not be offered. It submits
that there is nothing inconsistent with employment under a maximum term contract and
reminding an employee of the expiry date of that contract.105
Consideration
[47] I reject the submission that the Applicant’s employment carried on “largely seamlessly
over 2 and a half years” and that the Contracts rolled over in a “perfunctory way.” I also
reject the submission that the Eighth Contract was simply a “rehash of what went before” and
that Mr Nasr quite reasonably could have thought that he would be offered a further period of
employment or that by early December 2020 Mr Nasr would have had a reasonably held
expectation that his employment was by then in reality, on-going. I also reject the submission
that the period of employment reflected on the employment separation certificate “obviously”
evidences that Mr Nasr’s employment was continuous. Rather, for the following reasons, I
find that Mr Nasr was engaged on a series of maximum term contracts which were based on
[2021] FWC 2802
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the operational requirements of Mondelez and that represented a genuine agreement by the
parties that the employment relationship would come to an end upon the expiry of each of the
Contracts, including the Eighth Contract.
[48] Firstly, I have found, and it is not contested, that the terms of the Eighth Contract were
clear and unambiguous and clearly stated that it would end on 31 December 2020. Secondly,
Mr Nasr agreed that he read each of the Contracts, including the Eighth Contract, and
understood that employment under each of the Contracts, including the Eighth Contract, was
for a maximum period of time. Thirdly, Mr Nasr also agreed that he understood that there was
no guarantee of employment after the expiry date in the Contracts. I accept the Respondent’s
submission that in these circumstances the Applicant knowingly accepted the terms of the
Contracts and the fact that it was the “best deal on offer” is irrelevant to the legitimacy of the
terms of the Contracts. Fourthly, I have accepted the evidence of Mr Shahzad that he met with
Mr Nasr in relation to the Sixth to Eighth Contract and explained the reasons for the duration
of the Contracts and reiterated that Mr Nasr’s employment would cease at the expiration date
of the contract. This is also consistent with Mr Nasr’s evidence under cross examination that
he understood that each of the Contracts was for a maximum period of time and would expire
on the date specified in the Contracts and further, that he understood that there was no
guarantee of employment after the expiry date in the Contracts. Mr Nasr also gave evidence
under cross examination that he asked Mr Shahzad “many times”106 two weeks before the
Contracts finished when his contract would be renewed.107 He was therefore aware that the
employment relationship was not on-going and would cease in the absence of an offer of
further employment. He cannot therefore have had an expectation of on-going employment.
Fifthly, I have found that between April 2020 and September 2020 prior to the expiry of each
of the applicable Contracts Mr Shahzad met with Mr Nasr and explained the reasons for the
further offer of employment. I have accepted Mr Shahzad’s evidence that this was a standard
process followed at the Scoresby plant. Sixthly, although Mr Shahzad’s evidence under cross
examination was that in his experience the maximum period employees are usually engaged
under a maximum term contract is 15 months,108 his evidence was also that the period of
engagement was dependant on volume and demand requirements.109 Further, I have accepted
the evidence of Mr Khan and Mr Shahzad as to the reasons for the offering of each of the
Contracts, as set out in paragraphs [20] to [24] above. Accordingly, I find that
notwithstanding the length of time that Mr Nasr was employed under the Contracts being a
greater period than is ordinarily the case, he was offered employed under the various
Contracts based on genuine operational reasons applicable at the relevant time. Additionally, I
consider that this is so is supported by the changing nature of the departments and shifts in
which Mr Nasr performed work. In that context I note that under the First and Second
Contract Mr Nasr was engaged to work in the MOGUL department, under the Third to Sixth
Contract Mr Nasr was engaged to work night shift in the GFES department, whilst under the
Seventh and Eighth Contract he worked day shift in that department.
[49] I also reject the submission that if there was a “mutual expectation” that the Eighth
Contract would end the employment relationship upon expiry it would not have been
necessary to advise the Applicant of this two weeks prior.110 Firstly, as set out above, the
terms of the Eighth Contract were clear and unambiguous and clearly stated that it would end
on 31 December 2020. Secondly, Mr Nasr agreed that he read each of the Contracts, including
the Eighth Contract, and understood that each of the Contracts, including the Eighth Contract,
was for a maximum period of time. Thirdly, Mr Nasr also agreed that he understood that there
was no guarantee of employment after the expiry date in the Contracts. Fourthly, Mr Nasr’s
evidence was that he asked Mr Shahzad two weeks prior to the expiry of his maximum term
[2021] FWC 2802
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contract about renewal. I consider he therefore understood and expected that the employment
relationship would end in the absence of a further offer of employment. Fifthly, I have found
that between April 2020 and September 2020 prior to the expiry of each of the applicable
Contracts Mr Shahzad met with Mr Nasr and explained the reasons for the further offer of
employment. I have accepted Mr Shahzad’s evidence that this was a standard process
followed at the Scoresby plant. Further, I consider there nothing inconsistent with
employment under a maximum term contract and reminding an employee that their
employment will end under the terms of that contract on the expiry date. Indeed, I consider it
appropriate and to reflect best practice. Accordingly, in light of the above matters I find that
there was a mutual expectation that upon the expiry of the Eighth Contract the employment
relationship between the parties would end and that meeting with Mr Nasr two weeks prior to
expiry to remind him of this was consistent with the standard process at the Scoresby plant.
[50] As to Mr Nasr’s submission that he protested upon being told that his employment
would end at the expiry of the Eighth Contract and that the Respondent organised for labour
hire work at the factory as a substitute for direct employment, I accept that Mr Nasr queried
why his contract was not renewed when he considered that others had had their contracts
renewed. However, I do not consider this amounts to Mr Nasr “protesting” the end of his
employment. In any event, even if such a query could be considered a protest, in light of the
matters set out in points 1 – 5 in paragraph [48] above, I consider nothing turns on this. Mr
Nasr was fully aware that his employment would end on the expiry of the Eighth Contract
unless he was offered further employment. As to the assertion that the Respondent organised
for labour hire work in substitution for direct employment, I have found that Mr Nasr’s
evidence of the events of 16-18 December 2020 is unreliable and not to be preferred.111
Accordingly, I do not consider that this accurately reflects what occurred. Further, I am
unable to see why Mondelez would engage Mr Nasr through a labour hire provider rather than
offer him a further limited term contract, as it had done on a number of occasions, if there was
sufficient work to retain him in employment. Accordingly, I reject that submission.
[51] Finally, I have earlier found at paragraph [28] and [36] that the statements alleged to
have been made by Mr Shahzad to Mr Nasr did not occur. Accordingly, I reject the
submission that in later exchanges regarding the Contracts Mondelez made oral assurances to
Mr Nasr that gave the impression that by about 2020 his employment with Mondelez was
permanent.112
Submissions Principle 5
Applicant’s submissions
[52] The Applicant concedes that Principles 5(a), (b) and (c) are not presently relevant.113
[53] In relation to Principle 5(d) the Applicant submits that the Contracts operated for
administrative convenience and were “rolled out again and again with little discussion…”.114
[54] The Applicant submits that the Respondent represented to him that his employment
would, inter alia, be on-going notwithstanding the express terms of the Contracts. He relies
upon the First Representation in support of this contention and submits that Principle 5(e) is
therefore engaged.115
[2021] FWC 2802
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[55] Finally, the Applicant submits that his employment was not consistent with the terms
of the 2016 Agreement and the 2018 Agreement and, accordingly, Principle 5(f) is engaged.
Firstly, the Applicant contends that he was not engaged for “a period, project, season or job”
as contemplated by clause 17 of the 2016 and 2018 Agreements due to the “repeated
extensions and their lack of integration with a given project”.116 The Applicant submits that
clause 17 refers to “a period, project, season or job” and as such refers to a singular
engagement.117 It is submitted that whilst the introduction of the GFES department may have
been the impetus for the Applicant’s initial engagement, this had run its course by the time his
employment finished.118 Secondly, the Applicant submits that “a fuller reading” of clause 17
permits repeated engagement but says this is limited to seasonal engagements and not
continuous engagements. The Applicant relies on clause 22 of the 2018 Agreement in support
of this contention. Given the earlier submission, I understand this to be a submission in the
alternative.119 Thirdly, the Applicant submits that the Contracts provide for termination prior
to their expiry and that this is not permissible under clause 17 nor under the 2016 and 2018
Agreements more generally.120 In light of all of the above the Applicant submits that “the best
way to view all of this is to look to substance and not form – the applicant’s employment was
really on-going and permanent employment, a fortiori by about the third or fourth” of the
Contracts.121
Respondent’s submissions
[56] Mondelez submits that there were no vitiating factors as identified by the Full Bench
in Principle 5 of the Navitas decision applicable to the Applicant’s circumstances. Firstly,
Mondelez submits that the Contracts were offered based on legitimate business reasons and
not mere “administrative convenience” and were not simply “rolled out.” It submits that the
Contracts reflected the totality of the employment relationship between the Applicant and
Mondelez.122 Secondly, it submits that Mondelez did not make representations to the
Applicant that he would continue to be offered employment notwithstanding the terms of the
Contracts.123 Thirdly, Mondelez submits that the First to Eighth Contracts fall within the
ambit of clause 17 of the Agreements. It submits that nothing in the plain reading of clause 17
prevents Mondelez from offering maximum term contracts in the way in which it did to Mr
Nasr, including that they can be renewed.124
Consideration
[57] For the following reasons, I find that there are no vitiating factors as identified by the
Full Bench in Principle 5 of the Navitas decision applicable to the Applicant’s circumstances.
[58] Firstly, I reject the submission that the Contracts were for administrative convenience
and were simply “rolled out”. As set out in paragraph [48] above, I have found that the
Contracts were offered for genuine operational reasons based on business considerations.
Further, I consider this is supported by the changing nature of the departments and shifts in
which Mr Nasr performed work. In that context I note that under the First and Second
Contract Mr Nasr was engaged to work in the MOGUL department, under the Third to Sixth
Contract Mr Nasr was engaged to work night shift in the GFES department, whilst under the
Seventh and Eighth Contract he worked day shift in that department. Secondly, I have also
already found that the representations asserted to be made to Mr Nasr did not occur and
therefore also reject the submission that any representation was made to the Mr Nasr that his
employment would be on-going notwithstanding the express terms of the Contracts.
[2021] FWC 2802
17
[59] As to the terms of clause 17 of the 2016 Agreement and the 2018 Agreement, I accept
that those clauses refer to employment for “a period, project, season or job”. However, I find
nothing in the plain reading of the clause to support a conclusion that it precludes more than
one engagement. Firstly, I consider that Mr Nasr was employed for “a period” under each of
the Contracts. The expiry date was clearly articulated in each of the Contracts.125 The First
and the Second Contract expressly stated that Mr Nasr’s employment was “temporary for the
maximum period” specified in the contract and was offered “on the basis that there can be no
guarantee of further employment beyond that period.”126 The Third to the Eighth Contract
each provided that it extends Mr Nasr’s “temporary employment” for the maximum period
specified in the contract and also that the “contract is being extended on the basis that there is
no guarantee of future employment beyond the mentioned period.”127 Accordingly, I do not
consider that on a plain reading the use of the indefinite article “a” in clause 17, when read in
the context of the Agreements as a whole, limits engagement of Mondelez Contractors to a
singular engagement. Secondly, there is no express language in clause 17 that limits
engagement of an employee under it to a singular occurrence. Had that been the intention of
the parties I consider it would have been clearly articulated. Further, for the avoidance of
doubt, I also do not consider that there is anything in clause 17, or the Agreement more
broadly, that such a limitation ought be implied. Thirdly, I also find no support in the
language of the clause, or the Agreements more broadly, that if repeated engagements are
permitted they are limited to seasonal engagements. Certain matters to do with seasonal
engagement are dealt with in the remainder of clause 17 and there is nothing in those
provisions which in my view indicates, either expressly or impliedly, that such a limitation
exists. Further, I find no support for this contention in clause 22(j)(ii) of the Agreements.
Clause 22 of the Agreements deals with personal leave. Clause 22(j)(ii) of the Agreements
provides as follows:
“22. Personal Leave
…
j) Payment of Personal Leave on Termination
…
ii. Temporary employees (Mondelez Contractors), who leave the business of
their own accord (either during a period of employment or where they advise
the Company they do not wish to return to Mondelez again), will be paid out
any unused personal leave. Where a Mondelez contract employee is advised by
Mondelez that Mondelez will not be offering the employee another contract or
are not offered another contract within 6 months of completion of their last
contract, the employee will be eligible to ask that the accumulated personal
leave is paid out. Existing Mondelez Contractors employed as at 20 October
2016 may choose either to have their personal leave balance carried over to
their next engagement (i.e. the employee’s balance at the termination of
employment will appear on the employee’s balance on commencement of a new
period of employment) or to have their personal leave paid out. Once a
Mondelez contractor decides to pay out his or her personal leave balance, such
[2021] FWC 2802
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an employee will no longer have the option to carry over personal leave from
one engagement to another. Notification must be provided in writing to the
company confirming an employee’s decision to have their personal leave paid
out. Mondelez Contractors who are first employed by the company after 20
October 2016 will not have the option to carry over personal leave.”
(Commission’s emphasis added)
[60] Accordingly, in light of the provisions emphasised above, rather than supporting the
Applicant’s contentions, I consider that the clause 22(j)(ii) of the Agreements evidences that
Mondelez Contractors may be offered more than one period of engagement. Further, I do not
consider that there is anything in the plain reading of the clause that limits its application to
seasonal employees.
[61] I also reject the contention that the Contracts are inconsistent clause 17 of the
Agreements as they provide for termination prior to their expiry. Clause 12 of the Agreements
deals with notice of termination and provides as follows:
“12. Notice Period of Termination
Employees are required to provide two weeks’ notice of termination. Notice periods
will be assessed case by case.”
[62] The relevant provisions of clause 17 of the Agreements are set out in paragraph [16]
above.
[63] Firstly, I am unable to identify anything in the express language of either of these
clauses, nor the Agreements more generally, that supports the proposition that employment
under clause 17 on a maximum term contract is not for “a period” if the relevant contract
allows for termination during the contract’s term. Secondly, the Applicant makes no
submissions in support of this contention or the basis upon which it is said to arise. Thirdly, I
consider such a contention to be inconsistent with the recognition under clause 22(j)(ii) above,
that a Mondelez Contractor may leave of their own accord “during a period of employment.”
For completeness, should it be contended that such an interpretation is to be given to clause
17 in reliance upon the interpretation given to the phrase “specified period of time” in section
386(2)(a) of the Act, I also reject that contention. Firstly, the language in the Agreements is
not consistent with the language in section 386(2)(a). Secondly, I consider very clear language
would be required before the provisions of clause 17 could be subject to the construction
given to section 386(2)(a) and no such language is included in the Agreements.
Disposition
[64] I find that Mr Nasr was engaged under a series of maximum term contracts based on
the genuine operational requirements of Mondelez. I find that the terms of the Eighth Contract
reflected the genuine agreement of the parties that the employment relationship would end
upon the expiry of that contract. I find that there are no vitiating factors as identified by the
Full Bench in Navitas applicable to Mr Nasr’s circumstances. Accordingly, I find that the
employment relationship between the parties ended by the effluxion of time upon the expiry
of the Eighth Contract. I therefore find that Mr Nasr’s employment was not terminated on the
initiative of the employer. Mr Nasr was therefore not dismissed pursuant to section 386(1)(a)
[2021] FWC 2802
19
of the Act and his application for relief from unfair dismissal under section 394 of the Act
must therefore be dismissed.
[65] Given my findings above, it is not necessary that I address the Respondent’s
submissions in the alternative.
[66] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
B Terzic for the Applicant
R Catanzariti for the Respondent
Hearing details:
2021
Melbourne
6 May 2021
Printed by authority of the Commonwealth Government Printer
PR729896
1 Respondent’s Outline of Argument at [14]
2 Respondent’s Outline of Argument at [4-5], [14]
3 Respondent’s Outline of Argument in Reply at [11-12]
4 Respondent’s Outline of Argument in Reply at [26-30]
5 Statement of Sher Mansoor Khan at [4]
6 Transcript PN 88
7 Transcript PN 89-91
8 Statement of Michael Nasr at [1]
9 Statement of Michael Nasr at [2]
10 Statement of Michael Nasr at [1]
11 Statement of Michael Nasr at [4]
THE FAIR WORK COMMISSION
[2021] FWC 2802
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12 Statement of Sher Mansoor Khan, Attachment SK-1-SK-8
13 Statement of Sher Mansoor Khan, Attachment SK-8
14 Statement of Sher Mansoor Khan, Attachment SK-1-SK-2
15 Statement of Sher Mansoor Khan, Attachment SK-1-SK-2
16 Statement of Sher Mansoor Khan, Attachment SK-3-SK-8
17 Statement of Sher Mansoor Khan, Attachment SK-3-SK-8
18 Transcript PN 321
19 Transcript PN 320
20 Transcript PN 323, PN 325
21 Transcript PN 323-325
22 Statement of Sher Mansoor Khan, Attachment SK-1-SK-2
23 Statement of Sher Mansoor Khan, Attachment SK-3-SK-6
24 Statement of Sher Mansoor Khan, Attachment SK-7-SK-8
25 Statement of Michael Nasr at [11-13]
26 Statement of Sher Mansoor Khan at [9.1]; Transcript PN 104, PN 290
27 Statement of Michael Nasr at [8]
28 Statement of Michael Nasr at [8]
29 Statement of Michael Nasr at [9]
30 Statement of Sher Mansoor Khan at [9.1]; Transcript PN 101
31 Transcript PN 104
32 Transcript PN 109
33 Transcript PN 112
34 Transcript PN 120
35 Transcript PN 117-118
36 Statement of Sher Mansoor Khan at [9.1]; Transcript PN 133
37 Statement of Sher Mansoor Khan at [9.1]; Transcript PN 133
38 Statement of Sher Mansoor Khan at [9.1]; Transcript PN 143
39 Statement of Sher Mansoor Khan at [9.1]
40 Statement of Sher Mansoor Khan at [9.2]; Transcript PN 147-148
41 Transcript PN 149
42 Statement of Sher Mansoor Khan at [9.2]
43 Statement of Sher Mansoor Khan at [9.3]
44 Statement of Anjum Shahzad at [6]
45 Statement of Anjum Shahzad at [6.1]
46 Statement of Sher Mansoor Khan at [9.4]
47 Statement of Sher Mansoor Khan at [9.4]
48 Statement of Anjum Shahzad at [6.2]
49 Transcript PN 262-265
50 Statement of Anjum Shahzad at [6.2]; Transcript PN 262-266
51 Transcript PN 162-165
52 Transcript PN 157
53 Transcript PN 290
54 Statement of Anjum Shahzad at [6]
55 Statement of Michael Nasr at [23]
56 Further Statement of Anjum Shahzad at [5]; Transcript PN 269-270
57 Transcript PN 271
58 Transcript PN 268
[2021] FWC 2802
21
59 Further Statement of Anjum Shahzad at [5]
60 Transcript PN 360
61 Transcript PN 365-371
62 Transcript PN 328-360
63 Statement of Michael Nasr at [15]
64 Statement of Michael Nasr at [16]
65 Statement of Michael Nasr at [17]
66 Statement of Michael Nasr at [18-19]
67 Statement of Anjum Shahzad at [7]
68 Statement of Anjum Shahzad at [8]
69 Statement of Anjum Shahzad at [10]
70 Statement of Anjum Shahzad at [11]
71 Further Statement of Anjum Shahzad at [4]
72 Transcript PN 280-281
73 Further Statement of Anjum Shahzad at [4.2]
74 Transcript PN 375
75 Transcript PN 376
76 Statement of Michael Nasr at [15]
77 Transcript PN 380
78 Transcript PN 384
79 Transcript PN 380, PN 424, PN 428
80 Transcript PN 158-159
81 Transcript PN 179
82 Transcript PN 207
83 Transcript PN 209
84 Transcript PN 88
85 [2017] FWCFB 5162
86 Respondent’s Outline of Submissions at [21-29]; Applicant’s Outline of Submissions at [18],
87 [2017] FWCFB 5162 at [72]
88 [2017] FWCFB 5162 at [75]
89 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (a)
90 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (b), Principle 5(f), paragraph (p)
91 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (c)
92 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 2, paragraph (f)
93 Transcript PN 708
94 Transcript PN 709
95 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 2, paragraph (e)
96 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 2, paragraph (e)
97 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 4, paragraph (h)
98 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 4, paragraph (i)
99 Respondent’s Outline of Argument in Reply at [14], [19]
100 Respondent’s Outline of Argument in Reply at [16]
101 Respondent’s Outline of Argument in Reply at [17]
102 Respondent’s Outline of Argument in Reply at [19]
103 Respondent’s Outline of Argument in Reply at [19]
[2021] FWC 2802
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104 Respondent’s Outline of Argument in Reply at [20]
105 Respondent’s Outline of Argument in Reply at [18]
106 Transcript PN 346
107 Transcript PN 347-348
108 Transcript PN 251
109 Transcript PN 242, PN 250
110 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 2, paragraph (e)
111 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 2, paragraph (e)
112 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 4, paragraph (i)
113 Applicant’s Outline of Submissions at [18], Principle 5(a), paragraph (j) - Principle 5(c), paragraph (l)
114 Applicant’s Outline of Submissions at [18], Principle 5(d), paragraph (m)
115 Applicant’s Outline of Submissions at [18], Principle 5(e), paragraph (n)
116 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (o)
117 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (s)
118 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (p)
119 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (q)
120 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (r), paragraph (t)
121 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (t)
122 Respondent’s Outline of Argument in Reply at [24](a)
123 Respondent’s Outline of Argument in Reply at [24](b)
124 Respondent’s Outline of Argument in Reply at [24](c)
125 Statement of Sher Mansoor Khan, Attachment SK-1-SK-8
126 Statement of Sher Mansoor Khan, Attachment SK-1-SK-2
127 Statement of Sher Mansoor Khan, Attachment SK-3-SK-8
