DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Shea Munro
v
Wilmar Australia Pty Ltd
(U2016/12200)

Application for relief from unfair dismissal.

[1] Mr Shea Munro has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Wilmar Australia Pty Ltd (Wilmar) was harsh, unjust or unreasonable.

[2] Mr Munro commenced employment with Wilmar on 4 June 2012 as a seasonal worker and was made permanent in September 2013. He was summarily dismissed from his employment on 16 September 2016. Mr Munro worked across a number of roles, including Fork Lift Operator, Engineer’s Assistant, General Mill Worker and Roving Driver.

[3] Wilmar operates a large network of sugar cane mills across northern Queensland. Mr Munro worked in Wilmar’s Plane Creek Mill at Sarina (the Mill). As a result of the seasonal nature of Wilmar’s business, it was often the case that Wilmar’s operational requirements would change significantly in any given period. The busiest of these periods is referred to as ‘crushing season’.

[4] Wilmar did not raise any jurisdictional objections to the application and the matter was listed for hearing in Mackay on 17 March 2017. At the hearing Mr Munro represented himself and Wilmar was represented by Mr Maurice Swan of Ai Group, an employer association of which Wilmar is a member. It was not therefore necessary to consider the question of representation under s.596 of the Act.

[5] The following people gave evidence and were present at the hearing:

● Mr Munro;
● Ms Danielle Shaw, partner of Mr Munro; and
● Mr Craig Muddle, Manager.

[6] The following people submitted a witness statement but were not present at the hearing:

● Mrs Karen Shaw; and
● Mr Richard Comin, Shift Supervisor.

Relevant Legislation

[7] Pursuant to s.385 of the Act, “unfair dismissal” is defined as meaning:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[8] Further, s.387 relevantly provides:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.’

Overview of Mr Munro’s case and evidence

[9] Prior to commencing employment with Wilmar, Mr Munro owned his own business offering services which varied by season, including contract cane slashing, lawn mowing and agricultural equipment repairs. Mr Munro wanted to expand on his business into cane harvesting and started a small sugar cane harvesting business to provide supplementary income for his family and create additional jobs for his friends struggling to find employment. His business serviced local sugar cane farms, many of whom also had dealings with Wilmar.

[10] Mr Munro’s evidence is that he approached Mr Tony Marino, the Cane Supply and Transport Manager of Wilmar to discuss his intentions and a contract was accepted. However, Mr Marino had expressed concern about Mr Munro’s ability to safely work for Wilmar with the various rosters while also working for his own business. Mr Munro stated that he intended to employ a casual employee in his business to fulfil his duties on the days that he was rostered to work for Wilmar.

[11] It is Mr Munro’s evidence that when he held a discussion with Mr Muddle regarding the work he intended to do for his own business and the shifts he was working at Wilmar, he assured Mr Muddle that his work with Wilmar was his first priority. He stated that he considered his primary employment with Wilmar was propping up his own private enterprise. 1

[12] Typically employees are not authorised to take annual leave during the crushing season. Mr Munro sought permission and was granted annual leave during the crushing season in 2015 when his third child was born. Mr Munro’s fourth child was due to be born during the crushing season in 2016. A notice had been issued by Wilmar that annual leave would not be granted during the crushing season. It is Mr Munro’s evidence that based on the notice issued, he considered he would not be authorised to take annual leave during the 2016 crushing season and when his fourth child was born.

[13] In cross-examination Mr Munro agreed that another male employee had been granted approximately one month’s leave without pay during the 2014 crushing season on the birth of that employee’s child. 2

[14] On 9 August 2016, Ms Danielle Shaw, Mr Munro’s partner was informed that she would need to urgently attend hospital to be induced as she was experiencing complications with the latter part of the pregnancy. Mr Munro sought permission from his supervisor, Mr Kim Hunt to allow him to urgently attend the hospital. On 12 August 2016, Mr Munro applied for paid carer’s leave for the period 9 August 2016 to 16 August 2016. He provided a medical certificate in support of his request. On 14 August 2016, Mr Munro applied for an additional period of three weeks’ annual leave. Both of these requests were initially granted.

[15] Mrs Karen Shaw is the mother of Ms Danielle Shaw. Mrs Shaw’s evidence is that from 12 August 2016 she assisted her daughter during the day with the care of her children. Ms Shaw’s evidence is that she was cared for by her mother, “on the two days [Mr Munro] was required to harvest cane”. Mr Munro stated that this allowed him to work during the day and to look after his partner and children in the evening, when he was otherwise rostered to work with Wilmar.

[16] Mrs Shaw was not available to continue caring for Ms Shaw into the evening and overnight as Mrs Shaw’s husband is an insulin-dependent diabetic, and Mrs Shaw is required to monitor her husband’s blood sugar levels while he is sleeping.

[17] Mr Munro’s evidence is that he used his paid carer’s leave to care for Ms Shaw and their children in the evening, as Mrs Shaw was not available. The work he did for his business was during his own free time when he would not otherwise had been at work. His evidence is that the work he did for his own business between 9 August 2016 and 16 August 2016 was no more than 15 hours.

[18] On 15 and 16 August 2016, Mr Munro performed work for his own business harvesting sugar cane. His evidence is that he was contractually obligated to harvest, and he had no other alternative than to cut on those days. 3 On 16 August 2016 Ms Shaw and Mrs Shaw were present within a car in the field in Ms Shaw’s vehicle with the new-born child and her 11 month old daughter. Ms Shaw had driven the vehicle after dropping her other children at school. She recalls it was probably her first day of driving after the birth of her child one week earlier. Her evidence is that during the week following the birth she was able to lift her new-born child, but could not lift her 11 month old child.4

[19] At approximately 10.00am whilst harvesting, Mr Craig Muddle, Regional Operations Manager – Mackay Region for Wilmar, and Mr Tony Tomlinson, a Field Officer attended the cane field where he was harvesting cane. Mr Munro considered this to be an unsafe act, and he considered that as he was in control of the work area, Mr Muddle or Mr Tomlinson should have called him to request to come into the work area where Mr Munro was operating a harvester.

[20] Mr Munro’s evidence is that Mr Muddle said to him Mr Munro was “diddling” Mr Muddle out of money. Mr Munro agrees Mr Muddle said to him, “Why are you cutting cane when you’re supposed to be on carer’s leave?” 5 Mr Muddle informed Mr Munro an “Intolerable Breach Notice” would be issued against him. On 18 August 2016 Mr Munro received a phone call from Mr Muddle, instructing him to attend a meeting where he would be issued with the notice.

[21] Mr Muddle informed Mr Munro during the meeting on 18 August 2016 that his employment would not be terminated on the proviso that he complied with certain conditions. The conditions were set out in a letter to him dated 2 September 2016: 6

‘…

Work arrangements for the duration of your engagement in cane harvesting

I direct that you must:

Provide to me, within 2 days of the date of this letter, full details of your current harvesting roster;

For the duration of the crushing season, provide to the HR Business Partner, Plane Creek Mill, in writing, details of any proposed change to that roster and the date on which the change is proposed to commence, within 24 hours of your becoming aware of the proposed changes and, in any event, 12 hours prior to the change actually taking effect.

I further direct that you must:

For the duration of the crushing season, provide to the HR Business Partner, Plane Creek Mill, by 9:00am each Friday, a Statutory Declaration or a declaration signed in the presence of the Plane Creek HR Business Partner setting out the actual times you spent harvesting cane and the times you spent maintaining your harvesting equipment during the previous week.

Authorise each of the Cane Growers in your harvesting group to disclose to a representative from Wilmar Sugar the actual times you spent harvesting cane and the times you spent maintaining your harvesting equipment during the previous week.

…’

[22] Mr Munro submitted that these conditions required him to submit weekly timesheets indicating the time spent working for his own business, granting Wilmar permission to contact his clients to validate the hours, and was asked to, “highlight any 24 hour period in which [he] had to work for Wilmar, [he] was not allowed to work for [himself]”. The terms were set out in a letter to Mr Munro dated 2 September 2016, however made no reference to the 24 hour period identified by Mr Munro as above.

[23] Mr Munro responded as follows: 7

‘I am writing to refuse acceptance of the Intolerable Breach and the conditions required for my return to work.

The conditions you have set forth are completely unworkable and are, I believe, an attempt to force me to resign. Should you wish to continue down the path against me, you will be leaving yourself and Wilmar Sugar liable to a Breach of General Protections and/or an Unfair Dismissal claim.

You are also leaving yourself and Wilmar Sugar open to a discrimination claim unless you impose the same conditions you are seeking to impose on me, on every other employee, including management within Wilmar Sugar, who engages in a second job or other vocation….

…

The EBA states that it is acceptable for an employee to work up to 16 hours per shift, the conditions being an employee has adequate breaks, is offered to be driven home after 14 hours and is driven home after 16 hours. The EBA states 8 hour turnaround times are acceptable. Using this as my guideline, I can potentially work for Wilmar for 8 hours and then myself for up to 8 hours, including adequate breaks, within an 8 hour rest break.

Furthermore, if you are denying my Carer’s leave for the two days in question and replacing it with annual leave, you are nullifying the whole situation as you are now saying I was on annual leave for the days in question and therefore I am free to do what I please….

In summary, given that I have not broken any laws, and have not violated any Wilmar Sugar policy, or lack thereof, I will be returning to work for my night shift on Friday 9^th September. I also expect that any reference to any breach brought about by your discrimination against me will be removed from my employee file.

…’

[24] Mr Munro’s employment was suspended from 22 August 2016. It is not clear if the period was with payment at Wilmar’s cost, or whether Mr Munro had to use his annual leave during this period. Mr Munro provided information to the Commission after the decision had been reserved, demonstrating that he had been required to take his annual leave during this period.

[25] Mr Munro did not agree to these terms on the basis that they “invaded the privacy of [his] business and clients”. He further submitted that by restricting the hours he could work for his own business, he would be in breach of contracts he had engaged in. Mr Munro submitted that these conditions were an attempt to force him to resign from Wilmar.

[26] Mr Munro alleged that he had been discriminated against by Mr Muddle. Mr Munro submitted that Mr Muddle had a “vendetta” against him and that he had been subject to threats against his employment, offensive jokes and invasions of his privacy.

[27] Mr Munro referred to three incidents in which he alleged Mr Muddle had discriminated against him, as described below.

Events of November 2014

[28] On 12 November 2014 Mr Munro agreed to work an additional shift at the Mill during a scheduled maintenance day. He was tasked with greasing sections of the Mill, however was unable to commence work until another section of work had been finished. In the meantime he was instructed by a supervisor to assist with the operation of a mobile crane.

[29] Mr Munro’s evidence is that he was approached by another supervisor, Mr Richard Comin, who engaged in a “tirade” of abuse against him concerning the reasons he was not doing his assigned work.

[30] On 17 November 2014 Mr Munro emailed Mr Comin requesting an apology, but did not receive a response. Mr Munro’s evidence is that the following day he was approached by Mr Muddle who said to him, “You should have more respect and just [do] what you were being told” and, “You’ve got a lot of potential, and good career prospects, but I would hate to see anything happen to that”. Mr Munro considered this a threat to his continuing employment.

Events of December 2015

[31] In December 2015, Mr Munro accepted an additional shift to work on a cleaning crew removing settled sugar residue from the bottom of various compartments at the Mill. The cleaning involved the use of high pressure hoses. Mr Munro stated that he had requested a rain suit (consisting of a heavy-duty raincoat and waterproof pants), however had been provided with a cheap raincoat. As a result, Mr Munro stated that he suffered significant discomfort, as he was wet and sticky with sugar.

[32] Mr Munro made a claim for a payment of rain allowance, which he stated was provided to compensate employees who work in wet clothing. It was submitted that this allowance was initially approved by Mr Comin.

[33] Following payment of the allowance, an amount of $245.68 8, Mr Munro was shown an email from Mr Muddle by Mr Comin, requesting that he pay the allowance back. Mr Munro’s evidence is that on 18 December 2015 he was approached by Mr Muddle and some discussion was had concerning the allowance. Mr Munro alleged Mr Muddle said to him, “Other workers at other mills do the exact same job, but do not claim rain pay”, and words to the effect, “You have a promising career with Wilmar, and I would hate to see anything happen to that”. Mr Munro submitted following this discussion with Mr Muddle the rain allowance was deducted from his pay without his authority.

[34] On 17 December 2015, a length of pipe was stolen from the boiler area at the Mill. Mr Munro suspected that another employee, who will be referred to as ‘Mr A’ (a psyedunum chosen by me) was responsible for the theft. Mr Munro passes Mr A’s property on his way to and from his home and the Mill. On the same day as the theft, Mr Munro passed Mr A’s home on his way home from work and saw in Mr A’s carport a length of pipe resembling the pipe that was stolen. Mr Munro took a photograph of the pipe from his vehicle in the street.

[35] On 23 December 2015 Mr Muddle contacted Mr Munro and requested a copy of the photograph to “confirm his suspicions”. Mr Munro refused this request on the basis that he did not want to become involved, however indicated to Mr Muddle that he was “on the right track”. Later that day, Mr Muddle met with Mr Munro where it was agreed that he would provide the photograph on the basis that Mr Muddle would provide a statement that his name would not be revealed.

[36] Mr Munro submitted that he was still reluctant to provide the photograph and conversation to the following effect occurred:

‘Mr Munro: What’s in it for me? How about you give me my rain pay?

Mr Muddle: Do you know how bad that sounds, blackmailing a manager?

Mr Munro: Yeah, that does sound pretty bad, but I really need that money. It was a big hit from my pay.

Mr Muddle: I can’t do anything about that, but once [Mr A] is gone, you’ll move up to the boilers and you’ll make a lot more money up there. You won’t be worried about a couple of hundred dollars.’ 9

[37] Mr Munro submitted that, given his previous interactions with Mr Muddle, he believed that he was being offered Mr A’s job.

[38] In cross-examination it was put to Mr Munro that he had not disputed Mr Muddle when he suggested that Mr Munro was blackmailing him. Mr Munro agreed that he had not disputed that. In cross-examination, Mr Munro said, “I saw it as an opportunity to try and get that pay I believed I was entitled to.” 10

Overview of Wilmar’s case and evidence

[39] Wilmar submitted that Mr Munro engaged in serious misconduct by conducting work on days for which he had been granted paid carer’s leave, and that he had failed to follow a lawful and reasonable direction by refusing to disclose the extent and timing of his activities when working for his own harvesting business.

[40] Wilmar submitted that it was improper for Mr Munro to claim paid carer’s leave from Wilmar while working for his own business and that in doing so amounted to “double-dipping” to the detriment of Wilmar. Wilmar was required to pay overtime to an employee it has asked to cover Mr Munro’s shift while he was on paid carer’s leave.

[41] In reply to Mr Munro’s submission that he was required to care for his partner and children only during the evening and was able to operate his business during the day, Wilmar submitted:

‘If the situation were truly one where the Applicant’s wife and family required his care and attention at night but not during the day, and that such care and attention during the night would not produce unsafe levels of fatigue, an honest approach consistent with a proper consideration, weighing and balancing of the Applicant’s own interests and the interests of his employer (Wilmar), would be for the Applicant to request Wilmar to that allocate him to day work for the necessary period.’ 11

[42] Mr Muddle’s evidence during the hearing was as follows: 12

‘…I had no issue with [Mr Munro] taking the carer’s leave for the birth of his child, if [Ms Shaw] has had a rough time. ….The issue that I had was that he was doing work outside whilst he was on carer’s leave and getting paid for it, which is totally against what carer’s leave is for.’

[43] Wilmar submitted that Mr Munro’s conduct of working for himself on days taken as carer’s leave amounted to a conflict of interest and a breach of his duties owed to Wilmar as his employer. Further, it was submitted that such breach was inconsistent with his contact of employment and constituted as serious misconduct.

[44] In cross-examination, Mr Muddle conceded that if Mr Munro had taken annual leave instead of paid carer’s leave, Wilmar would still have been required to pay overtime to the employee covering Mr Munro’s shift. 13

[45] In the letter dated 2 September 2016, Mr Muddle informed Mr Munro that for two of the days Mr Munro had been harvesting (essentially 15 and 16 August 2016), Wilmar would convert the two days from paid carer’s leave to paid annual leave.

[46] The second ground for dismissal, submitted by Wilmar, was that Mr Munro had failed to follow a lawful and reasonable direction. This direction was issued on 18 August 2016 and is set out in the letter dated 2 September 2016.

[47] Mr Muddle gave evidence that given the size and complexity of the machinery used at Wilmar, there were “many workplace health and safety hazards which must be rigorously monitored and minimised so as to avoid injury to employees”. 14

[48] It was submitted by Mr Muddle that Mr Munro’s engagement in additional harvesting work during the crushing season may enhance fatigue and has the potential to increase the level of risk to health and safety. It was submitted that the direction for Mr Munro to provide details of his activities was reasonable, as it ensured that Wilmar would have access to information required to monitor fatigue that could potentially affect the health and safety of Mr Munro and his co-workers.

[49] In cross-examination, Mr Muddle agreed that at the time of Mr Munro’s dismissal, Wilmar did not have in place a fatigue management policy, and it was putting one in place. 15

[50] In answering questions from me during the hearing, the following exchange with Mr Muddle occurred: 16

‘You say he was allowed to do a number of hours after he's worked night shift at the mill and how many hours a day would you allow him to work up to without there being a fatigue issue?---A standard 12 in a 24-hour period is okay.  In those circumstances, he was able to do these shifts and the other ones he was not able to do the shifts.  That's what the whole logbook and harvesting times was about, was just so we could monitor it and if it was getting excessive, we could have the conversation with Shea and say no, this is getting too much now; you're going to have to start pulling back.’

[51] Wilmar submitted that the allegations that Mr Muddle had discriminated against Mr Munro were unsubstantiated.

[52] In respect of the events of November 2014, Wilmar submitted that Mr Muddle was interested in the career progression of Mr Munro and was offering him advice designed to promote the prospects of his future advancement. It was submitted that Mr Munro was at times “stubbornly recalcitrant” and that Mr Muddle was counselling him to manage his behaviour.

[53] In respect of the events of December 2015, Wilmar denied that Mr Muddle threatened Mr Munro’s career. It was submitted that Mr Muddle had not had a face to face discussion with Mr Munro concerning the rain allowance.

[54] In relation to the incident involving Mr A, Mr Muddle denied that he implicitly offered Mr A’s position to Mr Munro if he assisted to terminate Mr A’s employment. It was further submitted that this incident did not provide support the contention that Mr Muddle had discriminated against Mr Munro.

Mr Munro’s Closing Submissions

[55] Mr Munro submitted that he requested carer’s leave from Wilmar to provide care to his family following the difficult birth of his child. Mr Munro further submitted that he was in a compromising position given that he had to work within his own business during this period; however, this was outside of the normal rostered hours he would have worked for Wilmar.

[56] It was submitted by Mr Munro that carer’s leave only covers the rostered hours of work that he would have worked for Wilmar and does not extend hours outside of this. Mr Munro further submitted that it is acceptable for an employee to claim carer’s leave from their employment to care for a sick child, and then go to soccer practice once their partner had arrived home from work and could care for the child. Mr Munro submitted that his circumstances were no different, given that he was caring for his family during what was considered as his usual ‘rostered work hours’, and worked for his own business outside of these hours.

[57] Mr Muddle was asked by Mr Munro at the hearing whether there had been any instance where he had not been fit for duty or asleep at work, Mr Muddle’s response was “no”. Mr Munro submitted in light of Mr Muddle’s response, there was no genuine concern by Wilmar relating to fatigue at work that led to the conditions imposed on him. Mr Munro further submitted that Wilmar did not have a fatigue management policy, therefore there could not be any legitimate concern arising from such policy and the onus to manage fatigue was considered by Wilmar as ‘self-managed’. Mr Munro provided that self-management of fatigue was supported in the answer provided by Mr Muddle when it was put to him by Mr Munro that “It was up to me to manage my fatigue?”, to which Mr Muddle answered “yes”.

[58] It was Mr Munro’s submission that the directions issued by Wilmar were unreasonable, unworkable and would have caused him extreme hardship if complied with. Mr Munro further submitted that in the evidence of Wilmar, the company had provided that there were no reasonable grounds to issue these conditions, as they were not related to the alleged misconduct or performance at work, but rather related to the company not following its own rules and Mr Munro blowing the whistle on the suspect behaviour of Wilmar. Mr Munro submitted that the alleged misconduct never occurred; the directions were imposed as a consequence, and were unrelated to the alleged misconduct.

[59] Mr Munro submitted that he is seeking reinstatement and compensation for lost earnings as a remedy to his unfair dismissal claim. Mr Munro submitted that he had suffered financial losses, which he has attempted to mitigate through searching for new employment. However, due to factors such as the current economic climate and a significant knee injury he had sustained whilst working for Wilmar, Mr Munro submitted that he is unable to perform the duties he could previously and consequently has been unsuccessful in finding alternative employment.

Wilmar’s Closing Submissions

[60] It was submitted by Wilmar that in the events leading up to Mr Munro’s dismissal, Mr Munro had engaged in two separate courses of misconduct, being:

(1) Securing a financial advantage and causing a financial detriment to Wilmar; and

(2) Refusal to carry out a lawful and reasonable direction given by Wilmar.

[61] Wilmar contend that each independent course of misconduct would constitute as a valid reason for his dismissal, however for reasons related to Mr Munro’s family circumstances, Wilmar refrained from dismissing him for the first instance of misconduct in (1) above.

[62] Wilmar submitted that there may be a variety of non-caring activities (e.g. shopping) involving short spans of time which do not run substantially contrary to the purpose of carer’s leave; but at the other end of the spectrum, beyond the boundary of acceptability, is engaging in work (other than for the employer) for a substantial period of time.

[63] Wilmar further submitted that if Mr Munro’s situation were truly one where his partner or family required care and attention at night but not during the day, and that such care and attention during the night would not produce unsafe levels of fatigue, an honest approach would be for Mr Munro to have requested Wilmar to allocate him to day work for the necessary period.

[64] Wilmar submitted that Mr Munro’s decision to favour his own interests in the detriment of Wilmar’s, was a clear conflict of interest. Wilmar considered that Mr Munro’s actions were a breach of his duty owed to Wilmar and as the breach was inconsistent with his contract of employment, had amounted to serious misconduct. It was Wilmar’s submission that Mr Munro acknowledged that he had not consulted with Wilmar about the appropriateness of taking carer’s leave during such time. 17 Wilmar submitted that Mr Munro had other suitable options available to him at the time he requested carer’s leave, such as requesting an additional week of annual leave (of which Mr Munro had sufficient accrual) or requesting unpaid parental leave.

[65] On behalf of the Respondent, Mr Muddle submitted that whilst conducting the “roster overlay”, he had become aware that Mr Munro had made two shift swaps. Mr Muddle further submitted that these shift swaps had raised various issues, as outlined below:

● Wilmar was to pay overtime rates to the other workers involved in the shift swaps;
● Fatigue management issues for the other workers at the Mill who were involved in the shift swaps; and
● The total number of hours Mr Munro had worked in a given period would be above the threshold at which Wilmar would require the exercise of higher levels of management authority and the taking of action to minimise the risk of adverse consequences from potential fatigue.

[66] Mr Muddle described that the shift swap process of Wilmar was substantially different to the process as described by Mr Munro 18, and identified the following issues in the process that was undertaken by Mr Munro:

● Lack of information about what hours Mr Munro was working outside the mill;
● Lack (to that point in time) of any control over those hours worked outside the mill;
● More often than not there was a conflict between Mr Munro’s harvesting schedule and his work schedule at the mill; and
● Routinely engaging in shift swaps was “just fatiguing other people”.  19

[67] Mr Muddle submitted that the issues that arose out of Mr Munro’s shift swaps, identified risk in situations where the total number of hours worked by Mr Munro, in a given period, would be above the threshold. Wilmar would be required to exercise higher levels of management authority and action to minimise the risk of adverse consequences from potential fatigue that arose from Mr Munro’s shift swapping process. Wilmar submitted that it’s monitoring and managing employee fatigue system had particular levels of required authorisation for decisions in relation to how many hours an employee may be required or permitted to work. Wilmar further submitted that it had become apparent that they did not have sufficient information from Mr Munro on the above issues, to monitor and manage potential fatigue issues.

[68] Wilmar submitted that Mr Munro suggested that a log book of his harvesting activities and/or fitting a GPS device to his equipment would satisfy Wilmar’s requirements of the information sought, in regards to monitoring of fatigue management. It was Wilmar’s submission that the information suggested to be recorded by Mr Munro, would only provide a historical record of what occurred and would offer limited assistance in planning to avoid direct conflicts of scheduling, as well as risks of fatigue.

[69] On 2 September 2016, Wilmar sent a letter to Mr Munro that outlined the following:

(1) In respect of the carer’s leave issue, Mr Munro had been found guilty of an “Intolerable Breach”, the most serious level of misconduct in Wilmar’s disciplinary process;

(2) Wilmar had decided to exercise in Mr Munro favour the discretion not to terminate his employment;

(3) A detailed correction action plan, incorporating 4 directions that Wilmar had given to Mr Munro, to be followed for the duration of… engagement in cane harvesting for cane growers on your own account as permitted by Wilmar Sugar; and

(4) Wilmar’s permission for Mr Munro to engage harvesting activities, conditional on his compliance with those directions.  20

[70] Wilmar submitted that it was the issue of carer’s leave that had triggered inquiries by Mr Muddle which led to the above directions being issued. Mr Munro provided a response to the letter sent on 2 September 2016, in which he refused acceptance of items 1, 3 and 4 of the above and threatened various forms of legal action against Wilmar. Wilmar submitted that this letter is noteworthy due to its ‘restraint, forbearance and conciliatory tone’. 21

[71] On 8 September 2016, Wilmar sent a letter to Mr Munro that disputed a number of assertions that he had made, and required him to display willingness to comply with the directions given or face disciplinary action, which could result in the termination of his employment. Mr Munro provided a response to this letter, in which he asserted that his position remained unchanged. Wilmar submitted that Mr Munro had persistently refused to comply with the directions given. As a consequence of Mr Munro’s refusal, on 14 September 2016 Wilmar notified Mr Munro of its decision to terminate his employment.

[72] In response to Mr Munro’s claims that the directions were unlawful and unworkable, Wilmar submitted that the information sought was not “private” information. Wilmar submitted that the information sought, and requested to be made available to someone within Wilmar, was harvesting schedule information. The effect of such directions, as submitted by Wilmar, was to enable management staff at the Mill to monitor and manage Mr Munro’s fatigue, given the health and safety concerns. It was Wilmar’s submission that Mr Munro’s refusal to comply with such directions constitutes as serious misconduct and was sufficient to justify his summary dismissal.

[73] Wilmar submitted in response to Mr Munro’s reasoning of refusal to comply with the directions (that it is an invasion of privacy and would force him to put an entire season’s harvesting into 13 days, and by complying with the directions it would have been an incorrect admission of guilt) that Mr Munro was guilty of two wrongful actions:

(1) Working at his harvesting business on a day for which he had claimed, and was being paid for, carer’s leave from his job at the mill; and

(2) Reneging on his assurances to Wilmar that on days on which his work commitments to Wilmar would conflict with his harvesting roster, he would honour his primary commitment to Wilmar and would employ a casual harvester operator to undertake the harvesting activity, thus avoiding any interference with his position at Wilmar and not costing Wilmar any money.

[74] Wilmar submitted that the excuse provided by Mr Munro for both (1) and (2) above, that he was “stuck in between a rock and a hard place”, 22 was due to Mr Munro’s own decisions, as he had voluntarily assumed an enormous debt,23 and in order to secure his employer’s permission to engage in harvesting, he voluntarily offered assurances, as referred to above at (2). Wilmar further submitted that Mr Munro was aware of his own capacity to service the debt and simultaneously pay a casual harvester operator, when necessary to eliminate conflict between working for Wilmar and himself.

[75] Wilmar submitted that Mr Munro had not, at any stage, articulated precisely what part of the directions that he objected to as being ‘an invasion of his privacy’, other than item 4 of the directions. It was Wilmar’s submission that if Mr Munro had genuine concerns about privacy issues, he had not provided them any particular matter of commercial or personal sensitivity attaching to any of the material with which the directions were concerned.

[76] Wilmar submitted that despite Mr Munro’s clear understanding of the consequences of refusing to obey the directions, he continued to refuse compliance. 24 Wilmar further submitted that the Applicant’s conduct met the definition of “serious misconduct” as per s.1.07(3)(c) of the Fair Work Regulations 2009, as it is clear that when an employer gives an employee an instruction that is lawful, reasonable and consistent with the employee’s contract of employment, there is an obligation for the employee to comply with that instruction.

Consideration

[77] I must now consider whether the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act.

[78] The ambit of the conduct which may fall within the phrase “harsh, unjust or unreasonable” was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

‘.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’  25

[79] Each of the criteria under s.387 of the Act must be considered separately.  26

[80] In O'Connell v Wesfarmers Kleenheat Gas Pty Ltd 27 a Full Bench of this Commission has determined that it is not necessary to make a finding as to whether misconduct of an employee fits the definition of serious misconduct that is often quoted in s.394 applications for unfair dismissal.

[81] In O’Connell, the Full Bench heard an appeal of a single member of the Commission, and the consideration given by that member with respect to a dismissal and whether it constituted serious misconduct or not.

[82] The Full Bench stated the following about the single member decision in O’Connell:

‘[22] We make one observation about the Decision. In his consideration under s.387(a) of the FW Act as to whether there was a valid reason for the dismissal, the Commissioner made reference to “[s]ummary dismissal for misconduct in employment” and referred to the definition of “serious misconduct” in reg.1.07 of the Fair Work Regulations 2013. This was, with respect, a distraction. As was said by the Full Bench in Sharp v BCS Infrastructure Support Pty Limited: ²⁸

“[32] … It is certainly well established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).²⁹  Nor is the existence of a valid reason to dismiss assessed by reference to a legal right to dismiss.³⁰ Therefore whether Mr Sharp’s admitted conduct amounted to misconduct serious enough as to give rise to the right to summarily dismiss him under the terms of his contract of employment was not relevant to the required s.387(a) consideration. It may be noted in any event that Mr Sharp was not summarily dismissed, but dismissed with a payment in lieu of notice.

[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of serious misconduct for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression serious misconduct is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). 31 Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd 32 Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice”33  and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship.34 Serious misconduct is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd35  Buchanan J said:

‘[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).”’

[23] It is of course the case that the commission of any of the types of conduct referred to in reg.1.07 (broadly speaking, wilful or deliberate conduct inconsistent with the continuation of the employment contract, serious and imminent risk to health and safety or the viability of the business, theft, fraud, or assault, intoxication at work and refusal to carry out a lawful and reasonable instruction) may well ground a finding under s.387(a) that there is a valid reason for dismissal, and would also be given significant weight in considering whether a dismissal for such conduct is harsh, unjust or unreasonable under s.387. It must also be acknowledged that the application of the exemption in s.123(1)(b) from the requirement to provide the NES entitlement to notice would not be irrelevant under s.387. But the point is that “serious misconduct” as defined in reg.1.07 (or otherwise) is not the criterion for whether a valid reason exists under s.387(a) or for whether a dismissal is unfair or not. It may well be the case, for example, that conduct that does not fall within reg 1.07 may nonetheless be found to constitute a valid reason for dismissal. Alternatively, the fact that a dismissal is based on conduct that does fall within reg.1.07 does not preclude a finding that the dismissal was harsh, unjust or unreasonable.’

Valid reason - s.387(a)

[83] It is clear from the material before the Commission that there are two primary reasons for which Mr Munro was dismissed. The first reason, being that Mr Munro engaged in misconduct when he performed work for his own business whilst claiming a period of carer’s leave from Wilmar. The second being that Mr Munro engaged in misconduct when he refused to comply with a lawful and reasonable instruction given by Wilmar.

[84] With respect to the carer’s leave issue it is understandable that Wilmar had cause for concern when it had learnt Mr Munro was performing work for his own business while absent from work and claiming carer’s leave from Wilmar. Wilmar made enquiries of Mr Munro as to the genuineness of his claim to carer’s leave in circumstances where the claim appeared dubious or fraudulent after he was sighted working in his own business.

[85] There is no dispute that Mr Munro’s partner required care not only for herself during the period when she was released from the hospital on the birth of her fourth child, but also in picking up other young children. Mr Munro and Ms Shaw’s third child was aged only 11 months at this time. I accept Ms Shaw’s evidence that up until approximately 16 August 2016 she was not capable of lifting her 11 month old child. During the day she required the assistance of her mother to lift this child, and when her mother was not available, Mr Munro lifted the child.

[86] In my view, the responses provided by Mr Munro to Wilmar about the situation adequately addressed any concerns of illegitimacy held by Wilmar. Mr Munro explained that he had an arrangement to care for his partner during the evening, which is when he was rostered on for duties with Wilmar, and his partner’s mother cared for her during the day.

[87] The nature of carer’s leave is different to that of sick leave in that, if a worker is claiming sick leave, it is they who is incapacitated from performing duties due to illness or injury. If Mr Munro was claiming a period of absence due to his own illness or injury, and was then discovered performing other work outside of the ordinary hours worked by him, there would be sufficient cause for concern on the part of Wilmar. That is not the case in this matter.

[88] Mr Munro claimed a period of carer’s leave for relief from his duties with Wilmar so that he could care for his partner during the period in which he rostered for work; that is, the evening. There is no suggestion Mr Munro was not caring for her during that time and in my view, his claim to carer’s leave was legitimate. That Mr Munro made other caring arrangements for his partner during the day is entirely a matter for him.

[89] In my view, it is no different from a worker seeking paid carer’s leave to care for their ill or injured child during the day when the worker is ordinarily at work, and upon the other parent returning home from work and caring for the ill or injured child, the worker leaving the home to run errands, play sport, or even work a second job. Where these other activities occur outside of the worker’s ordinary hours of work, and there is adequate care for the ill or injured family member, this should be of no concern to the worker’s employer.

[90] I find no misconduct and therefore no valid reason in respect of the carer’s leave issue.

[91] While it is not directly relevant to whether there was a valid reason for the dismissal, Mr Munro raised concerns at [19] relevant to Mr Munro and Mr Tomlinson being present at the harvesting site on 16 August 2016. I do not accept that Mr Munro or Mr Tomlinson acted unsafely by attending on Mr Munro while he was harvesting. On the evidence before the Commission, Mr Tomlinson is a Field Officer, and he had the authority of the farmer to enter the area. While it is true Mr Munro had control of the work area, I am satisfied Mr Munro and Mr Tomlinson did so in a safe manner, and waited at their vehicle to allow Mr Munro to approach them. I do not agree there was an unacceptable risk because Mr Tomlinson did not ring Mr Munro to announce attendance at the field.

[92] The concerns held by Wilmar in relation to the carer’s leave issue led Wilmar to explore and clarify the agreed arrangement they had with Mr Munro with respect to the conduct of his harvesting business and how it interacted with his safe performance of work with Wilmar.

Refusal to carry out lawful and reasonable instructions

[93] It was submitted by Mr Munro that the directions issued by Wilmar relevant to the information he was required to provide were unlawful and unworkable. Wilmar submitted in response to Mr Munro’s claim that the information sought was not “private” information.

[94] Wilmar submitted that it had become apparent that they did not possess sufficient information to monitor and manage potential fatigue issues raised by Mr Munro swapping his shifts, which led to the directions being issued to Mr Munro to gather such information.

[95] Mr Munro is an extremely articulate writer with intelligent and persuasive arguments. He was not at any disadvantage in his communications with Wilmar as to the situation he was in between mid-August and mid-September 2016.

[96] Mr Munro communicated with Wilmar on 25 August, 6 September and 12 September 2016. In the face of Wilmar’s communication that if he failed to provide relevant information about the work performed by him in his private enterprise, he may face termination of employment, Mr Munro responded that he considered Wilmar’s conditions ‘unworkable and discriminatory’.

[97] I am satisfied that from mid-August 2016, Wilmar held genuine and bona fide concerns that Mr Munro might be working in his harvesting business for a greater number of hours than he had earlier indicated to Wilmar, and particularly to Mr Muddle. It is Mr Munro’s evidence that he had given Mr Muddle assurances that if there was any clash with a shift at Wilmar and his obligation to harvest, he would employ a casual employee. In evidence, Mr Munro stated that his business could not afford to employ casuals as per the earlier arrangement.

[98] Mr Munro’s evidence is that he considered he could work up to 16 hours per day because that’s what he considers is permitted at Wilmar. On occasions employees are required to work up to 16 hours.

[99] While I accept there are occasions when some Wilmar employees will work up to 16 hours, the work is performed under the supervision of Wilmar, and where the employee works beyond 14 hours, the employee is driven home from work. Mr Munro’s evidence is that he is convinced he can work at Wilmar, work a substantial number of hours doing his harvesting work, get adequate rest, and then resume at Wilmar to do it all again. His evidence is that when he does both Wilmar work and harvesting work, he can survive on six hours’ sleep and he considers this to be adequate.

[100] In correspondence from Mr Munro to Wilmar, he stated that he considered that he had already provided sufficiently detailed information to satisfy Wilmar’s concerns. In response, Wilmar corresponded that it did not accept this information as it is likely to become out-of-date.

[101] The information Wilmar required of Mr Munro is articulated in the letter dated 2 September 2016 to Mr Munro at [21].

[102] I do not consider the information requested by Wilmar of Mr Munro to be excessive, unworkable, discriminatory, unreasonable, or any other objectionable term. In fact the information sought by Wilmar of Mr Munro was entirely reasonable in all of the circumstances. This is particularly so when permission was given by Wilmar to Mr Munro to perform the additional work on Mr Munro’s commitment that he would suitably employ casual workers.

[103] It is understandable where Mr Munro had experienced some financial stress for various reasons he would rather perform some of the work himself to save on labour costs. However, this is not a factor that can be militated against the commitment he first gave to prevent any conflict between his primary employment and his private enterprise.

[104] While I accept that the promise made by Mr Munro to employ a casual employee was largely relevant to where there would be a direct shift clash with his work at Wilmar, I consider that Wilmar would have reasonably concluded that it extended to situations where Mr Munro was performing a shift for Wilmar, or would be following the harvesting work. I accept Wilmar had a duty of care to ensure Mr Munro was not unduly fatigued whether he was going to do his private work after a shift at Wilmar, or perform his Wilmar work after his private work. Ultimately, the information sought by Wilmar was for an appropriately legitimate purpose; to allow it to be aware of his secondary commitments, and allow for real-time consideration of the competing work commitments, and to then also allow for post-work evaluation of the time spent working and maintaining harvesting equipment.

[105] Mr Munro was given several opportunities to provide the information sought, and on each occasion he vehemently resisted the invitation. His responses were articulate and intelligent. Ultimately, however, his refusal to provide the information sought was the reason for the termination of his employment.

[106] Mr Munro was made aware that if he didn’t provide the information sought, his employment may be terminated. I find that there was a valid reason for the dismissal as Mr Munro unreasonably refused to provide information sought by Wilmar that was reasonably and lawfully requested.

[107] I do not consider there was any alternative open to Wilmar in light of its repeated requests to Mr Munro to provide to Wilmar the information sought on a continuing basis.

[108] I further note in Mr Munro’s closing written submissions he has indicated that if the Commission ordered reinstatement of his employment he would be prepared to do the following:

‘To facilitate my return and ease any concern of fatigue, I put forward that I will complete a work diary, with the hours spent working outside of Wilmar and a description of the work performed within those hours. I will make this work diary readily available to any supervisor or management team member who requests it.’

[109] I note Mr Munro’s offer in his closing written submissions would have only gone part-way to alleviating Wilmar’s fatigue concerns; it would be historical information only and not information relevant to forecasting hours of work in the two roles.

[110] I find that there was a valid reason for the dismissal.

Notified of reason - s.387(b)

[111] Mr Munro was notified of the reason for his dismissal.

Opportunity to respond - s.387(c)

[112] Mr Munro was given an opportunity to respond in writing to Wilmar’s letter dated 2 September 2016 that set out the reasonable and lawful directions that Mr Munro was to comply with.

[113] Mr Munro refused to move from his position that he was not obliged to comply with the direction given to him by Wilmar.

[114] In all subsequent correspondence between Mr Munro and Wilmar, Mr Munro gave intelligent reasoning as to why he would not comply with the information sought on a continuing basis. It is clear on Wilmar’s correspondence it gave careful consideration to each of Mr Munro’s letters and his reasoning for the position he was advancing.

Support person - s.387(d)

[115] On 5 September 2016, a meeting was conducted prior to Mr Munro’s dismissal, the circumstances of which reflect that Mr Munro did not have a support person present at the meeting but no party made submissions as to whether Mr Munro was afforded or denied the opportunity to bring a support person.

[116] Mr Munro acknowledged that at prior meetings between Mr Munro and Wilmar relating to the disciplinary proceedings in the lead up to the dismissal, Mr Munro had with him as a support person a workplace delegate known as ‘Toby’. Mr Munro stated he had preferred to have been represented by his union or his partner. 36

[117] While it may not have been Mr Munro’s first preference for Toby to act as his support person, there is no evidence to suggest Wilmar unreasonably refused Mr Munro to have a support person present to assist him at discussions relating to his dismissal.

Warned about unsatisfactory performance - s.387(e)

[118] Mr Munro was not dismissed for unsatisfactory performance, so the issue of whether he had any prior warnings for unsatisfactory performance does not arise.

Size of employer and human resources - s.387(f) and (g)

[119] Wilmar is a reasonably large employer with a dedicated human resources function.

[120] I find that the size of Wilmar’s enterprise did not impact on the procedures following in effecting the dismissal.

[121] This is a neutral consideration in determining whether the termination of Mr Munro’s employment was harsh, unjust or unreasonable.

Any other matters relevant - s.387(h)

[122] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I have taken into consideration Mr Munro’s submissions that he has suffered considerable financial loss as a result of the termination of employment. Mr Munro had not, at the time of the hearing obtained alternative employment, but had been performing work for his own business.

[123] I have taken into consideration the payment of three weeks’ wages paid to Mr Munro on termination.

Conclusion

[124] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 37 by McHugh and Gummow JJ as follows:

‘. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’ 38

[125] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

[126] Having considered each of the matters specified in s.387, including whether there are any other relevant matters which make Mr Munro’s dismissal harsh, unjust or unreasonable, I am satisfied that the dismissal of Mr Munro was not in all the circumstances harsh, unjust or unreasonable. Accordingly, I find Mr Munro’s dismissal was not unfair.

[127] If it has not already occurred, I encourage Wilmar to take steps to investigate whether Mr Munro was paid appropriately during the period he was stood down from his employment in August and September 2016. If Mr Munro was indeed required to take annual leave during this period, Wilmar should consider steps to provide recompense to him to avoid any future court action where it may have been inappropriate to stand Mr Munro down without payment.

[128] The application is dismissed.

COMMISSIONER

Appearances:

Mr. S Munro for the Applicant.

Mr. M Swan of Ai Group for the Respondent.

Hearing details:

17 March 2017.

Mackay.

 1   PN326.

 2   PN320.

 3   PN563.

 4   PN48.

 5   PN429.

 6   Statement of Craig Paul Muddle dated 25 January 2017 at CPM-3.

 7   Statement of Craig Paul Muddle dated 25 January 2017 at CPM-5.

 8   Statement of Craig Paul Muddle dated 25 January 2017 at [14].

 9   Statement of Shea Benjamin Muddle dated 1 February 2017 at [31].

 10   PN237.

 11   Submissions on Behalf of the Respondent dated 25 January 2017 at [32].

 12   PN689.

 13   PN735.

 14   Affidavit of Craig Paul Muddle dated 25 January 2017 at [5].

 15   PN702.

 16   PN811.

 17   PN508.

 18   PN690 – PN695.

 19   Submissions on Behalf of the Respondent dated 18 April 2017 at [74].

 20   Annexure CPM-3.

 21   Submissions on Behalf of the Respondent dated 18 April 2017 at [66].

 22   PN562.

 23   PN481.

 24   PN864-PN865.

 25   [1995] HCA 24; (1995) 185 CLR 410 at 465.

 26   Sayer v Melsteel [2011] FWAFB 7498 at [20].

 27   [2015] FWCFB 8205.

28 [2015] FWCFB 1033.

29 Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

30 He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15] per Gray and Mansfield JJ.

31 Since Sharp, it has been held in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWC 5264 that reg.1.07 does apply to the expression “serious misconduct” where it appears in the Small Business Fair Dismissal Code.

32 [2001] VSC 150; (2001) 107 IR 117.

33 Ibid at [240].

34 Ibid at [250]-[257].

35 [2007] FCA 1903; (2007) 168 IR 375.

 36   PN484 – PN495.

 37    (1995) 185 CLR 410.

 38   Ibid at 465.

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