13
[2012] FWA 5552 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Harry Grives
v
Aura Sports Pty Ltd
(U2011/15149)
COMMISSIONER JONES |
MELBOURNE, 9 JULY 2012 |
Termination of Employment - Minimum Employment Period - Casual Employee - Regular and Systematic Employment
Introduction
[1] On 23 December 2011 the Applicant filed an application for relief from unfair dismissal pursuant to S. 394 of the Fair Work Act 2009 (the Act).
[2] The Respondent objects to the application; firstly, on the basis that the Respondent is a small business within the meaning of the Act and the Applicant has not served the requisite period of employment with the Respondent. Second, the Respondent submits the dismissal of the Applicant was a case of genuine redundancy within the meaning of the Act.
[3] The Applicant was represented at the hearing of this matter by Mr L Keane and was called as a witness. The Respondent was represented by Mr J Murdoch Senior Counsel and called the following witnesses:
[4] At the hearing both parties agreed that the objections and the merits of the application be dealt with at the one hearing.
Background
[5] The Respondent’s business is in essence the laying of synthetic and timber floors for its clients. Its work is therefore project based with projects taking around 8-12 days to be completed. 1
[6] The Respondent submits that the reason for the Applicant’s dismissal is the dramatic downturn in business activity following the cessation of the Building Education Revolution. Mr Jelekainen, sole director of the Respondent, explained:
In early 2009, the Federal Government implemented the Building Education Revolution (‘BER’) which injected 12.4 billion dollars into the construction industry for the development of libraries and multipurpose halls within the primary schools. As 90% of the Respondent’s business is the installation of flooring for multipurpose halls in schools, the BER caused a dramatic increase in turnover and projects completed during the 2009 to 2011 period.
The number of projects completed went from 30 in 2008 with business turnover of $3, 304, 00.00 to 204 in 2011 with a business turnover of $12, 938, 00.00. After the expiration of the Building Education Revolution, the turnover has dropped down to a current year to date turnover of $4, 550, 00.00 for the 2012 financial year with an anticipated 74 projects to be completed. I expect this figure to significantly drop in the 2013 financial years as effectively the majority of the halls planned to be built in the next 5-7 years were built in the previous two years.
The dramatic increase in projects to be undertaken meant that the Respondent had to increase our staff numbers to cater for the growth but now that the level of business has returned to levels closer to the pre-BER, we are regrettably having to make redundancies. 2
[7] Evidence was provided by the Respondent’s accountant, Mr Warby, Williams Hall Chadwick Accountants, which was uncontested, and disclosed the Respondent’s turnover in the following financial years ending:
Year |
Turnover |
2006 |
$3.578m |
2007 |
$3.359m |
2008 |
$3.304m |
2009 |
$3.851m |
2010 |
$9.924m |
2011 |
$12.938m |
2012 YTD |
$4.55m 3 |
Mr Warby stated that he believed that the 2012 YTD turnover figures would, at the date of the hearing, be around $5.15m. 4
[8] The Respondent states that given the dramatic decline in the number of projects and consequently revenue, it could not sustain the level of staff it employed and consequently the Applicant’s employment was terminated.
[9] The parties agree that:
a) The Applicant commenced employment on 27 January 2011 in the position of installer, employed as a full-time employee until his employment was terminated on 16 December 2012; and
b) At the time the Applicant was dismissed the Respondent employed 15 employees, two of whom were employed as casual employees;
Legislation
[10] Section 382 of the Act provides relevantly, that a person is protected from unfair dismissal if the person has completed a minimum employment period with his or her employer. S. 383 sets out that the minimum employment period is, where the employer is not a small business - 6 months ending at the earlier of the time the person was given notice of his or her dismissal or immediately before the dismissal. If the employer is a small business, the minimum employment period is one year, ending at that time.
[11] It is apparent from the agreed facts (at [9]) that the Applicant was employed for a period of less than one year. If the Respondent is a small business within the meaning of the Act, he will not be a person who is protected from unfair dismissal.
[12] S. 23 of the Act deals with the meaning of a small business and provides:
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.
[13] It is a further consequence from the agreed facts that the determination of whether the Applicant is a protected person is dependent upon my satisfaction as to whether or not both casual employees employed at the time of the Applicant’s dismissal were employed by the Respondent on a regular and systematic basis.
[14] S. 385 of the Act provides:
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[15] The effect of S. 385 of the Act is that the question as to whether the dismissal was a case of genuine redundancy must be first decided prior to a consideration as to the merits of the application; that is, whether the dismissal was harsh, unjust or unreasonable within the meaning of S. 387 of the Act.
[16] Accordingly, in considering the matters in dispute, this decision proceeds as follows, having regard to the evidence and submissions of the parties:
a) First, determination as to whether the Respondent was a small business at the time the Applicant was dismissed; specifically, whether the two casual employees employed at the time of the Applicant’s dismissal were employed on a regular and systematic basis;
b) Second, where a finding is made that the Respondent was not a small business, a determination as to whether the dismissal was a case of genuine redundancy;
c) Third, where a finding is made that the dismissal was not a case of genuine redundancy, the determination of the merits of the application.
Was the Respondent a Small Business?
[17] The determination of this issue depends upon a finding as to whether or not two casual employees employed by the Respondent at the time of dismissal:
Mr Brendan Martin; and
Mr Chase Patterson
were employed on a regular and systematic basis.
The evidence
[18] Mr Martin was employed as a causal employee from April 2011 until May 2012, when he resigned. 5 Mr Patterson was employed by the Respondent on a full-time basis from July 2009 to February 2011 and as a casual employee from February 2011 to late March 2012 when he resigned to take up full-time work with another employer.6
[19] Mr Patterson’s evidence was that:
a) He worked causally for other employers in February 2011 and for Mr Tero Jelekainen, on construction of his new house in October 2011 and February 2012; 7
b) There were times when he was offered work by the Respondent which he refused. He said that he couldn’t recall the precise dates but it was during February 2011; 8
c) He worked for other employers, on a full time capacity, during late April/May 2011; 9
d) He ‘chose to leave the employment of Aura Sports Pty Ltd as due to lack of work they were unable to offer me full time employment. I had no continuity of regular work with Aura Sports Pty Ltd and this ultimately led me to resign from my employment as I needed regularity of hours and salary going forward’; 10
e) He ‘was generally given one to two weeks’ notice of upcoming jobs however sometimes I did not know until 1 to 2 days prior to commencing the job. Even when given a week’s notice this would sometimes change the day before and I would I was not deployed to the project.’ 11
[20] The Respondent provided a summary in tabular form of hours worked by each of the casual employees in each fortnightly period from the period 7 April 2011 to 30 November 2011. This table was derived from timesheets submitted by each employee and payroll information. 12 The veracity of the information contained in the table was not disputed by the Applicant.
[21] The table is set out below:
[22] I considered that the table should be disaggregated into hours worked on a daily basis, in order to consider the patterns of employment of Mr Martin and Mr Patterson. The daily hours worked by each of the employees over the course of their casual employment with the Respondent, during 7 April 2011 to 30 November 2011, from the timesheets completed by the employees was translated into a table, which is set out in Attachment A to this decision.
Regular and systematic
[23] The determination as to whether the employee was employed on a regular and systematic basis is an objective one having regard to the evidence.
[24] The concept of a casual being employed on a ‘regular and systematic’ basis is to be found in other provisions of the Act. S. 384, which is directed to a person’s period of employment, excludes a period of service as a casual employee unless the employment as a causal was on a regular and systematic basis and during that period, the employee had reasonable expectation of continuing employment by the employer on a regular basis: S. 384 (2). 14
[25] S. 23(2)(b) provides that a casual employee is not to be counted unless at that time, he or she has been employed on a regular and systematic basis (my emphasis).
[26] I am satisfied that the reference to ‘at that time’ is a reference to the date of dismissal in this matter.
[27] I note that the provision requires that the employee ‘has been employed’ and not ‘is employed’ on a regular and systematic basis. I am satisfied that, accepting the observation of the Full Bench in Shortland v The Smiths Snackfood Co Ltd, 15 that a casual employee may move from periods of engagement which are intermittent and periods which are regular and systematic, the provision requires an examination of the basis of the casual employee’s employment over the whole period of the casual employee’s employment with the Respondent.16
[28] Finally S. 23(2)(b) requires that the casual be employed on both a regular and systematic basis. Unlike S 384(2) there is no requirement that in addition the employee has a reasonable expectation of continuing employment.
[29] The Macquarie Dictionary meaning of ‘regular’ relevantly includes:
1. Usual; normal; customary
2. Recurring at fixed time; periodic
3. Observing fixed times or habits 17
The Macquarie Dictionary meaning of ‘systematic’ relevantly includes:
1. Having, showing or involving a system, method or plan
2. Characterised by a system or method; methodical
3. Arranged in or comprising an ordered system 18
[30] The Court of Appeal, Australian Capital Territory, in Yaraka Holdings Pty Ltd v Giljevic 19 considered a deeming provision applicable to independent contractors which, in part, deemed an individual to have been employed by an employer if the engagement ‘has been on a regular and systematic basis.’20 It should be noted that the deeming provision included matters which should be considered in determining whether an engagement has been on a regular and systematic basis. The following extracts from the judgements of the majority are instructive. Crispin P and Gray J noted:
It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the Workplace Relations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases. 21
[31] Their Honours noted that:
...it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. 22
[32] Relevantly, their Honours observed in relation to the meaning of ‘regular’ that:
The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”. 23
and formed the view that the pattern of engagement of the individual in question over the years from 1995 to 2002 satisfied this description.
[33] In respect of the meaning of ‘systematic’, their Honours held:
The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses. 24
[34] Madgwick J concurred with the majority. In a separate judgement, his Honour considered examples provided in the relevant statute of ‘individuals who are workers’ concluding that ‘the meaning to be ascribed to (the deeming provision) is conditioned by the examples.’ 25 Accordingly, his Honour stated:
It is clear from the examples that a ‘regular ... basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all.26
Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001). 27
[35] The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered.
[36] However, in considering the circumstances of Mr Martin and Mr Patterson, I have had regard to the dictionary meanings of the words ‘regular’ and ‘systematic’ and the observations of the Court of Appeal in Yaraka Holdings. My consideration of the circumstances of Mr Martin and Mr Patterson is based on the evidence contained in Attachment A.
[37] Examining Mr Martin’s pattern of employment it can be seen that for the period from 17 April 2011 to 4 August 2011, the hours worked (although irregular) were frequent and disclosed a repetitive pattern of a number of days worked continuously with a break of two or three days in between. For a period of one month, 5 August 2011 to 11 September 2011, there is no evidence of frequency or repetitive pattern in hours worked. From 12 September 2011, until 19 October 2011, Mr Martin worked frequent hours with repetitiveness in those frequent hours being evident. There was a gap of one month when Mr Martin did not work at all for the Respondent (from 20 October 2011 to 16 November 2011). From 17 November 2011 Mr Martin worked frequent hours for six days, with a break of five days followed by three days of work. Mr Martin was not called as a witness and there is no evidence as to the circumstances of the patterns revealed by the table.
[38] Although there are gaps in the periods of Mr Martin’s employment as a casual with the Respondent, overall I am satisfied that:
[39] Consequently, I find that Mr Martin was a casual employee employed on a regular and systematic basis at the time of the Applicant’s dismissal by the Respondent. Mr Martin is therefore to be counted in calculating the number of employees of the Respondent for the purpose of S. 23.
[40] Examining Mr Patterson’s period of employment as a casual with the Respondent, a different pattern emerges. From 17 April 2011 until 3 May 2011 Mr Patterson does not work any hours for the Respondent. On 4 May 2011 he works four days in a row and after one day break worked another two days, following which there is a gap of four months during which Mr Patterson does not work for the Respondent at all. Mr Patterson’s evidence was that there were occasions in February 2011 during which he was offered work by the Respondent and declined as he was working elsewhere. There is little evidence of his circumstances in this period, other than he was working for other employers on a full time basis in late April/May 2011.
[41] It is manifest that, from early May 2011 until 19 September 2011, Mr Patterson did not work frequently nor in a repetitive pattern. Clearly, there was no ongoing reliance by the Respondent on Mr Patterson’s services nor was there any method or plan to his employment.
[42] On 19 September 2011, Mr Patterson works continuously, at times very long hours, for 11 days. After a gap of three days, Mr Patterson then works continuously for five days. From 8 October 2011 to 19 October 2011, Mr Patterson did not work at all for the Respondent. He then worked two days for the Respondent followed by a four day break. From 27 October 2011 to 30 November 2011, Mr Patterson worked three periods of 8 days or more continuously with two breaks of one day and one of four days.
[43] I am satisfied that there were periods of continuous work from 19 September 2011 to the end of November 2011. The days and hours in those periods can be characterised as frequent. However I am not satisfied that they disclose a repetitive pattern. Consequently, I am not satisfied Mr Patterson has been employed, on balance, on a regular basis.
[44] Furthermore, the pattern of employment in this period, in my opinion fails to disclose an ongoing reliance by the Respondent on Mr Patterson’s services nor any method or plan. Consequently, I am not satisfied that Mr Patterson was employed on a systematic basis.
[45] I find, therefore, that Mr Patterson was not a casual who has been employed on a regular and systematic basis at the time of the Applicant’s dismissal.
[46] It follows that Mr Patterson is not to be counted for the purpose of calculating the number of employees employed by the Respondent at the time of the Applicant’s dismissal: S. 23(2)(b).
[47] It also follows that the Respondent employed fewer than 15 employees at the time of the Applicant’s dismissal and is therefore a small business.
[48] As the Respondent is a small business, the Applicant is required to have completed a minimum employment period of one year to be a person protected from unfair dismissal.
[49] The Applicant, having not completed the requisite minimum employment period, is not a person who is protected from unfair dismissal.
[50] The Applicant’s application is dismissed for want of jurisdiction. An order giving effect to this decision will be issued today.
COMMISSIONER
Appearances:
Mr L Keane appeared on behalf of the Applicant.
Mr J Murdoch SC appeared on behalf of the Respondent.
Hearing details:
Brisbane.
Wednesday, 20 June 2012.
Thursday, 21 June 2012.
Friday, 22 June 2012.
ATTACHMENT A
Hours worked - Brendan Martin & Chase Patterson | |||
Day |
Date |
Brendan Martin |
Chase Patterson |
Sunday |
17/04/2011 |
6.5 |
|
Monday |
18/04/2011 |
10.5 |
|
Tuesday |
19/04/2011 |
11 |
|
Wednesday |
20/04/2011 |
9 |
|
Thursday |
21/04/2011 |
8.5 |
|
Friday |
22/04/2011 |
|
|
Saturday |
23/04/2011 |
|
|
Sunday |
24/04/2011 |
|
|
Monday |
25/04/2011 |
|
|
Tuesday |
26/04/2011 |
|
|
Wednesday |
27/04/2011 |
12 |
|
Thursday |
28/04/2011 |
10 |
|
Friday |
29/04/2011 |
7.5 |
|
Saturday |
30/04/2011 |
|
|
Sunday |
1/05/2011 |
|
|
Monday |
2/05/2011 |
|
|
Tuesday |
3/05/2011 |
6.5 |
|
Wednesday |
4/05/2011 |
7.5 |
6 |
Thursday |
5/05/2011 |
9.5 |
9.5 |
Friday |
6/05/2011 |
4 |
4 |
Saturday |
7/05/2011 |
5.5 |
5.5 |
Sunday |
8/05/2011 |
|
|
Monday |
9/05/2011 |
6 |
10 |
Tuesday |
10/05/2011 |
6.5 |
7.5 |
Wednesday |
11/05/2011 |
4.5 |
|
Thursday |
12/05/2011 |
7.5 |
|
Friday |
13/05/2011 |
|
|
Saturday |
14/05/2011 |
|
|
Sunday |
15/05/2011 |
|
|
Monday |
16/05/2011 |
8 |
|
Tuesday |
17/05/2011 |
8 |
|
Wednesday |
18/05/2011 |
5.5 |
|
Thursday |
19/05/2011 |
5.5 |
|
Friday |
20/05/2011 |
10 |
|
Saturday |
21/05/2011 |
|
|
Sunday |
22/05/2011 |
|
|
Monday |
23/05/2011 |
9 |
|
Tuesday |
24/05/2011 |
7 |
|
Wednesday |
25/05/2011 |
7.5 |
|
Thursday |
26/05/2011 |
|
|
Friday |
27/05/2011 |
6.5 |
|
Saturday |
28/05/2011 |
|
|
Sunday |
29/05/2011 |
|
|
Monday |
30/05/2011 |
8 |
|
Tuesday |
31/05/2011 |
10.5 |
|
Wednesday |
1/06/2011 |
10.5 |
|
Thursday |
2/06/2011 |
9 |
|
Friday |
3/06/2011 |
10.5 |
|
Saturday |
4/06/2011 |
10.5 |
|
Sunday |
5/06/2011 |
8 |
|
Monday |
6/06/2011 |
11.5 |
|
Tuesday |
7/06/2011 |
9 |
|
Wednesday |
8/06/2011 |
9 |
|
Thursday |
9/06/2011 |
10.5 |
|
Friday |
10/06/2011 |
10 |
|
Saturday |
11/06/2011 |
9.5 |
|
Sunday |
12/06/2011 |
8 |
|
Monday |
13/06/2011 |
6.5 |
|
Tuesday |
14/06/2011 |
10.5 |
|
Wednesday |
15/06/2011 |
8 |
|
Thursday |
16/06/2011 |
11.5 |
|
Friday |
17/06/2011 |
10.5 |
|
Saturday |
18/06/2011 |
|
|
Sunday |
19/06/2011 |
|
|
Monday |
20/06/2011 |
9 |
|
Tuesday |
21/06/2011 |
10.5 |
|
Wednesday |
22/06/2011 |
9 |
|
Thursday |
23/06/2011 |
5.5 |
|
Friday |
24/06/2011 |
7.5 |
|
Saturday |
25/06/2011 |
10 |
|
Sunday |
26/06/2011 |
7.5 |
|
Monday |
27/06/2011 |
11 |
|
Tuesday |
28/06/2011 |
14.5 |
|
Wednesday |
29/06/2011 |
12 |
|
Thursday |
30/06/2011 |
15 |
|
Friday |
1/07/2011 |
14 |
|
Saturday |
2/07/2011 |
|
|
Sunday |
3/07/2011 |
|
|
Monday |
4/07/2011 |
|
|
Tuesday |
5/07/2011 |
9.5 |
|
Wednesday |
6/07/2011 |
11 |
|
Thursday |
7/07/2011 |
10.5 |
|
Friday |
8/07/2011 |
5 |
|
Saturday |
9/07/2011 |
|
|
Sunday |
10/07/2011 |
|
|
Monday |
11/07/2011 |
|
|
Tuesday |
12/07/2011 |
11.5 |
|
Wednesday |
13/07/2011 |
10.5 |
|
Thursday |
14/07/2011 |
10.5 |
|
Friday |
15/07/2011 |
10 |
|
Saturday |
16/07/2011 |
3.5 |
|
Sunday |
17/07/2011 |
|
|
Monday |
18/07/2011 |
12 |
|
Tuesday |
19/07/2011 |
12 |
|
Wednesday |
20/07/2011 |
11.5 |
|
Thursday |
21/07/2011 |
11.5 |
|
Friday |
22/07/2011 |
11.5 |
|
Saturday |
23/07/2011 |
|
|
Sunday |
24/07/2011 |
|
|
Monday |
25/07/2011 |
11.5 |
|
Tuesday |
26/07/2011 |
8 |
|
Wednesday |
27/07/2011 |
10 |
|
Thursday |
28/07/2011 |
10 |
|
Friday |
29/07/2011 |
9 |
|
Saturday |
30/07/2011 |
10.5 |
|
Sunday |
31/07/2011 |
10 |
|
Monday |
1/08/2011 |
9 |
|
Tuesday |
2/08/2011 |
10 |
|
Wednesday |
3/08/2011 |
12 |
|
Thursday |
4/08/2011 |
11 |
|
Friday |
5/08/2011 |
|
|
Saturday |
6/08/2011 |
|
|
Sunday |
7/08/2011 |
|
|
Monday |
8/08/2011 |
|
|
Tuesday |
9/08/2011 |
|
|
Wednesday |
10/08/2011 |
|
|
Thursday |
11/08/2011 |
6 |
|
Friday |
12/08/2011 |
|
|
Saturday |
13/08/2011 |
|
|
Sunday |
14/08/2011 |
|
|
Monday |
15/08/2011 |
8 |
|
Tuesday |
16/08/2011 |
9.5 |
|
Wednesday |
17/08/2011 |
11 |
|
Thursday |
18/08/2011 |
10.5 |
|
Friday |
19/08/2011 |
7.5 |
|
Saturday |
20/08/2011 |
|
|
Sunday |
21/08/2011 |
|
|
Monday |
22/08/2011 |
9 |
|
Tuesday |
23/08/2011 |
11.5 |
|
Wednesday |
24/08/2011 |
|
|
Thursday |
25/08/2011 |
|
|
Friday |
26/08/2011 |
|
|
Saturday |
27/08/2011 |
|
|
Sunday |
28/08/2011 |
|
|
Monday |
29/08/2011 |
|
|
Tuesday |
30/08/2011 |
4.5 |
|
Wednesday |
31/08/2011 |
4 |
|
Thursday |
1/09/2011 |
6.5 |
|
Friday |
2/09/2011 |
7 |
|
Saturday |
3/09/2011 |
|
|
Sunday |
4/09/2011 |
|
|
Monday |
5/09/2011 |
|
|
Tuesday |
6/09/2011 |
|
|
Wednesday |
7/09/2011 |
|
|
Thursday |
8/09/2011 |
|
|
Friday |
9/09/2011 |
|
|
Saturday |
10/09/2011 |
|
|
Sunday |
11/09/2011 |
|
|
Monday |
12/09/2011 |
12.5 |
|
Tuesday |
13/09/2011 |
10.5 |
|
Wednesday |
14/09/2011 |
12 |
|
Thursday |
15/09/2011 |
11.5 |
|
Friday |
16/09/2011 |
12.5 |
|
Saturday |
17/09/2011 |
8 |
|
Sunday |
18/09/2011 |
8 |
|
Monday |
19/09/2011 |
9.5 |
12.5 |
Tuesday |
20/09/2011 |
9.5 |
10 |
Wednesday |
21/09/2011 |
9.5 |
9.5 |
Thursday |
22/09/2011 |
9.5 |
7 |
Friday |
23/09/2011 |
11 |
6 |
Saturday |
24/09/2011 |
|
6 |
Sunday |
25/09/2011 |
|
6 |
Monday |
26/09/2011 |
9 |
11 |
Tuesday |
27/09/2011 |
9 |
8 |
Wednesday |
28/09/2011 |
9.5 |
9.5 |
Thursday |
29/09/2011 |
8.5 |
18.5 |
Friday |
30/09/2011 |
5.5 |
|
Saturday |
1/10/2011 |
|
|
Sunday |
2/10/2011 |
|
|
Monday |
3/10/2011 |
7 |
9.5 |
Tuesday |
4/10/2011 |
7 |
8 |
Wednesday |
5/10/2011 |
15 |
8 |
Thursday |
6/10/2011 |
15 |
5.5 |
Friday |
7/10/2011 |
10.5 |
8 |
Saturday |
8/10/2011 |
|
|
Sunday |
9/10/2011 |
|
|
Monday |
10/10/2011 |
|
|
Tuesday |
11/10/2011 |
13.5 |
|
Wednesday |
12/10/2011 |
8 |
|
Thursday |
13/10/2011 |
10 |
|
Friday |
14/10/2011 |
8.5 |
|
Saturday |
15/10/2011 |
8.5 |
|
Sunday |
16/10/2011 |
4 |
|
Monday |
17/10/2011 |
7 |
|
Tuesday |
18/10/2011 |
8 |
|
Wednesday |
19/10/2011 |
5.5 |
|
Thursday |
20/10/2011 |
|
12 |
Friday |
21/10/2011 |
|
6 |
Saturday |
22/10/2011 |
|
|
Sunday |
23/10/2011 |
|
|
Monday |
24/10/2011 |
|
|
Tuesday |
25/10/2011 |
|
|
Wednesday |
26/10/2011 |
|
12.5 |
Thursday |
27/10/2011 |
|
12 |
Friday |
28/10/2011 |
|
11 |
Saturday |
29/10/2011 |
|
6 |
Sunday |
30/10/2011 |
|
6 |
Monday |
31/10/2011 |
|
15 |
Tuesday |
1/11/2011 |
|
6 |
Wednesday |
2/11/2011 |
|
10.5 |
Thursday |
3/11/2011 |
|
|
Friday |
4/11/2011 |
|
9.5 |
Saturday |
5/11/2011 |
|
8 |
Sunday |
6/11/2011 |
|
6 |
Monday |
7/11/2011 |
|
10 |
Tuesday |
8/11/2011 |
|
10 |
Wednesday |
9/11/2011 |
|
10 |
Thursday |
10/11/2011 |
|
9.5 |
Friday |
11/11/2011 |
|
9 |
Saturday |
12/11/2011 |
|
6 |
Sunday |
13/11/2011 |
|
9.5 |
Monday |
14/11/2011 |
|
11 |
Tuesday |
15/11/2011 |
|
10 |
Wednesday |
16/11/2011 |
|
13.5 |
Thursday |
17/11/2011 |
8 |
|
Friday |
18/11/2011 |
8 |
|
Saturday |
19/11/2011 |
9.5 |
|
Sunday |
20/11/2011 |
4 |
|
Monday |
21/11/2011 |
13 |
8.5 |
Tuesday |
22/11/2011 |
11 |
9 |
Wednesday |
23/11/2011 |
|
6.5 |
Thursday |
24/11/2011 |
|
5 |
Friday |
25/11/2011 |
|
5.5 |
Saturday |
26/11/2011 |
|
6.5 |
Sunday |
27/11/2011 |
|
7 |
Monday |
28/11/2011 |
14 |
4 |
Tuesday |
29/11/2011 |
9 |
10.5 |
Wednesday |
30/11/2011 |
7 |
8.5 |
1 Witness Statement of Brendan Murphy, Exhibit A7 at [1].
2 Witness Statement of Ari Jelekainen, Exhibit A3 at [4] to [6].
3 Witness Statement of Dugald Warby, Exhibit A10.
4 Transcript of Hearing - 20 June 2012 at [525].
5 Witness Statement of Mary Elizabeth Grabbe, Exhibit A15 at [3].
6 Witness Statement of Chase Patterson, Exhibit A18 at [1] - [2], [13].
7 Ibid at [4]; Transcript of Hearing - 21 June 0212 at [994] .
8 Ibid at [1007] - [1010].
9 Witness Statement of Chase Patterson, Exhibit A18 at [9].
10 Ibid at [14].
11 Ibid at [6].
12 Witness Statement of Mary Elizabeth Grabbe, Exhibit A15, Attachments MEG3 and MEG5.
13 Witness Statement of Mary Elizabeth Grabbe, Exhibit A15, Attachment MEG 1.
14 The decision of FWA in Shortland v The Smith’s Snackfood Company Ltd [2010] FWAFB; Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078; Holland v UGL Resources Pty Ltd T/A UGL Resources [2012] FWA 3453 concerned S. 384 (2).
16 Ibid at [10].
17 Macquarie Dictionary Online.
18 Ibid.
19 (2006) ACTCA 6.
20 S. 11, Workers Compensation Act 1951 (ACT).
21 (2006) ACTCA 6 at [64].
22 Ibid at [65].
23 Ibid at [68].
24 Ibid at [69].
25 Ibid at [87].
26 Ibid at [89].
27 Ibid at [91].
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