[2024] FWC 1441
The attached document replaces the document previously issued with the above code on 3 June
2024.
1. The following grammatical and typographical corrections have been made to paragraph
numbers [4], [14], [17], [19(e)], [20(b)], [21], [23], [34(a)], [35], [47], [63], [94(a)],
[105], [107], and [110(d)].
2. Removing the question-mark (?) in the heading above paragraphs [77] and [81].
Associate to Deputy President Boyce
Dated 25 September 2024
1
Fair Work Act 2009
s.773—Termination of employment
Ms Antoinette Lattouf
v
Australian Broadcasting Corporation
(C2023/8096)
DEPUTY PRESIDENT BOYCE SYDNEY, 3 JUNE 2024
Application to deal with an unlawful termination dispute – first jurisdictional objection – no
termination (dismissal) at employer’s initiative – casual employment – five day casual
engagement - meaning of ‘employment relationship’ – identification of basis upon which an
employment relationship comes to an end – second jurisdictional objection – claim or parts of
claim prohibited by s.723 of the Fair Work Act 2009 – both jurisdictional objections dismissed.
Overview
[1] On 22 December 2023, Ms Antoinette Lattouf (Applicant), filed an unlawful
termination application with the Fair Work Commission pursuant to s.773 of the Fair Work Act
2009 (Act) on the ground of alleged unlawful termination of employment (on 20 December
2023) for reasons of “political opinion” (Application).
[2] The Respondent (employer) to the Application is the Australian Broadcasting
Corporation (ABC). The ABC is a statutory authority constituted and operating under the
provisions of the Australian Broadcasting Corporation Act 1983 (Cth).
[3] The Applicant was employed by the ABC for a five day engagement as a casual
employee. The ABC has raised two separate jurisdictional objections to the Application. One
of those objections is that the ABC did not terminate the Applicant’s employment. It is perhaps
trite to acknowledge from the beginning that the fact that the Applicant was a casual employee,
who was only engaged for five days, does not alter the position that her employment as a matter
of fact and law, can be terminated (or brought to an end at the ABC’s initiative). Depending
upon the relevant facts and circumstances, any contract of employment, and the employment
relationship arising from same (no matter how short or long, permanent or casual) can be
prematurely brought to an end. This decision concerns whether the Applicant’s employment
was, or was not, terminated at the ABC’s initiative, it does not concern the reason/s as to ‘why’
her employment was terminated.
Events leading up to the hearing
[2024] FWC 1441
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1441
2
[4] The Application was amended on 10 January 2024 to include (in addition to ‘political
opinion’ as a stand-alone unlawful ground for termination) two further alleged unlawful reasons
for termination, namely political opinion and “race” (Lebanese and/or Arab and/or Middle
Eastern) and/or “national extraction” (Lebanese and/or Arab and/or Middle Eastern heritage,
based upon the Applicant, at least in part, being a descendant of a foreign born person)
(Amended Application).1
[5] The ABC filed an Employer Response to the Amended Application on 15 January 2024
(Response). In that Response, the ABC denied that it terminated the Applicant’s employment
unlawfully, but did not deny that it terminated the Applicant’s employment.
[6] A private conciliation conference was conducted between the parties on 18 January
2024, however, the proceedings did not resolve.
[7] On 22 January 2024, the ABC filed an Amended Employer Response to the Amended
Application (Amended Response). In that Amended Response, the ABC objected to the
Amended Application proceeding on two jurisdictional grounds:
a) firstly, the Amended Application is jurisdictionally barred in that the Applicant’s
employment was not ‘terminated’ at the ABC’s initiative, or at all (i.e. the
employment came to an end by effluxion of time); and
b) secondly, or further or in the alternative, the Amended Application be dismissed, or
not be permitted to proceed, on the basis of, or to the extent that, the Amended
Application makes or includes distinct allegations as to conduct based upon “race”
and/or “national extraction”, because the Applicant is (or was at the time she
originally filed her Application) entitled to make a General Protections Involving
Dismissal Application in relation to such conduct under s.365 of the Act (see s.723
of the Act).
[8] On 23 January 2024, I issued directions for the filing of submissions and evidence, and
listed the matter for hearing (to resolve the ABC’s two jurisdictional objections).
[9] On 7 February 2024, the Applicant applied for orders seeking that the ABC produce
certain documents. On 8 February 2024, the ABC notified my Chambers that it objected to the
orders sought. A hearing was conducted in respect of the ABC’s objections on 13 February
2024. On 16 February 2024, I issued a decision, and ordered that the ABC was to produce only
some of the documents to which the Applicant had requested.2
[10] On 26 February 2024, the Applicant applied under ss.615 and/or 615A of the Act to
have the ABC’s jurisdictional objections dealt with at first instance by a Full Bench of the
Commission, which was refused (on 1 March 2024) by the President of the Commission, Justice
Hatcher.3
[11] A hearing was conducted before me on 8 and 11 March 2024 to deal with the ABC’s
jurisdictional objections. At this hearing, the Applicant was represented (with permission) by
Mr Mark Gibian, of Senior Counsel, instructed by Mr Josh Bornstein, Principal, and Ms
Penelope Parker, Senior Associate, Maurice Blackburn Lawyers, and the ABC was represented
[2024] FWC 1441
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(with permission) by Mr Ian Neil, of Senior Counsel, and Ms Vanja Bulut, of Counsel,
instructed by Mr Ben Dudley, Partner, Ms Mary-Anne Nolan, Associate, and Ms Gabrielle
Wilson, Associate, Seyfarth Shaw Australia lawyers.4
The task at hand
[12] I concur with the following succinct submission of Mr Neil SC in relation to the task for
the Commission to undertake to resolve the ABC’s jurisdictional (no termination) objection:
“The task that the Commission has at this stage of the proceedings is to ascertain
whether the statutory concept of termination of employment at the initiative of the
employer is satisfied in this case; is engaged by the Applicant’s substantive application.
That will entail making findings of fact about how the Respondent [ABC] objectively
conducted itself towards the Applicant in a way that was manifest to or communicated
to the Applicant, and then making an assessment of its own about the legal effect of
what was said and done of those objective facts. That’s the only task.”5
The Applicant
[13] The Applicant started her career as an employed journalist in 2007.
[14] From 2022, the Applicant became (or repositioned herself) as a freelance journalist,
content creator, commentator, and public presenter through the mediums of television, podcast,
radio and social media. Her focus, or preference, is for public facing work engagements as
either a presenter, or commentator, in the presence of a live (including online) audience.6 She
also describes herself as a multi-award-winning journalist, social commentator and columnist,
diversity advocate, and TEDx presenter.7
[15] The Applicant determined to work on a ‘freelance’ basis so as to be able to develop her
own personal brand, enabling her to “work across a range of different projects, styles and reach
broader and varied audiences”. A non-exhaustive list of examples of work or other engagements
involving the Applicant, include:
a) the writing of articles or opinion pieces for the Guardian and Sydney Morning Herald
newspapers, the Mamamia website, and Marie Claire magazine;
b) authoring a book titled “How to Lose Friends and Influence White People”, and
engaging in various book launches and tours to publicise same;
c) presenting or appearing on podcasts such as “Business in Colour”, “The Briefing”,
“Uncomfortable Conversations with Josh Szeps”, “EQ Minds”, and “Black Magic
Woman”;
d) being featured in the “Cultures” section of a Special Broadcasting Service (SBS)
publication;
e) appearing at the Sydney Writers Festival in 2022 at a session titled “Manners Maketh
the Woman”;
[2024] FWC 1441
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f) appearing on TV programs such as Q&A, The Drum, Insiders, The Project, and
Studio 10; and
g) on occasion, working for ABC Radio Sydney as a casual replacement (or fill-in)
presenter.8
The Applicant’s employment history at the ABC pre December 2023
[16] The Applicant’s employment history with the ABC has been sporadic and irregular.9
All of her work engagements at the ABC have been on a casual basis, the first (on the evidence)
commencing in May 2022.10
[17] In terms of work engagements at the ABC pre December 2023, the Applicant presented
on an ABC weekly digital radio program for six weeks from early May 2022 (i.e. for one day
a week across six weeks), filled in as a presenter for the ABC’s “Sydney Afternoons” radio
program for two days in mid-May 2022, filled in for the ABC’s “Evenings” radio program each
weekday for two weeks in mid-September 2022, and in December 2022 hosted the ABC’s
“Summer National Mornings” program each weekday for two weeks.11 None of these
engagements were varied or otherwise cut short by the ABC after they commenced.
The Applicant’s engagement on the ABC’s “Sydney Mornings” radio program
[18] On 17 November 2023, being just short of a year after her last engagement at the ABC,
the Applicant was contacted by Ms Elizabeth Green, ABC Sydney Content Director, to fill in
on the ABC’s “Sydney Mornings” radio program (SM Program) as the presenter, in place of
Ms Sarah McDonald, for five consecutive weekday shifts commencing on Monday, 18
December 2023.12
[19] Post this brief discussion, the Applicant exchanged various emails (between 17
November 2023 and 13 December 2023) with Ms Green and Ms Julia O’Shea, Planning
Coordinator (ABC Content Division), in respect of her terms and conditions of employment.
My findings as to the substance of those email exchanges are as follows:
a) the ABC’s preliminary offer of employment to the Applicant was:
i) to be engaged as a casual employee, paid at a casual hourly rate of pay for each
hour worked, with such rate of pay and casual loading determined by the
applicable enterprise agreement (being the ABC Enterprise Agreement 2022-
202513 (ABC EA));
ii) to work five consecutive weekday shifts, between 6:00AM to 2.36PM (with a
one hour break), commencing on Monday, 18 December 2023; and
iii) during each shift, to be the presenter on the SM Program during the hours of
8:30AM to 11:00AM;
[2024] FWC 1441
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b) if the Applicant wishes to accept the preliminary offer, she will first need to promise
or agree to be bound by (i.e. accept) “another set of ABC engagement Ts & Cs [terms
and conditions]”. These Ts & Cs are set out in a written casual employment contract
(Casual Employment Contract). I observe that it does not appear to be in issue
between the parties that the Casual Employment Contract offered to the Applicant,
to which the Applicant agreed to be bound by, is a standard casual employment
contract (drafted by the ABC) that is ordinarily offered to any employee employed
by the ABC on a casual basis;14
c) the process to enter into the Casual Employment Contract is a similar process to that
to which the Applicant had undertaken in respect of her previous casual engagements
at the ABC in 2022;15
d) the Applicant will attend upon the ABC’s premises in Ultimo NSW on 14 December
2023 for a studio refresh and segment planning session (on a paid basis, for a duration
of 1.5 hours, between 11:00AM and 12:30PM) (Refresh Day); and
e) the Applicant’s physical building/studio pass, still held by her from her last
engagement in December 2022, will be reactivated to enable her to enter and access
relevant ABC premises. The Applicant’s entry/access pass (or related details) are still
in the ABC’s electronic security system, and simply need to be updated and
reactivated (prior to the Refresh Day).16
[20] Ms Monica Vagg, ABC’s Head of People Services and Remuneration, gave uncontested
evidence as to the manner in which casual staff are engaged and terminated by the ABC, as
well as the ABC’s employment and remuneration records for the Applicant.17 The summary of
Ms Vagg’s evidence is that:
a) the ordinary ABC processes were followed when engaging the Applicant as a casual
employee for the period 18 to 22 December 2023;18
b) the ABC’s employment and remuneration records for the Applicant do not show that
the Applicant had been terminated (or dismissed), on 20 December 2023, or
otherwise. Rather, the ABC’s employment and remuneration records show that the
Applicant continues to be employed by the ABC as a casual employee. Indeed, the
end date of the Applicant’s employment, as contained in the ABC’s employment and
remuneration records, is specified as 8 December 2024;19
c) none of the relevant procedures to bring the Applicant’s employment to an end at the
ABC have taken place, or been otherwise actioned;20
d) the Applicant’s computer network account and email address at the ABC remains
active (i.e. accessible by the Applicant herself);21
e) the Applicant’s ABC security pass (to enter the workplace) has an expiry date of 8
December 2024, but was disabled (i.e. not cancelled) on 22 December 2023, making
it inactive and unusable. This was done due to ABC security concerns at that time
concerning active protests taking place outside ABC buildings;22 and
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f) the Applicant has been paid (her full wages) for her shift on 14 December 2023, and
for the period 18 to 22 December 2023 (despite not attending the workplace on 21
and 22 December 2023). The payment for the period 18 to 22 December 2023 was
made to the Applicant during the ABC’s normal fortnightly pay cycle on 4 January
2024.23
The ABC’s management and decision-making structure
[21] The evidence identifies that the ABC’s (relevant) hierarchical structure is as follows:
a) Mr Christopher Oliver-Taylor is the ABC’s Chief Content Officer, who is responsible
for all content that goes to air across all ABC platforms (screen, audio and digital),
apart from news content. He is based in Melbourne, and reports directly to Mr David
Anderson, ABC Managing Director.
b) Mr Ben Latimer, ABC Head of Audio Content, reports to Mr Oliver-Taylor. Whilst
Mr Oliver-Taylor has overall responsibility for ABC Radio Sydney (that includes the
SM Program),24 Mr Latimer and others have direct management responsibility for
ABC Radio Sydney.25
c) As at December 2023:
i) Mr Ahern was in the role of Acting Head of Capital City Networks. This role
involves overseeing and managing the operation of all of the ABC’s Australian
capital city radio stations. The managers of each of these radio stations report
to the Head of Capital City Networks. Mr Ahern’s permanent (or normal) role
is that of Manager, ABC Radio Sydney. The ABC Head of Capital City
Networks reports to Mr Latimer.
ii) Mr Spurway was in the role of Acting Manager, ABC Radio Sydney, whilst
Mr Ahern was undertaking the role of Acting Head of Capital City Networks
(i.e. until this latter roll is filled).26 The Manager of ABC Radio Sydney is
responsible for its day-to-day management (including Breakfast, Mornings,
Afternoons, Drive, Evenings and Nightlife shows), and reports to the ABC
Head of Capital City Networks (at this time, Mr Ahern).
d) Ms Green’s role of Content Director, ABC Radio Sydney, reports to the Manager of
ABC Radio Sydney. Each ABC Radio Program in Sydney has its own production
team. The Content Director oversees and manages those teams. The Applicant
reported directly to Ms Green.
e) Mr Simon Melkman is referred to throughout the evidence, but essentially only in
terms of being copied into various emails (to which he does not reply). His role at
the time appears to be that of ABC Acting Director of Editorial Standards.27 It is not
clear from the evidence what his permanent role is.
[2024] FWC 1441
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[22] I note that ultimate approval for the appointment of permanent ABC Radio presenters
rests with Mr Oliver-Taylor. Candidates for ABC permanent presenter roles are identified, and
go through an annual internal up/down ABC “commissioning process”, before a final list is
then sent to Mr Ben Latimer, who thereafter puts forward names for final approval to Mr Oliver-
Taylor.28
[23] In relation to replacement (or fill-in) radio presenters, Mr Ahern is the person with
approval authority. In this case, Mr Ahern, upon the recommendation of Ms Green, and after
consulting up and down the ABC hierarchy, approved the engagement of the Applicant to
replace Ms McDonald (during Ms McDonald’s absence on the SM Program between 18 and 22
December 2023).29
The Casual Employment Contract
[24] The Applicant agreed to (accepted) the Casual Employment Contract on 27 November
2023 via an email to Mr Aidan Fonternel of the ABC,30 being over two weeks prior to the
Refresh Day on 14 December 2023.
[25] The Applicant concedes that the Casual Employment Contract applied to her in respect
of her engagements at the ABC on 14, and 18 to 22 December 2023.31 It is appropriate to set
out the relevant terms of the Casual Employment Contract, as agreed to by the Applicant:
“Dear ANTOINETTE LATTOUF,
Please reply with your agreement to the below terms and conditions, to this email
address.
Proposed:
Job Role: Content Maker
Date of Agreement: 13/12/2023 (the terms and conditions in this letter apply to all
casual work performed after this date)
Base Hourly Rate of Pay: $[Omitted] Schedule A, 2 week rostered Casual Band
[Omitted]
Please note that this email confirms the terms of engagement that will apply to any
offers of casual employment from the ABC after the date of this email, and you
will be taken to have accepted these terms if you perform any such work for the
ABC. It does not constitute an offer or guarantee of employment with the ABC.
Your casual employment with the ABC is also covered by the ABC Enterprise
Agreement 2022-2025 (EA), which is available at [Omitted] (but the EA does not form
part of these terms).
1. BASIS OF ENGAGEMENT
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You will be employed as a casual employee. The ABC is not obligated to offer, and you
are not obligated to accept, any particular engagement or offer of work. There is no
guarantee or commitment by the ABC that you will receive offers of work at any time
or for any duration.
The terms and conditions in this email will apply if you are offered and accept a casual
engagement. Each engagement that you accept will be separate and will cease at the end
of that engagement without the need for any action by the ABC.
In relation to each engagement, you will be advised of:
(a) the duration of the engagement;
(b) the hours of work required;
(c) the location(s) of work;
(d) to whom you must report for work; and
(e) the work to be performed.
Should you be offered and accept any further engagements then, unless you are advised
otherwise, any such further engagements will be on the same basis as the initial
engagement.
However, at any time before an engagement commences, or during the period of an
engagement, the ABC may advise you of changes to the above details.
2. PAYMENT
You will be paid as follows:
(a) base hourly rate of pay $[Omitted] per hour
(b) casual loading $[Omitted] per hour
In addition to the hourly rate you will receive, you will be entitled to receive payment
of any entitlements to overtime, penalties, allowances, and other special rates under the
EA.
To avoid doubt, the casual loading:
(a) is payable only on the basis that, and only for so long as, you are employed on a
casual basis;
(b) is paid in satisfaction of any entitlement you have to receive casual loading under
the terms of an applicable industrial instrument; and
(c) may be used to set off against, or absorb, any later claim you make to take or be
paid for any paid leave entitlements.
You agree that all amounts paid to you by the ABC in respect of your employment
(including the base hourly rate of pay):
[2024] FWC 1441
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(a) compensate you for all hours worked by you, including any reasonable
additional hours and are paid in satisfaction of all obligations the ABC has under
legislation, any industrial instrument or otherwise to make payments, or give
benefits to, you (including, without limitation, minimum rates of pay, overtime,
penalty rates, loadings or allowances); and
(b) are specifically set off against, applied to and absorb any existing or newly
introduced payments or benefits to which you are or may become legally
entitled under any legislation, award, the Instrument or other industrial
instrument (howsoever described).
Where, in a given pay period, amounts paid to you by the ABC in respect of your
employment exceed the total amounts payable to you under legislation, any industrial
instrument and/or otherwise:
(a) if any amounts are owing to you by the ABC in respect of past pay periods,
the excess amount will be applied in satisfaction of those obligations; and
otherwise; and
(b) will be regarded as an advance payment which may be applied in satisfaction
of any entitlement of any kind which arises at any future time under these terms,
any industrial instrument, legislation, or otherwise.
…
7. ABC VALUES AND POLICIES
You must comply with the ABC’s Code of Conduct and all other ABC Policies as
amended from time to time, including Editorial Policies. Copies of these are available
from ABC People & Culture and the ABC Intranet. It is your obligation to familiarise
yourself with these policies including any changes made during your employment.
…
11. EXTERNAL WORK & CONFLICT OF INTEREST
You must ensure that any work you perform for other employers does not create any
actual, potential or perceived conflict with any responsibilities and obligations you
have to the ABC.
You must adhere to the ABC’s Conflict of Interest Policy. You have a duty to declare
to your manager, at the earliest opportunity, any real, perceived or potential
incompatibility between your duties as an employee and your private interests.
…
13. TERMINATION
[2024] FWC 1441
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Any engagement may be terminated by either party with one hour’s notice.
If either party gives such notice of termination, the ABC may bring your employment
to an end immediately and make a payment to you in lieu of any outstanding period of
notice.
On cessation of your employment you are to return promptly to the ABC all property of
the ABC under your control or possession including (but not limited to) all files,
correspondence, documents, lists, records, memoranda, computer disks and files, keys,
credit cards, security cards, membership cards, mobile phones, other electronic devices
(including iPads) and motor vehicles.
After termination of your employment you must not make any adverse comment,
publicly or otherwise, about the ABC and you must not represent yourself as being
associated with the ABC, unless authorised by the Divisional Director.
14. NOTICE OF THE RIGHT TO SEEK CONVERSION TO ONGOING
EMPLOYMENT
In accordance with clause 14.7 of the EA, offers and requests for conversion from casual
employment to full-time or part-time employment are provided for in the National
Employment Standards, under the Fair Work Act 2009 (Cth).
15. GENERAL
This contract (including any document referred to in this contract) contains the entire
agreement between you and the ABC regarding your casual employment, and it
replaces all prior or contemporaneous agreements, letters, understandings and
representations regarding employment.
You acknowledge and agree that any grievances or disputes which arise in relation to
your employment will be dealt with in accordance with Part O of the EA.
The terms of this contract of employment may be varied by agreement in writing
between you and the ABC.
Whilst the provisions of the contract (including any document referred to in this
contract) are considered reasonable by the parties, it is agreed that if any provision of
this contract is held by a court having jurisdiction to be invalid, illegal, void or voidable,
that provision will be deemed to be deleted to the same extent and effect as if it was
never incorporated, and the remainder of the contract will continue in full force and
effect.
Any failure by the ABC to exercise any of its rights in connection with any default or
breach of this contract by you will not operate as a waiver of its rights in the event of
any subsequent default or breach by you.
16. INDEMNITY
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Subject to clause 16.3 and 16.4, the ABC will, to the extent allowed by law:
16.1 indemnify you in respect of any actions, suits, claims and demands for alleged
defamation or injurious falsehood arising by reason of the production and/or
broadcasting of any matter by the ABC; and
16.2 provide, at its expense, legal representation and meet the costs of any fines that
may be imposed on you in respect of any action for contempt or criminal libel arising
by reason of the production and/or broadcasting of any matter by the ABC.
The indemnities in clause 16.1 and 16.2 will only be available to you provided that:
16.3 you have complied with all applicable ABC policies and procedures in relation to
the broadcasting of programs; and
16.4 the ABC retains absolute discretion in relation to all aspects of the resolution of
any actions, suits, claims and demands (including defences or terms of settlement).
17. LIABILITY FOR DAMAGES
The ABC will not be liable in damages or otherwise for alleged loss of publicity or
opportunity for you to enhance your professional reputation or for any other reason
should a recording, broadcast or other scheduled event not take place as arranged for
any reason whatsoever.
18. AGREEMENT
By performing work for the ABC, you acknowledge that:
(a) You are employed by the ABC as a casual in accordance with the ABC Enterprise
Agreement 2022-2025 (as varied from time to time);
(b) You are employed by the ABC on a casual basis and nothing that the ABC does or
omits to do indicates any commitment to ongoing permanent employment;
(c) You may be subject to overt workplace surveillance. The surveillance is for a range
of reasons but primarily it is to ensure the safety and security of ABC workplaces and
appropriate use of ABC resources. The overt surveillance is in the form of computer
and video surveillance and is of an ongoing and continuous nature, in accordance with
ABC policy as amended from time to time; and
(d) You will comply with ABC Policies as amended from time to time. You are aware
that copies of these are available from your manager, your ABC People & Culture HR
Team or the ABC Intranet.
19. FAIR WORK INFORMATION STATEMENTS
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The ABC is required to give you copies of the:
• Fair Work Information Statement
• Casual Employment Information Statement
Each of the Statements can be accessed through the links above. By accepting this offer
of casual employment, you acknowledge and agree that the ABC has given you copies
of the Statements.
This is an automated message. Please do not reply if the sender is [Omitted].”32
[26] The Casual Employment Contract is in the same (or substantially the same) terms as
three previous casual employment contracts entered into by the Applicant in 2022.33
[27] In relation to the Applicant’s casual engagement at the ABC, I observe that such
engagement, under the terms of the Casual Employment Contract, is not inconsistent with s.15A
of the Act in terms of the statutory definition (or meaning) of a “casual employee”.34 Section
15A of the Act provides certainty to a casual engagement in that it is not open to relevant courts
or tribunals to consider either the overall nature of the employment relationship, or other factors
which might be present at the end of an employment relationship.35 In other words, s.15A of
the Act essentially removes the notion that a person specifically engaged as a casual employee
somehow becomes something else (e.g. a part-time or full time employee). This is equally made
plain in the detailed statutory “Casual Employment Information Statement” that is provided to
new casual employees (such as the Applicant).
Events of 14, 18 and 19 December 2023
[28] The Applicant attended the Refresh Day (for one and a half hours duration) on 14
December 2023.
[29] She undertook her first shift on Monday, 18 December 2023, between 6:00AM and
2:36PM, including presenting the SM Program between 8:30AM and 11:00AM that day.
[30] Mr Oliver-Taylor first became aware that the Applicant had started working at the ABC
on 18 December 2023, after receiving an email from Mr Anderson that forwarded on external
email complaints that the ABC had received for placing the Applicant on-air.36 At the time that
he received Mr Anderson’s email, Mr Oliver-Taylor was not aware as to whether the Applicant
was working in an area falling within his responsibilities, or an area falling within the
responsibilities of Mr Justin Stevens (ABC Director of News).37
[31] After looking into the matter, Mr Oliver-Taylor reported back to Mr Anderson (on 18
December 2023) that he was not aware of any concerns with the Applicant being on-air arising
from the external complaints identified within Mr Anderon’s email.38 However, Mr Oliver-
Taylor (later in the day on 18 December 2023) became aware of yet further complaints received
by the ABC about the Applicant being or remaining on-air.39 He instructed Mr Latimer to get
someone to have a chat with the Applicant about not making posts to social media. It appears
that Mr Latimer instructed Mr Ahern, who in turn instructed Ms Green, to have this ‘chat’ with
the Applicant. In this regard:
[2024] FWC 1441
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a) At 1:49PM on 18 December 2023, Mr Oliver-Taylor sent the following email to Mr
Ahern (copying in Mr Latimer, Mr Simon Melkman, and Ms Sashka Koloff (ABS
Standards Editor)):
“Hi Steve,
I have been forwarded a number of complaints this morning from the MD’s
office about Antoinette Lattouf and her position on the Israel/Gaza war. You
may need to seek Simon Melkman or Sashka’s advice here, but can we ensure
that Antoinette is not and has not been posting anything that would suggest she
is not impartial, I am concerned her public views may mean that she is in conflict
with our own editorial policies, but Simon and Sashka would be able to advise.
Can we also advise why we selected Antoinette as stand in host?
I am not suggesting we make any changes at this time, but the perceived or actual
lack of impartiality of her views are concerning.
Thanks …”40
b) There is no evidence that Mr Ahern responded to the foregoing email of Mr Oliver-
Taylor, however, at 1:52PM on 18 December 2023, Mr Ahern sent the following
email to Ms Green, copying in Mr Spurway (which forwarded on Mr Oliver Taylor’s
email above):
“Elizabeth,
Can you give me some feedback on the item in question please.
We will need to talk to Antoinette urgently about what she says about Gaza.”41
[32] At about 3:35PM on 18 December 2023, the Applicant’s evidence is that she had a
telephone conversation with Ms Green (Impartiality Conversation) to the following effect:
“Ms Green: We have received heaps of complaints from pro-Israel lobbyists who are
not happy that we have put you on-air.
Me: Have I done or said anything wrong?
Ms Green: No, the show was excellent. Your journalistic integrity is excellent. I
back you.
Me: If I say the sky is blue, they are going to have a problem with it.
Ms Green: Yes, I agree. I just wanted to give you a heads up. And be honest with
you. It really angers me that we even have to have this conversation, it’s
unfair.
[2024] FWC 1441
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Me: Thank you for your honesty.
Ms Green: It’s probably best that you keep a low profile on Twitter and maybe don’t
tweet anything.
Me: I think it’s a bit unfair to ask me not to tweet or post at all. What if I stick
to completely factual information from reputable sources, like an
Amnesty International Report? If another journalist dies, I can’t just say
nothing. I would share something from the committee to protect
journalists. Of course, I am not going to rely on conjecture or spread
misinformation.
Ms Green: Yes, Ok, I understand. That’s fine, facts and reputable organisations.”42
[33] I take Ms Green’s reference to “Twitter” in the foregoing conversation as a reference to
public social media platforms generally (e.g. Tik Tok, Instagram, Facebook, etc, accessible via
the internet or an Application (App) contained on an electronic device such as a mobile
telephone).
[34] From the evidence, I find that the substance of the Impartiality Conversation between
the Applicant and Ms Green was, in summary, to the following effect:
a) the Applicant was told by Ms Green that the ABC had received heaps of complaints
from pro-Israel lobbyists who were not happy that ABC Radio Sydney had placed
the Applicant on-air;
b) Ms Green asked the Applicant to keep a low profile on social media;
c) the Applicant agreed that she would keep a low profile, but advised Ms Green that
she would make social media posts (during 18 to 22 December 2023) from
“reputable sources” about “facts”; and
d) Ms Green’s overall advice to the Applicant was that it would be best to make no
social media posts at all for the rest of the week.
[35] I note that Ms Green’s evidence is that during the Impartiality Conversation she
‘advised’ the Applicant not to make posts, as opposed to ‘directing’ her not to make posts.43 It
can be seen from the evidence covered later in this decision, that there appears to be some
misunderstanding or confusion within the ABC as to what was said by Ms Green to the
Applicant during the Impartiality Conversation (i.e. in terms of what was told to the Applicant
about the making of social media posts in respect of her short tenure at the ABC of only five
days). Mr Oliver-Taylor seems to understand that Ms Green conveyed his ‘direction’ to the
Applicant to not to make any social media posts at all, whilst Mr Ahern seems to understand
that Ms Green ‘directed’ (as opposed to ‘advised’) the Applicant not to make any social media
posts about anything that could be perceived, or otherwise considered, to be controversial.
[36] Subsequent to the Impartiality Conversation, the Applicant sent Ms Green an email,
referring to the Impartiality Conversation, and outlining her quoted responses to questions
[2024] FWC 1441
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asked of her by an individual from Women’s Agenda (on the topic of shared female experiences
concerning the Murdoch press allegedly targeting (bullying) female media personalities for
their critical thinking, such as the Applicant, Ms Patrcia Karvelas, Ms Jeanette Francis, and Ms
Clementine Ford). The Applicant had provided Women’s Agenda with her comments (to the
questions asked of her) on 18 December 2023 (prior to the Impartiality Conversation), and was
making Ms Green aware of such comments for transparency purposes,44 given that the
Women’s Agenda article was likely to be published that evening or shortly thereafter.
[37] The Applicant’s evidence is that Ms Green advised her the next day (19 December 2023)
that the responses that she had made to Women’s Agenda were “all completely fine”.45 There
is no evidence that Ms Green, between 18 and 20 December 2023, made anyone else at the
ABC aware of the comments made by the Applicant to Women’s Agenda (or the fact that the
Applicant had even provided comments to Women’s Agenda). Nor is there any evidence that
anyone at the ABC was otherwise aware of the Women’s Agenda article during this time.
[38] On Tuesday, 19 December 2023, the Applicant undertook her second shift, between
6:00AM and 2:36PM, including presenting the SM Program between 8:30AM and 11:00AM
that day.
The Human Rights Watch Instagram Post
[39] The Applicant discloses in her evidence that she “shared” (i.e. passed on) a post (on the
social media platform Instagram) originally made by a non-government organisation called
“Human Rights Watch” (Insta Post). The Insta Post was publicly shared by the Applicant at
5:51PM on 19 December 2023 (i.e. post the Impartiality Discussion).46
[40] The Insta Post shared by the Applicant reads:
“HRW [Human Rights Watch] reporting starvation as a tool of war”
“The Israeli government is using starvation of civilians as a weapon of war in Gaza”
[41] The Insta Post appears to contain video footage that lasts for a period of 52 seconds.
This video footage was not put into evidence.
[42] The Applicant’s contends in her evidence that the Insta Post is not contrary to the
Impartiality Conversation with Ms Green. In other words, according to the Applicant, Human
Rights Watch is a “reputable source” (like Amnesty International, or the Committee to Protect
Journalists) that only reports completely factual information.47 I note that it is unnecessary for
the purposes of these proceedings for me to consider or otherwise resolve this contention, or
the assertions made by the Applicant that Human Rights Watch is a reputable (as opposed to,
for example, a controversial) organisation, which only reports on factual matters (as opposed
to, for example, drawing its own conclusions or opinions from asserted (disputed and/or
undisputed) facts).
[43] The Applicant does not explain in her evidence her reasons for sharing the Insta Post,
or the necessity to do so on the second day of her five day tenure at the ABC.
[2024] FWC 1441
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[44] Ms Green’s evidence is that she did not consider the Insta Post to be a problem,48 as
Human Rights Watch is (in her opinion) a respected organisation,49 and either the ABC News,
or the BBC News, reported about the same Human Rights Watch story on 20 December 2023.50
Again, it is unnecessary for the purposes of these proceedings for me to consider or otherwise
resolve whether or not Human Rights Watch is a reputable or respected organisation, or the
assertion that the Insta Post is not a problem (or not controversial) because ABC News, or BBC
News, reported on the same Human Rights Watch story.
The ABC’s decision to not require the Applicant to present the SM Program on 21 and 22
December 2023
[45] Mr Oliver-Taylor gave evidence that after becoming aware of the Insta Post, and
consulting with others at the ABC, he made the ultimate decision to take the Applicant “off-
air”, such that the Applicant would not be required to attend for work (or present the SM
Program), on 21 and 22 December 2023.51
[46] In reaching this decision to take the Applicant off-air, Mr Oliver-Taylor first consulted
with three other staff at “Local Radio Sydney” (being Mr Ahern, Mr Latimer, and Mr Melkman)
over a Teams Meeting to discuss options and recommendations surrounding the Insta Post.52
Mr Ahern and Mr Latimer advised Mr Oliver-Taylor that their respective assessments were that
the Insta Post was fundamentally a breach of instruction (such instruction arising from the
Impartiality Conversation with Ms Green).53 Mr Melkman is understood to have agreed with
this assessment. It was the “recommendation” of Mr Ahern, Mr Latimer, and Mr Melkman,54
to Mr Oliver-Taylor, that the Applicant be taken off-air. Mr Oliver-Taylor wanted further time
to consider this “recommendation” before he made a final decision.55
[47] Mr Oliver-Taylor himself considered that the Insta Post may have, or did, breach ABC
policy (namely, ABC social media policy).56 It is unnecessary for the purposes of this
jurisdictional contest that I determine whether or not:
a) the Insta Post did or did not breach any ABC policy (that the Applicant had agreed
to be bound by);
b) Mr Oliver-Taylor held an honest but mistaken belief that the Insta Post breached (or
likely breached) ABC policy/s, including having regard to the reasonableness of Mr
Oliver-Taylor’s belief in the context of the views and recommendations expressed to
him by Mr Ahern, Mr Latimer, and Mr Melkman at the Teams meeting on 20
December 2023;57
c) the Applicant disobeyed what had been requested of her at the Impartiality
Conversation, including as to whether the Applicant had been given a specific
direction, or was only advised, not to make any social media posts, or not to make
social media posts that could be perceived or considered to be controversial
(whatever that means) during her five day engagement at the ABC; or
d) the Insta Post could be perceived or considered as controversial in the context of, for
example:
[2024] FWC 1441
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i) the HRW organisation itself having a history of causing public disagreement
or controversial or unconventional debate;
ii) the veracity of previous posts made, or information distributed, by HRW,
including whether or not such posts or information have been considered to
be impartial and accurate by governments and commentators of all
persuasions; and/or
iii) previous posts made by the Applicant, or previously published (or publicised)
opinions of the Applicant.
[48] After consulting with Mr Latimer and Mr Ahern, Mr Oliver-Taylor took some time out
to consider what decision he would ultimately make in respect of the Insta Post. Mr Oliver-
Taylor and Mr Anderson also had a telephone discussion about the matter.58 Once Mr Oliver-
Taylor had made a decision about the Insta Post, he sent Mr Anderson the following text:
“D [David Anderson], confirming my view is that she [the Applicant] has breached our
editorial policies whilst in our employment. She also failed to follow a direction from
her producer [Ms Green] not to post anything whilst working with the ABC. As a result
of this, I have no option but to stand her down. Call me if you can, but if not possible, I
will action within the hour”.59
[49] Mr Anderson concurred (agreed) with the “decision” that Mr Oliver-Taylor had made.60
[50] I observe that whilst each case will be determined upon its own facts and circumstances,
the mere fact that a Managing Director or Chief Executive Officer may hold some form of veto
power over, or bear ultimate responsibility for, decisions made, or actions taken, within a
corporate structure, does not mean that such Managing Director or Chief Executive Officer
automatically becomes the decision-maker in respect of each and every decision made in an
organisation (i.e. whether consultation has occurred with them in respect of a decision, or
otherwise).
[51] In this case, Mr Oliver-Taylor is quite clear in his evidence that his text message to Mr
Anderson was for the purpose of informing Mr Anderson of Mr Oliver-Taylor’s decision, as
opposed to Mr Oliver-Taylor seeking some form of approval or green light from Mr Anderson
to give effect to that decision (being a decision that Mr Oliver-Taylor had already made, and
had the authority to make).61 Mr Oliver-Taylor wanted Mr Anderson to have the ‘heads-up’ on
the decision that was about to be implemented, give Mr Anderson time to call him if he needed
any further clarification of the circumstances, and all-in-all not have Mr Anderson be unaware
or blindsided by Mr Oliver-Taylor’s decision should Mr Anderson subsequently receive
inquiries (internally or externally) about the matter. I equally note that whilst Mr Oliver-
Taylor’s management approach is to engage in up/down consultation, there is no evidence
before me to the effect that Mr Oliver-Taylor’s role as the ABC’s Chief Content Officer,
including his responsibilities and decision-making authority and delegations, were
compromised or undermined by Mr Anderson or any specific individual at the ABC. To extent
that it is relevant to the factual matrix in this case, I find that Mr Oliver-Taylor was the decision-
maker who made the decision to take the Applicant off-air, after engaging in an up/down
consultation process.
[2024] FWC 1441
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[52] Mr Oliver-Taylor subsequently telephoned Mr Latimer to advise him that he had made
a decision to take the Applicant off-air, and requested that he advise Mr Ahern to call the
Applicant in for a meeting to advise her of this decision.
Events of 20 December 2023
[53] After the Applicant presented the SM Program on Wednesday, 20 December 2023,
between 8:30AM and 11:00AM, she then attended an all staff Station meeting, and a further
internal planning meeting.
[54] Between around 1:00PM and 1:30PM on 20 December 2023, Mr Ahern received a
telephone call from Mr Latimer. In that call, Mr Ahern’s evidence is that Mr Latimer stated to
him:
“We have had some discussions and we will have to take Antoinette off air. Can you
tell her that she won’t be needed for the rest of the week, please?”62
[55] Post this telephone call, the Applicant was asked to attend a meeting with Mr Ahern, Mr
Spurway, and Ms Green (20 December Meeting).
[56] In respect of what was said or discussed at the 20 December Meeting, Mr Ahern sets
out his contemporaneous recollection of the discussion in an email sent to Mr Oliver-Taylor,
Mr Latimer and Mr Melkman, as follows:
“Chris and Ben,
Confirming that I had a short conversation with Antoinette in the manager’s office of
ABC Radio Sydney at about 1245 today. Witnesses were Mark Spurway and Elizabeth
Green.
In that conversation I made the following points:
1. Elizabeth [Ms Green] backgrounded you earlier this week on a perception of bias on
the Israel-Gaza situation.
2. Elizabeth advised you not to post anything that could be perceived as controversial
on your socials, while you are on air with us this week. You acknowledged that you
understood.
3. 20 hours ago you shared a post that could be considered controversial and was about
Israel-Gaza.
4. In the context of your other posts, this is considered a breach of ABC policies and so
you will not be required to present the last two programs you have been booked to
present tomorrow and Friday.
[2024] FWC 1441
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Antoinette was quiet and accepted the information without comment. At the end she
said that she had been asked not to comment on Israel-Gaza on her program and she had
not done so, she had kept it a light holiday feel. I acknowledged her points and agreed
that she had not discussed Israel-Gaze in the show, I also said that this was not about
the show, it was about social media posting that she had been asked not to do.
She also said she considered the post factual. I did not comment on whether the post
was factual or not, but repeated that it was a post about Israel-Gaza, and that she had
been asked not to post about that while she was on air with us this week. She did not
reply to that.
The meeting took about 5 minutes. At the end, I asked her to explain to her production
team that she would not be doing the show on Thursday and Friday then to leave as soon
as possible after that.
I then explained the situation to the production team using the points above. Two of the
three in the team are experienced ABC producers and understood, the third is a younger
producer who did not have any experience of such things. One of the experienced
producers asked did the ABC cave in to the Jewish lobby, I explained that this was about
a breach of ABC policies and that Antoinette had been asked not to post about it but had
done so.
…”63
[57] I do not consider there to be significant or important differences between the
recollections of the 20 December Meeting by those persons present. On the evidence,64 I make
the following specific findings as to what was said at the 20 December Meeting:
a) the Applicant was reminded of the Impartiality Conversation with Ms Green;
b) the Applicant was advised that because she shared the Insta Post concerning (or
relating to) the on-going conflict between Israel and Hamas, being a post that was,
or could be considered to be, controversial, she breached ABC policies;
c) the Applicant was advised that a decision had been made for her to be taken off-air.
She was no longer required to present the SM Program, or otherwise come into work,
on 21 (Thursday) and 22 (Friday) December 2023;
d) the issue did not concern the Applicant’s work or performance on the SM Program
itself, rather, the issue was that she had been told not to make social media posts for
the whole of the five days she would be presenting on the show, but she did so
anyway; and
e) the Applicant was requested, at the conclusion of the meeting, to advise her relevant
work colleagues that she will not be presenting the SM Program for the remainder of
the week, collect her personal belongings, and leave the ABC premises at her earliest
convenience (i.e. not complete the remainder of her shift that day).65
[2024] FWC 1441
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Events after the 20 December Meeting
[58] At the conclusion of the 20 December Meeting, the Applicant immediately returned to
her desk to collect her belongings and made her way out of the ABC’s premises. Whilst she
was leaving, she ended up having a further conversation with Ms Green in an empty ABC
boardroom. What the Applicant says was said during that conversation is disputed by Ms
Green.66 In circumstances where the essential elements of the conversation are based upon
hearsay and opinion (as to who made the decision to take the Applicant off-air and why), I do
not consider it necessary to make findings as to the content of this conversation, beyond that it
is agreed by both the Applicant and Ms Green that in concluding their conversation, words to
the following effect were exchanged between them:
Applicant: I will never work at the ABC again [as a presenter].
Ms Green: Not if I can help it. I would love to have you back.
[59] At 5:23PM on 20 December 2023, the Applicant sent an email to Mr Ahern, Mr
Spurway and Ms Green (Clarification Email), which reads:
“Hello Mark, Steve and Elizabeth,
I have some questions regarding my departure that I would like answered please. I
believe I was unfairly dismissed and there will also be reputational damage due to the
unfair manner in which I was let go and the very quick leak to the media.
As you are aware, today, at approximately 1.45pm, I was summoned by Steve for a
quick chat. Mark and Elizabeth also joined the meeting.
In this short meeting, I was told that I was being let go because of one specific social
media post (an Instagram story) which I have attached below. Can you please confirm
whether the attached Instagram story is the social media post which the ABC alleges
was in breach of the social media policy? Can you please also:
• specify exactly which section of the ABC’s social media policy I allegedly
breached by sharing that post; and
• explain as to how this post is said to be in breach of the guidelines.
I note that, on Monday 18th December I received a call from Elizabeth Green at
approximately 3.30pm. We had a very honest and respectful discussion during which
she told me that Jewish lobbyists were unhappy that I was on air. Elizabeth told me
multiple times that she has absolute faith in my “journalistic integrity” and gave me a
heads up to be mindful on social media. We talked about the show that day, and I was
told the content was excellent, “no issues whatsoever”. I responded by saying “I don’t
think it’s fair to expect me to stop posting all together but I will be even more mindful”.
Elizabeth responded by saying that “I know that you are. You’re smart and professional
which is why I chose you and trained you to present”. I then specifically asked if another
“journalist gets killed or a reputable NGO like Amnesty International has information,
[2024] FWC 1441
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am I able to share that without any loaded commentary or anything, but just quote an
agency” and Elizabeth said, “yes that’s fine.” Elizabeth also repeated in the meeting
that, yes, she has told me that sharing straight facts and reputable sources was a “fine”
and that she had told other senior management this too.
• Can you please explain how I’m said to have breached the social media
guidelines when I was following an express direction given to me about the
application of social media? Can you please also explain why any such breach
warrants summary dismissal?
Further, at lunchtime today (Wednesday 20th) there was a station meeting where the
following two things were expressed:
- I was singled out by Mark, thanked for the work I am doing, told I am
“sounding great” and the audience are “responding very well”
- The team was also reminded not to leak internal ABC Radio Sydney
information to the media following the SMH leak as it erodes team trust.
In light of this can you please:
• Explain why I was dismissed less than an hour after being told my work was
“great?”
• Can you please shed some light as to how the story got to The Australian so
quickly because there was an article published before I even got home. It was
less than an hour from when we had our discussion in Mark’s office.
• Who made the final decision that my dismissal was warranted?
This has been an incredibly stressful week, since receiving that call on Monday, I have
had trouble sleeping and worked incredibly hard to produce excellent radio. The manner
in which this has unfolded is incredibly distressing.
Given how swiftly this is playing out in the media, I would appreciate a swift reply as I
have already been contacted by five media outlets and would like to respond to them by
8pm.
Many thanks,
Antoinette”67
[60] There was no response from anyone at the ABC to the Clarification Email. Rather, the
Clarification Email was forwarded on internally to ABC legal.68
[61] There is no evidence before me of any concerns or other issues with the Applicant’s on-
air presenting on the SM Program for the three days of 18, 19 and 20 December 2023.
[2024] FWC 1441
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The media interest
[62] At 1:30PM on 20 December 2023, Journalist and Media Writer for the Australian
newspaper, Ms Sophie Elsworth, sent an email to Mr Nick Leys, ABC Head of
Communications, and Ms Sally Jackson, ABC Deputy Head of Communications, making
various inquiries as to the Applicant’s engagement by, and tenure at, the ABC.69
[63] Ms Elsworth’s questions went unanswered, however, Mr Leys did provide the following
email response to Ms Elsworth (at 2:05PM that day):
“From an ABC spokesman please:
ABC Sydney casual presenter Antoinette Lattouf will not be back on air for her
remaining two shifts this week.”70
[64] There were subsequent reports published across a range of media outlets asserting that
the Applicant had been sacked, removed from the airwaves, or was not returning to ABC
programming ever again. These media reports are advanced by the Applicant in these
proceedings in support of her contention that she was dismissed by the ABC. Given that they
are sought to be relied upon for this purpose, it is unnecessary for me to consider them. In this
regard, the media reports contain references to various so-called leads, selective quotes, and
alleged data leaks (from WhatsApp groups). I equally observe that some of these media reports
appear to have derived much of their content from ‘backgrounding’, or anonymous and
undisclosed sources, and contain matters of hearsay and opinion (which on their face, do not
have their origins from any identifiable or verifiable evidence before me). The fact that these
media reports exist takes the resolution of these proceedings nowhere.
The legislation – unlawful termination – requirement for an employee’s employment to
have been “terminated” to be resolved by the Commission
[65] Section 772(1) of the Act reads:
“(1) [When employer must not terminate employment]
An employer must not terminate an employee’s employment for one or more of
the following reasons, or for reasons including one or more of the following
reasons:
(a) temporary absence from work because of illness or injury of a kind
prescribed by the regulations;
(b) trade union membership or participation in trade union activities
outside working hours or, with the employer’s consent, during working
hours;
(c) non-membership of a trade union;
[2024] FWC 1441
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(d) seeking office as, or acting or having acted in the capacity of, a
representative of employees;
(e) the filing of a complaint, or the participation in proceedings, against
an employer involving alleged violation of laws or regulations or
recourse to competent administrative authorities;
(f) race, colour, sex, sexual orientation, breastfeeding, gender identity,
intersex status, age, physical or mental disability, marital status, family
or carer’s responsibilities, subjection to family and domestic violence,
pregnancy, religion, political opinion, national extraction or social
origin;
(g) absence from work during parental leave;
(h) temporary absence from work for the purpose of engaging in a
voluntary emergency management activity, where the absence is
reasonable having regard to all the circumstances.
Note: This subsection is a civil remedy provision (see Part 4-1).”
[66] Section 773 of the Act reads:
“If:
(a) an employer has terminated an employee’s employment; and
(b) the employee, or an industrial association that is entitled to represent
the industrial interests of the employee, alleges that the employee’s
employment was terminated in contravention of subsection 772(1);
the employee, or the industrial association, may apply to the FWC for the FWC
to deal with the dispute.”
[67] Section 776 of the Act reads:
“(1) [When FWC must deal with disputes (other than by arbitration)]
If an application is made under section 773, the FWC must deal with the dispute
(other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by
making a recommendation or expressing an opinion (see subsection 595(2)).
(2) [Conferences must be private]
Any conference conducted for the purposes of dealing with the dispute (other
than by arbitration) must be conducted in private, despite subsection 592(3).
[2024] FWC 1441
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Note: For conferences, see section 592.
(3) [Certificate if dispute not resolved]
If the FWC is satisfied that all reasonable attempts to resolve the dispute (other
than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it,
that arbitration under section 777, or an unlawful termination court
application, in relation to the dispute would not have a reasonable
prospect of success, the FWC must advise the parties accordingly.
(4) [Meaning of unlawful termination court application]
An unlawful termination court application is an application to a court under
Division 2 of Part 4-1 for orders in relation to a contravention of subsection
772(1).”
[68] Aside from consent arbitration, the Commission’s only role in an unlawful termination
application is to conduct a conference between the relevant parties (so as to assist them in
attempting to resolve the unlawful termination application by agreement), or issue a certificate
if a resolution is unable to be agreed (a certificate is a prerequisite to being able to progress a
claim onto an eligible court for judicial determination). That said, the power to conduct such a
conference and issue a certificate is provided for under the Act, and the Commission has no
jurisdiction to conduct a conference (s.776(1)), or issue a certificate post that conference (where
resolution is unable to be reached, s.776(3)), unless a ‘valid’ (or within jurisdiction) unlawful
termination application has been filed. It is for the Commission to resolve any disputes or issues
as to its jurisdiction in this regard for itself.71
What does ‘termination’ mean under s.773(a) of the Act?
[69] It can be seen that under s.773(a) of the Act, for an application based upon an alleged
“unlawful” termination of employment to proceed, an employee must have been “terminated”
from their employment.
[70] The term “termination” is not defined by the Act. Both parties submit that the term
should be defined by reference to the meaning of the term “dismissed” under s.12 and
(relevantly) s.386(1)(a) of the Act, and applicable case law authorities in respect of same.72 I
see no reason as to why the position of the parties ought not be adopted in these proceedings.73
‘Dismissal’ under s.386(1) of the Act
[71] Section 386(1) of the Act reads:
“(1) A person has been dismissed if:
[2024] FWC 1441
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(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her employer.”
[72] In Khayam v Navitas English Pty Ltd t/a Navitas English74 (Navitas), the Full Bench
majority held that the analysis as to whether there has been a termination (dismissal) at the
initiative of the employer for the purposes of s.386(1)(a) of the Act is to be conducted by
reference to the employment relationship, not by reference to the termination of an employment
contract operative immediately before the cessation of employment.
[73] Post the decision in Navitas, the Full Bench majority in NSW Trains v James75
determined that the expression “employment … has been terminated” (in s.386(1)(a) of the Act)
refers to termination of the employment relationship and/or termination of the contract of
employment.76
[74] In Alouani-Roby v National Rugby League Limited77, the Full Bench of the Commission
stated:
“[123] Before turning to consider the appeal grounds in the present case, we make some
general observations. As the cases establish, the central question posed by s.386(1)(a)
is whether a person has been dismissed by virtue of the person’s employment being
terminated on the employer’s initiative. The use of the verb “terminated” does not
require the legal event that ends the relationship to be an action of the employer and
simply requires that the employer initiate the ending of the employment.
[124] Sections 386(1)(a) (and (b) which deals with forced resignation and is not
presently relevant) exclusively define the circumstances in which a person has been
dismissed. There is no reference in s.386(1) to the concept of an employment contract
or an employment relationship and generally such a distinction is not central to the
analysis of whether a person has been dismissed. However, the distinction may be
relevant in circumstances, such as those which arose in Khayam v Navitas and NSW
Trains v James. Such a distinction was also of significance in Broadlex which concerned
the entitlement of an employee to be paid redundancy pay in circumstances where the
employee remained in employment with the employer but her status and working hours
were altered from full time to part time, because the employer’s contracted cleaning
hours were reduced. Relevantly in that case, s.119(1) of the FW Act provides that an
employee is entitled to redundancy pay “if the employee’s employment is terminated …
at the employer’s initiative”.
[125] The employment relationship and the employment contract are interrelated. The
contract of employment creates the basis of and underpins, the employment relationship.
As McHugh and Gummow JJ observed in Byrne v Australian Airlines Ltd:
[2024] FWC 1441
26
“The evolution in the common law as to the relationship of employment has
been seen as a classic illustration of the shift from status (that of master and
servant) to that of contract (between employer and employee).”
[126] And in WorkPac v Rossato the plurality cited the judgement of French CJ, Bell
and Keane JJ in Commonwealth Bank v Barker who said:
“The employment relationship in Australia operates within a legal framework
defined by statute and by common law principles, informing the construction
and content of the contract of employment.”
[127] Also, as Katzman J observed in Broadlex: “The employment relationship is
inherently a contractual one. Consequently, there can be no employment relationship
without a contract of employment.”
[128] The Full Bench in Khayam v Navitas did not determine that the contract of
employment is irrelevant to the question posed by s.386(1)(a) and nor did it establish a
principle that the circumstances of the entire employment relationship trump the terms
of an employment contract in all cases. Rather, it emphasised that there may be cases
where, notwithstanding that employment has ended at the same time as the end date in
a time-limited contract, and ostensibly in accordance with the terms of the contract, it
will be necessary to analyse the entire employment relationship to determine whether
an employee has been dismissed within the meaning of s.386(1)(a).
[129] Further, the Full Bench in Khayam v Navitas did not assert in the first principle
[at paragraph [75] of its decision] that in all cases, the question of whether a person has
been dismissed, is answered by focusing only on the employment relationship and
whether it has ended, in isolation from whether there has been a termination of the
contract of employment. The paragraphs preceding the principle in paragraph [75](1)
deal with propositions that the definition of “dismissed” in s.386(1) is not to be read as
excluding in all circumstances, a termination of employment that occurs at the end of a
time limited contract of employment, and 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 parties that employment should come to an
end not later than a specified date, will not by itself, constitute termination of
employment.
[130] This is also evident from the fact that the first principle in [75](1) is expressed
with an important qualification, that where the employment relationship is made up of
a sequence of time-limited contracts, analysing whether there has been a dismissal for
the purposes of s. 386(1)(a) of the FW Act, may, depending on the facts, require
consideration of the circumstances of the entire employment relationship rather than the
terms of the last of those employment contracts. Subsequent principles set out by the
Full Bench make clear that this broader analysis will not be appropriate in all cases and
there will be cases where the circumstances of the entire employment relationship do
not establish anything other than a genuine agreement, constituted by a time limited
contract, that employment will not continue after a specified date.
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[131] For the purposes of analysing whether there has been a dismissal, within the
meaning in s.386(1)(a), consideration of the entire employment relationship as posited
by the Full Bench in Khayam v Navitas, includes consideration of the contract of
employment in operation at the time of the employment ending and may also include
consideration of other employment contracts during the entire employment relationship
(or series or employment relationships as posited by Katzman J in Broadlex). As we
have noted, the contract of employment is fundamental to, and underpins, the
employment relationship. In addition to the terms of the contract, consideration of the
entire employment relationship may, depending on the facts, require examination of a
range of matters encompassed in the principles set out in paragraph [75] by the Full
Bench in that case, including: the field of employment in which the contract operates;
the terms of any industrial instruments including awards and enterprise agreements
applicable to the relevant employment; all contracts in a series of time limited contracts;
the context in which the contract of employment and the employment relationship
operated; conduct of the parties during the relationship and the circumstance in which
the employment ended. Consideration may also be required as to whether there are
vitiating factors so that there is no legally effective time limit on the employment.”78
(citations omitted)
Termination at the employer’s initiative
[75] In Quirk v Construction, Forestry, Maritime, Mining and Energy Union79 (Quirk), a
decision by the Divisional Executive of a union to remove two employees from their elected
positions, which consequently caused their employment to be terminated, was found to
constitute a “dismissal” for the purposes of section 386(1)(a) of the Act. After pointing out that
a termination will be at the employer’s initiative if the act of the employer directly or
consequentially results in termination,80 Perram J stated:
“218. The Applicants submitted that the act of the Divisional Executive in removing
them from office under Rule 11 [of the union’s rules] was the principal contributing
factor to the termination of their employment. The Respondents, on the other hand,
denied that the employment relationship had been terminated at all. In their submission,
what had in fact happened was that the employment relationship had ended by operation
of law on their removal from office.
…
221. I do not think that it can be doubted that the actions of the Divisional Executive are
directly linked in a causal sense to the ending of the relationship of employment. The
question which arises is whether it can be said in terms of s.386(1) that the ending of
the employment relationship in that way falls within the expression ‘has been terminated
on [the Federal Union’s] initiative’.
222. It is established that the use of the passive verb ‘terminated’ does not require the
legal event which ends the relationship to be the employer’s. Thus in Mohazab, the
employer accused the employee of the theft of an item of stock. It invited him to resign
otherwise the police would be called in to investigate. The employee resigned. The
question was whether the termination of the employment relationship was at the
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initiative of the employer. It was held, notwithstanding the fact that it was the employee
who had brought the employment relationship to an end by resigning, that what had
occurred was a termination of the employment at the initiative of the employer (and
hence a dismissal). The correctness of this analysis was affirmed in a considered obiter
dictum by the Full Court of this Court (Jessup, Tracey and Barker JJ) in Mahony81 at
[21].
223. The question at hand is the meaning of the word ‘terminated’ in s.386(1). What
that provision requires is two things: (a) an initiative of the employer; that (b) results in
the termination of the employment relationship. The provision does not require the
employer to pull the trigger but only to load the gun. In my view, the provision is
expressed in such a way that it is agnostic as to the precise means by which the
employment relationship comes to an end. Its focus is upon, however it might have
ended, at whose initiative this occurred.
224. I do not accept that a contract which comes to an end under its own terms cannot
in any circumstance constitute a termination within the meaning of s 386 (although this
issue does not strictly arise). If it does then the termination provisions contain a lacuna.
For example, if a contract of employment made provision for the issue of a notice of
termination by an employer in certain circumstances and a later provision saying that
the employment relationship would come to an end 7 days after the issue of the notice
then this would be an example of the employment relationship coming to an end by
operation of law. The termination clause would take its effect upon the occurrence of a
given factual circumstance but it is the operation of the contract and not the factual
circumstance which would result in the termination of the employment relationship.
225. I therefore do not accept the Respondents’ submission that there can be no
termination of an employment relationship purely because the contract of employment
came to an end by operation of law. Nor do I accept that Mylan82 stands in the way of
that conclusion. As I have already indicated, the critical part of his Honour’s reasoning
is the statement that ‘any employment was at an end without any necessity for action by
the union’. I do not read his Honour’s statement ‘In any event, Mr Mylan’s office (and
any employment) was lost by operation of law as a result of the Orders’ as a holding
that in every case where a contract of employment ends by operation of law there can
be no termination within the meaning of s.386. I would accept that Mylan is authority
for the proposition that where a contract of employment ends by operation of law
without any act by the employer then there will be no termination within the meaning
of s.386. But I do not accept that his Honour intended to say, or did say, anything about
the situation where a contract of employment ends by operation of law as a result of the
actions of the employer. Facts of that kind were not before the Court in Mylan.”83
Acceptance of a breach (or repudiation) is not required to terminate an employment
relationship
[76] In Broadlex Services Pty Ltd v United Worker’s Union84 (Broadlex) Justice Katzmann
clarified that acceptance of a breach of contract (election) is not required for an employment
relationship to be terminated:
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“By repudiating the contract the employer terminates the employment relationship. By
accepting the repudiation the employee brings the employment contract to an end.”85
Applicant’s Submissions - The Applicant’s employment was terminated at the ABC’s
initiative
[77] The Applicant submits that any reasonable person in her position (who had knowledge
of the background facts and dealings between the parties) would have understood that they had
been terminated from their employment by the ABC (i.e. ‘dismissed’ within the meaning of
s.386(1)(a) of the Act). This is especially so in circumstances where the ABC did not respond
to the Applicant’s email of 20 December 2023, 5:23PM (see paragraphs [59] to [60] of this
decision).86
[78] In closing oral submissions, Mr Gibian SC put the Applicant’s primary case as one of
‘termination’ (i.e. a ‘dismissal’ within the meaning of s.386(1)(a)), as follows:
“… our primary submission is that the ABC expressly terminated Ms Lattouf’s
employment by its conduct on 20 December 2023 by calling her to a meeting; informing
her that it was alleged that she had breached ABC policy; informing her that as a
consequence of that alleged breach in policy she was not to complete the only remaining
work in her employment, that is presenting the on air shifts on the Thursday and Friday,
and in directing her to leave the premises. That is an express termination plainly falling
within the concept of termination on the employer’s initiative.”87
“… the applicant’s case does not depend upon demonstrating a contractual right to
perform the work on the Thursdays and the Fridays at all. That is a complete distraction
from the primary argument that we make which focuses upon the termination correctly
consistently with authority upon the termination of employment relationship. To the
extent that that argument has any relevance it’s only to the alternative repudiation
argument. It has no relevance with respect to the principal argument that we seek to
advance that there was an express termination of the employment relationship.
To grapple with that argument one has to understand, well what is the employment
relationship here. Here it is clear, consistent with the authorities, that the relationship is
not necessarily coincidental with or restricted to the contract of employment. Here the
relationship, and the only employment relationship which Ms Lattouf had as at 20
December 2023, was the particular engagement to perform on air work on the five
morning shifts between Monday 18 December and Friday 22 December 2023.”88
[79] Mr Gibian SC also identified the following propositions from case law:
a) a termination of employment at the initiative of the employer is one where the action
of the employer is the principal contributing factor to the termination of the
employment relationship;
b) the act of the employer that terminates the employment relationship is not only the
act that puts in train the process leading to its termination, but is, in substance, the
[2024] FWC 1441
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entire process, i.e. it is not simply a question of whether the act of the employer
resulted directly or consequentially in the termination of employment;
c) there must be some action on the part of the employer which is either intended to
bring the employment relationship to an end or have the probable result of bringing
the employment relationship to an end;
d) a termination of the employment relationship may occur even if the employment
contract is not breached, or otherwise persists post the employment relationship
ending. The focus is upon the action of the employer, whether it be authorised by
the contract or not, such that it was intended, or had the probable result of, bringing
the employment relationship to an end;
e) determining whether or not there has been a termination of the employment
relationship requires an objective analysis, but the full context of what occurred
must be properly considered in any such analysis;
f) the objective analysis to be made focuses upon what a reasonable person in the
position of the parties (or a party), who had knowledge of the background dealings
between the parties, would have understood;
g) the use of words such as ‘dismissed’, ‘sacked’ and ‘terminated’ are not determinative
of a termination taking place. Such words need not be said for a termination of the
employment relationship to occur; and
h) the mere possibility that an employee may be offered further work into the future
does not mean that a termination of employment did not occur;89
[80] As to the status of the Casual Employment Contract, Mr Gibian SC submitted:
a) The Casual Employment Contract is not a contract at all, as it contains no offer of
work. Rather, its terms only become operative or take effect in the event that there
is a particular engagement. Indeed, on its own terms, the Casual Employment
Contract states that it does not constitute an offer or guarantee of employment. This
is fundamentally inconsistent with the ABC’s primary submission that there is some
sort of free standing employment relationship which persists whether or not offers
of any particular engagement have ever been made.
b) Whilst the Casual Employment Contract did apply on its terms to the Applicant’s
engagement between 18 and 22 December 2023, the Casual Employment Contract
is not of itself some form of ongoing overarching or ‘Umbrella’ contract. It equally
follows that there can be no ongoing or persistent employment relationship between
the Applicant and the ABC, independent of any offer and acceptance of an actual or
specific engagement to undertake work. Accepting this, the only employment
relationship (or employment) that the Commission is considering in these
proceedings is that arising from the employment offer to the Applicant to work five
on-air shifts on the SM Program from 18 to 22 December 2023.90
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ABC’s Submissions - The Applicant’s employment was not terminated at the ABC’s
initiative
[81] The ABC relies upon the following written submissions on the issue of the Applicant’s
termination (which it says never occurred):
“[33] For the reasons that follow, the ABC’s evidence clearly demonstrates that Ms
Lattouf’s employment was not terminated by the ABC.
[34] First, the [Casual Employment] Contract contemplated that:
(a) Ms Lattouf would be offered, from time to time, casual engagements, which
she was free to accept or decline.
(b) Each engagement, if accepted, would be separate and, importantly, “will
cease at the end of that engagement without the need for any action by the ABC”
– that is, it would cease by effluxion of time in accordance with the terms of the
[Casual Employment] Contract.
(c) The ABC would advise Ms Lattouf of the duration of the engagement, the
hours of work required, and the work to be performed.
(d) At any time before an engagement commences, or during the period of an
engagement, the ABC might advise Ms Lattouf of changes to the engagement,
including the hours of work required or the work to be performed.
(e) Any engagement under the [Casual Employment] Contract might be
terminated by either party with one hour’s notice.
(f) If either party gives such notice of termination, the ABC might bring Ms
Lattouf’s employment to an end immediately and make a payment to her in lieu
of any outstanding period of notice.
[35] Second, what occurred on the evidence …, as a matter of fact, is that:
(a) Ms Lattouf was offered and accepted the Engagement, being a fill in position
for “Sydney Mornings” from 18 to 22 December 2023, inclusive. Ms Lattouf
was rostered to work 7:36 hours each day.
(b) On Wednesday, 20 December 2023, she was advised that she would not be
required to present on Thursday and Friday, being the last two shifts of the
Engagement. That is, the ABC altered the work that Ms Lattouf was required to
undertake on the last two shifts (that is, the ABC did not require her to undertake
any work).
(c) The ABC paid Ms Lattouf for all five shifts of the Engagement.
[2024] FWC 1441
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[36] Third, the ABC did not exercise its right to terminate the Engagement in accordance
with [Casual Employment] Contract. It could (and it was required to) have done so on
one hour’s notice, or payment in lieu of notice. On the objective business records, that
did not happen.
[37] Finally, and by reason of the above, the Engagement came to an end on 22
December 2023, whereupon the Engagement ceased by effluxion of time in accordance
with, and by the operation of, the terms of the [Casual Employment] Contract, without
the ABC doing, or needing to do, anything to terminate the Engagement.
[38] It follows that the ABC did not do anything that terminate Ms Lattouf’s
employment, or that had the effect of doing so.
[39] Accordingly, the Commission should uphold the first jurisdictional objection.”91
[82] In oral submissions, Mr Neil SC made the following supplementary points on behalf of
the ABC:
a) When determining whether a termination was at the employer’s initiative, an
objective analysis of what the ABC said and did is required. Subjectivity is
irrelevant.92
b) The salient facts in this case are as follows:
i) whatever complaints (about the ABC putting the Applicant on its radio
airwaves) that the ABC received on 18 and 19 December 2023, nothing was
done in response to those complaints as they concern the Applicant (i.e.
beyond requesting that the Applicant not make social media posts, per the
Impartiality Conversation with Ms Green on 18 December 2023);
ii) on 20 December 2023, the ABC became aware that the Applicant had made
the Insta Post the day prior. This gave rise to a series of internal deliberations
in the ABC, which culminated in Mr Oliver-Taylor making the decision that
the Applicant would not be required to work the last two days of her casual
engagement (or present on the SM Program on those two days);
iii) at no time did the ABC consider, let alone utilise, it’s right under the Casual
Employment Contract to terminate the Applicant on one hour’s notice;
iv) what was said to the Applicant at the 20 December Meeting was that she was
told she would not be required to present on the SM Program on 21 and 22
December 2023, and that she was to leave the ABC premises at her
convenience (i.e. she would not need to wait around until her shift finished
at 2:36PM that day). The Applicant was never told that she was dismissed,
terminated, or sacked;
v) the Applicant was not asked to return her security pass, return any
information belonging to the ABC, and she remains an employee on the
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ABC’s electronic employment systems. Indeed, the Applicant continues to
have access to the ABC’s electronic employment systems; and
vi) the Applicant was paid her wages for the whole of the five day casual
engagement in the ordinary pay cycle.
c) The ABC’s case in a nutshell is that from the perspective of the employment
contract, or the employment relationship, there has been no termination at the
initiative of the ABC. In this regard:
i) from a contractual perspective, the ABC was entitled to do as it did. The
ABC’s actions left both the Casual Employment Contract (as an Umbrella
contract), and the Applicant’s casual engagement for the period 18 to 22
December 2023, contractually intact. The Casual Employment Contract
simply continues on, and the casual engagement for the period of 18 to 22
December 2023 ended in accordance with the terms of the Casual
Employment Contract - by way of effluxion of time;
ii) from the employment relationship perspective:
• the relationship continues on (i.e. notwithstanding the conclusion or
expiry of the casual engagement for the period 18 to 22 December 2023);
or
• in the alternative, the relationship was suspended, following the casual
engagement for the period 18 to 22 December 2023 coming to an end in
accordance with the terms of the Casual Employment Contract (and not
by way of termination).
d) In respect of the Applicant’s submissions that the Casual Employment Contract does
not ‘on its face’ purport to constitute a contract,93 that submission is contrary to the
express terms of the contract;94
e) In respect of the Applicant’s submissions that the Casual Employment Contract is
not a contract,95 such submissions must be rejected. The Casual Employment
Contract is a contract that operates at two levels:
i) firstly, it constitutes the contract of casual employment between the
Applicant and the ABC, and gives rise to the relationship of employment;96
and
ii) secondly, it operates as an Umbrella contract that governs particular
engagements between the parties, and in doing so it does three things, by
setting out or stipulating:
A. a scheme by which casual engagements will be offered and accepted;
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B. a contractually mandated mechanism for establishing the details of each
engagement; and
C. the terms that will apply to each engagement.97
f) The conventional position is that casual employment involves a series of contracts,
or one or more contracts or engagements. This gives rise to two possibilities,
depending upon the contractual framework, and the facts, as follows:
a) one possibility is that the employment relationship continues in intervals
between each casual engagement. This is what the ABC says occurred here, in
that “the incidents of the relationship that the Umbrella contract [Casual
Employment Contract] contemplated would subsist in the intervals between
particular engagements, [which includes] the continued existence of the
Umbrella contract, and the fact that during the continuation of the Umbrella
contract the Applicant remained on the ABC’s books (holding a security card,
being present (or alive) on the ABC’s electronic employment systems, and
available to be offered work pursuant to the terms of the Umbrella contract).”98
b) the second possibility is that the employment relationship is suspended during
each of the intervals between engagements. And if that is what occurred here,
then it did not occur at the ABC’s initiative, but by operation of the contract.99
g) The core issue in this case is that the Applicant’s case, on every basis that it is put,
depends upon the Applicant’s contention that she had a contractually recognised
right to work, or to do the work of a presenter on the SM Program for five
consecutive shifts commencing on Monday, 18 December 2023. But the terms of
the Casual Employment Contract (express or implied) do not provide for such right
to work (as a presenter, or at all). An analogy is to be made with the concept of
‘gardening leave’, whereby an employee is directed not to attend or perform work,
but is nonetheless paid in accordance with the terms of their employment contract.
If the employee’s employment contract does not provide them with a right to work,
then a direction not to attend or perform work does not terminate either the
employment relationship or the employment contract (or give rise to a right to
terminate the employment contract or the employment relationship by either party).
Gardening leave is essentially what happened in this case, and is expressly
authorised under the terms of the Casual Employment Contract.100
h) The Applicant’s contention as to a right to work, by reference to the express terms
of the Casual Employment Contract, does not grapple with the “entire agreement”
term. This term ought to be given its ordinary meaning, and conventional operation.
It means exactly what it says, which is that the employment contract between the
Applicant and the ABC is wholly written (being the words, and the meaning of those
words, contained in the Casual Employment Contract).
i) The Applicant’s contention that the Casual Employment Contract is incomplete and
missing terms that one would expect to see in an employment contract (e.g. the
nature of work to be performed, and the time of its performance) is central to her
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case. Indeed, it is the basis upon which the Applicant says that asserted gaps in the
contract can be filled with additional terms, and that the entire agreement clause is
to be disregarded, or not be taken to mean what it says, or operate as it says, or not
be applied to the new or additional terms that fill the gaps.
j) The ABC understands that the Applicant’s case as to incompleteness proceeds as
follows:
i) the Casual Employment Contract is incomplete;
ii) by virtue of (i), notwithstanding the entire agreement clause, the Casual
Employment Contract also contains terms extraneous to its written words.
For example, an express term that the employment contract between the
parties required the ABC to allow the Applicant to work as a presenter on
the SM Program for five successive shifts, in the week commencing
Monday, 18 December 2023. Such an express term is said to arise from the
Applicant’s conversation with Ms Green on 17 November 2023 (when Ms
Green first telephoned the Applicant to ask her if she was available, and
would like, to present on the SM Program in the working week commencing
18 December 2023).101
k) However, the Applicant’s incompleteness argument is flawed, because the Casual
Employment Contract is not incomplete. In this regard:
i) the plain meaning and effect of clause 1 of the Casual Employment Contract,
particularly clause 1, is that the contract is made an express term of each
engagement; and
ii) each engagement under the contract cannot be to do a specified thing (such
as being the presenter on the SM Program), because that thing can be
unilaterally changed by one party (the ABC) at any time;
l) the Applicant’s submission, that a clause permitting a unilateral variation of an
employee’s duties should not be construed to permit a change to the express terms
of the contract without the clearest words (especially if the change alters the essence
of the contract to allow the Applicant to perform the work of presenter on the SM
Program), beguiles the fact that the words of the Casual Employment Contract could
not be clearer;102
m) there is no express term of the Casual Employment Contract that can be construed
as the ABC being obliged to have the Applicant be the presenter on the SM Program
for the period 18 to 22 December 2023;
n) drawing the strings together, firstly, the conversation with Ms Green on 17
November 2023 is excluded by the entire agreement clause. Secondly, even if the
entire agreement clause does not apply, the Casual Employment Contract cannot be
construed to do a specific or particular thing, because that thing can be unilaterally
changed (varied) at any time.
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o) as to the Applicant’s case that a term is to be implied into the Casual Employment
Contract that the Applicant had a recognised right to work, as a presenter, or at large,
the ABC says that:
i) the case law determinations in which such a term has been implied are
exceptional, in a special category, and/or anomalous;
ii) whether a term is to be implied depends upon the terms of the particular
contract being construed. In this case, the Casual Employment Contract has
express terms that are wholly inconsistent with the term that the Applicant
asserts ought to be implied; and
iii) the Casual Employment Contract is to be construed and understood in the
context of ‘casual employment’. That context is antithetical to a guarantee
of work. Indeed, the Casual Employment Contract, provides expressly that
there will be no guarantee of work. The express right for an employer not to
provide work, is the reason as to why a guarantee of work is not to be
implied.103 Further, the termination provision of the Casual Employment
Contract provides for termination on one hour’s notice, which is an express
term that is equally inconsistent with an obligation upon the ABC to provide
work to the Applicant.104
p) there are two answers to the claim made by the Applicant that the variation term
contained in the Casual Employment Contract cannot be construed so as to confer a
right for the ABC to provide no work at all to the Applicant:
i) firstly, the claim puts the cart before the horse in that it necessarily assumes
that a right to be provided with work exists in the first place; and
ii) secondly, the ABC could have achieved the same result by exercising its
unilateral rights to change the duration of an engagement, including by
reducing its outer limit to correspondence with the time that the Applicant
has already been engaged.105
q) It follows that there is no reason to doubt that the unilateral right to change the work
to be performed encompasses the right to change that work by requiring the
performance of no work at all.106
r) The express absence of a negative covenant under the Casual Employment Contract
(per clause 11), which allows for the Applicant to do other work during the course
of her engagements and the contract is indicative of there being no implied term
requiring the Applicant be allowed to work as the SM Program presenter.107
s) Further, the express absence of an obligation on the part of the ABC to publicise the
Applicant, or her work at the ABC, equally points against the implication of a term
that requires the Applicant be allowed to work at the ABC as the SM Program
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presenter. Born out on the Applicant’s own evidence is the fact that she never
requested such publicity from the ABC.108
t) To imply a term of the kind that the Applicant asserts ought to be implied, an
employee must be able to show that their future depends upon the implied term being
used during their term of employment in the business envisaged by the particular
employment contract in question. “The [employee] must be able to show that the
publicity resulting from the particular employment in question – not the employment
generally with the ABC but this contract, this engagement, they must be able to show
that the publicity that resulted from this engagement is of great importance to the
future financial position and reputation of that person.” It is patently obvious that
this necessary test of essentiality cannot be met by an engagement to perform the
presenter role on the SM Program for five two and a half hour slots on a casual fill-
in engagement. Indeed, none of the case law identifies that a term has been implied
for such a slight and insubstantial engagement as the one in this case.109
Case law – What is the ‘employment relationship’?
[83] The inquiry as to whether or not an employee was dismissed for the purposes of
s.386(1)(a) of the Act (and thus terminated for the purposes of s.773(a)) requires focus upon
the circumstances of the employment relationship, as opposed to (only) the employment
contract. But the circumstances of the employment relationship (including the rights and duties
of the parties to that relationship) are at all times directly referrable (and in many cases
deferrable) to the terms and conditions contained in the applicable employment contract.110 This
is especially so in cases where the parties have taken the approach that any agreed terms and
conditions of employment are to be set out in a written document that constitutes the entire
agreement between the parties. As Gageler J stated in WorkPac Pty Ltd v Rossato:
“Mr Rossato relied on non-contractual aspects of his employment relationship
(principally the operation of the roster system) only to establish the existence of a firm
advance commitment as to the hours that he was to work during his employment. To
the extent he sought to establish a firm advance commitment as to the duration of his
employment, he was driven to rely solely on the terms of each contract of
employment.”111
[84] The statements of the High Court that “It would be unusual to find an employment
relationship defined purely by contract”112, or that “It would be unusual for [the employment
relationship] to be purely contractual”113 do not assist in defining or otherwise articulating what
is actually meant by the term, or concept of, an “employment relationship”. Rather, these
statements simply highlight that the employment relationship includes the employment contract
(encompassing the written and/or oral agreements of the parties, and terms (where applicable)
implied by law or fact), the operation of relevant statutory provisions (including awards and
enterprise agreements created under same), and applicable fiduciary (or loyalty) and equitable
(e.g. confidence) duties.
[85] In Construction, Forestry, Maritime, Mining and Energy Union v Personnel
Contracting Pty Ltd114 (Personnel Contracting), Gageler and Gleeson JJ stated:
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“Employment at common law has its roots in the relationship of service which the
common law recognised between master and servant. Employment is a voluntary
relationship between an individual, the employee, and another person, the employer,
within which the employee performs a genus of work for the employer – what was
traditionally called “service” – in exchange for some form of remuneration.”115
“Typically, although not universally, the relationship of employment is established and
maintained under a contract between the employer and the employee. Throughout the
nineteenth century, a contract under which a relationship of master and servant was
established was routinely referred to as a contract of service. Moving into the twentieth
century, a contract under which a relationship of employer and employee was
established and maintained came more commonly to be referred to as a contract of
employment.”116
“…Expressed using other prepositional terms, a contract “of” employment is a contract
“for” a relationship of employment. The employment relationship is established and
maintained “within” the contractual relationship, the employment relationship does not
subsist simply “in” the contractual relationship.”117
“The relationship of employment is, however, not to be conflated with the contract
under which the relationship is established and maintained. The two are “distinct”. “The
employment is the continual relationship, not the engagement or contracting to employ
and to serve.” “It is the service ... carried on.”118
“Whether a continual relationship for which a contract might make provision actually
exists at any given time is a question of fact. Whatever the contract might say about the
obligations of the parties, a relationship of employment does not exist until the
relationship is in fact formed, and the relationship of employment ceases to exist when
the relationship is in fact broken. …”119
[86] In my view, in its most simple terms, the bringing of an employment relationship to an
end concerns the ending of an employee’s ‘service’, such that (for whatever reason) it is, or
becomes, no longer necessary for the employee to perform any work for the employer.120 A
determination by an employer to cease an employee’s service will end the employment
relationship, although it may not bring the employment contract to an end until the employee
makes an election for that to occur.121 A wrongful failure to allow an employee to continue in
the employer’s service is equally a breach of contract,122 giving rise to a ‘wrongful’ dismissal
at common law. As Higgins J stated in Lucy v Commonwealth:
“The contract [of employment] is not a mere promise to pay money, but to pay wages
for service; and the breach of contract consists in not allowing the employee to continue
in the service so as to get the wages. This is the view which I accepted in Williamson v
Commonwealth [(1907) 5 CLR 174, at 185].”123 (citations omitted)
[87] The focus upon the ending of ‘service’ in concluding that the relevant ‘employment
relationship’ has come to an end, also speaks against, when assessing all of the facts and
circumstances of a relevant case, the elevation of amorphous concepts (such as non-contractual
understandings, or expectations based upon conduct, that are inconsistent with the terms of a
[2024] FWC 1441
39
contract) into matters that are relevant (or the real) issues to be weighed when reaching any
ultimate finding/s. This focus upon ‘service’ is also consistent with the outcome in Broadlex,
whereby an employment relationship (and service under that employment relationship) came
to an end when a breach of contract occurred, which, whilst not accepted, gave rise (between
the same parties) to a new employment relationship.124
Consideration - Was the employment relationship terminated by the ABC in this case?
[88] There is no suggestion in these proceedings that the Applicant’s engagement by the
ABC has been other than casual.125
[89] In Shortland v The Smith’s Snackfood Co Ltd126, the Full Bench of the (then) Fair Work
Australia pointed out that:
“As a matter of the common law of employment, and in the absence of an agreement to
the contrary, each occasion that a casual employee works is viewed as a separate
engagement pursuant to a separate contract of employment. Casual employees may be
engaged from week to week, day to day, shift to shift, hour to hour or for any other
agreed short period. In this sense no casual employee has a continuous period of
employment beyond any single engagement. …”127
[90] Casual employees can be dismissed within the meaning of s.386 of the Act, bringing an
end to their employment relationship with their employer. There is no general rule that a casual
employee, simply because of the distinct manner of their engagements (on a contract by contract
basis), cannot ever be dismissed at the employer’s initiative. Sections 382-384 of the Act relate
to the question of whether or not an employee is protected from unfair dismissal. They are not
a consideration in respect of the definition of “dismissal” (or “termination”) for the purposes of
ss.365 or 773 of the Act.
[91] The employment relationship in this case is both referrable and deferrable to the terms
of the Casual Employment Contract. The Applicant accepts that she was bound by its terms. I
concur with the position of the parties that the evidence discloses that the Casual Employment
Contract is valid and enforceable as between the Applicant and the ABC. I also concur with the
submissions of the ABC that the entire agreement term, found at clause 15 of the Casual
Employment Contract, is equally valid and enforceable, and is to be applied as it reads. I am
not aware of any basis (on the evidence) upon which it is to be considered unenforceable, read
down, or be diminished in scope.
[92] At its most basic, when construing a written contract:
a) the evidence to be used is the contractual document itself;
b) the tools to be used are firstly, an elemental understanding of the English language,
and secondly, a dictionary; and
c) the process involves the giving of meaning to text, in a harmonious manner (i.e.
having regard to relevant context, including the words of the document as a whole).
[2024] FWC 1441
40
[93] Clause 1 of the Casual Employment Contract provides that the Applicant, as a casual
employee, will be employed on an engagement by engagement basis, subject to offer and
acceptance in respect of each engagement. For each “engagement” that is offered, the ABC is
to specify the duration, hours of work, work location, reporting lines, and work to be performed.
[94] The casual engagement that was offered to, and accepted by, the Applicant (December
Engagement), as required by clause 1 of the Casual Employment Contract, consisted of the
following specific details or particulars:
a) the Applicant working on a casual basis for five consecutive weekday shifts,
between 6:00AM to 2:36PM (with a one hour break), commencing on Monday, 18
December 2023;
b) during each shift, to be the presenter on the SM Program during the hours of 8:30AM
to 11:00AM; and
c) the Applicant being paid at a casual hourly rate of pay for any hours worked.
[95] The Casual Employment Contract contains a term (at clause 13) which provides that a
casual engagement may be terminated at any time on one hour’s notice (or payment in lieu).
Whilst clause 13 states in its first sentence that any “engagement” may be terminated on notice,
it is apparent when reading the rest of the words of clause 13 that it is referring to termination
of employment (in addition to any engagement). Clause 13 was not utilised by the ABC in
respect of the December Engagement, or the Applicant’s employment.
[96] The Casual Employment Contract, at clause 1, has a term that provides that ‘during’ a
specific engagement, the ABC, in its absolute discretion, may make unilateral changes to the
engagement provided that the Applicant is advised of such changes (Engagement Change
Term). The Engagement Change Term allows the ABC to make changes to a specific
engagement for good reason, for bad reason, or for no reason at all (excluding, of course,
unlawful reasons). Changes made pursuant to the Engagement Change Term might include the
duration of the engagement (e.g. cutting it short), or altering the work to be performed (e.g.
from work as a presenter, to work as a back of house production team member).
[97] The ABC submits that it utilised the Engagement Change Term at the 20 December
Meeting so as to vary the remaining ‘work to be performed’ by the Applicant under the
December Engagement, by reducing it to nil. The ‘duration’ of the December Engagement
remained unchanged (i.e. it was not varied). The employment relationship between the
Applicant and the ABC thereafter either:
a) ended when the December Engagement ended (or expired) on 22 December 2023 of
its own accord (i.e. not at the ABC’s initiative); or
b) was suspended when the December Engagement ended (or expired) on 22 December
2023, pending (or awaiting) offer and acceptance to occur in respect of a new
engagement (pursuant to the terms of the Casual Employment Contract).
[2024] FWC 1441
41
[98] I concur with the foregoing analysis as to the status of the employment relationship if
the December Engagement ended on its own terms,128 however, whether the ending of the
December Engagement caused the Applicant’s employment with the ABC to end, or be
suspended, pursuant to the terms of the Casual Employment Contract, is not material in these
proceedings. The Applicant’s case is that her employment was terminated, at the ABC’s
initiative, during the December Engagement (on 20 December 2023), not at its end (on 22
December 2023).
[99] There was nothing said to the Applicant during the 20 December Meeting about the
Engagement Change Term being used to alter the work to be performed by her to nil, whilst at
the same time leaving the 5 day duration of the engagement unchanged. But this is not to suggest
that the ABC needed to, or should have, communicated to the Applicant at the 20 December
Meeting that it was expressly relying upon the Engagement Change Term (clause 1) to reduce
her work to be performed to nil. Contractual terms can certainly be relied upon in respect of, or
retrofitted to, events that have already happened.
[100] There was also nothing said to the Applicant during the 20 December Meeting about
her being paid for the whole of her five day engagement (absent her being required to perform
work).129
[101] Mr Ahern’s evidence is that shortly after the 20 December Meeting, Mr Spurway raised
in conversation with him about paying the Applicant for the whole of her five day engagement
(including for the times that she was rostered to work, but told not to work). Contrary to the
evidence of Mr Oliver-Taylor,130 Mr Ahern says that this is the first time that anyone had raised
with him any issue as to the payment of the Applicant for her remaining shifts. Mr Ahern was
in agreement for the Applicant to be paid as suggested by Mr Spurway.131
[102] Mr Spurway’s evidence as to the payment to be made to the Applicant, despite her not
being required to work, is consistent with that of Mr Ahern.132 He gives no evidence of
discussing the matter with Mr Oliver-Taylor. Mr Spurway followed up ABC payroll in respect
of the payment on 28 or 29 December 2023.133 The payment ended up being made to the
Applicant during the ordinary ABC pay cycle. It is not clear from the evidence as to why Mr
Spurway would need to chase-up ABC payroll. I say this in circumstances where the ABC’s
case is put on the basis that the Applicant had merely been taken off-air, and that it was roundly
understood at the ABC internally (pre and immediately post the 20 December Meeting), that
any use of the Engagement Change Term was to reduce the Applicant’s work to nil, but the
Applicant’s employment was otherwise to continue (on pay, for no work) until the expiration
of the December Engagement on 22 December 2023.
[103] Mr Oliver-Taylor’s evidence is that because the Applicant was paid for the whole of her
rostered shifts across the five days of her engagement, his opinion is that she was not
terminated.134 Putting to one side Mr Oliver-Taylor’s subjective opinion, the issue with this
evidence is how Mr Oliver-Taylor became aware that the Applicant was going to be paid after
she had been taken off-air.
[104] When Mr Oliver-Taylor instructed Mr Latimer on 20 December 2023 to ask Mr Ahern
to hold a meeting with the Applicant to advise her that she was to be taken off-air, the issue as
to whether payment would be made to her for the remainder of her shifts was not discussed.135
[2024] FWC 1441
42
In other words, any intention to pay the Applicant for the remainder of the December
Engagement was never raised with Mr Ahern prior to the 20 December Meeting. At no time
after his conversation with Mr Latimer, did Mr Oliver-Taylor direct anyone at the ABC to make
payment to the Applicant for time she would not be working, however, it might be accepted
that this was not within Mr Oliver-Taylor’s realm of responsibility. It is not clear from Mr
Oliver-Taylor’s evidence as to whether the issue of a payment being made to the Applicant for
shifts that she was not going to be working was ever discussed prior to the 20 December
Meeting. Whilst Mr Oliver-Taylor’s evidence is that issues as to “payment”, or a “pay out”, or
“adhering to the terms of the contract”, were discussed (or were likely discussed) during the
Teams Meeting with Mr Ahern, Mr Melkman, and Mr Latimer on 20 December 2023,136 Mr
Ahern’s evidence is that there was no such discussion about payment at the Teams Meeting,137
and Mr Latimer and Mr Melkman have not given evidence.
[105] I find that the weight of the ABC’s own evidence points toward there being no firm
position, or even an understanding, leading up to, or immediately after, the 20 December
Meeting, that the Applicant was to be paid for the remainder of her shift hours after she was
told to leave the ABC’s premises. Rather, the Applicant was simply told at the 20 December
Meeting that she was being taken off-air (and relieved from performing any further work
whatsoever for the remainder of the December Engagement) because of conduct that was
considered to be in breach of ABC instruction and/or policy. Another ABC employee
immediately took over the presenting (or was swapped in) for the remaining on-air times that
the Applicant would have presented (if she had not been taken off-air), and an unplanned or
early change, to “summer programming”, occurred.138
[106] It is also apparent that the payment made to the Applicant for work that was not
performed by her is not strictly a payment of “wages”, in that it concerns a payment that does
not relate to service rendered under the Casual Employment Contract. This is equally consistent
with clause 14.6.2 of the ABC EA, which states that “A casual employee is engaged by the hour
in return for payment for the hours worked”. The situation is not comparable to an ordinary
“gardening leave” term, which expressly provides for an employee to be paid, but to perform
no work, for a period of time ‘after’ the employee has already been notified of their
termination.139
[107] In Delaney v Staples (t/a De Monfort Recruitment)140, Lord Browne-Wilkinson pointed
out that a lump sum payment made in lieu of notice is not strictly a payment in respect of
‘wages’, since it is not remuneration for work done during the continuance of employment.141
Accepting that the payment made to the Applicant was not a payment in lieu of notice under
clause 13 (termination) of the Casual Employment Contract, the question becomes - What is
the payment to the Applicant to be classified as? I consider that given the payment does not
concern the performance of work, it is not a payment of wages pursuant to the terms of the
Casual Employment Contract (i.e. Clause 2 of the Casual Employment Contract, and clause
14.6.2 of the ABC EA, are to be construed as a (casual) rate of pay that is only payable for time
worked). If it be classified or defined as anything, the payment for work not performed in this
case is perhaps best defined as an ex gratia payment, or a gratuity. It is therefore contrary to, or
not consistent with, the continued existence of the employment relationship (between the ABC
and the Applicant) in that it does not arise from service.
[2024] FWC 1441
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[108] As the ABC has pointed out in its submissions, in the (modern day) ordinary course, a
term requiring an employer to provide relevant work to an employee so that wages can be
earned will not be implied. In other words, as long as the employee continues to be paid their
wages, the employer will not breach the employment contract (or bring an end to the
employment relationship) merely by not providing work for the employee to perform. There
are, of course, exceptions in respect of special categories of employment (e.g. actors or
performers), or where the non-provision of work is for an indefinite period. But the question as
to whether or not a direction not to come to work and still be paid wages is the exercise of a
valid contractual right, a breach of contract, and/or a termination of the employment
relationship, will come down to the relevant facts and circumstances, considered objectively.
[109] Whilst the Applicant was only told at the 20 December Meeting that she was being
“taken off-air”, the ABC used terminology internally such as “not needed for the rest of the
week”,142 and “standdown”.143 The ABC’s internal communications in this regard are not
relevant, in that they were not communicated to the Applicant at the 20 December Meeting. But
the outcome of the 20 December Meeting is relevant. That outcome was that the Applicant
would not be continuing to work or provide service pursuant to, or for the remainder of, the
December Engagement. The findings at paragraph [57] of this decision directly link this
outcome to being at the initiative of the ABC.
[110] In this case, I find that the employment relationship between the Applicant and the ABC,
was terminated at the ABC’s initiative. The objective facts that I rely upon in making this
ultimate finding are:
a) the employment relationship in this case concerns the December Engagement. This
relationship is governed by the terms of the Casual Employment Contract;
b) the Casual Employment Contract contains the Engagement Change Term;
c) the outcome of the 20 December Meeting was that the Applicant would not perform
any further work at, or service for, the ABC in respect of the remainder of the
December Engagement. The Applicant was advised that a decision had been made
by the ABC to take her off-air for her remaining two shifts of the December
Engagement. The Applicant was not allocated any further or other work to perform,
and she was asked to politely leave (sooner rather than later) the ABC premises
(meaning that she was immediately relieved of performing any further work or
service for the remainder of her shift that day);
d) the ABC’s case is that the December Engagement simply came to end by way of the
effluxion of time on 22 December 2023, in accordance with the terms of the Casual
Employment Contract. It also says that the Applicant being taken off-air (and given
no work at all) ought to be found to be a valid exercise of the Engagement Change
Term, meaning that the ABC simply did what it was entitled to do under the Casual
Employment Contract, and the duration of the December Engagement was not in
any way altered. The difficulty is that even if both of these propositions are true, the
Applicant’s service in her relationship with the ABC ended when she was taken off-
air and allocated no further work to do, which on the objective facts of this case,
[2024] FWC 1441
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gave rise to the Applicant no longer being in the service of the ABC, terminating the
employment relationship; 144
e) even if the payments made to the Applicant after she was taken off-air can be said
to be attributable to the Casual Employment Contract, which I have significant
doubts about, at best they extend the December Engagement from a contractual
perspective, but not from an employment relationship perspective;
f) the employment relationship was also brought to an end at the ABC’s initiative. As
Perram J stated in Quirk, s.386(1)(a) of the Act “does not require the [ABC] to pull
the trigger but only load the gun”.145 The focus is upon at whose initiative the
employment relationship was ended, rather than the precise means by which it
ended.146 The proposition “that there can be no termination of an employment
relationship purely because the contract of employment came to an end by operation
of law” (e.g. by the effluxion of time) cannot be accepted unless it is accompanied
by the words “without any act by the employer”;147
g) the ABC did not reply to the Applicant’s Clarification Email at all, let alone confirm
or deny that the Applicant remained employed by the ABC;148
h) I do not accept that Ms Green’s parting words to the Applicant to the effect of “I
would love to have you back” gives rise to any inference that the Applicant remained
employed by the ABC in the sense that further engagements are on the cards. Mr
Ahern holds the authority to make decisions about engaging temporary or fill-in
presenters, and he gave no evidence to the effect that the Applicant would be invited
back; and
i) whilst I have taken into account Ms Vagg’s evidence in relation to the status of the
Applicant’s employment on the ABC’s software programs and systems, that
ordinary procedures were not followed internally to terminate the Applicant, that the
Applicant remained in possession of a deactivated building pass, and that she
continued to have the ability to access some ABC computer systems, none of this
evidence is decisive in the context of the events that have happened.
[111] Given my finding that the Applicant’s employment with the ABC was terminated at the
ABC’s initiative on 20 December 2023 (at the 20 December Meeting), it is unnecessary for me
to deal with the remainder of the Applicant’s alternative arguments, essentially going to
questions of contractual repudiation and acceptance.
The s.723 objection
[112] Paragraph 3, Item 3.1, of the Amended Application (relevantly, with amendments in
underline) reads:
“3. The substantial and operative reasons for Ms Lattouf’s dismissal was were or
include:
(a) political opinion; or
[2024] FWC 1441
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(b) political opinion and her race (Lebanese and/or Arab and/or Middle Eastern) and/or
national extraction (her Lebanese and/or Arab and/or Middle Eastern heritage and that
she is a descendant of foreign immigrants) …”
[113] Section 723 of the Act reads:
“A person must not make an unlawful termination application in relation to conduct if
the person is entitled to make a general protections court application in relation to
the conduct.”
[114] The ABC submits that whilst the Amended Application is not in conflict with s.723 of
the Act to the extent that it contains an allegation as to termination based upon ‘political
opinion’, it is in conflict with s.723 (and cannot proceed further in its current form) to the extent
that it seeks to rely upon race and/or national extraction as alternative unlawful conduct
grounds. The ABC says that its jurisdictional objection in this regard arises from the application
of the Full Bench decision in Krcho v University of New South Wales149 (Krcho).
[115] In Krcho, the Full Bench held that the prohibition under s.723 of the Act does not extend
to allegations as to conduct that are caught by the prohibition, where at least one ground of the
combined grounds of alleged conduct is not caught by the prohibition. The ABC says that
because the Applicant in this case does not rely upon each of the conduct grounds as aggregated,
but as alternatives via the use of the phrase “and/or”, the alleged unlawful ground of political
opinion can be “hived off”. The net effect of the Applicant’s “distinct alternatives” approach is
that race and/or national extraction are each grounds of conduct that can and ought to be made
under a general protections not involving dismissal application, and are thus prohibited from
being made in a valid claim under s.773 of the Act.
[116] The Applicant highlights that the Amended Application alleges termination for the
unlawful reasons of political opinion, or political opinion ‘and’ race ‘and/or’ national
extraction, such that political opinion (which is not caught by the s.723 prohibition) is an
essential integer in every way that the Applicant puts her case.150
[117] I concur with the submissions of the Applicant on this issue. I do not accept that the use
of the words ‘and/or’ have a disjunctive effect upon the ground of political opinion. Rather their
disjunctive effect concerns the grounds of race and national extraction, noting that all of the
grounds still have a conjunctive effect, or remain aggregated with, political opinion. It follows
that consistent with the Full Bench decision in Krcho, I find that the allegations as to unlawful
conduct made by the Applicant in her Amended Application are not caught by the prohibition
under s.723 of the Act. In the formal sense, I grant leave for the Application filed on 22
December 2023 to be amended to the form of the Amended Application filed on 10 January
2024.
Conclusion
[118] For the reason set out in this decision, I have rejected both of the jurisdictional objections
raised by the ABC. It is therefore appropriate that both of the ABC’s jurisdictional objections
[2024] FWC 1441
46
be dismissed. I will make Orders, to be issued contemporaneously with this decision, in the
following terms:
A. The jurisdictional objection made by the Respondent in these proceedings that the
Applicant’s employment was not ‘terminated’ within the meaning of s.773(a) of the
Fair Work Act (Act), is dismissed.
B. The jurisdictional objection made by the Respondent in these proceedings that the
Amended Application (filed on 10 January 2024) has been made contrary to the
requirements of s.723 of the Act, is dismissed.
C. Pursuant to s.586(a) of the Act, leave is granted for the Application filed on 22
December 2023 to be amended to the form of the Amended Application filed on 10
January 2024.
[119] If the parties wish to hold a further private conference before the Commission, as
presently constituted or with another member of the Commission, they should notify my
Chambers via email. Alternatively, a certificate can be issued pursuant to s.776(3) of the Act.
DEPUTY PRESIDENT
Appearances:
Mr Mark Gibian, of Senior Counsel, instructed by Mr Josh Bornstein, Principal, and Ms
Penelope Parker, Senior Associate, Maurice Blackburn Lawyers, appeared for the Applicant.
Mr Ian Neil, of Senior Counsel, and Ms Vanja Bulut, of Counsel, instructed by Mr Ben Dudley,
Partner, Ms Mary-Anne Nolan, Associate, and Ms Gabrielle Wilson, Associate, Seyfarth Shaw
Australia lawyers, appeared for the Respondent.
Printed by authority of the Commonwealth Government Printer
PR775583
1 Amended Application (Form F9, filed 10 January 2024), at Item 3.1 [3(b)]. I note that the Amended Form F9,
at Item 3.1, fails to make any mention of race and/or national extraction (as combined with political opinion, or
otherwise), and at Item 4.1 it fails to seek any declaratory relief based on the grounds of race and/or national
extraction (as combined with political opinion, or otherwise).
THE WORK COMMISSION
[2024] FWC 1441
47
2 [2024] FWC 423.
3 [2024] FWC 570.
4 Permission was granted under s.596 of the Fair Work Act 2009 for each party to be legally represented generally
in these proceedings.
5 Transcript, 13 February 2024, PN107.
6 Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), at [4]-[9], CB pp.146-147.
7 Amended Form F9, 10 January 2024, at Item 3.1.
8 Transcript, PN1725-PN1802. Amended Form F9, 10 January 2024, at Item 3.1.
9 Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), at [10]. CB p.147.
10 Ibid, at [11], CB p.147. However, note Amended Form F9, 10 January 2024, at Item 3.1, [7].
11 Ibid, at [12]-[16], CB p.147. There is also a reference to the Applicant’s “most recent previous employment” at
the ABC as being on 15 May 2023 (CB, p.11), however, there is no other evidence of this engagement.
12 Ibid, at [17], CB pp.147-148; Transcript, PN1264. The SM Program presenter timeslot is (ordinarily) on-air
between 8:30AM and 11:00AM each weekday.
13 [2023] FWCA 2591, AE521150.
14 The Applicant’s submissions refer to the Ts &Cs contained in the Casual Employment Contract as “Standard
Terms”.
15 See paragraph [17] of this decision in relation to previous casual engagements, and Exhibits R8 (CB pp.212-
218); R9 (CB pp.226-230); and R10 (CB pp.235-240). See also, CB pp.219-222.
16 Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), Annexure AL1, CB pp.155-162. This is
consistent with the evidence of Ms Green: Exhibit R7, Elizabeth Green Witness Statement (26 February 2024),
at [9]-[13], CB pp.137-139.
17 Exhibit R2, Monica Vagg Witness Statement (2 February 2024). CB pp.66-101.
18 Ibid, at [9]-[10], [18], and [20], CB pp.68 and 70-71.
19 Ibid, at [24] and [26], CB pp.72-73.
20 Ibid, at [11]-[16], and [19], CB pp. 69 and 71.
21 Ibid, at [24], CB p.72.
22 Ibid, at [25], CB p.73. Transcript, PN1915-PN1917.
23 Exhibit R2, Monica Vagg Witness Statement (2 February 2024), at [23], and Annexure MV-6, CB pp. 72 and
98.
24 Transcript, 8 March 2024, PN198.
25 Exhibit R1, Christopher Oliver-Taylor Witness Statement (2 February 2024), at [6]-[8], CB p.61.
26 Transcript, PN213-PN214.
27 Transcript, PN291.
28 Ibid, 8 March 2024, PN209-PN219 (I do not accept that Mr Oliver-Taylor’s use of words such as “rarely” and
‘maybe” lifts his status to that of decision-maker or contributor in relation to the selection of replacement
presenters). Note also, Transcript, PN786-PN796, PN801-PN807, and PN1259.
29 Transcript, PN786-PN796, PN801-PN807, and PN1259. CB, p.13 (Applicant’s engagement was approved by
Mr Ahern on 24 November 2023, at 3:41PM).
30 The Casual Employment Contract was sent to the Applicant via email on 24 November 2023 by Mr Aidan
Fonternel of the ABC. See, Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), at [21]-[22],
CB p.148. Applicant’s reply email can be found at Exhibit R2, Ms Monica Vagg Witness Statement (2 February
2024), Annexure MV-3, CB p.79.
31 Applicant’s Submissions, 19 February 2024, at [15]. Transcript, PN2175.
32 Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), Annexure AL2, CB pp.163-167.
33 See Exhibits R8 (CB pp.212-218); R9 (CB pp.226-230); and R10 (CB pp.235-240).
34 See clause 14.6.1 of the ABC Enterprise Agreement 2022-2025.
35 That is, in the absence of a documented conversion to full or part-time employment, or pursuant to an agreement
of the relevant employer and employee concerned to alter the employee’s status as a casual employee.
36 Transcript, PN223, 233-234, PN313, PN343 .
37 Ibid, PN303 PN313, PN343.
38 Ibid, PN406.
39 It is apparent from the evidence that external complaints about the Applicant being or remaining on-air were
received by the ABC throughout the week commencing 18 December 2023.
40 Exhibit A5.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc423.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc570.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwca2591.pdf
[2024] FWC 1441
48
41 Ibid. This is the first time that Ms Green became aware that any complaints had been made about the Applicant:
Transcript, PN1340-PN1342.
42 Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), at [26], CB p.149.
43 Transcript, PN1416. See also at PN1449-PN1451. But note email from Mr Ben Latimer, 20 December 2023
(12:19PM), to Mr Ahern (and others), “Subject: 702 guest presenter”, stating that the clear instructions were to
direct Antoinette not to post to socials for the rest of this week”, found at Exhibit R4, Steve Ahern Witness
Statement (2 February 2024), Annexure SA-3, CB p. 122. See also Transcript, PN378-PN382, and PN411.
44 Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), at [27], and Annexure AL3, CB pp.168-
171.
45 Ibid, at [28], CB p.149. Confirmed by Ms Green, see Transcript, PN1373.
46 Amended Form F9, 10 January 2024, at Item 3.1, [12].
47 Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), at [26] and [39], CB pp.149-150.
48 Transcript, PN1386-PN1387, PN1424-PN1425, and PN1455.
49 Ibid, PN1430.
50 Ibid, PN1410-PN1411, and PN1430. See also Amended Form F9, 10 January 2024, at Item 3.1, [15].
51 Exhibit R1, Christopher Oliver-Taylor Witness Statement (2 February 2024), at [9]-[10], and [12] CB pp.61-62.
52 Ibid, at [9], CB p.61. See also Transcript, PN479-PN486, PN578, and PN645-PN648.
53 Transcript, PN461.
54 Ibid, PN471.
55 Ibid, PN481-PN485.
56 Ibid, PN463-PN464, PN570-PN574.
57 See paragraph [46] of this decision.
58 Ibid: PN542-PN551 and PN557-PN577.
59 Exhibit A3.
60 Transcript, PN560-PN568.
61 Ibid, PN488, PN496, PN503, PN561-PN565.
62 Ibid, PN871-PN874, PN1044, PN1096, and PN1099. The context for this telephone call arises from the Teams
meeting held between Mr Oliver-Taylor, Mr Ahern, Mr Latimer and Mr Melkman on 20 December 2023 (see
paragraph [46] of this decision).
63 Exhibit R1, Christopher Oliver-Taylor Witness Statement (2 February 2024), Annexure COT-1, CB pp.63-64.
64 Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), at [37]-[39], and [58]-[61], CB pp.150-
151 and 153-154; Exhibit R3, Ronald (Mark) Spurway Witness Statement (2 February 2024), at [11]-[13], CB
p.104; Exhibit R4, Steve Ahern Witness Statement (2 February 2024), at [14]-[21], CB pp.114-116; Exhibit R5,
Steve Ahern Reply Witness Statement (26 February 2024), at [8]-[11], CB pp.135-136; Exhibit R6, Ronald (Mark)
Spurway Reply Witness Statement (27 February 2024), at [4]-[5], CB pp.110-111; Exhibit R7, Elizabeth Green
Witness Statement (26 February 2024), at [17], CB pp.140; Note also Exhibit R1, Christopher Oliver-Taylor
Witness Statement (2 February 2024), at [9]-[10], [12], and Annexure COT-1, CB pp.61-64; Transcript: Mr Ahern
(PN1110-PN1134, PN1152, PN1168, PN1175, PN1190, and PN1196), Ms Green (PN1434-PN143, PN1448,
PN1457-PN1474); Mr Spurway (PN1627, PN1638-PN1642); Ms Lattouf (PN1838, PN1843-PN1844, PN1852,
PN1866, PN18765-PN1877, PN1883-PN1884, PN1898-PN1899).
65 I note that Mr Ahern texted Mr Latimer at 1:35PM on 20 December 2023 stating: “It’s done.”: Exhibit R4, Steve
Ahern Witness Statement (2 February 2024), Annexure SA-2, CB p.120.
66 Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), at [43], CB pp.151-152; Exhibit R7,
Elizabeth Green Witness Statement (26 February 2024), at [20]-[27], [36], and Annexure EG-01, CB pp.140-141
and 143-145;
67 Exhibit A1, Antoinette Lattouf Witness Statement (19 February 2024), Annexure AL7, CB pp. 177-179.
68 Exhibit R4, Steve Ahern Witness Statement (2 February 2024), Annexure SA-5, CB p.128-129.
69 Exhibit A4.
70 Ibid.
71 See the decision of the Full Federal Court in Coles Supply Chain v Milford [2020] FCAFC 152, at [74]-[75],
and Lipa Pharmaceuticals Ltd v Mariam Jarouche [2023] FWCFB 101, at [23].
72 ABC’s Submissions, 2 February 2024, at [23]-[27]. Applicant’s Submissions, 19 February 2024, at [5].
73 In relation to the application of s.386 to general protections involving dismissal claims, see Coles Supply Chain
v Milford (2020) 300 IR 146, and Fair Work Ombudsman v Austrend International (2018) 273 IR 439. See also
the discussion in Morris v Allied Express Transport [2016] FCCA 1589, at [116] and [117], and Searle v Moly
Mines Limited [2008] AIRCFB 1088; (2008) 174 IR 21, at [17].
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74 [2017] FWCFB 5162; (2017) 273 IR 441.
75 [2022] FWCFB 55; (2022) 316 IR 1.
76 Ibid, at [45].
77 [2022] FWCFB 171; (2022) 318 IR 389.
78 Ibid, at [123]-[131].
79 [2021] FCA 1587. Note appeal in Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023]
FCAFC 16. Endorsed in Alouani-Roby v National Rugby League Limited [2022] FWCFB 171; (2022) 318 IR
389.
80 Ibid, at [216] (citing, Mahony v White [2016] FCAFC 160; 262 IR 221, at [22], which in turn cited Mohazab v
Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200, at 205-206).
81 Mahony v White [2016] FCAFC 160; 262 IR 221.
82 Mylan v Health Services Union NSW [2013] FCA 190.
83 [2021] FCA 1587, at [218]-[225].
84 [2020] FCA 867; (2020) 296 IR 425.
85 Ibid, at [91].
86 Applicant’s Submissions, 19 February 2024, at [1]-[9]. The Applicant’s Submissions use the term “summary
dismissal”, however, it is of no moment as to whether the Applicant was dismissed, or summarily dismissed, for
the purposes of these proceedings.
87 Transcript, PN2088.
88 Ibid, PN2119-PN2120. See also, at PN2231-PN2233, and PN2326.
89 Ibid, PN2096-PN2117, PN2170, PN2269-PN2294, PN2319-PN2323, and PN2295-PN2296.
90 Ibid, PN2144-PN2230, PN2296, and PN2315, PN2325.
91 ABC’s Submissions, 2 February 2024, at [33]-[39]. ABC’s Reply Submissions, 26 February 2024, at [37]-[39].
92 Transcript, PN2004-PN2008.
93 Applicant’s Submissions, 19 February 2024, at [12].
94 Transcript, PN2026-PN2027.
95 Applicant’s Submissions, 19 February 2024, at [12].
96 Transcript, PN2028.
97 Ibid, PN2028-PN2034, and PN2052.
98 Ibid, PN2036.
99 Ibid, PN2037.
100 Ibid, PN2039-PN2041
101 Transcript, PN2048-PN2050.
102 Applicant’s Submissions, 19 February 2024, at [30].
103 Wesoky v Village Cinemas International Pty Ltd [2001] FCA 32, at [16].
104 Transcript, PN2070.
105 Ibid, PN2067-PN2068.
106 Ibid, PN2069.
107 Ibid, PN2072-2073.
108 Ibid, PN2074-PN2076. Contrast the facts in Marbe v George Edwardes (Daly’s Theatre) Ltd [1928] 1 KB 269,
and Associated Newspapers Ltd v Bancks (1951) 83 CLR 322.
109 Transcript, PN1809-PN1834, and PN2078-PN2080.
110 WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, at [117], per Gageler J. See DP Cross’
summary of the key take-outs from the High Court Rossato decision in Timothy Andrew Alouani-Roby v
National Rugby League Limited, Bernard Sutton and Graham Annesley [2021] FWC 6282, at [50]. These key
take-outs were untouched by the Commission’s Full Bench on appeal in [2022] FWCFB 171; (2022) 318 IR
389, with a judicial review of the Full Bench decision dismissed in [2024] FCA 12.
111 WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, at [117].
112 Commonwealth Bank of Australia v Barker [2014] HCA 32, at [16].
113 Concut Pty Ltd v Worrell (2000) 75 ALJR 312, at [17] and [26].
114 [2022] HCA 1; (2022) 275 CLR 265.
115 Ibid, at [104].
116 Ibid, at [105].
117 Ibid, at [106].
118 Ibid, at [110].
119 Ibid, at [111].
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120 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, at 450-452, 454, 461-462, 463 and 476; Tullett
Prebon (Australia) Pty Limited v Purcell [2009] NSWSC 1079, per Ward J, at [38]-[41]; Lucy v
Commonwealth (1923) 33 CLR 229, at 248.8; Decro-Wall International SA v Practitioners in Marketing Ltd
[1971] 1 WLR 361, at 369-370; Searle v Moly Mines Limited [2008] AIRCFB 1088; (2008) 174 IR 21, at [22];
Trollope & Sons v Martyn Bros [1934] 2 KB 436, at 456 (the provision of an opportunity for the plaintiffs to
earn a commission being removed by the conduct of the defendants).
121 Conway-Cook v Town of Kwinana [2001] WASCA 250; (2001) 108 IR 421, at [29]; Broadlex Services Pty Ltd
v United Worker’s Union George [2020] FCA 867; (2020) 296 IR 425, at [61]-[91].
122 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, at 450. See also Liddle v Central Australia
Legal Aid Service (1999) 150 FLR 142, at 155; Health Services Union of West Australia v Director General
of Health (2008) 175 IR 13, at 62-68, and Francis v Municipal Council of Kuala Lumpur, [1962] 3 All ER 633,
at 637.
123 Lucy v Commonwealth (1923) 33 CLR 229, at 248.8.
124 Broadlex Services Pty Ltd v United Worker’s Union George [2020] FCA 867; (2020) 296 IR 425, at [70].
125 WorkPac Pty Ltd v Rossato (2021) 271 CLR 456; Section 15A of the Fair Work Act 2009.
126 [2010] FWAFB 5709, at [10].
127 Ibid.
128 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, [2022] HCA 1;
(2022) 275 CLR 265, at [109]. Note also the use of the words “the employment is terminated at the end of the
[period, task, season or training arrangement] under s.386(2)(a) and (b) of the Fair Work Act 2009.
129 Exhibit R3, Ronald (Mark) Spurway Witness Statement (2 February 2024), Annexure SA-3, CB pp.121-122.
130 See paragraphs [100]-[104] of this decision.
131 Transcript, PN1191-PN1197; Compare Steve Ahern Witness Statement (2 February 2024), at [22], CB p.116,
“always my intention”.
132 Transcript, PN1644-PN1655.
133 Exhibit R3, Ronald (Mark) Spurway Witness Statement (2 February 2024), at [18]-[19]. CB pp.104-105.
134 Transcript, PN623-PN632.
135 Exhibit R1, Christopher Oliver-Taylor Witness Statement (2 February 2024), at [10-[12], CB p.61.
136 Transcript, PN635-PN652.
137 See paragraphs [100]-[104] of this decision. The Teams meeting was held between Mr Oliver-Taylor, Mr
Ahern, Mr Latimer and Mr Melkman on 20 December 2023 (see paragraph [46] of this decision).
138 Transcript, PN831.
139 Delaney v Staples (t/a De Monfort Recruitment) [1992] 1 AC 687; [1992] 1 All ER 944, at 947(c) to 948(c).
140 [1992] 1 AC 687; [1992] 1 All ER 944.
141 [1992] 1 All ER 944, at 947(c) to 948(c).
142 See paragraph [54] of this decision.
143 Exhibit A3. Transcript, PN642.
144 Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587, at [218]-[225].
145 Ibid.
146 Ibid.
147 Ibid,
148 See paragraphs [59] and [60] of this decision, and the case of Zvetanka Raskov v Adecco Australia Pty Ltd
[2024] FWC 584, at [49].
149 [2021] FWCFB 3908, especially at [38]-[39].
150 Applicant’s Submissions, 19 February 2024, at [51]-[54].
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