1
Fair Work Act 2009
s.394—Unfair dismissal
Darryl Gene Butler
v
Norton Gold Fields Pty Ltd
(U2023/7638)
COMMISSIONER LIM PERTH, 28 NOVEMBER 2023
Application for an unfair dismissal remedy – valid reason – inherent requirements of the role
– application dismissed
Introduction
[1] Mr Darryl Butler has applied to the Fair Work Commission to seek a remedy for an
alleged unfair dismissal under the Fair Work Act 2009. The Respondent in this matter is Mr
Butler’s former employer, Norton Gold Fields Pty Ltd.
[2] Mr Butler was injured at work on 13 July 2021. This injury has prevented him from
performing his pre-injury role as an excavator operator. Norton dismissed Mr Butler on 4
August 2023 on the basis he could longer meet the inherent requirements of his pre-injury role.
[3] I conducted a case management conference on 15 September 2023. A hearing was held
on 30 October 2023.
[4] Having considered the evidence and submissions of the parties, I find that Mr Butler
was not unfairly dismissed.
[5] Detailed reasons for my decision follow.
Preliminary matters
[6] Mr Butler sought leave to be represented by Mr Craig Fordham of Slater and Gordon
Lawyers. I found that s 596(2)(a) and (b) were satisfied and so exercised my discretion to grant
leave. Mr Peter Robertson of the Australian Resources and Energy Employer Association
represented the Respondent.
[7] There was no contest, and I find, that:
• Mr Butler was dismissed and the employment relationship ended on 4 August 2023. His
application was made within the statutory timeframe.
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DECISION
AUSTRALIA FairWork Commission
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• Mr Butler was protected from unfair dismissal pursuant to s 382 of the Act.
• The Respondent is not a small business.
• The dismissal does not involve consideration of genuine redundancy.
Observations on the evidence
[8] Mr Butler gave evidence for his case. Ms Karen Franks (Health and Safety
Superintendent) and Mr Gregory McNulty (Open Pits Senior Safety and Training Coordinator)
and gave evidence for the Respondent. Mr McNulty was not required for cross-examination
and his evidence was tendered unchallenged.
[9] I found that both Mr Butler and Ms Franks gave their evidence honestly and openly.
The events that led to this application
Background1
[10] The parties largely agree as to the major events.
[11] Mr Butler commenced employment with the Respondent in July 2014 as a Production
Excavator Operator. Prior to this, Mr Butler worked in similar roles in the mining industry from
2005 onwards. Before working in the mining industry, Mr Butler worked in roles such a
stockman on cattle stations and as a council worker.
[12] Mr Butler left high school after completing Year 10 and entered the workforce shortly
after.
[13] In his employment with the Respondent, Mr Butler’s role was based at the Federal Gold
Mine. This is a mine site that is approximately 40km north of Kalgoorlie, Western Australia.
[14] Mr Butler worked a 12-hour roster on a seven-days-on, seven-days-off cycle.
[15] Mr Butler’s role required him to spend 10 to 11 hours each shift in the cab of an
excavator.
Injury
[16] On 13 July 2021, Mr Butler was injured at work.2
[17] Mr Butler was operating an excavator and was loading a truck at the time of the incident.
Something broke or collapsed behind the excavator seat, causing Mr Butler to fall backwards
in the seat.3
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[18] Mr Butler repositioned the seat and continued with his work. Unfortunately, the seat
collapsed a second time. This time when Mr Butler fell backwards, he felt a sharp pain in his
back and shooting down his legs.
[19] Mr Butler called his acting supervisor on a two-way radio and reported the incident.
[20] Mr Butler returned to work the next day. He found that he could not remain seated in
the cab of the excavator for more than around 14 minutes at a time due to the pain.
[21] Accordingly, Mr Butler commenced light duties on or about 16 July 2021, a few days
after the injury. While working light duties, Mr Butler ordinarily workers 10-hour shifts each
day. Mr Butler’s recollection is that he signed forms for workers’ compensation, and the
arrangement was for him to work 10-hour shifts but be paid 12 hours.4
[22] Some of the types of light duties Mr Butler performed included:5
• Carrying out site safety inspections.
• Placing and removing signage on site.
• Putting up guide posts.
• Moving lighting towers into and out of the pit as needed when there was blasting.
• Acting as a stationary guard to manage and control people and vehicles moving into and
out of the dangerous area when blasting was occurring.
• Washing the light vehicles on site.
[23] Mr Butler’s hope was that he would continue working modified duties until he could
have an operation on his back. His wish was to continue earning income up until the operation,
and to then use up his accrued annual leave and long service leave during his recovery from the
surgery.6
[24] After his injury in July 2021, Mr Butler worked with Ms Franks. Ms Franks assisted Mr
Butler with his workers’ compensation claim under the guidance of her supervisor, as Ms
Franks was not experienced with the workers’ compensation jurisdiction at this time.
[25] There were remarks from Ms Franks that there were issues with Mr Butler not
complying with rehabilitation requirements at the start of his light duties. This was contested
by Mr Butler. Regardless, Ms Franks confirmed that this had no bearing on the decision to
terminate Mr Butler’s employment.
[26] To the best of Mr Butler’s knowledge, neither Ms Franks nor anyone else from the
Respondent suggested alternate roles for him.
[27] Mr Butler’s evidence was that as an alternative to dismissal, he would have been willing
to change his hours of work and/or work location if it meant he could continue to earn income.
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[28] Mr Frank’s evidence is that she and Daryl Hooper (Health and Safety Manager and OHS
Coordinator) discussed alternative roles for Mr Butler and another long term Workcover
claimant. This included the creation of a security position. However, they were unable to move
forward with creating that role for Mr Butler.7
[29] In re-examination Ms Franks gave a further example of a substantive role that she
explored for Mr Butler. The role would involve checking the Respondent’s pipelines between
open pits. However, after the roads were inspected, it was determined that due to the condition
of the roads, the potential for vibrations and manual work was too great a risk to Mr Butler. Ms
Frank’s view was that the role had a risk of aggravating Mr Butler’s injury.8
[30] I accept that Ms Franks did explore finding alternative roles for Mr Butler, even if she
did not suggest them to him.
Treatment
[31] As part of his recovery, Mr Butler has pursued several different treatments. These
include a regular physiotherapy program, an epidural and cortisone injections.9 These
treatments were unfortunately unsuccessful in treating Mr Butler’s injury and pain.
[32] Between December 2021 and September 2022, Mr Butler consulted with Mr Soni
Narula, a neurosurgeon. Mr Narula recommended back surgery for Mr Butler. The cost of the
surgery is approximately $42,000 and according to Mr Butler’s recollection, may take several
months to recover.10
[33] Up until 25 October 2023, Mr Butler and the Respondent’s workers’ compensation
insurer, Allianz, had not come to an agreement on settling Mr Butler’s matter.
[34] At the hearing, Mr Butler was permitted to lead further evidence regarding a meeting
with Allianz on 25 October 2023, where he settled his workers compensation matter for
$48,000.11 Mr Butler’s evidence is that this would cover the cost of the back surgery, but that
he would be left with nothing else financially during his recovery.
The medical evidence
[35] In February 2023, the Respondent required Mr Butler to attend an assessment with Dr
Anthony Carins, an Orthopaedic Surgeon. Dr Cairns prepared a medical report dated 14 March
2023 from this assessment.
[36] Dr Cairns made a number of findings. Relevant to this matter, he expressed opinions
that Mr Butler:
(a) Has not recovered from the injury, and that Mr Butler does not have the capacity to
return to his pre-injury duties.12
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(b) Can pursue further rehabilitation but will be permanently restricted to light to moderate
manual duties. Further, that Mr Butler cannot operate the sort of machinery that has
caused or contributed to his condition.13
(c) Is capable of full-time work in suitable light to moderate duties.14
(d) Is not anticipated to regain full capacity for his pre-injury duties.15
[37] Dr Cairns also considered the prospect of back surgery with Dr Narula and how it would
impact on Mr Butler. Dr Cairns’ opinion of the treatment was that, “assuming that both the
patient and prospective surgeon have eventually reached the decision that [Mr Butler]’s
predicament is such as to warrant the major surgical intervention proposed by Mr Soni Narula,
all things considered it is probably reasonable”.16
[38] Further, that if Mr Butler proceeded with the recommended surgery and has an
uneventful recovery from the surgery, “speculative maximum medical improvement could not
be reasonably expected for at least 9 to 12 months post-operatively”.17
[39] In April 2023, Mr Narula also provided a medical report for the Respondent’s insurer.
On the question of Mr Butler’s likely prognosis and recovery timeframes following surgery,
Mr Narula stated that the minimum timeframe of recovery would be three to six months.
Further, that Mr Butler’s prognosis is fair and that he will have difficulty driving mobile plants.
There would be a need to undertake lighter duties, but a course of gradual return to work in
alternate duties would be possible.18
[40] Neither party challenged the content of the medical reports from Dr Cairns and Mr
Narula.
Termination of employment
[41] On 19 July 2023, Ms Franks, Mr Hooper and the Respondent’s HR Manager met to
discuss Mr Butler. There was a view that Mr Butler’s condition posed a risk to the Respondent,
if he was to reinjure or further aggravate the injury. Ms Franks’ evidence is that this view was
based on advice from Allianz, Dr Cairns’ report and Mr Narula.19
[42] Ms Franks conceded during cross-examination that Dr Cairns’ report does not say that
Mr Butler was unsafe or at risk in the performance of light duties. Ms Franks explained that at
the time of the 19 July meeting, she did not have a full copy of Dr Cairns’ report. Instead, she
had advice from Allianz based on Dr Cairns’ report.20
[43] During cross-examination, Ms Franks’ evidence was that no decision regarding Mr
Butler’s employment was made during this meeting. Further, that she did not make any
recommendations about Mr Butler’s employment as that is not within the remit of the safety
department. Ms Franks characterised the meeting as informing the HR Manager as to Mr
Butler’s circumstances.21
[44] On 31 July 2023, Mr Butler attended a meeting with Jeannie Figeuroa (HR
Superintendent), Tony Apanui (Open Pit Superintendent) and Gregory McNulty (Open Pits
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Senior Safety and Training Coordinator). Ms Carol McKenzie attended as Mr Butler’s support
person.
[45] During this meeting, the Respondent’s representatives informed Mr Butler that due to
cost pressures and operational requirements, they could no longer hold his position as an
excavator operator open for him. Further, that the Respondent could not find other suitable roles
for him due to his injury limitations.22
[46] Mr McNulty’s evidence was that in this meeting Mr Butler did not raise any personal
issues or considerations for the Respondent.
[47] The Respondent gave Mr Butler a show cause letter, which stated:23
“Dear Darryl,
Re: Show cause -Termination of Employment
I am writing to advise about your employment with Norton Gold Fields Pty Ltd (Norton) (the
employer).
To date, Norton Gold Fields has been providing you with modified light duties since 16th July
2021 to continue your employment with the Company.
Recently, Norton has received and reviewed the Independent Medical Expert (IME) advice
concerning your capacity to return to work to your full pre-injury duties as an excavator
operator. Unfortunately, the IME has advised that you will not return to your pre-injury
excavator operator role.
Norton has tried to find other alternative roles for you within your skillset and your capacity to
work other than an excavator operator. Unfortunately, we were unable to identify such roles.
We believe Norton has exhausted all reasonable alternative positions available within the
Company. We no longer can accommodate light duties as part of a return-to-work program.
After careful consideration of the circumstances around your case and the IME advice, we do
not believe that you will be able to return to your full pre-injury work in the foreseeable future
and we cannot keep your position open any longer due to operational requirements.
Therefore, the Company invites you to provide it with any reason(s) why it should not terminate
your employment with Norton Gold Fields due to your failure to meet the inherent requirements
of your role.
Should you fail to provide the Company with any reason(s) why it should not terminate your
employment by 3rd August 2023, your employment will come to an end then. Please feel free to
contact me to discuss your case or reply in writing to this letter.
Yours sincerely,
Rubei Ma
General Manager – Open Pits”
[48] On 2 August 2023, Mr Butler sent the following:24
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“To whom it may concern:
For starters, I put my faith in Workers comp and it dragged on and they knew that I needed an
operation 12 months ago after all the tests. And I am paying solicitors to pursue this matter and
it should not be this way, it seems that there’s no one pursuing and rushing your insurance to
get matters done. The mental roller coaster is bad, let along the pain that I am going through.
Secondly, why I should hold my job.
I am not sure of the job you helped me to find, as I did everything that I was asked to do.
I have over 20 years experience in mining. I have been a supervisor on this site and the last two
mining jobs I have before, but I was too fit and didn’t want the role at that time. I have done my
job well for your company and since the digger seat collapse it caused my injury I have done
everything was asked and beyond.
One out of three specialist’s opinion, says after operation I cannot return to a digger role. That’s
only an opinion and he doesn’t know the will I have and how I will recover quickly. I have full
faith in myself recovering to do any role. As I am so keen to be back tonormal, my specialist
told me that I will be 90% pain free and I will be back to normal. And I am certainly sure with
my eager way to be back to normal, I will recover fine and I will be an asset to the company the
way I have always been.
If you don’t want me to be an asset to the company, at least think of giving me a redundancy
after 9 years of giving my 110% of my service.
Respectfully,
Darryl Butler”
[49] On 4 August 2023, the Respondent notified Mr Butler in writing of their decision to
terminate his employment. The reasons given for the dismissal were:25
• Mr Butler would not be able to return to his pre-injury role for the foreseeable future.
• There were no alternative roles within his skillset and capacity.
• Due to operational pressures and requirements, the Respondent was no longer able to
keep Mr Butler’s pre-injury role open for him.
• The Respondent had exhausted all available alternatives and could no longer
accommodate light duties as part of the return-to-work program.
Legislation
[50] Section 385 of the Act provides:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
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(a) the person has been dismissed; and
(b) the dismissal has harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[51] Section 387 of the Act provides:
“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.”
Submissions and consideration
Section 387(a) – was there a valid reason for the dismissal related to Mr Butler’s capacity or
conduct?
[52] The Respondent’s position is that there was a valid reason for terminating Mr Butler’s
employment – that the medical evidence showed that Mr Butler was unable to fulfil the inherent
requirements of his pre-injury role at the time of termination, or for the foreseeable future.
Mr Butler submits that where an employer wishes to rely on incapacity as a reason for dismissal,
the appropriate test to establish the existence of a valid reason for dismissal was confirmed by
the Full Bench in CSL Limited.26
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[53] CSL Limited sets out that where there is a dismissal related to the person’s capacity, the
Commission must consider the relevant medical and other evidence and make findings as to
whether the applicant did suffer from the alleged incapacity.27
[54] The medical evidence from Dr Cairns sets out:28
• His diagnosis of Mr Butler’s condition – being lumbar spondylosis and chronic low
back pain.
• That Mr Butler does not have the work capacity to return to his pre-injury duties on
either a full-time or part-time basis.
• His opinion that Mr Butler can pursue a further rehabilitation project, but that Mr
Butler’s injury will permanently restrict him to light to moderate manual duties.
[55] In response to the question of when Mr Butler would regain full capacity, Dr Cairns also
stated:29
“I do not anticipate that the claimant will regain full capacity for his pre-injury work given the
nature of the underlying pathology, his current level of impairment, and the inadvisability of
returning to work of a heavy manual nature regardless of the outcome of any interventional
surgery, including operating heavy machinery and the operator vibration experience involved
therewith.”
[56] In written and closing oral submissions, Mr Butler acknowledges that at the time of his
dismissal he was unable to perform the inherent requirements of his role as an Excavator
Operator.30
[57] I accept the medical evidence from Dr Cairns. I have also had regard to Mr Butler’s
evidence as to how the injury has affected him and how he is unable to operate an excavator
without pain. I find that at the time of the dismissal Mr Butler did suffer from an impairment
that prevented him from performing the inherent requirements of his job.
[58] I find that there was a valid reason for Mr Butler’s dismissal.
Section 387(b) and (c) – notification of valid reason and opportunity to respond
[59] The Respondent notified Mr Butler on 31 July 2023 via the show cause letter that they
were considering terminating his employment as:
• The medical evidence was that Mr Butler would not return to his pre-injury role;
• There were no other alternative roles that matched Mr Butler’s skillset and capacity to
work;
• They could no longer accommodate light duties for him; and
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• They could not keep his original position open any longer due to operational reasons.
[60] Mr Butler acknowledges that this letter did notify him that the Respondent was
considering terminating his employment based on his incapacity and that he did respond on 2
August 2023. However, Mr Butler raises two issues.
[61] The first is that the Respondent relied on a second ground for his dismissal. Mr Butler
contends that from Ms Frank’s evidence, the Respondent also made a decision that performing
light duties put him at risk.
[62] Mr Butler submits that he was not provided notice of this decision, and he was therefore
denied an opportunity to speak to his ability to perform light duties.
[63] Secondly, Mr Butler submits that the show cause letter was incorrect. Specifically,
where the show cause letter stated, “Unfortunately, the IME has advised that you will not return
to your pre-injury excavator operator role.”
[64] Mr Butler’s argument is that this is not supported by the medical evidence. Dr Narula’s
report states that:31
“Mr Butler is likely to improve from the surgery and be pain free and be able to be
productive and life his life, working rather than unable to take work and be in pain.”
[65] Further, Dr Cairns’ report states that the “prognosis for Mr Butler, fair to good,
depending on the technical and functional outcome of the surgery advocated by Dr Narula”.
[66] The Respondent did not lead any witnesses from HR or those who were involved in the
decision to terminate Mr Butler’s employment. On balance, I am satisfied from Ms Franks’
evidence that the Respondent did make the decision to withdraw light duties from Mr Butler
based on the advice from Allianz. I find that Mr Butler did not have the opportunity to respond
to this.
[67] On whether the show cause letter was incorrect in stating the IME’s position that Mr
Butler will not return to his pre-injury role, Mr Butler did contest this in his response on 2
August 2023. Mr Butler clearly states that his specialist’s view is that he will be able to return
to his normal duties. As such, I do not find that Mr Butler was denied the opportunity to respond
on this point.
Section 387(d) – any unreasonable refusal by the Respondent to allow Mr Butler a support
person
[68] Ms Carol McKenzie attended the meeting on 31 July 2023 as Mr Butler’s support
person. There was thus no unreasonable refusal to allow a support person.
Section 387(e) – warnings concerning performance
[69] Mr Butler submits that this is not a relevant factor in this matter. The Respondent did
not make submissions on this point. I agree with Mr Butler.
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Section 387(g) and (f) – size of the Respondent’s enterprise and whether the absence of
dedicated human resource management specialists or enterprise would be likely to impact on
the procedures followed
[70] Mr Butler submits that the Respondent is a large employer with a dedicated staff of
human resources professionals. The Respondent did not contest this.
Section 387(h) – any other matters the Commission considers relevant
[71] Mr Butler gave the following unchallenged evidence:
(a) Due to his injury, he takes regular prescription medication to manage his pain and
inflammation. Mr Butler’s evidence was that this medication would likely show up on
a drug test if he were to apply for a new job on a mine site.
(b) His injury hampers his prospects of obtaining new employment.
(c) He is 47 years of age and has always worked in physically demanding roles. He is not
well-positioned to retrain and gain qualifications in a new occupation or calling.
(d) He has not applied for jobs following his dismissal as he is uncertain whether there are
any jobs that he can perform given his health and current skills and experience.
(e) Mr Butler’s injury occurred at work.
(f) He currently lives with his de-facto partner. She currently works in childcare and earns
approximately $1,100 per week. Since his dismissal, all his partner’s income is used to
pay household bills. However, her income is not enough to cover all the household costs
and so Mr Butler has been forced to draw upon savings he was hoping to rely upon
while recovering from surgery.
(g) At the time of his written evidence, Mr Butler had approximately $21,400 in savings. A
large part of that sum came from the payout of his accrued leave entitlements when he
was dismissed.
[72] I accept the above evidence from Mr Butler and have taken his personal circumstances
into account.
[73] During closing submissions, Mr Butler’s representative contended that the decision to
dismiss was overshadowed by the decision to remove Mr Butler from light duties. The decision
to remove Mr Butler from light duties was based on perceived risk, which was incorrect in light
of the medical evidence. Further, it was submitted that the Respondent allowed itself to be
misled by the insurer.
Is the Commission satisfied that Mr Butler’s dismissal was harsh, unjust or unreasonable?
[74] I have made findings in relation to each matter in s 387 as relevant to this case.
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[75] The substance of Mr Butler’s case asks the Commission to give weight to factors
pursuant to s 387(h). Mr Butler brought to the Commission’s attention precedents where even
where a valid reason existed, a finding of unfairness was made.32
[76] I have immense sympathy for Mr Butler’s situation. Being injured at work and the
suffering that comes from a long-term injury is a difficult change to reconcile.
[77] I have taken into account the factors pursuant to s 387(h), particularly Mr Butler’s length
of service, the fact that his injury occurred at work, and the significant impact the dismissal has
had on his life. I have also considered my finding that the Respondent did erroneously rely on
Allianz’s advice that light duties posed a risk to Mr Butler and Mr Butler was denied the chance
to respond to that.
[78] However, on balance, I am not persuaded that the circumstances in s 387(h) outweigh
the significant valid reason in this case. Mr Butler was unfortunately injured two years ago. The
Respondent has provided him modified light duties for those two years where he worked 10
hours a day but was paid for 12 hours. The Respondent also attempted to find other alternative
roles for Mr Butler but were unable to find roles suitable for his restrictions. The Respondent
were not in a position to continue keeping Mr Butler’s role open for him.
[79] Having considered each of the matters in s 387, I am not satisfied that Mr Butler’s
dismissal was unfair. The application must accordingly be dismissed.
COMMISSIONER
Appearances:
C Fordham of Slater & Gordan for the applicant.
P Robertson of Australian Resources and Energy Employer Association for the respondent.
Hearing details:
2023.
Perth:
October 30.
FAIR WORK COMMISSION HE SEAL OF THE
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Printed by authority of the Commonwealth Government Printer
PR767595
1 Witness statement of Darryl Butler 3 October 2023, Exhibit A1, at [1] – [17].
2 Ibid, at [18].
3 Ibid, at [19].
4 Ibid, at [25] – [26].
5 Ibid, at [30].
6 Ibid, at [36].
7 Witness statement of Karen Franks, Exhibit R1, at [10].
8 Transcript, 30 October 2023, PN156.
9 Witness statement of Darryl Butler 3 October 2023, Exhibit A1, at [38] – [41].
10 Transcript, 30 October 2023, PN36 – PN37.
11 Transcript, 30 October 2023, PN36.
12 Digital Court Book, p. 37.
13 Ibid, p. 38.
14 Ibid.
15 Ibid.
16 Ibid, p. 39.
17 Ibid, p. 41.
18 Ibid, p. 57.
19 Witness statement of Karen Franks, p. 12.
20 Transcript, 30 October 2023, PN124 – PN133.
21 Ibid, PN118.
22 Witness statement of Gregory Noel McNulty.
23 Ibid, Annexure DB-3.
24 Ibid, Annexure DB-4.
25 Ibid, Annexure DB-5.
26 CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005.
27 Ibid, at [77].
28 Digital Courtbook, p [36] – [38].
29 Ibid, at [38].
30 Transcript, 30 October 2023, PN167.
31 Digital Court Book, p. 55.
32 B, C and D v Australian Postal Corporation; Dennis Sipple v Coal and Allied Mining Services Pty Ltd, t/as Mt Thorley
Warkworth Operations [2015] FWCFB 5728 per Riordan C.
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb1005.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb5728.htm